FEDERAL COURT OF AUSTRALIA

Qantas Airways Limited v Flight Attendants’ Association of Australia (The JobKeeper Case) [2020] FCA 1365

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

[Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.]

REASONS FOR JUDGMENT

FLICK J:

1    There are presently before the Court two proceedings: one commenced by Qantas Airways Limited and QF Cabin Crew Australia Pty Limited against the Flight Attendants’ Association of Australia (NSD 783 of 2020); the other commenced by the Transport Workers’ Union of Australia and the Australian Municipal, Administrative, Clerical and Services Union against Qantas Airways Limited and Qantas Ground Services Pty Ltd (NSD 808 of 2020). The Qantas parties and the Unions were represented by Senior and Junior Counsel.

2    Both proceedings involve a short but important question as to the interpretation and application of what has become known as the JobKeeper Scheme. That Scheme finds its legislative backing, at least in part, in Pt 6-4C of the Fair Work Act 2009 (Cth) (the “Fair Work Act”). Now in question is the correct construction and application of s 789GDA(2)(b) within that Part and (in particular) the statutory phrase “the amounts payable to the employee in relation to the performance of work during the fortnight”.

3    Both proceedings were heard together. Declaratory relief is sought. The Unions maintain that employees have been underpaid. An initial application for the imposition of penalties in the event of non-compliance by the Qantas parties with s 789GDA was properly abandoned at the outset of the hearing.

4    The resolution of the present dispute, it is recognised, affects not only the parties to the present dispute but has potential application for all employers and employees participating in the JobKeeper Scheme.

5    In the present dispute, and very generally expressed, Qantas contends that the correct construction of s 789GDA(2)(b) requires consideration of the amounts paid to the employee during the fortnight for work performed, “regardless of whether or not the amount paid is a payment made, in whole or part, in satisfaction of obligations with respect to work done or entitlements accrued either during or before the relevant fortnight”. The Unions’ position, again very generally expressed, is that s 789GDA(2)(b) refers to amounts earned by the employee for work performed in that relevant fortnight, “whether or not those amounts are actually paid or required to be paid during the JobKeeper fortnight”. It has been concluded that neither proposed construction should prevail: cf. Coleman v Power [2004] HCA 39 at [243], (2004) 220 CLR 1 at 94 per Kirby J.

6    In very summary form, it has been concluded that the statutory phrase means what it says – namely, s 789GDA(2)(b) identifies that amount of money which is payable to an employee for the work performed by that employee during that fortnight. The word “payable” means that amount of money which is required to be paid to an employee pursuant to some contractual or other entitlement in return for the performance of work, and refers to the amount required to be paid to the employee during the fortnight in which the work is performed. But one of the factual difficulties confronting the application of this subsection is the fact that an employee may (for example) not be entitled to receive any amount of money for work performed during any given fortnight because he may have been stood down during that fortnight, but he may nevertheless receive monies for work performed in a previous fortnight. Much depends upon the pay cycle of an employer and the contractual or other entitlement of an employee to receive monies for work performed. The subsection operates, it has been concluded, as referring only to the monies an employee is contractually due to receive during any given fortnight for work performed during that same fortnight; monies that may nevertheless be contractually required to be paid during a given fortnight but for work performed in a previous fortnight are not monies payable “in relation to the performance of work during the fortnight”.

7    Although this conclusion is very much founded upon what are considered to be the clear and unequivocal terms in which s 789GDA(2)(b) is expressed, it nevertheless remains necessary to set forth:

    the legislative scheme sought to be introduced by the Commonwealth Government;

    the statutory scheme as enacted;

    the terms of s 789GDA(2) and the comparison required to be made by that provision between the JobKeeper fortnightly payment of $1,500 (as that amount stands at the date of hearing) and the “amounts payable to the employee in relation to the performance of work during the fortnight”; and

    the sources of difficulty relied upon by the Qantas parties and the Unions in opposition to the construction of s 789GDA(2)(b) which has been settled upon.

The JobKeeper Scheme – the legislative objective

8    The JobKeeper Scheme was and remains a major part of the Commonwealth Government’s response to the COVID-19 Pandemic.

9    The legislative backing to the Scheme is to be found in:

    the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) – ss 7 and 20 providing for the making of rules for the provision by the Commonwealth of Coronavirus economic response payments and the establishment of a scheme relating to those payments;

    the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020; and

    the Coronavirus Economic Response Package Omnibus (Measures No 2) Act 2020 (Cth) – that Act inserting Pt 6-4C into the Fair Work Act, including (in particular) ss 789GD and 789GDA.

10    Although the present proceedings are to be resolved by reference to the terms actually employed by the Commonwealth Legislature in s 789GDA, all parties invoked various statements made in the Second Reading Speech and the Explanatory Statement and Memorandum in support of their competing contentions. These statements should thus be set forth, at least in part.

11    When introducing the JobKeeper Scheme on 8 April 2020 the Commonwealth Treasurer in the Second Reading Speech told the House of Representatives (inter alia):

The JobKeeper payment

The government will provide financial support to business, not-for-profits and sole traders affected by the coronavirus outbreak.

Under this framework, the government will deliver a wage subsidy to those employers significantly impacted by the coronavirus outbreak to continue paying their employees. The JobKeeper payment will support employers to maintain their connection to their employees, helping them to reactivate their operations quickly––without having to rehire staff––when the crisis is over.

Eligibility for the JobKeeper payment will be set out in the rules made by the Treasurer. The JobKeeper payment will be payable to an eligible employer who chooses to participate in the scheme, for a maximum of 26 weeks in respect of each employee that is on their books on 1 March 2020 and is retained or continues to be engaged by that employer. The program commences on 30 March 2020, the day of its announcement. Eligible businesses can begin distributing the JobKeeper payment immediately and will be reimbursed from the first week of May.

…

12    The Explanatory Memorandum specifically addressed ss 789GD and 789GDA as follows:

Division 2––Employer payment obligations

Section 789GD (Obligation of employer to satisfy the wage condition)

1.20    Section 6(1)(d) and 10 of the JobKeeper payment rules require the sum of amounts paid (or otherwise handled in ways permitted by those rules, such as by making salary sacrifice superannuation contributions for employees or withholding tax amounts) by an employer who is entitled to a JobKeeper payment for an individual for a fortnight, to equal or exceed $1,500 in the fortnight (this is the wage condition of the JobKeeper payment rules).

1.21    New Section 789GD requires an employer that qualifies for the JobKeeper scheme, and would be entitled to the JobKeeper payment for a particular employee by satisfying the wage condition in respect of that employee, to ensure the wage condition is in fact satisfied by the end of the fortnight. This effectively requires the employer to pay their employee (or otherwise deal with amounts in ways permitted by the JobKeeper payment rules) the fortnightly value of the JobKeeper payment.

1.22    Section 789GD is a civil remedy provision enforceable under Part 4-1 of the Fair Work Act, which provides access to the courts for (among other things) penalty and compensation orders to remedy contraventions upon application by an employee, employee representative or an inspector.

