s.789GV - Application to deal with a dispute under Part 6-4C

Application to deal with a dispute in relation to JobKeeper - application dismissed

• [1] On 30 April 2025, Mr Fang Wu (Mr Wu) applied under s.789GV of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (Commission) to deal with a dispute about the operation of Part 6-4C of the FW Act. The respondent is Concord International Trading Pty Ltd (Respondent), Mr Wu's former employer.

• [2] In answer to Question 2.3 of the Form F13A, which asks an applicant to set out what the dispute is about, Mr Wu stated:

I respectfully request that the Commission address the matters arising from my unfair dismissal on 19 February 2024 and the subsequent unpaid entitlements, as well as the unlawful implementation of a JobKeeper enabling direction imposed by my former employer, Concord International Trading Pty Ltd.

• [3] In answer to Question 3.1 of the Form F13A, which asks an applicant to set out the remedy they are seeking, Mr Wu sets out various entitlements and the quantum that he says are owing.

• [4] On 29 March 2021, most of the JobKeeper provisions in the FW Act were repealed. Since 29 March 2021, the Commission only can only deal with disputes arising under the provisions of Part 6-4C that continue to operate: ss 789GR and 789GS.

• [5] Section 789GR of the FW Act provides that if an employee is subject to a JobKeeper enabling direction for a period, that period counts as service. Section 789GS deals with how an employee accrues leave entitlements, and how redundancy pay and payment instead of notice of termination of employment is calculated, where a JobKeeper enabling direction or agreement applies to the employee.

• [6] On 6 May 2025, the matter was allocated to my chambers.

• [7] On 7 May 2025, my chambers sent correspondence to Mr Wu to advise, among other things, that the Commission lacks jurisdiction to deal with the matter. Mr Wu was invited to discontinue the application.

• [8] On 12 May 2025, Mr Wu sent correspondence to the Commission stating that he understood the Commission's correspondence but submitted the matter should be treated as an 'unprecedented exception' and would like to have the matter heard.

• [9] I listed the matter for mention and directions on 20 May 2025.

• [10] At the mention and directions hearing, Mr Wu confirmed that he was not an employee at the time this application was made. I advised Mr Wu that I intended to dismiss the application and invited him to make any submissions in response. Mr Wu submitted that he was stood down unlawfully during his employment with the Respondent, and that the Respondent has not paid entitlements owing.

• [11] Section 789GV(3) of the FW Act states that the Commission may deal with a dispute only on application by an employee, an employer, an employee organisation or an employer organisation. "Employee" in s.789GV(3) means a national system employee. Mr Wu was not an employee of the Respondent at the time he made the application.

• [12] Accordingly, Mr Wu does not have standing to apply to the Commission to deal with a dispute under s.789GV. The application is dismissed. An Order to that effect will be issued with this decision.

• [13] Despite the outcome of this application, to the extent that there are outstanding wages and/or entitlements, it is open to Mr Wu to pursue those matters through a court of competent jurisdiction or by lodging an enquiry with the Fair Work Ombudsman.

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