Mr Mathew Mazzitelli v Qantas Airways Limited

[2020] FWC 2685

[2020] FWC 2685

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 789GV - Application to deal with a dispute under Part 6-4C

Mr Mathew Mazzitelli
v
Qantas Airways Limited
(C2020/3189)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 22 MAY 2020

Application to deal with a dispute under Part 6-4C

[1] On 5 May 2020 Mathew Mazzitelli applied to the Commission to deal with a Jobkeeper dispute under Part 6-4C of the Fair Work Act 2009 (FW Act). The application concerns what Mr Mazzitelli considers to be an incorrect application of the Jobkeeper legislation and payment rules as they apply to monthly paid but stood down employees.

[2] The responding employer is Qantas Airways Limited (Qantas).

[3] Although before the Commission for only seventeen days, the application has considerable history: two conciliation conferences, 1 a jurisdictional challenge,2 a jurisdictional decision,3 an appeal,4 a stay decision,5 a full bench decision on jurisdiction6 and a subsequent merits hearing.7

[4] The merits hearing occurred in the context of the application returning to me after a full bench refused permission to appeal the Commission’s earlier decision dismissing the jurisdictional objection. I had found that Mr Mazzitelli’s application was a dispute about the operation of Part 6-4C of the FW Act and that dealing with the matter did not necessarily involve the exercise of judicial power.

[5] I arbitrated the merits (by phone) on 21 May 2020 after being satisfied there was no prospect of a conciliated settlement. Proceedings were audio recorded and both parties were self-represented.

[6] Except in one respect 8 (considered below) the facts set out in the Decision on Jurisdiction9 and by the full bench10 are agreed. I heard evidence from a Qantas Payroll Manager (Ms Shields). That evidence was via a witness statement,11 and orally. The evidence (insofar as it related to factual matters) was not contested. I received written and oral submissions from both Mr Mazzitelli12 and from Qantas.13 In addition to the agreed facts and evidence and submissions at the merit hearing, it was agreed that the Commission could also have regard to submissions made during the two earlier conciliation hearings.

The Facts

[7] Mr Mazzitelli is employed by Qantas as a Planning and Engagement Manager.

[8] Some Qantas employees are paid fortnightly; others monthly. Where an employee is paid monthly, they are paid two weeks in arrears and the remainder in advance.

[9] Mr Mazzitelli is paid on a monthly pay cycle; on the 15th of each month.

[10] Due to the impact of COVID-19 on its business, in March 2020 Qantas stood down thousands of employees, including Mr Mazzitelli. Mr Mazzitelli was stood down by letter and notice dated 27 March 2020. The letter provided:

“During the stand down you remain employed but you are not required to attend for work. You will also not be paid for the period of your stand down. However you may elect to take your entitlement to paid annual leave and long service leave during your stand down period.”

[11] The notice provided:

“Stand Down Notice

Under section 524 of the Fair Work Act 2009 (Cth) you are notified that you will be stood down from any work, shift or duty commencing on or after 12.01AM on 6 April 2020 as you cannot be usefully employed.

The stand down will continue until 31 May 2020 but will be continually under review. If circumstances change, you will be notified of a time and date for you to return to work. During the period of the stand down you will not be paid and you should not attend for work.”

[12] Mr Mazzitelli worked until 6 April 2020. Thereafter he did not attend work as he was stood down.

[13] Jobkeeper is a Commonwealth programme whereby the Commonwealth provides, for a limited period 14 and on account of the economic impact of COVID-19, a wage subsidy of $1,500 per fortnight to eligible employers with respect to eligible employees. Eligible employers are required to make fortnightly payments of wages to such employees in at least the sum of $1,500 (gross)15 and after having done so, the Commonwealth reimburses the employer the wage subsidy.

[14] The Jobkeeper Payment Rules 16 provide for thirteen Jobkeeper fortnights. The first Jobkeeper fortnight is the period from 30 March 2020 to 12 April 2020. The second is from 13 April 2020 to 26 April 2020,17 and so on (on a fortnightly basis) until 27 September 2020.

