Qantas Airways Limited v Flight Attendants' Association of Australia [2020] FCAFC 227

Qantas Airways Limited v Flight Attendants' Association of Australia [2020] FCAFC 227

By majority, the Court held that s 789GDA(2)(b) refers to the amounts liable or required to be paid to the employee during the relevant JobKeeper fortnight in relation to the performance of work, according to the applicable contract or industrial instrument, rather than amounts earned by the employee for work performed during that fortnight. The phrase "amounts payable to the employee in relation to the performance of work" was copied from s 323(1) of the Fair Work Act 2009 (Cth) and should bear the same meaning. The word "payable" takes its ordinary meaning of liable or required to be paid. Note 2, the structure of the JobKeeper Scheme, the civil penalty character of the provision, and...

Jurisdiction
Australia
Judgment Date
17 December 2020
Procedural Posture
Appeal in the Fair Work Division Concerning Statutory Interpretation of the Job Keeper Scheme Minimum Payment Guarantee / Appeal and Cross Appeal From Qantas Airways Limited V Flight Attendants' Association of Australia (the Job Keeper Case) [2020] FCA 1365
Outcome
Appeal allowed; cross-appeal dismissed; declaration made on 13 October 2020 set aside.
Legal Topics
['commonwealth Job Keeper Scheme' 'fair Work Act 2009 (cth) S 789 Gda' 'minimum Payment Guarantee' 'wage Condition' 'civil Remedy Provisions' 'extrinsic Materials']
['employment and Industrial Relations' 'statutory Interpretation'] ['commonwealth Job Keeper Scheme' 'fair Work Act 2009 (cth) S 789 Gda' 'minimum Payment Guarantee' 'wage Condition' 'civil Remedy Provisions' 'extrinsic Materials']

Case Brief

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Procedural Posture

Appeal in the Fair Work Division Concerning Statutory Interpretation of the Job Keeper Scheme Minimum Payment Guarantee / Appeal and Cross Appeal From Qantas Airways Limited V Flight Attendants' Association of Australia (the Job Keeper Case) [2020] FCA 1365

Legal Issues

  1. 1 ['What is the proper construction of the phrase "the amounts payable to the employee in relation to the performance of work during the fortnight" in s 789GDA(2)(b) of the Fair Work Act 2009 (Cth).' 'Whether s 789GDA(2)(b) refers to amounts ordinarily payable during the JobKeeper fortnight in relation to the performance of work, amounts earned during the fortnight, or amounts both earned and payable during the fortnight.' 'Whether the declaration made by the primary judge should be set aside and replaced.']

Ratio Decidendi

By majority, the Court held that s 789GDA(2)(b) refers to the amounts liable or required to be paid to the employee during the relevant JobKeeper fortnight in relation to the performance of work, according to the applicable contract or industrial instrument, rather than amounts earned by the employee for work performed during that fortnight. The phrase "amounts payable to the employee in relation to the performance of work" was copied from s 323(1) of the Fair Work Act 2009 (Cth) and should bear the same meaning. The word "payable" takes its ordinary meaning of liable or required to be paid. Note 2, the structure of the JobKeeper Scheme, the civil penalty character of the provision, and...

Court Disposition

Appeal allowed; cross-appeal dismissed; declaration made on 13 October 2020 set aside.

Orders

  • ['NSD 1124 of 2020: The appeal be allowed.' 'NSD 1124 of 2020: The cross-appeal be dismissed.' 'NSD 1124 of 2020: The declaration made on 13 October 2020 be set aside.' 'NSD 1124 of 2020: The parties are to provide a proposed form of order which substitutes the declaration made on 13 October 2020 to give effect to...