JobKeeper disputes

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Introduction

On 9 April 2020, temporary JobKeeper provisions were added to the Fair Work Act 2009. These provisions are called JobKeeper directions & agreements and apply once an employer qualifies for the JobKeeper scheme and receives JobKeeper payments for an eligible employee.

New temporary provisions have also been added to the Fair Work Act 2009 for employers who were previously entitled to JobKeeper payments for an employee (legacy employers).

A legacy employer is an employer who previously qualified for the JobKeeper scheme but no longer qualifies, or chooses not to participate, from 28 September 2020.

The JobKeeper provisions are different for employers currently eligible to receive JobKeeper payments and employers who were previously eligible for JobKeeper payments.

Find out more

Disputes we can help you with

The temporary JobKeeper provisions in the Fair Work Act 2009 give the Fair Work Commission power to deal with disputes about JobKeeper directions and agreements.

The Commission also has limited power to help with disputes about how the JobKeeper payment is being passed on to an employee. The Commission could express an opinion or make a recommendation about how JobKeeper payments are passed on. The Commission doesn’t have power to make orders about JobKeeper payments.

Legislation, rules & regulations

Under section 789GV of the Fair Work Act 2009, the Commission may deal with a dispute about the operation of Part 6-4C.

Examples of disputes we can help with

Employers currently eligible for JobKeeper payments

Hot Cups Coffee Shop – change of usual duties

Josie works as a barista at Hot Cups Coffee Shop. The business has a café at the front and out the back it roasts coffee beans to sell. The café part of the business has closed due to the coronavirus pandemic, but online orders for coffee beans have increased. Hot Cups Coffee Shop qualifies for the JobKeeper wage subsidy and is claiming it for Josie.

Carly, the manager of Hot Cups Coffee Shop, decides to temporarily change Josie’s usual duties of work and directs her to work out the back, packing orders. Josie refuses because she says the lifting will aggravate an old back injury. Carly disagrees and thinks it’s a reasonable direction. Carly lodges a dispute at the Commission.

Groceries Direct Wholesale Food – same number of hours, change in days of work

Vanessa works on weekends as a delivery driver for Groceries Direct, a food wholesaler. The business has seen a downturn in sales due to the coronavirus pandemic. Groceries Direct qualifies for the JobKeeper wage subsidy and is claiming it for Vanessa.

Ezra is the owner of Groceries Direct. Ezra meets with Vanessa to discuss whether she could work on weekdays instead of weekends to better suit business needs during the pandemic.

Vanessa’s ordinary hours are 9–5pm on Saturdays and 10–4pm on Sundays. Ezra asks Vanessa to work from 8–4pm on Thursdays and from 9–3pm on Fridays. The total number of working hours would remain at 14 hours per week.

Vanessa has caring responsibilities and tells Ezra that she is unable to work on Thursdays and Fridays as the change in hours does not suit her family. Ezra lodges a dispute at the Commission.

Employers previously entitled to JobKeeper payments (legacy employers)

Main Road Pub – JobKeeper enabling stand down direction

Xristina is a chef at the Main Road Pub. At 1 March 2020 she was working 70 hours per fortnight. The Main Road Pub closed to patrons in April and May 2020 due to COVID-19 restrictions and she received JobKeeper payments until the end of September 2020. The main road pub decided to sell takeaway meals while it was closed to patrons and employed Xristina for 40 hours per fortnight during this time. The pub reopened, subject to restrictions, in June 2020.

In the June 2020 quarter, the Main Road Pub experienced a 25% decline in turnover compared to the June 2019 quarter. In September, the Main Road Pub held a 10% decline in turnover certificate.

Xristina’s boss gives her 7 days’ notice that she will be partially stood down to 45 hours per fortnight from 28 September 2020. Xristina thinks the stand down direction might be unreasonable because the other 2 chefs have not been given a partial stand down direction. Xristina lodges a dispute at the Commission.

BBQ Bonanza – same number of hours, change in days of work

Paolo is a sales assistant at BBQ Bonanza. Paolo has worked at BBQ Bonanza part-time 2 days a week on Mondays and Wednesdays for 5 years. On Tuesday, Thursday and Friday, Paolo looks after his young daughter, Eliza.

From late March to 28 September 2020, BBQ Bonanza claimed JobKeeper payments in relation to Paolo. In the June 2020 quarter, BBQ Bonanza experienced a 15% decline in turnover compared to the same quarter of last year and no longer qualified for the JobKeeper payments. BBQ Bonanza holds a 10% decline in turnover certificate.

In the second week of October, Paolo’s boss approached him and asked Paolo if he could agree to change his working days from Monday and Wednesday to Tuesday and Thursday, as this suited the needs of the business. Paolo thinks the request is unreasonable and refuses to change his work days. BBQ Bonanza lodges an application with the Commission.

