Court says employer breached the 'government's trust' in the 'most despicable' way
The Federal Circuit and Family Court has recently slapped a Queensland employer with penalties after the Fair Work Ombudsman (FWO) charged it with unlawfully requiring cashbacks of the worker’s JobKeeper payments.
The employer is a school and charter bus business servicing passengers who had a driver employed casually from 2017 until 2020.
According to records, between March and September 2020, the employer received fortnightly $1500 gross JobKeeper payments from the government for the driver and “transferred these payments in full, minus relevant tax, to the driver’s bank account.” The said amount that the employer received from the government was more than the driver’s fortnightly wages.
The employer then required the driver to pay him an amount “roughly equal to the difference between the net JobKeeper payment he received into his bank account and his wages received for hours worked in the previous week,” which the FWO said was a breach of the Fair Work Act.
Another breach was reportedly committed when the employer paid the worker less than what the former received as JobKeeper payment from the government.
The worker filed a request for assistance and Fair Work Inspectors investigated his claim. The employer rectified his underpayments to the worker.
In a media release, Fair Work Ombudsman Sandra Parker said they would not tolerate the conduct displayed by the employer. “The deliberate failure to follow the law on how publicly-funded JobKeeper payments had to be used is disappointing. Cashbacks are treated particularly seriously by the Fair Work Ombudsman as they can imply a deliberate attempt by an employer to mislead the regulator. We will not tolerate any employers requiring workers to pay back any of their wages except where it is allowed by law,” Parker said.
Meanwhile, the court said the employer’s conduct was “reprehensible,” “deliberate” and “calculated.” It also found the employer “had taken advantage of the driver and not apologised.”
“Deterrence is the major factor in setting the appropriate pecuniary penalty and it is so even though the JobKeeper scheme has now ended. The trust that the government gave to [the employer], in giving him payments to pass on to the employee, as well as the trust the employee had in [him], has been breached in a most callous and despicable manner,” the court said.
The FWO secured a $14,000-penalty in court against the employer.
According to the Australian Taxation Office (ATO), JobKeeper payments were a subsidy to help small businesses affected by COVID-19. It stopped on 28 March 2021 and is no longer available.
