The Fair Work Commission is responsible for applying provisions of the Fair Work Act 2009, Fair Work (Registered Organisations) Act 2009, and includes powers to deal with some disputes about the JobKeeper payment scheme.

About the scheme
An eligible business will be reimbursed $1,500 per fortnight per eligible employee. These payments are available fortnightly between 30 March 2020 and 27 September 2020. The Coronavirus Economic Response Package Omnibus (Measures No.2) Act 2020 introduces new Part 6-4C into the Fair Work Act which allows employers to give certain directions to employees and make certain requests of them. It also allows the Commission to deal with disputes about the operation of the new Part.

JobKeeper enabling directions
Part 6-4C allows an employer who qualifies for the JobKeeper scheme and becomes entitled to the JobKeeper payments to give the relevant employee three kinds of directions:

1. A JobKeeper enabling stand down direction
This is a ‘flexible stand down’ where an employer can require an employee to work on a day that they don’t usually work; work for a shorter amount of time on a day they usually work or a day they do not usually work; or work reduced hours overall (which can be nil).

This stand down direction can only be given if the employee cannot be usefully employed for their normal days or hours due to changes to the business that are because of the COVID-19 pandemic or because of government initiatives that have been implemented to slow down the spread.

Stand downs that are not JobKeeper enabling stand downs include those listed in the Fair Work Act, and an employer need not qualify for the JobKeeper scheme to stand down employees under those circumstances and need not pay them during the period of stand down either. Some examples of non-JobKeeper enabling stand downs include when an employee cannot be usefully employed due to industrial action, when machinery or equipment necessary for work has broken down and the employer is not responsible for this breakdown, and any other stoppage of work for any cause which the employer is not responsible.

2. A direction in relation to duties to be performed by the employee
An employer may direct an employee to perform other duties that they might not usually perform in the course of their employment.

Such duties, however, must still be within the employee’s skill and competency and remain reasonably within the scope of the employer’s business operations.

3. A direction to perform duties at a place different from the employee’s normal place of work, including their home
An employer may direct an employee to work in a place that is different to their normal workplace. This may include off-site workplaces that the employer can utilise, such as disaster recovery sites, so long as the employee is not required to travel an unreasonable distance. Additionally, an employer may require employees to work from their home, provided it is a suitable place of work for the employee’s duties.

When JobKeeper enabling directions will have no effect
The JobKeeper enabling directions cannot be made retrospectively. Any directions made before Part 6-4C came into force on 9 April 2020 are not authorised by the provisions under Part 6-4C.

The directions will also have no effect if they are unreasonable or the employee was not consulted at least 3 days before such a direction was given. Consultation, particularly in relation to stand downs, redundancy and JobKeeper enabled stand downs, requires employers to genuinely consider valid alternatives, such as altering employee work arrangements. The Fair Work Commission in ASU v Auscript (2020) stated that employers have an “obligation to treat staff with dignity” during this time, and that if an employer has decided to stand down an employee, they must be prepared to justify their decision given the availability of other options.

Additionally, any JobKeeper enabling directions about duties of work and location of work will have no effect unless the employer reasonably believes they are necessary to continue the employment of one or more employees. In determining whether a direction is necessary to continue employment, it does not matter that a relevant direction could have been given to another employee in the same position as the employee in question.

Employer payment obligations
In order to be eligible for JobKeeper payments, an employer must pay amounts totalling at least the $1,500 for the fortnight to or in respect of the eligible employee (the ‘wage condition’). Failure to meet the wage condition means an employer may be liable for civil penalties.

An employer must ensure that the total amount payable to the eligible employee in respect of the fortnight is not less than the greater of:

  • the amount of JobKeeper payment payable to the employer for the employee for the fortnight, or
  • the amounts payable to the employee in relation to the performance of work during the fortnight.

Moreover, if the JobKeeper enabling stand down direction applies, the employer must ensure that the employee’s base rate of pay (calculated on an hourly basis) is not less than the base pay that they would have been paid if the direction had not been given.

Disputes
The Commission may deal with disputes regarding the operation of Part 6-4C. An application must be made by the employer, employee, union or employer association, and the Commission may make orders which includes any orders it considers ‘desirable’ to give effect to a direction, setting aside a direction, or substituting a different direction.

Some examples of disputes that may come before the Commission include:

  • Whether a JobKeeper enabling stand down is ‘because of’ changes to business attributable to the pandemic or the government’s response to it;
  • Whether an employee ‘cannot be usefully employed for the employee’s normal days or hours’ (less clear in case of partial stand down);
  • Safety implications of directions, including in relation to transmission of COVID-19;
  • Whether alternative duties are within an employee’s skills and the scope of the business concerned;
  • Suitability of alternative workplaces;
  • The reasonableness of employee refusals to work different days or times, or to take annual leave;
  • Whether a direction is unreasonable in all of the circumstances;
  • Employer compliance with consultation and notice requirements regarding a direction;
  • Whether a direction to perform other duties or work at a different place is ‘necessary to continue the employment of one or more employees’.

The Commission, however, cannot deal with disputes about decisions of the Commissioner of Taxation as to whether the employer is entitled to the JobKeeper scheme. Additionally, the Commission cannot handle disputes regarding employers refusing to apply for JobKeeper. In regards to disputes about underpayments, the Commission can assist with disputes arising under enterprise agreements or modern awards, however it cannot assist with claims for underpayment of wages and entitlements, including payments under the JobKeeper scheme.

Applications to deal with a dispute
Who can make an application?

A national system employee, a national system employer, an employee organisation (such as a union) or an employer organisation.

Can a respondent object?

A respondent may object to a dispute if they do not believe that the Commission has jurisdiction to deal with the application, or if the applicant in question is not eligible to make the application.

A jurisdictional objection, however, does not stop the dispute application. The objection must be determined by the Commission and the respondent may be required to provide evidence and/or submissions on its objections.

An applicant may also discontinue the application whether the matter has settled or not.

Outcomes of Commission dispute resolutions
The Commission may deal with a dispute through facilitating mediation or conciliation in order to assist the parties to agree on how to resolve their dispute. The Commission may also make a recommendation or express an opinion. Finally, arbitration by a Commission Member may result in a decision being made on the matter and if necessary, a Commission Member may issue an order.

Orders that the Commission may issue include:

  • an order that the Commission considers desirable to give effect to a JobKeeper enabling direction;
  • an order setting aside a JobKeeper enabling direction;
  • an order setting aside a JobKeeper enabling direction and substituting it with a different one; or
  • any other order that the Commission considers appropriate.

A person who is aggrieved by a decision of the Commission may appeal that decision by lodging an appeal within 21 days after the date that the decision in question was issued.

A respondent may appeal a decision or order of the Commission on the basis of an error of law, which concerns the correctness of the decision, or an error of fact, wherein the Commission has made a decision that conflicts with the evidence presented to it.

If an order of the Commission stands, however, if a person does not comply with it, an employee, employee organisation or an inspector may seek to enforce the Commission’s order through civil remedy proceedings in the Fair Work Division of the Federal Circuit Court, the Fair Work Division of the Federal Court, or an eligible State or Territory Court.