[15] Legislation giving effect to Jobkeeper passed the Commonwealth parliament on 8 April 2020, It received Royal Assent and commenced on 9 April 2020 18.

[16] The Jobkeeper legislation made complementary amendments to the FW Act. 19

[17] Jobkeeper (including eligibility of employers and employees for the programme) is administered by the Australian Taxation Office (ATO).

[18] Following commencement of Jobkeeper, Qantas expressed interest in and became certified as an eligible employer.

[19] Mr Mazzitelli is an eligible employee.

[20] Mr Mazzitelli worked for Qantas on 30 and 31 March 2020. He was paid for these days as part of his regular monthly pay on 15 March 2020.

[21] Mr Mazzitelli worked for Qantas on 1, 2 and 3 April 2020, prior to the commencement of his stand down on 6 April 2020. He did not otherwise work in April 2020 nor in May 2020 (that is, to the date of hearing).

[22] On 15 April 2020 Qantas made two payments to Mr Mazzitelli:

•  $2,352.30 (gross) for work performed in the month of April 2020 (being payment for work on 1, 2 and 3 April 2020 plus payment for a public holiday on 10 April; and payment for a public holiday on 13 April); and

•  $647.70 (gross) as a Jobkeeper “top up”.

[23] The $2,352.30 paid to Mr Mazzitelli on 15 April 2020 is attributable as follows: 20

•  $1,881.80 for payment for work on 1, 2 and 3 April 2020 plus payment for a public holiday on 10 April 2020 (within Jobkeeper fortnight 1); and

•  $470.50 for a public holiday on 13 April 2020 (within Jobkeeper fortnight 2).

Submissions

Mr Mazzitelli

[24] Mr Mazzitelli’s position is that Qantas has incorrectly applied the wage condition and minimum payment guarantee in sections 789GD and 789GDA of the FW Act and rule 10 of the Jobkeeper Payment Rules as they apply to monthly paid but stood down employees.

[25] Mr Mazzitelli submits that the correct approach to calculation is for the Jobkeeper wage subsidy of $1,500 to be applied and paid with respect to each separate Jobkeeper fortnight, even for monthly paid employees. He says that monies earned in a particular Jobkeeper fortnight should not be split or attributed (even in part) to different Jobkeeper fortnights. He says that (for the month of April 2020) Qantas attributed a portion of his earnings in Jobkeeper fortnight 1 to JobKeeper fortnight 2, resulting in a top-up of only $674.70. Had it applied the legislation and payment rules in the manner he contends, Mr Mazzitelli says that Qantas would have calculated the top-up as $1,029.50 (being the difference between $1,500 and his fortnight 2 earnings of $470.50).

[26] As a result of adopting what he submits was the wrong approach, Mr Mazzitelli says Qantas failed to pay him an extra $381.80 for the month of April 2020 (being the difference between the Jobkeeper top-up payment of $647.70 and the top-up that he says he should have been paid of $1,029.50) 21.

[27] Mr Mazzitelli says that this situation will repeat should there be a combination of a stand down period and a period of earnings in subsequent months, and should Qantas not alter its approach.

[28] The reasons Mr Mazzitelli submits that the approach adopted by Qantas is wrong are:

•  it is not consistent with the language of the wage condition in section 789GD;

•  it is not “reasonable” within the meaning of rule 10(3) of the Jobkeeper Payment Rules; and

•  it unfairly discriminates against monthly paid employees because persons employed by Qantas on a fortnightly basis do not have earnings in a particular Jobkeeper fortnight attributed to any other Jobkeeper fortnight and thereby those persons receive the full value of the $1,500 fortnightly Jobkeeper wage subsidy (including monies earned).

