Decision against employee marks first blip on JobKeeper radar — Brown Wright Stein Lawyers | Sydney Lawyers - Tax Specialist Lawyers, Corporate & Commercial Lawyers..

Employers nationwide have welcomed what is believed to be the Fair Work Commission's first published decision involving a JobKeeper dispute, which found in favour of the employer.

Key takeaways from the decision:

The decision is good news for employers.
The decision confirms that employees who are stood-down under the JobKeeper laws, may be ordered to comply with an employer's request to take annual leave in order to reduce annual leave liabilities.
The size of an employer is irrelevant to the Commission's consideration of the operation of the annual leave provisions of the JobKeeper laws.

On 13 May 2020, in Ms Leonie McCreedy v Village Roadshow Theme Parks Pty Ltd [2020] FWC 2480, the Commission ruled that a part-time employee who had been stood down under the JobKeeper provisions unreasonably refused a request by her employer to use up one day's annual leave for each week until the JobKeeper provisions cease to take effect.

Relying on s 789GV(4)(d) of the Fair Work Act 2009 (Cth), which empowers the Commission to deal with disputes about the operation of JobKeeper provisions by "making any other order that the Fair Work Commission considers appropriate", the Commissioner ordered the employee "not to continue to refuse the request made by her employer".

In bringing the matter before the Commission, the long-serving employee, who had worked for the company for 22 years, argued that her employer's request particularly disadvantaged employees who had accrued significant leave balances, making the request unreasonable.

Additionally, the employee argued that the JobKeeper legislation was not intended to assist large employers like hers to draw down on their employees' annual leave balances.

The Commissioner held that the employee had no justification for spurning the request on the basis that, under the request, the employee would still retain two (2) weeks' annual leave in compliance with the JobKeeper provisions.

In handing down the ruling, the Commissioner emphasised that the size of an employer is irrelevant to the operation of the JobKeeper provisions.

The much-anticipated decision is encouraging for employers, and provides some clarity for those who seek to rely on the JobKeeper provisions in what are otherwise unpredictable times.

Please contact our employment team for more information.

The material in this article was correct at the time of publication and has been prepared for information purposes only. It should not be taken to be specific advice or be used in decision-making. All readers are advised to undertake their own research or to seek professional advice to keep abreast of any reforms and developments in the law. Brown Wright Stein Lawyers excludes all liability relating to relying on the information and ideas contained in this article.