Mehreen Faruqi (NSW, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 1008 together:

(1) Clause 2 , page 2 (at the end of the table), add:

(2) Page 33 (after line 21) , at the end of the Bill, add:

Schedule 4—Fair Work Commission powers to deal with jobkeeper-related disputes

Fair Work Act 2009

1 Section 789GA (paragraph beginning "This Part provides that the FWC may deal")

Repeal the paragraph, substitute:

This Part provides that the FWC may deal with a dispute about the operation of this Part, a dispute about whether a person who is a relevant employee of an entity should be treated as if they were an eligible employee of an entity and the entity entitled to a jobkeeper payment for the purposes of the jobkeeper payment rules, and other disputes arising between entities and employees in relation to eligibility and payments under those rules.

2 Section 789GC

Insert:

eligible employee has the same meaning as in the jobkeeper payment rules.

relevant employee has the same meaning as in the jobkeeper payment rules.

3 After section 789GV

Insert:

789GVA FWC may deal with a dispute about eligible employees or related matters under the jobkeeper payment rules

(1) The FWC may deal with a dispute about:

(a) whether a person who is a relevant employee of an entity should be treated as if they were an eligible employee of the entity for the purposes of the jobkeeper payment rules; or

(b) other matters arising between an entity and a relevant employee or eligible employee in relation to eligibility or payments under the jobkeeper payment rules.

(2) The FWC may deal with a dispute by arbitrat ion.

Note: The FWC may also deal with a dispute by mediat ion or conciliat ion, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with a dispute only on application by any of the following:

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation.

(4) The FWC may make any order the FWC considers appropriate in relation to a dispute, including any of the following:

(a) an order that a relevant employee is an eligible employee;

(b) an order that a relevant employee has met any requirement of the jobkeeper payment rules;

(c) an order that the entity employing a relevant employee has met any requirement of the jobkeeper payment rules;

(d) an order that the entity employing a relevant employee is entitled to a jobkeeper payment for that relevant employee or one or more other relevant employees.

(5) The FWC must not make an order under this section on or after 29 March 2021.

(6) In dealing with a dispute referred to in paragraph (1) (a), the FWC must, to the extent possible, give effect to the "one in, all in" principle.

Note: If an entity elects to participate in the jobkeeper scheme in relation to one relevant employee, it must participate in relation to all relevant employees: see section 10A of the jobkeeper payment rules.

4 Section 789GW (heading)

Omit " dealing with a dispute about the operation of this Part ".

5 Section 789GW

Omit "dealing with a dispute about the operation of this Part", substitute "made under this Part".

These amendments actually broaden the scope of the Fair Work Commission's dispute resolution powers to deal with disputes relating to workers' eligibility for JobKeeper. The Fair Work Commission currently has the power to deal with disputes relating to JobKeeper directions given by employers, including when a worker has had their hours, duties or location of work changed. The amendment would expand the Fair Work Commission's existing power to include issues relating to whether a worker is eligible for JobKeeper payments.

At the moment, the decision about whether a worker is eligible for JobKeeper is entirely at the employer's discretion, and workers have no way to dispute their employer's decision. Workers can make a tip-off to the ATO; however, they can't resolve individual cases, because privacy laws prevent the ATO from providing updates or the result of the tip-off. These amendments also support the one-in-all-in principle which is a key element of the JobKeeper scheme. They require participating employers to nominate all their eligible workers. Unfortunately, this principle is not enforced, leaving workers with no way to access the scheme if they have been left out. So broadening the Fair Work Commission's existing powers to deal with disputes relating to the eligibility for JobKeeper would ensure that workers are not missing out on payments that they are actually entitled to. I commend the amendments to the Senate.