Disputes we can't help you with

The Commission can only deal with JobKeeper disputes when the Fair Work Act 2009 gives it power to.

The Commission cannot deal with disputes about whether an employer or employee is eligible for JobKeeper payments or give advice about whether an employee is an eligible employee. The Australian Taxation Office administers the JobKeeper payment scheme. It can provide information about who is eligible for JobKeeper payments.

The Commission does not have power to make orders about payment of JobKeeper payments.

The Fair Work Ombudsman can help with:

ensuring minimum wages and conditions under the Fair Work Act are met
misuse of JobKeeper enabling directions under the Fair Work Act JobKeeper provisions by employers.

Examples of disputes we can't help with

Stephanie’s Salon – casual staff's eligibility for JobKeeper

Lisa works as a casual hairdresser at Stephanie’s Salon. Due to the coronavirus pandemic, the salon temporarily closed. Lisa has requested that the owner, Stephanie, nominate her for the JobKeeper payment scheme. Stephanie tells Lisa that she does not believe that Lisa is a ‘regular and systematic’ casual employee and has not nominated her.

The Commission is unable to help Lisa as the legislation does not give the Commission any power to deal with disputes about eligibility for JobKeeper payments. If Lisa lodged a dispute at the Commission, the Commission would have to dismiss it because it has no power to deal with it. Lisa may wish to look at the Australian Taxation Office’s website to find out more about eligibility so that she can talk about it with Stephanie.

Mad Hatters Hat Store – employer has not enrolled in JobKeeper

John is an employee at Mad Hatters Hat Store. Due to the coronavirus pandemic, the store has closed temporarily. John wishes to be nominated for the JobKeeper payments. However, John’s employer has decided not to participate in the JobKeeper scheme.

The Commission is unable to help John as the legislation does not give the Commission any power to deal with disputes if an employer has not enrolled in the JobKeeper scheme. It isn’t compulsory for employers to take part in the JobKeeper scheme. There is more information about enrolment on the Australian Taxation Office website.

Go the Distance Pool and Gymnasium – dispute about 10% decline in turnover test

Ivan owns Go the Distance Pool and Gymnasium. He employs 6 full-time and 6 part-time employees. He closed the centre in April 2020 when COVID-19 restrictions began and claimed JobKeeper payments for his eligible employees.

Ivan reopened the centre when restrictions eased in June 2020. Business slowly picked up in the following months. However, the business must comply with restrictions about the number of people in the centre at one time and do more cleaning. In September 2020, Go the Distance Pool and Gymnasium attain a 10% decline in turnover certificate because turnover in the June 2020 quarter was 20% lower than in the June 2019 quarter. Ivan consulted his employees and gave them JobKeeper enabling stand down directions to reduce their hours under the new provisions for legacy employers. The direction applies from 28 September 2020..

Jasmin, a full-time employee, was directed to work 30 hours per week. She thinks that the centre is as busy as it was before COVID-19 and wants to work full-time. She wants to dispute that the centre meets the 10% decline in turnover test.

The Commission cannot help Jasmine because the legislation does not give the Commission any power to deal with disputes about whether an employer meets the 10% decline in turnover test. The Federal Court has this power. The Federal Court can set aside a JobKeeper enabling direction if an employer does not meet the decline in turnover test.

Backs, Backs and Backs Massage Centre – dispute about the tier of JobKeeper payments

Nigel works for Backs, Backs and Backs massage centre full-time (38 hours per week).

At the start of February 2020, Nigel injured his hand and was unable to return to work. Nigel had already used up all of his sick leave but he made an agreement with his manager Todd to take unpaid leave while he recovered. Nigel returned to work in the last week of February and only worked 10 hours that month.

Todd has recorded that Nigel worked 10 hours in February. Todd decided that Nigel should receive the lower JobKeeper payment as his hours were below 80 for the 28-day reference period before 1 March 2020. Nigel thinks that this is unfair as he ordinarily works 38 hours per week. Nigel wants to have this decision reviewed.

The Commission is unable to help Nigel as the legislation does not give the Commission any power to deal with disputes about the payment tier of JobKeeper payments. If Nigel lodged a dispute at the Commission, the Commission would have to dismiss it because it has no power to deal with it.

Nigel may wish to look at the Australian Taxation Office’s website to find out more about JobKeeper payment rates and JobKeeper payment reference periods so that he can talk about it with Todd.

Who can make a JobKeeper dispute application?

You can make a JobKeeper dispute application if you are:

an employee
an employer
an employee organisation
an employer organisation

The Commission can only deal with disputes between employees and employers covered by the national workplace relations laws.

