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senate vote 2020-08-31#6
Edited by
mackay staff
on
2024-06-30 14:54:49
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Title
Bills — Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020; in Committee- Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020 - in Committee - Fair Work Commission powers
Description
<p class="speaker">Sue Lines</p><p>I will just inform the Senate, as a number of requests for amendments have been circulated, I advise that, as required, senators proposing requests have circulated statements of reasons for framing them as requests, together with statements by the Clerk on whether the amendments would be regarded as requests under the precedence of the Senate. Is it the wish of the committee that the statements accompanying the circulated requests be incorporated into <i>Hansard</i> immediately after the requests to which they relate? There being no objection, it is so ordered.</p>-
- The same number of senators voted for and against [amendments (1) and (2) on sheet 1008](https://www.openaustralia.org.au/senate/?gid=2020-08-31.161.1), which were moved by NSW Senator [Mehreen Faruqi](https://theyvoteforyou.org.au/people/senate/nsw/mehreen_faruqi) (Greens). This means the amendments failed.
- ### Motion text
- > *(1) Clause 2 , page 2 (at the end of the table), [add](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr6583_amend_b35abd0b-a20a-41e4-9f3f-79ed652f89fd%22;rec=0):*
- >
- > *(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".*
<p class="speaker">Mehreen Faruqi</p><p>by leave—I move Greens amendments (1) and (2) on sheet 1008 together:</p><p class="italic">(1) Clause 2 , page 2 (at the end of the table), add:</p><p class="italic">(2) Page 33 (after line 21) , at the end of the Bill, add:</p><p class="italic">Schedule 4—Fair Work Commission powers to deal with jobkeeper-related disputes</p><p class="italic"> <i>Fair Work Act 2009 </i></p><p class="italic">1 Section 789GA (paragraph beginning "This Part provides that the FWC may deal")</p><p class="italic">Repeal the paragraph, substitute:</p><p class="italic">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.</p><p class="italic">2 Section 789GC</p><p class="italic">Insert:</p><p class="italic"><i>eligible employee</i> has the same meaning as in the jobkeeper payment rules.</p><p class="italic"><i>relevant employee</i> has the same meaning as in the jobkeeper payment rules.</p><p class="italic">3 After section 789GV</p><p class="italic">Insert:</p><p class="italic">789GVA FWC may deal with a dispute about eligible employees or related matters under the jobkeeper payment rules</p><p class="italic">(1) The FWC may deal with a dispute about:</p><p class="italic">(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</p><p class="italic">(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.</p><p class="italic">(2) The FWC may deal with a dispute by arbitrat ion.</p><p class="italic">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)).</p><p class="italic">(3) The FWC may deal with a dispute only on application by any of the following:</p><p class="italic">(a) an employee;</p><p class="italic">(b) an employer;</p><p class="italic">(c) an employee organisation;</p><p class="italic">(d) an employer organisation.</p><p class="italic">(4) The FWC may make any order the FWC considers appropriate in relation to a dispute, including any of the following:</p><p class="italic">(a) an order that a relevant employee is an eligible employee;</p><p class="italic">(b) an order that a relevant employee has met any requirement of the jobkeeper payment rules;</p><p class="italic">(c) an order that the entity employing a relevant employee has met any requirement of the jobkeeper payment rules;</p><p class="italic">(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.</p><p class="italic">(5) The FWC must not make an order under this section on or after 29 March 2021.</p><p class="italic">(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.</p><p class="italic">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.</p><p class="italic">4 Section 789GW (heading)</p><p class="italic">Omit " dealing with a dispute about the operation of this Part ".</p><p class="italic">5 Section 789GW</p><p class="italic">Omit "dealing with a dispute about the operation of this Part", substitute "made under this Part".</p><p>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.</p><p>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.</p> <p class="speaker">Mathias Cormann</p><p>The government will not be supporting these amendments. The JobKeeper program was designed as a self-assessment scheme to allow it to be rolled out quickly and make it as easy as possible for employers to participate. This has contributed to the strong uptake of the program. Eligibility for the JobKeeper program is set out in the JobKeeper payment rules. The rules require employers to provide all eligible employees with knowledge of their election to participate in the JobKeeper scheme. This must include information on how to provide a nomination form to the employer to participate in the JobKeeper scheme. An employer who refuses or fails to give such notice commits an offence under section 8C of the Taxation and Administration Act 1953, which is punishable on conviction by a fine not exceeding 20 penalty units, currently $4,400.</p><p>I would encourage employees in the first instance to have a discussion with their employer if a disagreement arises about eligibility for the JobKeeper scheme. If this does not resolve the issue, employees can contact the Australian tax office, which has carriage of enforcement and compliance for the JobKeeper payment rules. The ATO has a tip-off line if employees consider there is an instance of improper employer behaviour. The Fair Work Commission's jurisdiction under the JobKeeper provisions of the Fair Work Act concerns the application and interpretation of those provisions. The Fair Work Commission is an industrial relations tribunal and does not have expertise in taxation matters.</p> <p class="speaker">Don Farrell</p><p>I indicate that the Labor Party is supporting these amendments. It was Labor that identified early on that some employers were planning to pick and choose which of their eligible employees would receive JobKeeper payment. The potential for employers to discriminate between eligible employees on a range of grounds was obvious. Experience from our MPs was that employees were being given no reason, or otherwise totally spurious reasons, for being excluded from the program. Thankfully, the Treasurer eventually listened and created the one-in-all-in principle. The one-in-all-in rule requires employers who have decided to participate in the JobKeeper scheme to nominate all eligible employees for the scheme. The issue that this amendment seeks to address is the fact that, in a situation such as the one described above, there is no authority for the employee to go to in order to challenge or appeal an employer's decision to exclude them from JobKeeper on eligibility grounds.</p><p>The Fair Work Commission has previously reported that a large proportion of complaints about JobKeeper had been about eligibility, which was outside their jurisdiction. This amendment extends the Fair Work Commission's jurisdiction to deal with disputes about whether or not an employee is eligible for the JobKeeper scheme. Proposed section 789GVA provides for the Fair Work Commission to deal with a dispute about eligible employees and stipulates that, to the extent that it is possible, the Fair Work Commission must give effect to the one-in-all-in principle in dealing with disputes. The Fair Work Commission may also make an order to give effect to the one-in-all-in principle, including an order that the employee is eligible for the JobKeeper payment. The Fair Work Commission may deal with disputes about whether a relevant employee of an entity which is participating in the JobKeeper scheme is an eligible employee for the purpose of the JobKeeper payment rules. We therefore offer our support for this amendment.</p><p class="italic">The CHAIR: The question is that amendments (1) and (2) on sheet 1008, as moved by Senator Faruqi, be agreed to.</p> -
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