1.23    Note 2 to section 789GD makes it clear that under the JobKeeper payment rules, a JobKeeper payment is a payment to an employer for a particular employee for a fortnight.

Section 789GDA (Minimum payment guarantee)

1.24    Section 789GDA requires an employer who is eligible for the Jobkeeper scheme to ensure the total amount payable to a particular employee in respect of a fortnight is either:

•    the amount of the JobKeeper payment for the employee; or

•    if a greater amount is payable to the employee for the performance of work during the fortnight, that amount (in full).

1.25    Subsection 789GDA(2) is a civil remedy provision enforceable under Part 4-1 of the Fair Work Act, which provides access to the courts for (among other things) penalty and compensation orders to remedy contraventions.

13    And, finally, an Explanatory Statement “Issued by authority of the Treasurer” provided in part as follows:

What other entitlement criteria apply?

The rules about a JobKeeper fortnight, when an employer qualifies for the JobKeeper payment and when a person is an eligible employee are described above. In addition to these rules, section 6 contains further rules for when an employer is entitled to a JobKeeper payment in relation to their employees. These further entitlement rules are described below.

The employer must satisfy the wage condition

For each JobKeeper fortnight, the employer is only entitled to a JobKeeper payment if the employer has satisfied the wage condition. The wage condition is set out in section 10 of the Rules.

Generally, the wage condition requires that an employer pay each participating employee at least $1,500 for each JobKeeper fortnight. This reflects the practical operation of the JobKeeper scheme in which the JobKeeper payment is essentially a reimbursement to an employer of $1,500 where the employer has paid a participating employee at least that amount.

The component amounts that together must equal or exceed $1,500 are:

•    amounts paid by the employer to the employee in the fortnight by way of salary, wages, commission, bonus or allowances (less PAYG withholding) – generally, this means the employee’s income before tax;

•    amounts withheld from payments made to the employee in the fortnight under section 12-35 in Schedule 1 to the Taxation Administration Act 1953 – generally, this means amounts withheld by the employer for income tax or a HECS-HELP loan;

•    contributions made in the fortnight to a superannuation fund or an RSA (retirement savings account) for the benefit of the employee, if the contributions are made under a salary sacrifice arrangement (within the meaning of the Superannuation Guarantee (Administration) Act 1992); and

•    amounts that, in the fortnight, are applied or dealt with in any way where the employee has agreed for the amount to be so dealt with in return for salary and wages to be reduced – generally, this means amounts forming part of salary sacrifice arrangements.

The requirement that the component amounts be at least $1,500 applies regardless of whether the employee ordinarily receives more or less than that amount. For example if an employee:

•    ordinarily receives $1,500 or more in income per fortnight before PAYG withholding and other salary sacrificed amounts, and their employment arrangements do not change they will continue to receive their regular income according to their workplace arrangements. The JobKeeper payment will assist the employer to continue operating by subsidising all or part of the income of the employee;

•    ordinarily receives less than $1,500 in income per fortnight before PAYG withholding and other salary sacrifice amounts, the employer must pay the employee at least $1,500 per fortnight, subject to PAYG withholding and other salary sacrificed amounts to the value of $1,500;

•    has been stood down, the employer must pay the employee at least $1,500 per fortnight, before PAYG withholding and other salary sacrificed amounts to the value of $1,500; or

•    was employed on 1 March 2020, subsequently ceased employment with the employer, and then has been rehired by the same eligible employer, the employer must pay the employee at least $1,500 per fortnight, before PAYG withholding and other salary sacrificed amounts to the value of $1,500.

If an employer’s ordinary arrangement is to pay its employees less frequently than fortnightly, then the payment can be allocated between fortnights in a reasonable manner. For example, if an employer’s ordinary arrangement is to pay an employee every four weeks, it may be reasonable for the purposes of satisfying the wage condition if the employee is paid at least $3,000 for every four week period.

The statutory provisions

14    The statutory provisions of present relevance, as they stood prior to the amendments effected by the Coronavirus Economic Response Package (JobKeeper Payments) Amendment Act 2020 (Cth), are to be found primarily in:

    the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) (the “Coronavirus Rules”); and

    Part 6-4C of the Fair Work Act.

The Coronavirus Rules

15    The Coronavirus Rules to which reference is made in the Explanatory Memorandum and the Explanatory Statement include the following:

Part 2 – Jobkeeper payment

Division 1 – Simplified outline

5 Simplified outline

Division 2 – Entitlement based on paid employees

6 Employer’s entitlement to jobkeeper payment for an employee

(1)    An entity (the employer) is entitled to a jobkeeper payment for an individual for a fortnight if:

…

(d)    the employer has satisfied the wage condition in section 10 in respect of the individual for the fortnight; and

…

10 Wage condition

(1)    For the purposes of paragraph 6(1)(d), an employer satisfies the wage condition in respect of an individual for a fortnight if the sum of the amounts covered by subsection (2) equals or exceeds $1,500.

(2)    The amounts covered by this subsection are:

(a)    amounts paid by the employer to the individual in the fortnight by way of salary, wages, commission, bonus or allowances, and

(b)    amounts withheld by the employer from payments made to the individual in the fortnight under section 12-35 in Schedule 1 to the Taxation Administration Act 1953; and

(c)    contributions made by the employer in the fortnight to a superannuation fund or an RSA for the benefit of the individual, if the contributions are made under a salary sacrifice arrangement (within the meaning of the Superannuation Guarantee (Administration) Act 1992); and

(d)    other amounts, in the fortnight, are applied or dealt with in any way if the individual agreed:

(i)    for the amount to be so applied or dealt with; and

(ii)    in return, for amounts covered by paragraph (a) for the individual for the fortnight to be reduced (including to nil).

(3)    If there is a regular period for which the employer would usually pay employees in relation to the performance of work by the employees, and that period is longer than a fortnight, then in applying this section those payments are to be allocated to a fortnight or fortnights in a reasonable manner.

(4)    For the purposes of this section, the Commissioner may treat a particular event that happened in a fortnight as having happened in a different fortnight or fortnights, if, or to the extent that, it is reasonable to do so in the Commissioner’s opinion.

…

Division 4––Payment

13 Amount of the jobkeeper payment for a fortnight

The amount of an entity’s jobkeeper payment for an individual for a fortnight is $1,500.

…

15 When the Commissioner must pay jobkeeper payments

The Commissioner must pay the jobkeeper payment no later than the later of:

   (a)    14 days after the end of the calendar month in which the fortnight ends; and

(b)    14 days after the requirements in section 14 for the Commissioner to make the payment are met.

Note:    For the method of paying the payment, see section 8 of the Act.

Part 6-4C

16    The amendments to the Fair Work Act effected by the introduction of Pt 6-4C have at their heart ss 789GD and 789GDA.

