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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in the Schedule to this Act is amended or repealed as set out in the applicable items in the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