The Federal Circuit and Family Court imposed a $14,000 penalty against the operator of a Queensland transport business for implementing an unlawful ‘cashback’ scheme involving JobKeeper payments.
The court imposed the penalty against Khan Andrew Buchanan, a sole trader who operates RiverCity Bus Service, a school and charter bus business servicing passengers in and around the Brisbane and Logan areas.
According to the Fair Work Ombudsman, Buchanan received fortnightly $1500 gross JobKeeper payments from the Commonwealth Government for a driver, who was employed at that time with the business on a casual basis between 2017 and 2020, and transferred these payments in full, minus relevant tax, to the driver’s bank account between March and September 2020.
The JobKeeper payments were more than the driver’s usual fortnightly wages. And Buchanan required the driver to pay each week to Buchanan 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. In total, Buchanan was found to have unlawfully required the driver to repay him a total of $5805 in JobKeeper payments.
Buchanan also committed a further breach of the Fair Work Act. On one occasion, in September 2020, he received a $1500 JobKeeper payment from the Commonwealth Government but paid the driver only $1035.60 of the payment.
Buchanan eventually rectified the underpayments in full last year, back-paying the employee a total of $6270.40 when Fair Work Inspectors prompted him to do so.
Fair Work Ombudsman Sandra Parker said the regulator was prepared to take action to uphold the integrity of government programs.
“The deliberate failure to follow the law on how publicly-funded JobKeeper payments had to be used is disappointing,” Parker said. “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.”
In his decision, Judge Salvatore Vasta described Mr Buchanan’s conduct as “reprehensible”, “deliberate” and “calculated” and found Mr Buchanan 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,” Judge Vasta said. “The trust that the government gave to (Mr Buchanan), in giving him payments to pass on to the employee, as well as the trust the employee had in (Mr Buchanan), has been breached in a most callous and despicable manner.”
