In a decision that affects all employers participating in the JobKeeper scheme, the Federal Court has answered a “short but important question” about calculating employees’ fortnightly pay.

Justice Geoffrey Flick said the proceedings – involving Qantas, QF Cabin Crew Australia and Qantas Ground Services, and the airline unions – hinged on the correct construction and application of section 78+9GDA (2)(b) of the Fair Work Act.

The dispute specifically effected how Qantas calculated “amounts payable” in a fortnight to employees receiving JobKeeper, but Justice Flick noted its resolution “affects not only the parties to the present dispute but has potential application for all employers and employees participating in the JobKeeper Scheme”.

He rejected both Qantas and the unions’ construction of the section, instead of concluding the phrase “the amounts payable to the employee in relation to the performance of work during the fortnight” means exactly what it says.

That is, “amounts payable” refers “only to the monies an employee is contractually due to receive during any designated fortnight for work performed during that same fortnight”, he said.

If, for example, an employer is contractually required to pay monies during a designated fortnight for work performed in a previous fortnight (such as overtime), then that does not fall within the parameters of s789GDA(2)(b) and cannot be counted towards the minimum pay guarantee.

“If the consequence of this interpretation… 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,” Justice Flick said.

He also noted the unions didn’t claim in the proceedings that Qantas was trying “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”.

The Australian Services Union, however, stated that Qantas had underpaid workers by counting entitlements paid in a later pay cycle towards the $1,500 JobKeeper payment, this is “the clearest example of wage theft that we’ve seen in the aviation sector”.

The Transport Workers’ Union also said this decision was an important win for Qantas workers who “have had their pay raided by senior management in a massive abuse of the JobKeeper scheme”.

Qantas said it was considering appealing the decision, and that it was “deceptive” for the unions to suggest employees “should expect a sudden pay-out ” as a result of the judgment.

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