[29] Mr Mazzitelli seeks that the Commission deal with the dispute by:

•  expressing an opinion on whether Qantas is correctly applying the legislation or Jobkeeper Payment Rules with respect to monthly but stood down employees generally and in particular with respect to his situation;

•  ordering Qantas to review its payment approach in light of the Commission’s decision;

•  instructing Qantas to adopt the correct payment approach; and

•  ordering Qantas to issue a personal apology for the errors and his subsequent stress and time involved in having to bring this matter before the Commission.

Qantas

[30] Qantas submit that it correctly applied the wage condition and minimum payment guarantee in sections 789GD and 789GDA of the FW Act and rule 10 of the Jobkeeper Payment Rules and continues to do so.

[31] In simple terms, Qantas submit that it is the payment that should determine whether it has applied the correct approach, and not the date or period of a month on which earnings accrue.

[32] It says that its approach is consistent with the language of the FW Act and is reasonable within the meaning of the Jobkeeper Payment Rules. It points to the fact that the Jobkeeper Payment Rules permit deviation from rigid fortnightly payment silos where a monthly paid employee is eligible for the Jobkeeper wage subsidy.

[33] It also says that its approach is consistent with guidance material issued by the ATO, 22 and with webinars and advice from professionals in the field.23 The evidence of Ms Shields was that this guidance material helped inform Qantas of the approach it adopted with respect to monthly paid staff 24.

[34] In summary, Qantas submit that for monthly paid employees the correct approach is: 25

“they must receive the equivalent of at least $1,500 (gross) for each full JobKeeper fortnight in a month, being $3,000 (gross) for each month (except for August in which employees must receive at least $4,500 (gross) because it includes three full JobKeeper fortnights). The wage condition under JobKeeper is therefore satisfied if monthly paid employees are paid at least $3,000 (gross) across two JobKeeper fortnights/four-week periods;

because there will not be a pay day in every JobKeeper fortnight for monthly paid employees, the $3,000 (gross) per month minimum is allocated across two JobKeeper fortnights (except for August where $4,500 (gross) minimum is allocated across three JobKeeper fortnights) and the assessment as to whether any JobKeeper top up is required is done against that combined figure, such that:

A. if the employee’s pay is more than $3,000 (gross) on the monthly pay date, the employee will receive their regular pay according to their prevailing workplace arrangements and there will be no JobKeeper “top up”;

B. if the employee’s pay from the Respondent is below $3,000 (gross) on the monthly pay date (whether this is because they are stood down or because their pay is below $3,000 (gross) in the month), they will be paid a JobKeeper top up to bring the total monthly payment to $3,000 (gross).”

[35] Qantas submit that there is no unfairness as between monthly and fortnightly paid employees because the nature of payment arrangements differ, with monthly paid employees having annualised salaries averaged over 12 monthly pay dates, with payment dates that provide for payment in arrears and in advance.

[36] Finally, Qantas submit that should Mr Mazzitelli’s approach be adopted it would place an excessive and unreasonable administrative and economic burden on the business at a time of severe economic stress as it would require new payroll systems to be adopted and pay to be calculated for monthly paid staff by reference to earnings on particular times or days of the month (which is not currently the case), and which would be unworkable.

[37] Qantas submit that Mr Mazzitelli’s application should be dismissed.

Consideration

[38] Section 789GD provides (statutory notes omitted):

“789GD 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;”

[39] The expression “wage condition” used in the section is defined in s 789GC as follows:

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

[40] Section 789GDA provides:

“789GDA 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.”

[41] Rule 10(1) of the Jobkeeper Payment Rules provides, in summary, that the “wage condition” is satisfied for a fortnight if the employer pays the employee an amount that “equals or exceeds” $1,500 (gross) in wages or other employment benefits as prescribed by rule 10(2).

[42] Sections 789GD and 789GDA are civil remedy provisions.

[43] At the heart of this dispute is the tension between a taxpayer funded wage subsidy scheme (Jobkeeper) whereby the subsidy is a fortnightly payment and the application of that scheme to monthly paid employees who are neither paid fortnightly nor by reference to their earnings on a particular day or fortnight of a month.

