13. Industrial

D.  Jobkeeper scheme

​The environment in which industrial disputes are resolved is in a state of flux, including as a result of the continual development of government financial assistance packages, such as Jobkeeper and Jobseeker. Changes in the environment in which industrial disputes are negotiated may bear on how such disputes are resolved.

See also the section on Superannuation.

i.  Legislation

Commonwealth:
Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth): to provide financial support to entities to assist with the impact of COVID-19. In particular, the Act establishes a framework for the Treasurer to make rules about one or more kinds of payments to an entity in respect of a prescribed period.
 
Made under the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth):  
Fair Work Act 2009 (Cth) amended by the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 (Cth):
New South Wales:
Payroll Tax Act 2007 (NSW) amended by:
ii.  Case law

​The announcement of the Federal Government’s Jobkeeper initiative, after employees had agreed to a variation of their enterprise agreement to forego a pay increase, was held by the Full Bench not to justify a finding that the employees had not genuinely agreed to the variation for the purposes of s 186 of the Fair Work Act 2009 (Cth): CVSG Electrical Construction Pty Ltd [2020] FWCFB 1747. Relevantly, the Full Bench rejected the submission that the Commission should find the employees’ agreement not genuinely to have been provided, because it was based on an understanding of the financial impact of COVID-19 on their employer prior to the announcement of the Jobkeeper initiative ([29]).

The Commission has jurisdiction to hear a dispute about the operation of Pt 6-4C of the Fair Work Act 2009, which includes a dispute about the proper interpretation of the Employment Payment Obligations in ss 789GD and 789GDA of the  Fair Work Act 2009 (Cth) and, to the extent relevant to the application of those provisions, the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020: Mazzitelli v Qantas Airways Limited [2020] FWC 2413, [42]-[43].  The Commission may not, in dealing with a dispute, exercise the judicial power of the Commonwealth which, under Ch III of the Constitution, is conferred on courts established pursuant to that chapter. The Commission therefore cannot, by arbitration, determine whether an employer has complied with s 789GD or s 789GDA , nor can it order the employer to pay amounts to which the employee claims to be legally entitled. However that does not exclude the possibility that the Commission may properly exercise its arbitral power under s 789GV(4) to deal with such a dispute, having regard to the fact that s 789GV(4)(d) empowers the Commission to make any order it considers appropriate: Qantas Airways Limited v Mazzitelli [2020] FWCFB 2628, [33]. Dealing with disputes over the JobKeeper wage condition or the minimum wage guarantee does not involve the exercise of judicial power; such a proposition would come close to rendering nugatory the capacity of the Commission to deal with disputes concerning ss 789GD and 789GDA:  Mazzitelli v Qantas Airways Limited [2020] FWC 2413, [49].  On the other hand, underpayment claims are not within the Commission's jurisdiction. The Commission's JobKeeper Benchbook, while only a guide and not a substitute for the law, therefore correctly identifies (at 26) that the Commission "cannot generally assist with claims for underpayment of wages and entitlements, including payments under the JobKeeper scheme": Mazzitelli v Qantas Airways Limited [2020] FWC 2413, [47]-[48]. 

The Full Bench has held that, except in the clearest of cases, appeals against interlocutory decisions concerning Pt 6-4C will not be given any encouragement. This is because Pt 6-4C has been enacted to respond to what may reasonably be characterised as a health and economic crisis, and the Commission has been invested with the power to deal with disputes about the operation of that Part, so it is crucial that the Commission should exercise that power in an expeditious and efficient manner: Qantas Airways Limited v Mazzitelli [2020] FWCFB 2628, [38]. 

The Commission has also considered s 789GJ in Part 6-4C of the Fair Work Act 2009, which allows a qualifying employer to request an employee to take paid annual leave and requires the employee to consider and "not unreasonably refuse" the request. The Commission noted in Ms Leonie McCreedy v Village Roadshow Theme Parks Pty Ltd [2020] FWC 2480, [57] that the test is not whether the employer acted reasonably or unreasonably in making the request - the test is whether the employee has unreasonably refused that request. The Commission also held that s 789GJ is not only available to smaller employers, but is available to eligible employers regardless of their size: [2020] FWC 2480, [55].

Disputes may also arise as to the nature of an employee’s employment for the purposes of qualifying for the Jobkeeper scheme: see, e.g., Coxon v Precious Cargo Lockleys Pty Ltd T/A Precious Cargo Education [2020] FWC 2246.

iii.  Further resources