17    Section 789GA sets out as follows the Guide to this Part:

789GA Guide to this Part

18    Section 789GC is a definition provision and provides in part as follows:

Definitions

In this Part:

…

wage condition means the wage condition set out in the jobkeeper payment rules.

19    Section 789GD provides as follows:

Obligation of employer to satisfy the wage condition

If:

(a)    an employer qualifies for the jobkeeper scheme; and

(b)    the employer would be entitled to jobkeeper payment for an employee for a fortnight if (among other things) the employer satisfied the wage condition in respect of the employee for the fortnight;

the employer must ensure that the wage condition has been satisfied in respect of the employee by the end of the fortnight.

Note: 1    This section is a civil remedy provision (see Part 4-1).

Note 2:    Under the jobkeeper payment rules, a jobkeeper payment is a payment to an employer for a particular employee for a fortnight.

The “wage condition” to which s 789GD(b) refers is to be found in s 10 of the Coronavirus Rules.

20    Section 789GDA, the provision of central relevance to this proceeding, provides as follows:

Minimum payment guarantee

(1)    For the purposes of this Part, the minimum payment guarantee consists of the rule set out in subsection (2).

(2)    If a jobkeeper payment is payable to an employer for an employee of the employer for a fortnight, the employer must ensure that the total amount payable to the employee in respect of the fortnight is not less than the greater of the following:

(a)    the amount of jobkeeper payment payable to the employer for the employee for the fortnight;

(b)    the amounts payable to the employee in relation to the performance of work during the fortnight.

Note 1:    This subsection is a civil remedy provision (see Part 4-1).

Note 2:    Amounts referred to in this subsection (other than paragraph (a)) include the following, if they become payable in respect of the fortnight:

(a)    incentive-based payments and bonuses;

(b)    loadings;

(c)    monetary allowances;

(d)    overtime or penalty rates;

(e)    leave payments.

Of particular importance is the phrase employed in s 789GDA(2)(b), namely “the amounts payable to the employee in relation to the performance of work during the fortnight”. Notwithstanding the subtlety of the written and oral submissions advanced, it has been concluded that there is (with respect) little difficulty in construing that provision.

The comparison required by s 789GDA(2)(b)

21    Section 789GDA(2), it will be noted, is directed to a comparison between:

    the amount of the JobKeeper payment, as at the date of hearing being an amount of $1,500 per fortnight; and

    “the amounts payable to the employee in relation to the performance of work during the fortnight…”.

Section 789GDA(2) mandates that an employee is to receive the greater of those two amounts.

22    In issue is the meaning and application of the phrase “the amounts payable to the employee in relation to the performance of work during the fortnight…”.

23    Notwithstanding a range of possible interpretations, there is, with respect, no ambiguity in s 789GDA(2)(b).

24    That provision requires a calculation as to the amount that is “payable” to an employee for the work performed during that fortnight. Divorced from its statutory context, the term “payable” may potentially refer to the amount that:

    may be earned by an employee for work performed during that fortnight;

    an employee may contractually be entitled to receive for work performed, with the balance of the amount earned being “payable” in a subsequent fortnight; or

    an employee may in fact receive for the work performed during that fortnight.

The term employed is, however, “payable” as opposed to (for example):

    due and payable; or

    earned.

On one approach to the interpretation of the term “payable”, and divorced from its present statutory context, where an employee earns $3,000 by performing work in a given fortnight it could possibly be concluded that:

    a hypothetical amount of $3,000 “payable” to an employee for work performed in that given fortnight is the entirety of that amount, that being the amount that the employee “earned” for performing the work in that fortnight;

as opposed to (for example):

    an amount of $1,500, being the amount to which the employee may contractually be entitled to receive, with the balance of $1,500 being “payable” pursuant to contractual or other obligations during a subsequent fortnight.

Authorities which have resolved the meaning of such terms as “payable” or “due and payable”, are, with respect, authorities dictated by the statutory or contractual context in which those terms have been construed. They provide little (if any) assistance to the interpretation of s 789GDA(2).

25    In the statutory context in which the term “payable” is presently employed in s 789GDA(2), it is concluded that the natural and ordinary meaning of that term is that it identifies that amount to which an employee is contractually (or otherwise) entitled to be paid for work performed during that fortnight in which the work is performed. That meaning, it will be appreciated, is different to the amount that the employee may have “earned” during a particular fortnight and can also be different from the amount which an employee may have in fact received, being either part or the whole of the amount “earned’ during either that fortnight or some other fortnight. That meaning, it is further concluded, also gives effect to a construction of s 789GDA(2)(b) such that the phrase “during the fortnight” identifies with specificity not only the fortnight during which the work is performed but also the fortnight during which the amount is “payable to the employee”.

26    Such an interpretation places at the heart of s 789GDA(2) the necessity to identify both that point of time during which work is performed and that amount of money to which an employee is contractually entitled to receive. It casts aside any necessity to identify that point of time at which an employer in default of a contractual obligation (for example) may in fact make payment to an employee.

27    Section 789GDA(2) does not invite a calculation or an identification of the amount that an employee may be entitled to receive during any given fortnight but in respect to work that may have been performed in some prior or subsequent fortnight. The provision is divorced from the manner in which an employer may be required to account to an employee for work that may have been performed for a period of time outside of “the fortnight”. Pursuant to the terms of employment, or perhaps an industrial agreement, an employer may be entitled to pay an entitlement (for example) in arrears or in advance. But all such inquiries as to the pay cycle of employers or the terms upon which an employer may pay an employee assume no relevance for the terms of s 789GDA(2)(b).

28    Rejected is the argument that ambiguity arises as to whether the phrase “during the fortnight” qualifies only the period during which work is performed or applies more generally. The phrase, with respect, cannot be construed as meaning anything other than an identification of that period of time during which work is performed and the point of time at which monies are to be paid. The terms of s 789GD do not require any different conclusion. Section 789GD does no more than impose upon an employer the necessity to ensure compliance with “the wage condition”, namely “the wage condition set out in the jobkeeper payment rules” (s 789GC). Section 789GD cannot be construed as itself identifying the particular fortnight required to be considered when applying s 789GDA(2)(b).

29    Irrespective of what monies may be received by an employee during any particular JobKeeper fortnight by reason of monies earned for work previously performed, s 789GDA(2), it is concluded, only invites an inquiry as to the amount payable to the employee for work actually performed during a particular JobKeeper fortnight. If that amount earned and payable to the employee for a given fortnight is less than $1,500, the employer is subsidised by the JobKeeper payment covering the entirety of that lesser amount paid to the employee, with the employee receiving the balance of monies up to $1,500. And it matters not whether that results in the payment to the employee of a sum in total greater than $1,500 by reason of (for example) an employee also receiving monies for work performed prior to that fortnight. If the amount exceeds $1,500 for the payment of monies earned and payable to the employee for work performed in that fortnight, the employer is subsidised by the Commonwealth up to $1,500.