[44] Those that designed the scheme appear to have had regard to this discord by virtue of the enactment of rule 10(3) and 10(4) of the Jobkeeper Payment Rules.

[45] Rules 10(3) expressly deals with the situation where an employee has a usual pay period in excess of a fortnight. It provides:

“(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.” 26

[46] There is dispute that Qantas would “usually pay” Mr Mazzitelli on a monthly basis. A monthly payment period is “longer than a fortnight”. Accordingly rule 10(3) applies to this matter and is directly relevant to dealing with this dispute. It is a rule which Qantas was required to apply in order to meet the wage condition it owed under section 789GD of the FW Act.

[47] In Jobkeeper fortnight 1 Mr Mazzitelli earned $1,881.80 (excluding earnings on the days 30 and 31 March 2020 which had been paid in advance on 15 March 2020). In Jobkeeper fortnight 2 Mr Mazzitelli earned $470.50.

[48] Qantas allocated the cumulative dollar value of those earnings ($2,352.30) across both Jobkeeper fortnight 1 and Jobkeeper fortnight 2 in order to calculate whether there was a Jobkeeper top up payment required to meet the wage condition for one or both fortnights and, if so, its quantum. It allocated this cumulative value to fortnights (plural) rather than allocating the earning to each separate fortnight (singular).

[49] This approach is (with one important caveat) permissible by rule 10(3) but is not required by rule 10(3). Rule 10(3) provides that “payments are to be allocated to a fortnight or fortnights”. It would have been perfectly open to Qantas to decide to not apply the cumulative dollar value of Mr Mazzitelli’s earnings across both fortnights but to rather identify his earnings in each fortnight and apply them only to that Jobkeeper fortnight.

[50] In this sense, Qantas made a choice as to how to apply rule 10(3). Either choice was, prima facie, open to it.

[51] There was however, in the language of rule 10(3) an important caveat. An allocation must be made “in a reasonable manner”. This caveat qualifies the extent to which that choice is able to be exercised consistent with the Jobkeeper Payment Rules and the wage condition.

[52] Was the allocation made by Qantas (in Jobkeeper fortnight 1 and Jobkeeper fortnight 2) made in a reasonable manner with respect to Mr Mazzitelli?

[53] The factors that weigh in favour of a finding of reasonableness include:

•  pre-Jobkeeper, a monthly Qantas employee was not treated for payroll purposes in the same manner as a fortnightly paid employee and their wage was not calculated in the same way. For example, identifying dates in a month or fortnight when a monthly paid employee earns remuneration is not usually required;

•  requiring earnings of monthly paid employees to be allocated to a particular Jobkeeper fortnight will add an extra administrative step and cost to the calculation of wages during this Jobkeeper period;

•  rule 10(3) must be given some work to do with respect to monthly paid employees. If monthly paid employees are required to be treated in the same way as fortnightly paid employees then rule 10(3) is superfluous.

•  all of the earnings (if any) from the labour of a monthly paid employee are paid in their regular monthly pay even where those earnings are split across two Jobkeeper fortnights.

[54] However, there are significant counterveiling factors:

•  the design of the Jobkeeper scheme is as a fortnightly wage subsidy payment scheme. The wage condition in section 789GD provides that “the employer must ensure that the wage condition has been satisfied in respect of the employee by the end of the fortnight” (my emphasis).

•  the wage condition is to pay at least $1,500 per fortnight to an employee. It is consistent with the wage condition to pay an employee more than this sum in a given Jobkeeper fortnight. It would have been consistent with the wage condition for Qantas to pay Mr Mazzitelli $1,881.80 in Jobkeeper fortnight 1 (being the value of his earnings in that fortnightly period). Had Qantas done so, it would then have been required under the terms of the wage condition to pay Mr Mazzitelli a larger top-up in Jobkeeper fortnight 2 (but not beyond the amount for which it was subsidised, as his earnings in that fortnight did not exceed that amount).

