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Fair Work Amendment (One in, All in) Bill 2020 [No. 2]

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2019-2020

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

FAIR WORK AMENDMENT (ONE IN, ALL IN) BILL 2020

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Mehreen Faruqi)

 



 

Fair Work Amendment (One in, All in) Bill 2020

 

OUTLINE

 

This bill will give the Fair Work Commission (FWC) the power to deal with disputes relating to employee eligibility for the Jobkeeper payment.

 

The Government’s “one in, all in” principle is a key element of the Jobkeeper scheme. It requires that employers that have decided to participate in the Jobkeeper scheme must ensure that all eligible employees are nominated for the scheme. However, the decision about employee eligibility is entirely at the discretion of employers, and there is currently no avenue for employees to dispute decisions made by their employer to include some but not all employees in the scheme.

 

The original amendments to the Fair Work Act prevent the FWC from dealing with disputes relating to Jobkeeper eligibility and the Australian Taxation Office (ATO) is only responsible for the administration of the scheme. Whilst employees have been advised to make a tip-off to the ATO regarding any concerns they have about their employer not complying with the “one in, all in” principle, privacy laws prevent the ATO from providing updates or outcomes as a result of a tip-off and are not able to resolve individual cases.

 

This bill extends the FWC’s jurisdiction to deal with disputes about whether an employee is eligible for the Jobkeeper scheme. When dealing with disputes, the FWC must give effect to the “one in, all in” principle and may make an order to give effect to this principle, including making an order that an employee is eligible for the Jobkeeper payment. The FWC cannot make an order on or after the end date of the Jobkeeper scheme which is currently 28 September 2020. 

 

NOTES ON CLAUSES

Clause 1: Short Title

1.         This clause provides for the short title of the Act to be the Fair Work Amendment (One in, All in) Act 2020 .

Clause 2: Commencement

2.         This clause states the whole of this Act will commence on the day after it receives the Royal Assent.

Clause 3: Schedules

3.         This clause gives effect to the Schedules. It provides that legislation that is specified in the Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 - Amendments

Fair Work Act 2009

 

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

 

4.         This item amends the guide to Part 6-4C of the Act, which relates to the jobkeeper scheme, by repealing the existing paragraph and explaining that the jurisdiction of the Fair Work Commission (FWC) will be expanded to deal with disputes relating to employee eligibility for the jobkeeper payment.

 

Item 2: Section 789GC

 

5.         This item inserts the definitions of eligible employee and relevant employee and ties those terms to the definitions provided for by the jobkeeper rules (currently the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 ).

 

Item 3: After section 789GV

 

6.         This item inserts proposed section 789GVA : FWC may deal with a dispute about eligible employees.

 

7.         Proposed section 789GVA allows for the FWC to deal with disputes about whether an employee is eligible for the jobkeeper scheme and stipulates that to the extent it is possible, the FWC must give effect to the “one in, all in” principle in dealing with disputes. The FWC may also make any order to give effect to the “one in, all in” principle, including an order that an employee is eligible for the jobkeeper payment.

 

8.         A note in this section explains that the “one in, all in” principle requires entities that have elected to participate in the jobkeeper scheme to ensure all eligible employees are nominated for the scheme.

 

9.         The FWC 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 purposes of the jobkeeper payment rules.

 

10.       The FWC may deal with a dispute by arbitration, mediation or conciliation and only on application by an employee, an employer, an employee organisation or an employer organisation.

 

11.       In dealing with disputes, the FWC may make any order it considers appropriate that will give effect to the “one in, all in” principle which may include:

·          an order that a relevant employee is an eligible employee;

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

·          an order that the entity employing the relevant employee has met any requirement of the jobkeeper payment rules;

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

 

12.       The FWC must not make an order under this section on or after 28 September 2020, which is the end of the jobkeeper scheme.

 

Items 4 and 5: section 789GW

 

13.       Items 4 and 5 update section 789GW and its heading to reflect that, because of the changes made by the Bill, the orders capable of being made under Part 6-4C are more expansive in scope than simply being an order dealing with a dispute about the operation of Part 6-4C. Orders capable of being made include orders to give effect to the ‘one in, all in’ principle, including orders that employees are eligible to participate in jobkeeper, that the requirements of jobkeeper rules have been met and that an employer is entitled to receive jobkeeper payments (see item 3).

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Fair Work Amendment (One in, All in) Bill 2020

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

This bill will give the Fair Work Commission (FWC) the power to deal with disputes relating to employee eligibility for the Jobkeeper payment.

 

The Government’s “one in, all in” principle is a key element of the Jobkeeper scheme. It requires that employers that have decided to participate in the Jobkeeper scheme must ensure that all eligible employees are nominated for the scheme. However, the decision about employee eligibility is entirely at the discretion of employers, and there is currently no avenue for employees to dispute decisions made by their employer to include some but not all employees in the scheme.

 

The original amendments to the Fair Work Act prevent the FWC from dealing with disputes relating to Jobkeeper eligibility and the Australian Taxation Office (ATO) is only responsible for the administration of the scheme. Whilst employees have been advised to make a tip-off to the ATO regarding any concerns they have about their employer not complying with the “one in, all in” principle, privacy laws prevent the ATO from providing updates or outcomes as a result of a tip-off and are not able to resolve individual cases.

 

This bill extends the FWC’s jurisdiction to deal with disputes about whether an employee is eligible for the Jobkeeper scheme. When dealing with disputes, the FWC must give effect to the “one in, all in” principle and may make an order to give effect to this principle, including making an order that an employee is eligible for the Jobkeeper payment. The FWC cannot make an order on or after the end date of the Jobkeeper scheme which is currently 28 September 2020. 

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

Senator Mehreen Faruqi