JobKeeper insights from the FWC

In brief 3 min read

COVID-19 and the introduction of the JobKeeper scheme has had a critical impact on business. In a recent statement, the Fair Work Commission (FWC) shared valuable insights on the trends in disputes emerging in the early days of the scheme and how it will manage these cases moving forward.

Key takeaways

• The vast majority of JobKeeper disputes involve eligibility issues, which are beyond the FWC's jurisdiction. When managing disputes about JobKeeper payments, businesses should consider whether they are being dealt with in the appropriate forum.
• Employers should take care when exercising powers under the JobKeeper scheme, as the rules that govern its operation are relatively young and continue to evolve.
• To avoid inadvertent breaches of the JobKeeper scheme, businesses should regularly review their policies and procedures to ensure they reflect the latest guidance from the FWC.

Background

On 9 April, the JobKeeper scheme was established to support businesses in the wake of COVID-19 by increasing workplace flexibilities and providing access to a wage subsidy.

Earlier this month the FWC confirmed that 75% of the 212 JobKeeper disputes it had received appeared to raise jurisdictional issues. Of the applications that were clearly within the FWC's jurisdiction:

• 41% related to a dispute about a JobKeeper enabling stand down direction;
• 12% related to a dispute about a direction regarding duties of work;
• 9% related to a dispute about a direction regarding location of work;
• 65% related to a dispute about a request to make an agreement regarding change to an employee’s days or times of work;
• 12% related to a dispute about a request to make an agreement to take annual leave; and
• 5% related to a dispute about a request for secondary employment or training etc.

The FWC has committed to resolving all JobKeeper disputes in a timely manner, including:

• a first conference or hearing within 48 hours of lodgement; and

• 100% of matters finalised within 14 days.

Decisions

While there have only been a small number of JobKeeper decisions so far, they provide useful guidance for business regarding the FWC's application of the scheme. For instance, in a recent case concerning Village Roadshow Theme Parks' request that employees take annual leave, the FWC found that an employee's refusal to take one day's annual leave per week was unreasonable in circumstances where she had accrued paid leave entitlements of approximately 18 weeks. In coming to this decision, the FWC also rejected the employee's suggestion that the relevant provisions of the JobKeeper scheme should only be available to smaller employers, noting that it was reasonable for Village Roadshow Theme Parks to request its employees to assist in reducing its annual leave liability during a time when it is unable to operate its business.