30    Such reasons as are expressed in terms of identifying the monies “earned and payable” to an employee during a given fortnight do not, with respect, read into the terms of s 789GDA(2)(b) any additional words not used by the Legislature – such as “earned”. The expression “earned and payable” is but a different way of trying to give content and practical application to the phrase “payable to the employee in relation to the performance of work during the fortnight”.

31    The written submissions filed by the parties helpfully presented a variety of circumstances in which employees were in receipt of monies from their employer and the manner in which the JobKeeper Scheme impacted upon their entitlements. The submissions also helpfully sought to present the competing contentions of the parties in the form of tables. But difficulties inevitably arose both by reason of the ambiguity of phrases employed in those tables such as “the amount payable by Qantas” and by reason of the fact that monies payable by Qantas for work performed may not necessarily be payable in the same fortnight as the JobKeeper payments. As to the former difficulty, concealed within the amounts payable by Qantas were potentially amounts which an employee was contractually entitled to receive and a JobKeeper component. Employees may (for example) have performed work for which they were contractually entitled to receive an amount of $500 for that fortnight and a JobKeeper “top up” of $1,000, bringing the total amount actually received by that employee – or “payable” to that employee – to $1,500 for that fortnight. There was, accordingly, the potential for confusion in what was actually meant to be conveyed by the phrase “payable by Qantas” – be it a contractual obligation to make payment as opposed to an obligation to make payment of a total of $1,500, part of which may be subsidised by the Commonwealth JobKeeper Scheme to ensure compliance with the “wage condition” (s 789GD). As to the latter difficulty, there was the potential for an employee to receive the monies to which they were contractually entitled over two JobKeeper fortnights. An employee (for example) could perform both work and overtime contractually entitling them to receive $3,000 – but, in accordance with the accounting practices of the employer – the employee may receive the wages component in one JobKeeper fortnight and the overtime component in a subsequent JobKeeper fortnight. On the facts of the present case it is, indeed, the fact that the pay arrangements (for example) for short and long haul cabin crew are payable fortnightly but – according to the written submissions filed on behalf of Qantas – “the fortnightly pay includes various other payments and allowances based on actual hours worked in the previous fortnight”.

32    The inquiry dictated by s 789GDA(2), its focus in s 789GDA(2)(b) on the “amounts payable to the employee in relation to the performance of work during the fortnight” and its focus on the comparison between that amount and the “jobkeeper payment” of $1,500 during that fortnight, can nevertheless best be exposed by the following hypothetical scenarios.

Scenario 1

33    The first hypothetical Scenario is as follows:

In this Scenario, where during the first JobKeeper fortnight there is payable to the employee monies for work performed prior to the commencement of the JobKeeper Scheme:

    Qantas receives from the Commonwealth for the first fortnight of the JobKeeper Scheme no subsidy for work performed by the employee prior to the commencement of that Scheme, but is nevertheless required contractually to pay the employee $1,500 for ordinary wages; the remaining $1,500 for overtime is contractually required to be paid in the second fortnight;

    Qantas receives from the Commonwealth for the first two hypothetical fortnights a “subsidy” of only $1,500 – unlike subsequent fortnights when for two consecutive JobKeeper fortnights it receives two amounts of $1,500 totalling $3,000;

    Qantas is contractually required to pay for the two fortnights the employee $3,000 but receives from the Commonwealth only $1,500 by way of subsidy; and

    the employee who, prior to the JobKeeper Scheme, would only have received $3,000 by way of a contractual entitlement over the two consecutive fortnights now receives $4,500 by reason of a contractual entitlement to payment of $3,000 together with a JobKeeper payment of $1,500.

34    From the perspective of Qantas, and but for the JobKeeper Scheme, Qantas would have had to pay the employee $3,000 for the two consecutive fortnights but has by reason of that Scheme been “subsidised” by the Commonwealth to make a further payment of $1,500 to the employee. Qantas could thus be perceived as having to pay out of its own reserves $3,000 over the two consecutive fortnights and has, in return, received the performance of work by the employee valued at $3,000. From the perspective of the employee, he has received a windfall – the employee has received “in his pocket” $4,500 for having performed work over those two consecutive fortnights valued at $3,000, together with a JobKeeper payment of $1,500.

35    In this scenario, the employee may be contractually entitled to receive his pre-JobKeeper overtime payment of $1,500 in the second fortnight – but is nevertheless also entitled to receive the $1,500 Jobkeeper payment because during that fortnight he may have received payment from the employer of that overtime component, but that was not an amount “payable … in relation to the performance of work during the fortnight”. The overtime component was an amount “payable … in relation to the performance of work during the” previous fortnight. Contrary to the submission of Qantas, the overtime component of the amount to which the employee is contractually entitled, and the amount received by the employee during the second fortnight being the JobKeeper payment, cannot be “set off” or otherwise called to account by Qantas to relieve it of its obligation to also pay the JobKeeper payment. In this second fortnight the employee did not earn any money by reason of the fact that he had been “stood down” and thus should receive the JobKeeper payment of $1,500.

36    Contrary to the position being advanced on behalf of the Unions, in this scenario:

    the amount payable to the employee for the work performed in the first fortnight is $1,500 and not $3,000 – it is only $1,500 which the employee is contractually required to be paid and it is only $1,500 which the employee in fact receives for the work performed during that fortnight.

Scenario 2

37    The second hypothetical Scenario poses a period of time after the JobKeeper Scheme has come into operation and is as follows:

In this Scenario:

    Qantas receives two JobKeeper payments, each of $1,500 – the JobKeeper Scheme now having come into operation covering the two consecutive fortnights;

    Qantas, but for the JobKeeper Scheme, would have been contractually obliged to pay the employee for the two consecutive fortnights $3,000 for monies earned and payable only in respect of the first of the two fortnights; and

    Qantas receives by way of subsidy over those two fortnights $3,000 covering the entirety of the amounts to which the employee was contractually entitled.

38    From Qantas’ perspective, it has managed to retain the services of its employee, notwithstanding the fact that the employee was stood down for the second of the two fortnights. Qantas has had to pay out of its own reserves $3,000. It has received two JobKeeper payments, each of $1,500, but is required to pass on to the employee the entirety of one of those two amounts. For the first fortnight it has been subsidised to the extent of $1,500. From the perspective of the employee, the employee has again received “in his pocket” $4,500 for having performed work over those two consecutive fortnights valued at $3,000.

Scenario 3

39    It is the third Scenario which perhaps best exposes the prospect that Qantas may receive no subsidy in respect to any of the amounts it may be contractually required to pay its employee, and which best exposes the prospect of an even greater “windfall” for the employee.

40    In the third Scenario the hypothetical facts are as follows:

In this Scenario:

    Qantas receives two JobKeeper payments, each of $1,500 – but it is required to pay each of those two amounts to the employee;

    Qantas remains contractually obliged to pay the employee the $2,500 for work performed in the third JobKeeper fortnight but payable in the following fortnight.

On this Scenario:

    the employee gets a “windfall” of receiving in addition to wages, two JobKeeper payments totalling $3,000.

