Cotton On Backflips & Will Revise its JobKeeper Application

Popular clothes retailer Cotton On has confirmed it will revise its decision to forgo nearly 200 staff members on its JobKeeper application after backlash from casual workers about being excluded from the program caused the retailer to reevaluate its plan.

Chief Financial Officer at Cotton On, Michael Hardwick has told the ABC that the company will appease some casual staff that feel “unfairly denied” for the government’s wage subsidy package, and will now reassess the eligibility for an addition 176 casua staff that it, last month, said weren’t able to take part in the $130 billion JobKeeper package.

“Our goal is to get as many of our people onto the scheme as possible,” Hardwick said, adding that in addition to the 5,500 Cotton On staff that have already been deemed eligible for the JobKeeper package, the company will now review applications for 2,500 of its staff.

These 2,500 applications were initially deemed ineligible for the JobKeeper package because of the fact they hadn’t worked for Cotton On for longer than 12 months, or were on student or work visas. There are, however, a number of employees that say they were “unjustly excluded” from the scheme, according to the ABC’s Pat McGrath and Alison McClymont.

They interviewed Hannah Fitchet, who worked for Cotton On in Melbourne, who said that she was denied by the company to be listed on the JobKeeper package.

“For the past two years, I have been a loyal employee, it’s been my primary employer, and I just don’t feel like I’m being supported,” she said. Cotton On told Ms Fitchet that her pattern of hours didn’t fit into the “regular and systematic” requirements of the JobKeeper scheme, and her application was ultimately denied because of a holiday she took. “Any period of more than 12 weeks away from work would generally break continuous service,” Cotton On’s HR department wrote to Ms Fitchet in an April email.

“So, unfortunately, this is why we have found that you were not employed on a regular and systematic basis for the purposes of JobKeeper,” the email added.

The company has since said that its vetting of employees’ eligibility came after close consultation with PricewaterhouseCoopers and the Australian Retailers Association.

Ms Fitchet went on to explain that “if there was a guideline given from the Government or the ATO that said if you’ve taken over 12 weeks off at a time that means you’re not eligible, I would have been like, ‘OK, that’s fine, I’m not eligible.. But there’s nothing that says that. That’s why I’ve been looking for so many answers in regard to this because I don’t even know yet.”

She then went to the ATO’s JobKeeper hotline to ask for advice, and more information on how to challenge her employer’s decision on the matter. “I explained my situation and the guy on the other end of the phone basically said, ‘yeah, you should be eligible.’”

“I asked if I could get that in writing so I can send it to my employer, but they said they couldn’t give me anything in writing and again the advice I was given was to convince my employer that I’m eligible.”

Since the ABC has reported on Fitchet’s case, Cotton On commissioned independent legal advice into the matter, which found she was ineligible for the package. The ABC has interviewed a number of Cotton On’s casual staff, some of whom were deemed eligible for the package, while others were not.

Professor of employment law at RMIT, Anthony Forsyth has said that there may be a legal case to argue that staff who had taken an extended break in the past year still fitted under the definition of “regular and systematic” working hours.

“The problem is there’s a degree of confusion, even for experts, about what is considered regular and systematic employment… however, we have cases that have shown that it can be regular and systematic even when there is an interruption of time between shifts.”

“So, with the Cotton On employees, the fact that they worked for three or five years but took some leave last year and then came back to work, would be an indication that they would be considered regular and systematic employees.”

Attorney-General Christian Porter has reiterated that organisations confused about the interpretation of ‘regular and systematic’ should refer to the guidelines from the Fair Work Ombudsman. “This is well established in industrial law and the Fair Work Act,” he said.

With some of Cotton On’s stores reopening, the company has reportedly been prioritising staff members included in the JobKeeper package with shifts, while leaving those like Ms Fitchet without any shifts.

“It obviously saves them money to not have to pay us out of their own pocket,” she said, adding “why wouldn’t we be prioritised to work because we don’t have any other income?”

According to the ABC, who has “spoken to other Cotton On staff who have been told they will not get shifts because they are not on JobKeeper, but the company has denied it is deliberately excluding ineligible staff from work.”

CFO, Mr Hardwick said that Cotton On was “not prioritising anyone or withholding shifts… we are in the early stages of returning to trade and will continue to review our shift allocation based on the needs of each store,” he concluded.

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