JobKeeper disputes

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Introduction

Temporary JobKeeper provisions have been added to the Fair Work Act 2009. They give the Fair Work Commission power to deal with disputes about how JobKeeper directions and agreements are implemented in the workplace.

Once an employer is entitled to receive JobKeeper payments for an employee, the employer may temporarily change some of that employee’s work conditions to help the employer deal with the economic impact of the coronavirus (COVID-19).

An employer can do this by:

giving a JobKeeper direction to the employee, or
making an agreement with the employee.

These provisions are called JobKeeper directions & agreements.

Disputes we can help you with

The temporary JobKeeper provisions in the Fair Work Act 2009 give the 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

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.

Silver Taps Plumbing Supplies – employee is asked to take annual leave

Max works for Silver Taps Plumbing Supplies and has 5 weeks of annual leave accrued. The owner, Zoe, has seen sales drop because of the coronavirus pandemic. Silver Taps qualifies the JobKeeper wage subsidy and is claiming it for Max.

Zoe requests Max take his annual leave because things are so quiet. Max doesn’t agree to this. He says that there is plenty of work he can do other than sales. Max lodges a dispute at 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.

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

If you’re an employee, search your employer’s ABN using the ABN Lookup. This will help ensure you write the correct legal name of your employer in your application form when you are filling out the respondent section.
Missing contact details: Make sure you have provided the address, telephone and email address for yourself and a person for 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 day of you lodging it (including on weekends and public holidays).

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 28 September 2020. However, the Commission can still deal with JobKeeper disputes after 28 September 2020.

Updated time

Last updated

10 July 2020

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