41    The extent of the perceived “windfall” in the hands of the employee, has again occasioned consideration being given to whether the construction and application of s 789GDA(2)(b) set forth in these three Scenarios is correct.

42    Assuming a primary objective of the JobKeeper Scheme is to provide a “subsidy” to employers to offset against amounts that may be contractually payable, emphasis could potentially be given to the “amount payable” to an employee during any given fortnight. On such an approach, the phrase “the amount payable” would be stripped of what has hitherto been regarded as meaning “the amount payable” to the employee pursuant to a contractual (or other) obligation to make payment during the fortnight in question. The phrase “the amount payable” would, on this alternative approach, have to be construed as meaning “the amount payable” for the work performed during a particular fortnight irrespective of when the employee is contractually entitled to receive payment, or perhaps be construed as meaning “the amount earned during the fortnight … irrespective of when it is payable”. If such potential difficulties be presently left to one side, if this alternative construction of s 789GDA(2) were to prevail, Scenario 3 could potentially yield the following result:

On this variant to Scenario 3, s 789GDA(2)(b) operates such that:

    for the first of the two fortnights, the “amounts payable to the employee in relation to the performance of work during the fortnight” (even though it is not paid during this fortnight) would be $2,500; and

    for the purposes of the second fortnight, “the amounts payable to the employee in relation to the performance of work during the fortnight” would be nil because there would be no work performed which would attract any entitlement to payment.

On this approach, the “minimum payment guarantee” (s 789GDA(1)) remains the same, namely the obligation on the employer to “ensure that the total amount payable to the employee in respect of the fortnight is not less” than the two amounts identified in s 789GDA(2)(a) and (b), such that:

    for the first fortnight, the comparison of those two amounts would yield the result that the employee would receive no JobKeeper payment – the term “payable” in both the introductory words to s 789GDA(2) and later the same term in s 789GDA(2)(b) both having to be given the same meaning of “payable irrespective of when the amount is in fact paid”. For the first fortnight, the “amount payable” (even though not received) would be $2,500, that being an amount greater than the “jobkeeper payment” (s 789GDA(2)(a)); and

    for the second fortnight, the comparison of those two amounts would yield the result that the employee would receive a JobKeeper payment of $1,500 – having taken the contractual entitlement to payment of $2,500 into account for the purposes of the first fortnight, it could not be taken into account again for the second fortnight, nor could any payment in fact received be regarded as an amount “payable … in relation to the performance of work during” a fortnight when then employee had been stood down.

But, on this alternative approach for these two fortnights:

    Qantas remains contractually obliged to pay the employee $2,500 and receives a “subsidy” of $3,000, half of which must be paid to the employee; and

    the employee receives nothing for the first fortnight but receives in total for the two fortnights a total $4,000 – being the contractual entitlement and one JobKeeper payment, both being paid in the second fortnight.

43    Although yielding what may be seen as a fairer result (a least in one respect), namely the employee receiving less of a “windfall”, the difficulty with this approach to the administration of the JobKeeper Scheme is (inter alia) that it requires s 789GDA(2)(b) to be construed as meaning “the amount earned during the fortnight in relation to the performance of work irrespective of when it is payable…”. Alternatively, this approach requires the phrases employed in s 789GDA(2) and s 789GDA(2)(b) of “the amount payable” as meaning payable “irrespective of when the amounts are in fact paid”. Neither construction, it is respectfully concluded, gives effect to the normal and ordinary meaning of the phrase “the amount payable”, nor does so when that phrase is used in conjunction with the phrase “in relation to the performance of work during the fortnight”. Nor does it give effect to a stated Legislative intent that there be some continuity in payment to employees, the Explanatory Memorandum stating (cl 1.21) that an employer was required “to pay their employee … the fortnightly value of the JobKeeper payment”. To a similar effect is the Explanatory Statement issued by the Treasurer, which states that “the wage condition requires that an employer pay each participating employee at least $1,500 for each JobKeeper fortnight”.

44    If this alternative approach to the construction of s 789GDA(2)(b) were to be applied to Scenario 1, the result would potentially be as follows:

The alternative approach in respect to the first hypothetical Scenario would:

    have the total of $3,000 for wages being taken into account for the first of the two fortnights and $1,500 not thereafter being also able to be brought to account for the second of the fortnights; and

    have the employee being entitled to receive only one JobKeeper payment, namely that payment for the second fortnight – that being a fortnight during which the employee performed no work and thus was not entitled to be paid any amount – and also in fact receiving the second half of the $3,000 for the work performed during the previous fortnight.

On this alternative approach, the employee would again receive a “windfall” of $1,500.

45    This approach to construction, when applied to Scenario 2, would yield no different outcome to that of the concluded correct construction of s 789GDA(2)(b).

46    The temptation is to construe s 789GDA(2)(b) in such a manner which may be perceived as conferring more of a subsidy upon the employer and less of a windfall upon the employee. But that temptation it to be resisted. The task of the Court is to construe legislation according to its terms and not in a manner which a Court may subjectively perceive as achieving a more equitable (or less anomalous) result. Any anomaly must be “very serious … before the court is justified in using that anomaly as a reason for rejecting what otherwise seems the correct construction… [and] [w]ere courts to act otherwise, they would risk taking over the function of making policy choices which properly belongs to the legislature”: cf. Ganter v Whalland [2001] NSWSC 1101 at [36], (2001) 54 NSWLR 122 at 131 per Campbell J. See also: ConnectEast Management Ltd v Federal Commissioner of Taxation [2009] FCAFC 22 at [41], (2009) 175 FCR 110 at 119 per Sundberg, Jessup and Middleton JJ.

47    Notwithstanding any temptation to construe s 789GDA(2)(b) in a manner different to the normal and ordinary meaning of the words employed, the temptation is to be rejected. Notwithstanding the fact that the construction settled upon as being correct may in some circumstances confer a “windfall” upon an employee, the terms of s 789GDA(2)(b) – it is concluded – permit of no other construction. Even on a different construction to s 789GDA(2), anomalies persist.

48    Each of these Scenarios, it will readily be appreciated, exposes but a variation on a theme – that theme being:

    the term “payable”, both when employed in the phrase “the total amount payable” and the subsequent phrase “the amounts payable”, is to be given the same meaning, that meaning being “the amount payable” in accordance with a contractual or other entitlement to payment, and not meaning “payable … irrespective of when the amount is in fact paid”; and

    the application of s 789GDA(2) depending upon a calculation of “the amounts payable” to the employee during a particular fortnight for work in fact performed “during the fortnight”.

49    Senior Counsel for both Qantas and the Unions readily accepted that idiosyncratic situations could be presented and yield to perhaps unexpected (or at least potentially unanticipated) results. The casual employee who prior to the JobKeeper Scheme received a fortnightly sum of $500 would – after the introduction of the JobKeeper Scheme – be in receipt of $1,500 per fortnight. Irrespective of whether that was an outcome envisaged by the Parliament or whether it could be characterised as an unintended “windfall” for the casual employee, who remains “far better off” after JobKeeper than he ever was before, such is the manner in which s 789GDA(2) operates.