•  the subsidy paid by the Commonwealth (by way of reimbursement) is related to each eligible employee and is paid by reference to a Jobkeeper fortnight. It is a payment by way of subsidy to Qantas employer of $1,500 per fortnight with respect to Mr Mazzitelli.

•  Qantas is to be reimbursed $1,500 from the Commonwealth with respect to Mr Mazzitelli for each of Jobkeeper fortnights 1 and 2 (a total of $3,000).

•  in addition, in this same period (Jobkeeper fortnights 1 and 2) Qantas received the value of Mr Mazzitelli’s labour ($1,881.80) with respect to those days he worked before he was stood down (1, 2 and 3 April 2020) and the 10 April 2020 public holiday.

[55] I do not consider it reasonable for Qantas to have used a calculation method where that methodology resulted in Mr Mazzitelli being paid a combined total of exactly $3,000 during Jobkeeper fortnights 1 and 2 in circumstances where, on account of his eligibility for the scheme, Qantas secured that amount from the Commonwealth plus secured the value of Mr Mazzitelli’s labour for those working days in Jobkeeper fortnight 1 before he was stood down.

[56] If the calculation method used by Qantas was required by rule 10(3) this would not be a material factor, no matter how unreasonable this consequence may be. However, because it was open to Qantas not to apply this method but to rather allocate Mr Mazzitelli’s pre-stand down earnings to Jobkeeper fortnight 1 only (for which it was subsidised $1,500) and to then separately allocate Mr Mazzitelli’s earnings in Jobkeeper fortnight 2 only (for which it was again subsidised $1,500) this is a factor that goes directly to reasonableness.

[57] Neither an employee nor an employer should secure benefit from the wage subsidy other than to meet the scheme’s objective of maintaining employment relationships during the pandemic-induced downturn in economic activity and to have the scheme subsidise wages of employees who are either stood down or whose earnings are impaired.

[58] I accept the submission that the approach adopted was not a Qantas construct in the sense that Qantas did not act as an outlier looking for a benefit. Whilst Qantas did not seek that benefit, the effect of its payment methodology saw it secure the value of labour performed by Mr Mazzitelli plus secure a subsidy whilst only paying the value of that subsidy to Mr Mazzitelli.

[59] I take into account that the alternate approach contended by Mr Mazzitelli, which I consider to be reasonable in the context of his circumstances in April 2020, would (if applied more generally) require Qantas to identify those periods of a month where a monthly paid employee is actually working (as distinct from having been stood down and not adding value to the business). Whilst this may add an administrative burden, that has to be weighed against the fact that a taxpayer subsidy is being provided to support its wages. In the context of a stand down, Qantas should know who is working for it and when, and who is not. Should that burden be excessive in objective terms the balance of reasonableness would then weigh toward its position.

[60] In any event, I deal with this dispute by reference to Mr Mazzitelli’s circumstances only. Other monthly paid employees or their employers may bring different considerations to account when deciding what is “a reasonable manner” for the purposes of rule 10(3).

[61] Nor do I consider that Mr Mazzitelli’s approach to calculation (an approach that reflects the structure of the Jobkeeper scheme and which is permissible) renders rule 10(3) with no work to do. For example, combining payments to Mr Mazzatelli required by the wage condition across two Jobkeeper fortnights into a single $3,000 payment in a month when he is fully stood down and has no other earnings from work would appear to be not just permissible but reasonable.

[62] There is flexibility built into rule 10 of the Jobkeeper Payment Rules but it is not unqualified. It is qualified by the notion of reasonableness (in subrules (3) and (4)). Adopting a rule requiring a rigid siloed approach whereby in every instance payments to a monthly paid employee must be allocated to each separate Jobkeeper fortnight would be as unreasonable as adopting in advance a payment rule that, irrespective of circumstance, splits all payments in a month across multiple Jobkeeper fortnights.

