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Federal Court rules Qantas misused JobKeeper
The Federal Court has found Qantas did not reasonably apply its JobKeeper subsidies and now owes back payment to hundreds of staff members who were engaged throughout the pandemic.
Tony Zhang
The Federal Court has ruled against the national airline, finding it was paying overtime to workers, including airport staff, baggage handlers and cabin crew, with the airline choosing to pay overtime in the following fortnightly pay cycle to meet the JobKeeper minimum pay requirement of $1,500 per fortnight.
However, Justice Geoffrey Flick found a reasonable manner qualified only the period “during the fortnight” of actual work by an employee and was not to be confused with arrears payments.
“The overtime… 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,” Justice Flick said.
While orders have not yet been finalised, Justice Flick said that if the ruling meant that Qantas workers would have to back pay workers, “so be it”.
“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,” Justice Flick said.
“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.”
Justice Flick stated that JobKeeper payments are only allowed to be claimed against employee wages that are “contractually due to receive during any given fortnight for work performed during that same fortnight”.
The ruling serves as a warning to other companies that are currently receiving JobKeeper payments and paying staff in arrears.
While the decision could mean hundreds of workers are back paid, the airline called the suggestion “misleading” and is considering appealing.
Transport Workers Union national secretary Michael Kaine said it was an important win for Qantas employees.
“These workers have endured systematic wage theft at the hands of an out-of-control management,” he said in a statement.
A Qantas spokesperson said in a statement the airline was “carefully considering” an appeal and argued it was “misleading for unions to suggest employees should expect a sudden windfall out of today’s judgment”.
“Qantas has based all of its decisions on JobKeeper on the legislation and guidance provided by the ATO and made sure all employees receive a ‘safety net’ payment of $1,500 per fortnight. That ‘safety net’ assurance is a central part of the government’s JobKeeper policy. Today’s judgement appears to cut across that principle,” a company spokesperson said.
“The judgement will likely have adverse implications for all companies receiving JobKeeper, who are already reeling from the impacts of COVID.”