50    In submissions more directed to the facts of the present case, the written submissions filed on behalf of the Qantas parties maintain that s 789GDA(2) does not dictate the payment of $1,500 in fortnights where an employee:

    does not perform any work during a particular fortnight but nevertheless receives (for example) “$2,500 … payable in wages in respect of work performed prior to that fortnight” – the Qantas position being that “the amount specified by paragraph (2)(b) is $2,500, because that is the amount payable to the employee during the fortnight”. On the approach of the Unions (so Qantas submits) “the amount specified by paragraph (2)(b) is nil, because no amounts were earned from the performance of work during the fortnight, and s 789GDA(2) would require the employer to pay $1,500 pursuant to paragraph 2(a)”.

This is the hypothetical Scenario 3.

51    Whatever other idiosyncratic situations may be presented for consideration, the statutory language employed in s 789GDA(2) remains unambiguous.

52    Section 789GDA(2) – applied to the facts

53    Written submissions and tables were filed by the parties attempting to set forth the manner in which their competing constructions of s 789GDA(2)(b) were to be applied to the facts. But those competing tables, in particular, contained – with respect – confusion (or at least occasioned confusion) as to the manner in which differing amounts of payments were being described. There was no certainty as to how particular amounts had been quantified. There was also, most significantly, no agreement as to the basic facts to which the legislative provisions were to be applied.

54    The tables have nevertheless been employed in an attempt to demonstrate how the construction of s 789GDA(2) is to be applied to the following employees, namely:

    Mr Steven Wayne Harris, Customer Service Agent employed by Qantas Airways Limited;

    Ms Lisa Evans, Freight Operations Agent employed by Qantas Airways Limited;

    Mr Liam Dwayne Delaney, Airline Services Operator employed by Qantas Airways Limited; and

    Mr Brett Peter Langford, Baggage Handler employed by Qantas Ground Services Pty Ltd.

The following tables set forth what can be regarded as no more than an assumed factual position in relation to each of these employees. The amounts stated cannot be regarded as findings of fact as to the contractual entitlements of these employees. At best, they are intended to provide some assistance as to the manner in which the construction of s 789GDA(2) can be applied, once the basis facts have been agreed.

Mr Steven Harris

55    Subject to the necessary qualification that the primary facts employed in the following table have been assumed to be correct, the manner in which s 789GDA(2) is to be applied to Mr Harris can be summarised as follows:

56    On the approach now settled upon, Mr Harris receives a total of $10,500 over the seven JobKeeper fortnights. Over that period he has performed work – or earned – a sum of $8,901.53 and over the same period and – but for the JobKeeper Scheme – he would have received from Qantas a sum of $ 8,714.22. Although Qantas must pass on all of the JobKeeper payments it receives from the Commonwealth to Mr Harris, it receives $8,901.53 worth of work performed by Mr Harris.

Lisa Evans

57    Again subject to the necessary qualification that the primary facts employed have been assumed to be correct, the following table illustrates how the correct approach applies to Ms Evans:

58    Despite only performing work that would entitle her to an amount of $9,152.70, Ms Evans (like Mr Harris) receives a total amount of $10,500 over the seven fortnights. Without JobKeeper, Qantas would have been required to pay an amount of $8,953.42 out of its own reserves for work performed after the commencement of the JobKeeper Scheme.

Messrs Delaney and Langford

59    Messrs Delaney and Langford’s evidence only covered the first two JobKeeper fortnights. Assuming the factual accuracy of the primary facts, the outcome for these two employees is as follows:

Liam Delaney

Brett Langford

60    Although the hypothetical scenarios posed in order to test the construction of s 789GDA(2)(b) have provoked a series of results in which there may be the prospect of employees receiving what may be perceived as “excessive” and unintended “windfalls”, when tested against the limited facts which have been assumed in the present case, the hypothetical results seem to be more theoretical than real. The exercise undertaken in respect to these employees, accordingly, provides no reason to depart from the construction of s 789GDA(2)(b) which has been settled upon.

Sources of ambiguity & the object and purpose of Part 6-4C

61    In resisting what is otherwise seen as comparatively simple statutory language, Senior Counsel for Qantas sought to resist the construction now settled upon, not only by reference to the idiosyncratic manner in which the provision operated and the results produced, but also by reason of what Qantas perceived to be:

    an ambiguity arising by reason of whether the phrase “during the fortnight” qualified only the “amount payable” or qualified the entire phrase in s 789GDA(2)(b);

    an inconsistency between any attempt to confine s 789GDA(2)(b) to only those payments made “in relation to the performance of work during the fortnight” – the inconsistency arising from the fact that Note 2 included amounts which were not referable to “the performance of work during the fortnight”; and

    the object and purpose of Pt 6-4C – that object and purpose, on its approach, denying any legislative intent (inter alia) to include any “significant new administrative and financial burden on affected employers”.

To this last matter may be added a more Delphic submission advanced on behalf of the Qantas parties in respect to:

    section 10 of the Coronavirus Rules and flexibility as to the application of the “wage condition” found in s 789GD(b).

Senior Counsel for the Unions supported a conclusion that the amount in s 789GDA(2)(b) be for “the performance of work during the particular JobKeeper fortnight”, but resisted any construction of “payable” as requiring that amount to be “actually paid” or “required to be paid” during the fortnight. That position was supported by three similar contentions, namely that:

    the words “in relation to” in s 789GDA(2)(b) mean that “during the fortnight” only applies to the performance of work and does not relate to “the timing of the payment”;

    Note 2 reflects the purpose of the section to “ensure that employees receive amounts earned for the performance of work in the JobKeeper fortnight”; and

    the Explanatory Memorandum illustrates that the purpose of s 789GDA was to “ensure that employers pass on in full the value of the JobKeeper subsidy… or otherwise pay their employees for productive work during a JobKeeper fortnight”.

The competing arguments as to these issues put forward by Senior Counsel for Qantas and the Unions should be considered.

During the fortnight

62    The first of the arguments underpinned what Qantas perceived to be the perverse manner in which the section otherwise operated as exposed in each of the three Scenarios.

63    The submission advanced by Senior Counsel on behalf of the Qantas parties was that the phrase employed in s 789GDA(2)(b) “during the fortnight” qualified both “the amount payable” and the phrase “in relation to the performance of work”. The phrase “during the fortnight”, upon the approach of Qantas, did not merely identify the period during which the work was performed. Senior Counsel for the Unions contended that because of the words “in relation to”, “during the fortnight” qualified the “performance of work” and did not mean “paid” or “required to be paid” during the fortnight. As with many submissions as to statutory interpretation, with respect, there is frequently a large element of unnecessary semantics. And often the interpretation settled upon can be no better supported than by recourse to an incantation that the preferred interpretation gives effect to the natural and ordinary meaning of the words employed.