[63] I also take into account that Qantas acted in good faith and that Ms Shields diligently sought out guidance material and peer input when applying the Jobkeeper Payment Rules. Of relevance is that fact that an ATO guide she located included an example 27 that guided Qantas’s approach:

“A monthly paid eligible part time employee is paid on the 15th of each month and receives salary and wages, and overtime and overtime meal allowances for $2,750 (at $20 per meal for 5 meals), so receives a top-up of $250.”

[64] In this example it is not apparent in which Jobkeeper fortnight (or fortnights) the hypothetical earnings related to. To the extent it makes no reference to earning periods, it lends some support to the Qantas view that earning periods are irrelevant and that only payment dates are relevant. However, a hypothetical example, even one issued by the administering agency, cannot be more than a guide. It cannot substitute for an objective assessment of reasonableness on a given or different set of facts. It is that which rule 10(3) requires.

[65] For these reasons I am of the opinion that payments made by Qantas on 15 April 2020 to Mr Mazzitelli were not allocated by Qantas to Jobkeeper fortnight 1 and Jobkeeper fortnight 2 “in a reasonable manner” within the meaning of rule 10(3) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 and that thereby (Qantas) did not meet the wage condition in section 789GD of the FW Act 2009.

Conclusion

[66] Whilst it has been determined by the Commission that Mr Mazzitelli’s application is within jurisdiction, both my first instance decision on jurisdiction and the subsequent full bench decision drew attention to the fact that the Commission may not, in dealing with a dispute, exercise the judicial power of the Commonwealth which, under Chapter III of the Australian Constitution, is conferred on courts established pursuant to that chapter.

[67] The full bench said: 28

“The Commission therefore cannot by arbitration determine whether Qantas has complied with s 789GD or s 789GDA, nor can it order Qantas to pay amounts to which Mr Mazzitelli claims to be legally entitled.”

[68] Relevantly, the full bench went on to say: 29

“However that does not exclude the possibility that the Commission may properly exercise its arbitral power under s 789GV(4) to deal with the dispute between Mr Mazzitelli and Qantas, even assuming the narrow characterisation of the dispute postulated by Qantas, having regard to the fact that s 789GV(4)(d) empowers the Commission to make any order it considers appropriate.

Two hypothetical examples of this may be postulated. The first is that the Deputy President may simply order the dismissal of Mr Mazzitelli’s application on the basis of an expression of opinion that Qantas has reasonably allocated its payments to Mr Mazzitelli over two fortnights in accordance with r 10(3) of the Jobkeeper Payment Rules. The second is that the Deputy President orders Qantas and Mr Mazzitelli to confer in relation to the expression of an opinion by him Qantas has not reasonably allocated its payments under r 10(3). In either case, the order would appear to resolve the dispute in a manner consistent with the way in which Mr Mazzitelli said that he wanted the dispute resolved in his application. These examples, although not exhaustive, illustrate why Qantas could not succeed in making out its jurisdictional objection.”

[69] In light of my conclusion, I consider it appropriate to deal with this dispute by expressing an opinion, by making two recommendations and by making an order in the following terms:

Opinion

[70] Having heard the parties in matter C2020/3189, it is the opinion of the Commission that payments made by Qantas Airways Limited (Qantas) to Mathew Mazzitelli were not allocated by Qantas to Jobkeeper fortnight 1 and Jobkeeper fortnight 2 “in a reasonable manner” within the meaning of rule 10(3) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 and that thereby (Qantas) did not meet the wage condition in section 789GD of the Fair Work Act 2009.

