FWC running in the fast lane

Posted by on May 25, 2020

Recent changes have been made to the Fair Work Act 2009 (Cth) (FW Act) relating to the JobKeeper payment scheme. Under new Part 6-4C of the FW Act, eligible national system employers have been given temporary powers to:

  • Give employees a JobKeeper enabling direction
  • Request employees agree to altering their days or times of work
  • Request employees agree to take annual leave (including at half pay).

The Fair Work Commission (FWC) has powers to deal with disputes between parties under Part 6-4C of the FW Act and this includes disputes relating to the implementation of JobKeeper enabling directions and the optional agreements that may be made between eligible employers and employees.

The FWC has indicated, and demonstrated, that it will be listing any JobKeeper dispute applications within 48 hours. One example provided by a Commission member was an application filed at 4:50pm on a Friday afternoon which was listed for a conference the following day, despite the fact that it was a Saturday. This demonstrates that in these unprecedented times, the usual norms of how applications progress through the FWC does not apply to JobKeeper dispute applications.

Justice Ross, President of the FWC published a statement on 8 May 2020 (Statement), setting out the timeframes for JobKeeper dispute applications. The Statement provides that within hours of any JobKeeper dispute application being lodged, FWC staff will:

  • Process the application and enter it into the FWC case management system
  • Identify any potential issues with the application (for example, whether the employer is a national system employer or if an application is incomplete)
  • Contact the Applicant regarding any potential issues
  • Refer the case to the National Practice Leader, unless otherwise withdrawn by the Applicant.

The Statement provides that the FWC has adopted the following timetable for all JobKeeper disputes:

Event

Timeline benchmark

Lodgment of application to first conference/hearing (for lodgments between 8am-8pm AEST Monday – Friday and between 9am-5pm AEST Saturdays, Sundays and Public Holidays)

Within 48 hours from lodgment
FWC decision issued Wherever possible, the decisions will be delivered orally immediately after the hearing. Reserved decisions will be issued within 48 hours of hearing.

Lodgment to finalisation 90% within 4 days and 100% within 14 days

The FWC has also published a Coronavirus(COVID-19) updates and advice hub which is regularly updated, as well as the new JobKeeper Disputes Benchbook.

Our lawyers are available to assist you on short notice if your organisation is notified of a listing. Please do not hesitate to contact us on (03) 8621 4500.