In a ruling with critical implications, the Federal Court has found the Qantas incorrectly calculated the comparison amount “payable for work” in the JobKeeper fortnight when it included penalties earned in a previous fortnight.1 But the unions also interpreted the rules in incorrectly. Employers should take advice when calculating the “minimum payment guarantee” under JobKeeper.
Do you pay employees in full for everything they earn in a fortnight in that same fortnight? Or are some components (for example wages, overtime, reimbursements or allowances) paid in arrears in a later period? If some falls into a later fortnight, you might be affected by the ruling.
EMA Consulting does not provide advice about how to calculate payments under the JobKeeper rules, however we are alerting employers to a critical ruling about how the minimum payment guarantee for a JobKeeper fortnight should be calculated.
Section 789GDA (Minimum payment guarantee) of the Fair Work Act 2009 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:
A) the amount of the JobKeeper payment for the employee; or
B) if a greater amount is payable to the employee for the performance of work during the fortnight,
that amount (in full).
In short, Qantas argued that amounts earned in prior periods but paid in arrears in a subsequent JobKeeper fortnight were counted toward what was “payable” in that subsequent fortnight. The unions argued they should be counted as amounts “payable” in the earlier fortnight in which they were earned. The Court decided neither was correct. It ruled:
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”.2
Therefore, the amount paid in the arrears after a JobKeeper fortnight ends counts toward neither fortnight.
The ruling has obvious implications for other employers. Much will depend on the pay cycle and how it aligns with JobKeeper fortnights. Employers should seek advice from their qualified accountants.
Qantas is considering whether it will appeal.
Require further information/assistance? If you require further information or advice, please contact one of our consultants.
 FCA 1365
2 Para