Recommendation 1

[71] The Commission recommends that Qantas reverse its decision to allocate monies earned by Mathew Mazzitelli in Jobkeeper fortnight 1 to Jobkeeper fortnight 2;

Recommendation 2

[72] The Commission recommends that in making future assessments as to whether payments to Mr Mazzitelli are allocated “in a reasonable manner” for the purposes of meeting the wage condition in section 789GD of the Fair Work Act 2009 and rule 10 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 Qantas takes into account, amongst other relevant matters:

•  whether Qantas accrued a benefit from the provision of labour that gave rise to earnings in a particular Jobkeeper fortnight;

•  whether Qantas received (or expects to receive by way of reimbursement) from the Commonwealth the full value of the Jobkeeper wage subsidy with respect to that particular Jobkeeper fortnight; and

•  the practicality and cost of allocating Mr Mazzitelli’s earnings only to the particular Jobkeeper fortnight during which those sums were earned.

Order

[73] The Commission orders that within seven (7) days Mathew Mazzitelli and Qantas confer in light of this opinion and these recommendations with a view to resolving the dispute on the terms of Recommendation 1 and Recommendation 2.

Other matters

[74] I make no determination as to whether Qantas has complied with section 789GD or section 789GDA of the FW Act or rule 10(3) of the Jobkeeper Payment Rules, as to do so would involve an impermissible exercise of judicial power.

[75] I also make no order that Qantas pay amounts to Mr Mazzitelli as this too would involve the determination of existing rights and be impermissible. Such matters are the preserve of courts.

[76] I also decline to order or recommend that Qantas issue a personal apology to Mr Mazzitelli. Payments under the Jobkeeper scheme concerned recently enacted rules and in the case of Qantas, their application across a large workforce in the midst of a global pandemic that dramatically compromised its operations. Qantas acted in good faith in adopting the calculation approach it did. It is clear from the evidence of Ms Shields that Qantas diligently applied its mind to the issue of monthly paid employees and sought to act consistently with what it understood to be its obligations and what it considered to be reasonable. That the Commission has expressed a different view is no ground for ordering or recommending an apology.

[77] I deal with the dispute on the aforementioned terms and publish an order 30 giving effect to this decision.

DEPUTY PRESIDENT

Appearances:

M. Mazzitelli, the Applicant, on his own behalf.
J. Farah and R. Jones, of and for Qantas Airways Limited.

Hearing details:

2020.
Adelaide, by phone.
21 May.

Printed by authority of the Commonwealth Government Printer

<PR719565>

 1   7 and 8 May 2020

 2   Qantas: Response to Application 6 May 2020 paragraphs 2 to 5

 3   [2020] FWC 2413 8 May 2020

 4   By Qantas: F7 Notice of Appeal 11 May 2020

 5   [2020] FWC 2476 11 May 2020

 6   [2020] FWCFB 2628 19 May 2020

 7   21 May 2020

 8   That a component of Mr Mazzitelli’s pay on 15 April 2020 was attributable to Jobkeeper fortnight 2, and not wholly attributable to Jobkeeper fortnight 1

 9   [2020] FWC 2413 at [10] to [23]

 10   [2020] FWCFB 2628 at [14]

 11   R1

 12   Outline of Submissions (20 May 2020); Outline of Submissions Part 2 (21 May 2020)

 13   Initial response 6 May 2020; Outline of Submissions 20 May 2020

 14   Until 27 September 2020

 15   Referred to as “the wage condition”

 16   Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (the Jobkeeper Payment Rules)

 17   Jobkeeper fortnights are defined in s.6(5) of the Payment and Benefit Rules

 18   Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (the Payments and Benefits Act)

 19   Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020

 20 R1 paragraph 22

 21   At the merits hearing, Mr Mazzitelli revised his earlier calculations of what he should have been paid based on details of the specific breakdown of his April 2020 payment as set out in the uncontested evidence of Ms Shields

 22   CS1 and CS2

 23   CS3 and CS4

 24 R1 paragraphs 12 to 18

 25 R1 paragraph 19(b)

 26   Rule 10(4) allows the Commissioner of Taxation to treat a particular event that happened in a fortnight as having happened in a different fortnight or fortnights if reasonable to do so

 27   CS1 page 3 of 5

 28   [2020] FWCFB 2628 at [33]

 29   [2020] FWCFB 2628 at [33] to [34]

 30   PR719577