To be eligible under the JobKeeper scheme, employees must be employed on either a full-time, part-time, fixed term or long term (i.e. over 12 months) casual basis. These criteria give rise to potential for disputes about the proper classification of employees. The Courts have repeatedly held that the correct classification is determined by an objective assessment of the nature and circumstances of the work undertaken, not necessarily a title. In Coxon v Precious Cargo Education the Fair Work Commission (FWC) was faced with a dispute of this nature. This decision involved an employee hired on a casual basis in October 2019. The employee was stood down under s 526 of the Fair Work Act 2009 owing to the coronavirus pandemic. The employee alleged that they should have been included in the employer’s application for JobKeeper payments as they were in fact a part-time employee. The employee mainly relied on a conversation with the employer in January 2020 in which the employer said that they would ‘like to’ put them in a part-time role. The FWC considered that the applicant was paid the same rate for the whole period of employment and was never offered a changed contract. Therefore, the FWC determined that the employment status never changed. Given that the employee was a casual employed for less than 12 months, they were not eligible under the JobKeeper scheme and the standing down was valid. This decision is a reminder of the importance of properly classifying employees. Contact Daniel Morgan for further information and assistance.


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