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Put casual back on JobKeeper, warns FWC

FWC warned that they could face a general protections claim.
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Put casual back on JobKeeper, warns FWC

Put casual back on JobKeeper, warns FWC

11 August 2020

By Mike Toten

When an employer removed a casual employee from JobKeeper after he refused to work more than his usual single shift per week, the Fair Work Commission warned that they could face a general protections claim if it did not reinstate his registration. It was, however, only a recommendation, as the FWC does not have the power to rule on such disputes.

The case provided some insight into the respective rights of employers and employees under JobKeeper, and the employer highlighted some problems employers may face with being remunerated under JobKeeper.


Refused to work extra shift

The employer operated a resort, at which the casual employee typically worked a single weekly shift of 9.5 hours in the bottle shop on Saturdays. When the employer required him to work an extra shift on other days, he refused. The employee was a full-time university student who lived about two hours’ travel away from home (and the resort) during the week, and said that logistically he could not work any other days.

The employer claimed that it could require him to work up to 20 hours per week, and withdrew him from JobKeeper when he refused. He continued to work the Saturday shifts, but no longer on JobKeeper. When the employee lodged a dispute claim with the FWC, the employer threatened to stop claiming JobKeeper for the bottle shop as the turnover downturn for it no longer exceeded the 30% threshold. The employer also claimed (wrongly) that full-time students were excluded from JobKeeper.

The employer also complained that it had to make JobKeeper payments up-front to its employees each fortnight and then wait 10 days after the start of each month for the Tax Office to make its payments. This was causing hardship for the business, which had 11 other employees on JobKeeper.

The FWC noted that the employee had enjoyed a financial windfall from being on JobKeeper. He was normally paid $600 per fortnight for his shifts, but would have received $1500 per fortnight instead. The JobKeeper top-up payments would have been $1713 and $1682 for the two months in dispute.

This dispute did not come under the provisions of sec 789GV of the Fair Work Act 2009, which only covers JobKeeper-enabling directions, the scope of which is confined to disputes over reductions in working hours. It does not cover disputes about eligibility to participate in JobKeeper.


Decision

The FWC lacked the power to make an enforceable decision in this matter, but made the following comments and recommendations:
  • The employee was under no obligation to work extra shifts.
  • Students are eligible for JobKeeper (if they meet its other requirements).
  • The employer received $16,500 per month “free” funding from the Tax Office to pay its other employees. It was therefore a “ridiculous” threat to remove all employees from JobKeeper because of the delay in receiving Tax Office payments. The turnover test only had to be met once at the start of registration, not every month (at least until stage 2 of JobKeeper commences after six months).
  • It recommended that the employer pay the employee $1500 per fortnight under JobKeeper, then reassess his eligibility when stage 2 commences.

Although dismissing his claim under the JobKeeper dispute provisions of the Fair Work Act 2009, the FWC suggested that the employee may have grounds for a general protections claim against the employer, hence the recommendation to restore him to JobKeeper. None of the other 11 employees were removed from JobKeeper. There was no sound basis for the employer to remove him from JobKeeper for refusing to work extra hours.

The bottom line: This case touches on some of the controversial issues that have plagued the operation of JobKeeper, at least in its initial iteration. Some employers have complained that they are having to pay some casual employees more than their usual amount of remuneration and cannot force them to work extra hours to help make up the difference. This issue may be exacerbated by not receiving the subsidy component from the Tax Office until sometime after they have already paid the employee.

On the other hand, for employees such as the one in this case, it isn’t feasible for them to work extra hours. To cut them off JobKeeper because they cannot work extra hours may, as the FWC suggested, expose the employee to a general protections claim or even an unfair dismissal claim if the employee loses his/her job. While such employees may enjoy a financial windfall from receiving higher pay than they usually do, the FWC has pointed out that the employer is also receiving a subsidy that it would not otherwise get.

Employers who find themselves in a situation similar to the one in this case are strongly advised to obtain legal advice about their circumstances before making a decision.


Read the judgment

Guerin v Horndale Pty Ltd t/a Eagle heights Mountain Resort [2020] FWC 3918, 28 July 2020

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