64    An object and purpose of the JobKeeper Scheme, it is considered, was the assurance to be provided to employees as to a continuity and regularity of a minimum fortnightly payment of $1,500. Those drafting the legislation, it is concluded, had in mind that there were some fortnights when an employee may receive in his pay packet more, and some fortnights when an employee would receive less than $1,500 for the work performed during that fortnight. Those drafting the legislation, it is considered, placed to one side the prospect that an employer may pay an employee monies in respect to work performed according to previously prevailing work practices or contractual provisions. On this approach, with respect, it matters little whether the phrase “during the fortnight” covers the entirety of the terms employed in s 789GDA(2)(b) or merely the fortnight during which the work was performed. The result is the same. The result is the same if s 789GDA(2)(b) were to be construed as meaning “the amounts payable to the employee [during the fortnight] in relation to the performance of work during the fortnight”. It is only if the phrase “during the fortnight” qualifies either only the phrase “the amounts payable” or only the phrase “in relation to the performance of work” that there is any different result in the application of the subsection.

65    Contrary to the submission of Qantas, the preferred interpretation of s 789GDA(2) does not involve “reading into” the words of “the chapeau of the subsection words which are not there”. It does not involve “reading into” the subsection an exclusion of “any amount payable in respect of the performance of work in a previous fortnight”. Rather than reading into the words of the subsection words which are not there, the construction settled upon simply gives effect to the words in fact employed. Indeed, it is the construction of Qantas which involves reading into the subsection the words “the amounts payable to the employee in relation to the performance of work during the fortnight, including amounts previously payable”. Equally, the construction of the Unions involves reading into the subsection the words “the amounts payable to the employee in relation to the performance of work during the fortnight, whether or not those amounts are actually paid or required to be paid during the fortnight”.

Note 2

66    Another discrete submission was advanced by Qantas in support of its submission that s 789GDA(2)(b) should not be confined to the amounts payable to the employee for work performed during the fortnight in which the work was performed. The Notes to s 789GDA, according to this submission, strongly ran contrary to any such a construction. The “amounts” to which Note 2 applies, on the Qantas approach, include “amounts” which “are typically earned over a number of fortnights”. These “amounts” include “loadings” and “leave payments”. The inclusion of these “amounts”, on the Qantas submission, “points strongly to the fact that paragraph (2)(b) is not concerned with amounts earned from the performance of work during the relevant fortnight”. The Union contended that Note 2 reflects the purpose of the section to ensure employees receive amounts for the performance of work in the fortnight, “regardless of whether they are for ordinary hours, overtime, loadings or allowances”.

67    Qantas’ submission is, with respect, not without some considerable merit. The example provided of “leave payments” (in particular) expressly raises the legislative recognition of the fact that there may be payable to an employee amounts which are not earned – or exclusively earned – by reason of the work performed in any given fortnight. But there are at least two reasons for rejecting this submission, namely:

    both the terms of s 789GDA(2) and Note 2 employ the language of an “amount payable in respect of the fortnight” as opposed to the language in s 789GDA(2)(b) of the “amounts payable to the employee in relation to the performance of work during the fortnight” – the former expression “in respect of”, it is considered, permitting of a construction that is broader than the identification of those amounts “payable ... in relation to the performance of work during the fortnight”. The phrase “in respect of”, it may be noted, is also employed in s 789GDA(2) and should be given the same meaning when both appearing;

and/or, assuming that the difference in language between “in respect of” as opposed to “in relation to” is not to be given such significance:

    there is no ambiguity in the phrase employed in s 789GDA(2)(b) such that the Note should be used to give that phrase a meaning different to its normal and ordinary meaning (cf. The Ombudsman v Moroney (1983) 1 NSWLR 317 at 323-325 per Street CJ).

Indeed, if attention is focussed on the phrase “in respect of”, as opposed to “in relation to”, it may well be concluded that the Legislature:

    expressly thereby recognised that the former phrase is not as confined as the latter, thereby permitting greater flexibility in recognising those “amounts payable ... in respect of the fortnight” (s 789GDA(2), (e.g., leave entitlements) rather than the more confined “amounts payable … in relation to the performance of work during the fortnight…” (s 789GDA(2)(b)), that greater flexibility of meaning only being reinforced by the phrase “the total amount payable” in s 789GDA(2).

Left to one side is the prospect that s 789GDA(2) may call for:

    a calculation as to the discrete amount which is payable to the employee for a “leave entitlement” for a particular fortnight.

Note 2(e), it is thus concluded, does not lead to any different conclusion. The natural and ordinary meaning of the phrase “the amounts payable to the employee in relation to the performance of work during the fortnight” remains unambiguous. It excludes an amount which may be received by an employee, for example, in relation to work performed at some time not “during the fortnight”. Whatever other amounts, such as leave entitlements, that are to be taken into account when calculating “the total amount payable” in s 789GDA(2), s 789GDA(2)(b) remains confined in its operation to the identification of the “amounts payable … in relation to the performance of work during the fortnight”.

68    If the consequence of the interpretation now given to s 789GDA(2)(b) is that idiosyncrasies arise in respect to the quantification of amounts that an employee is to receive – including the prospect that employees may benefit from a “windfall” – so be it. It remains a matter for the Legislature to “tweak” or adjust the Scheme if it sees fit.

Object and purpose of Pt 6-4C

69    The object and purpose of Pt 6-4C of the Fair Work Act, Senior Counsel for the Qantas parties submitted, was to (inter alia):

    “assist employers who qualify…” (s 789GA);

    facilitate the making of “temporary changes to assist the Australia people to keep their jobs” (s 789GB(a));

    “help sustain the viability of Australian businesses during the COVID-19 pandemic” (s 789GB(b)); and

    “continue the employment of employees” (s 789GB(c)).

Founded upon such legislatively stated purposes, Senior Counsel for the Qantas parties submitted that “these statements of purpose manifest that the scheme is designed to assist eligible (distressed) employers deal with the current crisis, and maintain employment relationships, doing so by in effect subsidising wages”. There was no suggestion, so the submission continued, that the Part was “intended substantially to alter payroll arrangements or the like” and that “to impose such a requirement in current conditions would tend to defeat the identified purposes by imposing a significant new administrative and financial burden on affected employers…”.

70    The submission was sought to be bolstered by reference to ss 789GD and 789GC, the Rules and the Explanatory Statement to the Rules and (in particular):

    the specification in s 789GC of the “wage condition”, being the wage condition in the Rules – and s 10 of the Rules effectively requiring an employer to ensure that the gross amount paid to an employee in a JobKeeper fortnight is no less than $1,500;

    the requirement imposed by s 789GD to ensure that an employee is paid a minimum of $1,500 per fortnight;

    an example provided in the Explanatory Statement to the Rules, assuming that reliance could be placed upon that Explanatory Statement, directed to the “requirement that the component amounts be at least $1,500 applies regardless of whether the employee ordinarily receives more or less than that amount”. The example relied upon was the employee who “ordinarily receive $1,500 or more in income per fortnight before PAYG withholding and other salary sacrificed amounts, and their employment arrangements do not change they will continue to receive their regular income according to their workplace arrangements. The JobKeeper payment will assist the employer to continue operating by subsidising all or part of the income of the employee”.

