The JobKeeper scheme was a temporary Australian Government wage subsidy for businesses significantly affected by the COVID-19 pandemic. As part of this scheme, the Fair Work Act was amended to insert JobKeeper provisions in a new Part 6-4C. These provisions enabled an employer to temporarily change an employee’s working conditions in order to deal with the impacts of the COVID-19 pandemic.
The Commission had a small but important role in dealing with disputes between employees and employers participating in the JobKeeper scheme. Under the scheme, an employer could give an employee a JobKeeper enabling direction (about hours of work, location or duties), make an agreement with an employee to change days and times of work or direct staff to take annual leave if the employee was unable to attend work. Originally, the provisions were to operate until 28 September 2020, but were amended and extended until 28 March 2021.
As amended, Part 6-4C still allowed employers that qualified for JobKeeper payments to give JobKeeper enabling directions and to make agreements about days and times of work. However, from 28 September 2020, Part 6-4C no longer allowed employers to request that an employee take annual leave. Further, employers previously entitled to one or more JobKeeper payments in the period prior to 28 September 2020 but no longer qualified for a JobKeeper payment on or after this date, could give modified JobKeeper enabling directions and make modified agreements if they could demonstrate an actual decline in turnover of at least 10%.
On 29 March 2021, most of the JobKeeper provisions were repealed and the Commission’s role in dealing with JobKeeper disputes came to an end, apart from some residual functions about the accrual of entitlements while a JobKeeper enabling direction was in place. Details about these remaining functions can be found at fwc.gov.au.
In 2020–21, the Commission received 291 JobKeeper dispute applications and finalised 307 applications. Following preliminary assessment, the majority of applications (130) lodged were assessed as not relating to the operation of Part 6-4C and were either administratively dismissed or withdrawn. Of the applications that did relate to the operation of Part 6-4C, the most common applications related to stand-downs (70), wage conditions/minimum payments (68) and days and times of work (40). Detailed information on applications received in 2020–21 is available in Appendix C: Tables and figures reference data.
Overall, between 9 April 2020, when the jurisdiction commenced and 28 March 2021, when the majority of JobKeeper provisions were repealed, the Commission received a total of 826 JobKeeper dispute applications. We received the vast majority of these applications (724) on or before 28 September 2020, when the provisions were amended and extended. We received a small number of applications (102) between 29 September 2020 and 28 March 2021 after the provisions in Part 6-4C were amended. We received 9 applications after 28 March 2021.
Finalisation of cases
In 2020–21, the majority of JobKeeper dispute applications (160) were withdrawn. The most common reasons for withdrawal were that the applications did not concern a dispute about the operation of Part 6-4C, because parties reached an agreement without the assistance of the Commission or, after discussions with Commission staff, the applicant withdrew their application.
Of all finalised matters, 125 were resolved during a conference with a Commission Member. A further 16 were dismissed by a Member, primarily because they were not about the operation of Part 6-4C. A small number of JobKeeper dispute matters (6) were finalised by decision, including being resolved by arbitration, setting aside a JobKeeper direction, substituting a JobKeeper direction, or by being dealt with in conjunction with another matter. Detailed information on the finalisation of JobKeeper applications is available in Appendix C: Tables and figures reference data