JobKeeper disputes benchbook

The JobKeeper disputes benchbook is a an overview of the Commission’s legal procedure relating to the JobKeeper jurisdiction. It includes checklists about JobKeeper enabling directions and jurisdictional issues in relation to JobKeeper dispute

How do I make a JobKeeper dispute application?

1. Download the form

Download and complete the Form F13A – Application for the Commission to deal with a JobKeeper dispute (coronavirus economic response).

2. Send us the form

Email your completed form to COVID19Applications@fwc.gov.au. If you have any supporting evidence, please also include this in your email.

Try to fill out your application form as accurately as possible. Mistakes in application forms can cause delays dealing with your JobKeeper dispute. You can look at our sample Form F13A application forms to help you fill out your form correctly.

Download sample applications

Tips for filling out your form properly

The correct legal name of the employer: If the Respondent is your employer, the legal name of the respondent is the name of your employer (not the name of a person such as your boss).
- For example, if you work for Energy Fitness Pty Ltd and your boss’s name is Alex Smith, then the legal name of the respondent is ‘Energy Fitness Pty Ltd’ and the name of a person we can contact is ‘Alex Smith’.
- The legal name is different from the trading name or business name. You can find your employer’s legal name on your payslips, PAYG payment summary, appointment letter or employment contract.
- You can search your employer’s ABN using the ABN Lookup. This will help you write the correct legal name of your employer on your application form.
Missing contact details: Make sure you have provided the address, telephone and email address for yourself and a person for the other side.
Incomplete form: Make sure you have answered all of the questions on the application form. If you don’t answer all the questions, we may not have enough information to deal with your JobKeeper dispute.
Sign and date your form: Make sure you sign and date your application form. If you’re filling out the form electronically, you can type your name into the name section and in the signature section of the form.

What happens when I make a JobKeeper dispute application?

The Commission deals with JobKeeper dispute applications quickly. We will contact you about your application within 1 business day of you lodging it.

Commission staff will check your application to make sure it includes all the information we need. We will contact you if anything is missing.

Then a Commission Member will decide how to deal with your JobKeeper dispute. This often involves holding a telephone or video conference or hearing. The Commission Member will run the conference or hearing and it will include you and a person from the other side.

Commission Members can direct the people involved in a JobKeeper dispute to provide more information in writing. Sometimes a Commission Member will make a decision based on written material only.

All of the people involved in the JobKeeper dispute need to have all of the information. This helps us to deal with disputes fairly. The Commission will give copies of the application form and all submissions and evidence it receives about a case to both sides. If you are concerned about particular information being passed on, please contact us before sending it. The Commission can’t deal with disputes confidentially.

There is a flowchart of the process in our JobKeeper benchbook.

How can the Commission resolve JobKeeper disputes?

The Commission can deal with a JobKeeper dispute by:

Mediation or conciliation – A Commission Member contacts the employer and employee by telephone or video conference to talk about the dispute. The aim is to help both sides agree on how to resolve it. Both sides will have a chance to tell their side of the dispute.
Giving a recommendation or an opinion – A Commission Member can give a written recommendation or opinion about how the employer and employee could resolve the dispute.
Arbitration – A Commission Member can make a final and binding decision on how the dispute is to be resolved. Decisions are published on the Commission’s website. The Commission Member may also make an order.

Orders

An order is a ruling made by the Commission Member after they hear the dispute. Anyone bound by an order must comply with it.

A Commission Member can make any order they think is appropriate. This could include an order that:

tells the parties to put a JobKeeper direction or agreement into practice
sets aside a JobKeeper direction or agreement, or
replaces a JobKeeper direction or agreement with another one.

JobKeeper orders will not apply after 29 March 2021. However, the Commission can still deal with JobKeeper disputes after 29 March 2021.

How long will it take to deal with JobKeeper disputes?

It is important that JobKeeper disputes are resolved quickly to provide certainty and allow employers and employees to move on as soon as possible.

We have implemented the following timeframes as benchmarks for the JobKeeper dispute jurisdiction:

the Commission is to start to deal with all applications within 24 hours of the application being lodged*
a Member is to hold the first conference or hearing within 48 hours of the case being allocated to them
a decision is to be issued either at the last hearing or conference, or within 48 hours of the last hearing or conference ending

The Commission is to finalise:

90% of cases within 7 days of lodgment*
100% of cases within 14 days of lodgment*

*These benchmarks apply to applications lodged between 8am and 8pm (AEST) on Monday to Friday, excluding public holidays.

These benchmarks will be reviewed and updated as we continue to monitor and improve our performance.

Updated time

Last updated

20 October 2020

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