The written submission was that the “Explanatory Statement is not consistent with the suggestion that the purpose of the JobKeeper scheme was to ensure that employees were paid in a jobkeeper fortnight all amounts earned by them in that fortnight, but which would ordinarily be paid in the next fortnight”.

71    The generally expressed purposes as set forth in these provisions can readily be accepted. So, too, can the summary effect of those provisions being to “assist employers” and the continuation of employment by providing, in effect, a government subsidy of wages. So much was (for example) expressly recognised by the Treasurer when introducing the JobKeeper Scheme on 8 April 2020 when he told the House of Representatives that “the government will deliver a wage subsidy to those employers significantly impacted by the coronavirus outbreak to continue paying their employees …”.

72    One difficulty with Qantas’ submission, however, is that each of the provisions it refers to, together with the example provided in the Explanatory Statement to the Rules, is equally consistent with the construction of s 789GDA(2)(b) as now settled upon as the correct (or, at least, the preferred) construction. The government payment of $1,500 per fortnight to the employer, it is accepted, operates as a “wage subsidy” – but it operates as a “wage subsidy” irrespective of when an employee in fact receives payment of the “amounts payable … in relation to the performance of work during the fortnight…”. In those fortnights when an employee has (for example) been stood down and thus “earns” nothing but may nevertheless receive $2,000 for work previously performed in the former fortnight, the government continues to subsidise the employer by paying $1,500; and if the employee in the previous fortnight performed the work which entitled that employee to receive $2,000 (albeit payable in the second fortnight) but nevertheless receives no amount for work performed in that previous fortnight, the government again ensures that the employee nevertheless receives the minimum payment of $1,500. The former may truly be regarded as the government “subsidising … part of the income of the employee”; the latter may be regarded not inappropriately as the government “subsidising all … of the income of the employee…”. The fact is that some circumstances may arise where an employer may be contractually or otherwise required to pay an employee and nevertheless receive no “subsidy” in return. But any objective of “subsidising” employers remains only one of the objectives; another objective is the continuation of “the employment of employees” and ensuring that the employee receives $1,500 in any given JobKeeper fortnight. Not to be ignored is the contrast in the language employed in s 789GDA(2)(b) of “the amounts payable to the employee” and the language employed in Explanatory Memorandum of “the income of the employee”.

Section 10(1) of the Coronavirus Rules

73    Section 789GD(b) of the Fair Work Act provides that an “employer must ensure that the wage condition has been satisfied”. And s 10(1) of the Coronavirus Rules provides that “an employer satisfies the wage condition in respect of an individual for a fortnight if the sum of the amounts covered by subsection (2) equals or exceeds $1,500”. If (inter alia) the “wage condition” is satisfied, s 6(1)(d) of those Rules provides that the employer is the “entitled to a jobkeeper payment for an individual for a fortnight…”.

74    It is s 10(3) of the Coronavirus Rules which assumes present relevance, namely that provision which contemplates that an employer may “apply” s 10 “in a reasonable manner” where the “regular period for which the employer would usually pay employees … is longer than a fortnight…”. This provision was expressly addressed in the Explanatory Statement to those Rules where it was stated that “it may be reasonable for the purposes of satisfying the wage condition if the employee is paid at least $3,000 for every four week period”. These statements were made in the context of the example previously relied upon by Senior Counsel for the Qantas parties going to the employee who “ordinarily receives $1,500 or more in income” and who continues “to receive their regular income according to their workplace arrangements …”.

75    After referring to s 10(3), Senior Counsel for the Qantas parties submitted during the course of the hearing that that provision was consistent with the proposition that “you’ve got to be reasonable about it….”. The purport of the submission was understood to be that in applying the statutory regime set forth in both the Coronavirus Rules and (presumably) Pt 6-4C of the Fair Work Act, some flexibility is permitted and that the provisions have to be “reasonably” applied.

76    That flexibility, presumably, was sought to be relied upon to found a conclusion that the existing payment arrangements in place within the Qantas parties were not to be “unreasonably” displaced, with the consequence that there was to be some flexibility in allocating income to a particular JobKeeper fortnight.

77    Whatever may be the extent of the flexibility in application permitted by s 10(3) of the Coronavirus Rules, the difficulty with the submission (and the example relied upon), and as contended by Senior Counsel for the Unions, is that s 10 goes to the satisfaction by an employer of the “wage condition” and the entitlement of an employer to receive a JobKeeper payment for an employee. In issue is not whether the Qantas parties “qualif[y] for the jobkeeper scheme” (s 789GD) or whether they meet the “wage condition” (r 10), but the different question as to the manner of application of the “minimum payment guarantee” to employees imposed by s 789GDA.

78    Left unresolved is whether reliance can be placed upon the Coronavirus Rules when interpreting s 789GDA. Even if reliance could be placed upon those Rules and possibly the Explanatory Statement to those Rules, no different conclusion as to the construction and application of s 789GDA(2)(b) would be reached. If necessary to resolve the question, it would most probably have been concluded that reliance could at least be placed upon the Rules, because those Rules and the legislative amendments to the Fair Work Act were part of a “contemporaneously prepared” legislative framework: cf. Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86 at 90 per Heerey J; Bendigo Bank v Williams [2000] FCA 482 at [13]-[14], (2000) 98 FCR 377 at 382-383 per Moore and Lehane JJ.

CONCLUSIONS

79    Notwithstanding the merit of the submissions advanced on behalf of the Qantas parties and the Unions, the correct construction of s 789GDA(2)(b) is that the statutory phrase means what it says – namely, s 789GDA(2)(b) identifies that amount of money which is in fact contractually (or otherwise) “payable” to the employee in a given fortnight for the work in fact performed during that fortnight. If additional monies may also become payable by reason of work performed during a different fortnight, albeit not in fact paid during that same fortnight, it cannot be concluded that those additional monies when paid during a different fortnight are nevertheless “amounts payable … in relation to the performance of work during the fortnight”.

80    Given the merit in the submissions advanced on behalf of the Qantas parties, Senior Counsel for the Unions was correct to abandon any relief in the form of penalties for such contraventions of the JobKeeper Scheme as have occurred by reason of underpayment of monies to employees.

81    No submission was advanced on behalf of the Unions that the Qantas parties were pursuing some ulterior objective of seeking (for example) to maximise the amount of the JobKeeper payments, and seeking to retain those payments for their own benefit rather than employing those payments to satisfy the entitlements of its employees.

82    Declaratory relief should be granted to give effect to the construction of s 789GDA(2)(b) now settled upon.

THE ORDERS OF THE COURT ARE:

In matter NSD 783 of 2020

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

In matter NSD 808 of 2020

1.    The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.

Associate:    

Dated: 24 September 2020