Who you gonna call? Confusion abounds for employers and workers in JobKeeper disputes

Who’s responsible for picking up the pieces when an eligible worker gets left out of the JobKeeper program?

That’s the question that’s been asked in the Fair Work Commission (FWC), the Senate, and on Australian Tax Office (ATO) forums over the last two months, as both employers and employees try to work out who’s responsible for what under the $70 billion wage subsidy scheme.

Unfortunately, answers have proven elusive.

When Prime Minister Scott Morrison and Treasurer Josh Frydenberg detailed the JobKeeper package in late March, a so-called “one-in-all-in” rule was attached to the scheme, requiring businesses to nominate all eligible workers for wage subsidies, not just those they deemed worthy.

It was touted as a key feature; a safeguard for a system designed to support employment across the economy during the COVID-19 pandemic. But since then, it’s turned into a jurisdictional quagmire running workers in circles with regulators.

And now it appears those regulators have been running their own gauntlet around how to deal with workers left out of the program unjustly, after ATO revealed it recently changed its approach to dealing with these cases.

The revelations came to light during a Senate hearing on Tuesday, when Greens Senator Peter Whish-Wilson said workers had complained about being referred to Fair Work when asking the ATO about their JobKeeper eligibility disputes.

ATO second commissioner Jeremy Hirschborn then admitted the ATO had referred some people to Fair Work, despite eligibility rules falling within the tax office’s remit.

“This is fast moving,” Hirschhorn explained. “Because of the alignment, or similarity, of the tests, we did refer some people to Fair Work, and there are Fair Work elements of JobKeeper.”

“Going forward we’ve been following this other path which is to reach out to the employer, educate them … with the hope being that the employer brings their employee onto the scheme.”

But the ATO’s dispute resolution mechanisms may not be fit for purpose, as Hirschborn conceded the tax office has been “hamstrung” by information sharing constraints between workers and employers.

“If we think there’s a problem, our next level is to speak to the employer and provide them some help and education as to who is entitled … it’s only at the next level we look at penalties.”

More than 3000 calls to the JobKeeper tip-off hotline

While the ATO, the FWC, and the Fair Work Ombudsman (FWO) all have roles in enforcing aspects of the JobKeeper program, the FWC and FWO are responsible for disputes relating to JobKeeper directions, including stand-down orders for employees and or variation of their duties.

The tax office, meanwhile, at least according to legislative rules published in May, is responsible for eligibility disputes. But there’s been no shortage of confusion on this point.

Since JobKeeper enrolments opened on April 20, more than two dozen people have submitted formal applications in the FWC detailing eligibility disputes with their employer, only to be swiftly knocked back and told in various ways the commission could not hear their case.

In fact, fair work commissioners have taken to providing copy-paste responses to applicants, as can be seen in numerous case reports published on the FWC website.

“Disputes about whether an employer is eligible for a JobKeeper payment in respect of a particular employee or whether a particular employee is an ‘eligible employee’ for the purposes of the JobKeeper scheme, without more, are not disputes with which the Commission is empowered to deal under the power conferred on it by s.789GV of the Act,” the commission has said on several dozen occasions.

Confused workers and their employers have taken to Facebook groups in droves with queries, which have also spilled over onto ATO community forums, where several users listed as “community support” have referred workers to the FWO and the FWC.

One “ATO certified” answer directed a mother to the FWO and the FWC when she said she was worried her daughter, a long-term casual worker, would miss out on the payments. This is despite neither of these regulators having jurisdiction over JobKeeper eligibility.

But while workers are being referred to Fair Work agencies, the FWO’s website directs those with eligibility disputes back to the tax office.

Hirschborn said on Tuesday the ATO is now taking responsibility for eligibility disputes, fielding inquiries via its tip-off hotline, following up with employers, and considering penalties for businesses where necessary.

But a tax office spokesperson has confirmed to SmartCompany that the ATO continues to refer some JobKeeper cases to the FWO where appropriate, including around the imposition of penalties.

“We take all information referred to us seriously and protect the complainant’s identity in accordance with the law requiring whistleblower protection. When we receive information through a tip-off, we will cross check the information and assess whether further action is required,” an ATO spokesperson said in a statement.

By the end of May, the ATO had received 3,338 calls to its JobKeeper tip-off hotline, although the tax office did not specify how many of these calls were related to eligibility disputes when asked.

The ATO has not disclosed how many tip-offs it has referred to Fair Work, or what type of tip offs were passed on. The FWO has declined to comment on referrals or investigations, but said it was working with the tax office to “develop information sharing processes” when asked in May.

While the “one-in-all-in” principle was flagged by the Treasurer when the scheme was announced, it was only clarified in a legislative instrument attached to the JobKeeper rules on May 1, outlining a requirement for businesses to hand nomination forms to all workers they reasonably believe are eligible.

The rules state that businesses that fail to do this commit an offence under the Tax Administration Act, and may be liable for penalties.

Many businesses had already filed their applications by the start of May, and while the rules said firms must notify employees who had not been given forms within a week of the rules coming into effect, the legislative instrument was not widely read or publicised.

The ATO did not detail what specific dispute resolution mechanisms are open to workers through the tax office other than pointing to its tip-off hotline.

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