Qantas Airways Limited v Flight Attendants' Association of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 17 December 2020
• Neutral Citation: [2020] FCAFC 227
• Court: Full Federal Court (Australia)
• Date: 17 December 2020

Federal Court of Australia

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

Appeal from:	Qantas Airways Limited v Flight Attendants' Association of Australia (The JobKeeper Case) [2020] FCA 1365
File numbers:	NSD 1124 of 2020NSD 1125 of 2020
Judgment of:	JAGOT, BROMBERG AND WHEELAHAN JJ
Date of judgment:	17 December 2020
Catchwords:	STATUTORY INTERPRETATION – appeal – Commonwealth JobKeeper Scheme – meaning of “the amounts payable to the employee in relation to the performance of work during the fortnight” – extrinsic material – consideration of note to section – text, context and purpose – appeal allowed
Legislation:	Acts Interpretation Act 1901 (Cth) s 15AB(1) Coronavirus Economic Response Package Omnibus (Measures No 2) Act 2020 (Cth) Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) ss 7 and 20 Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) rr 8 and 10(3) Evidence Act 1995 (Cth) s 144(1)(a) Fair Work Act 2009 (Cth) ss 323, 323(1), 789GA, 789GC, 789GD, 789GDA, 789GDA(2), 789GDA(2)(a), 789GDA(2)(b), 789GDB, 789GDC, 789GE, 789GF, 789GG and 789GQ Commonwealth of Australia, Parliamentary Debates, House of Representatives, 8 April 2020, 2918-2922 (Josh Frydenberg, Treasurer) Explanatory Memorandum, Coronavirus Economic Response Package (Payments and Benefits) Bill 2020 (Cth) and Coronavirus Economic Response Package Omnibus (Measures No 2) Bill 2020 (Cth) Explanatory Statement, Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Cth) ; Australian Concise Oxford Dictionary (5th ed as at 2009) Macquarie Dictionary (5th ed as at 2009)
Cases cited:	Association of Professional Engineers, Scientists and Managers Australia v Bulga Underground Operations Pty Ltd [2019] FCA 1960 Australian Education Union v Victoria (Department of Education and Early Childhood Development) (2015) 239 FCR 461 Bendigo Bank Ltd v Williams [2000] FCA 482; (2000) 98 FCR 377 Clyne v Deputy Commissioner of Taxation [1981] HCA 40; (1981) 150 CLR 1 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192 Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86 Glass v Defence Force Retirement and Death Benefits Authority [1992] FCA 558; (1992) 38 FCR 534 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BFW20 [2020] FCAFC 121 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 381 ALR 601 Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 Spence v Queensland [2019] HCA 15; (2019) 93 ALJR 643 WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 378 ALR 585
Division:	General Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	118
Date of hearing:	9 November 2020
Counsel for the Appellants:	J Kirk SC with T Prince
Solicitor for the Appellants:	Ashurst Australia
Counsel for the Respondents (NSD 1124 of 2020 and NSD 1125 of 2020):	M Gibian SC with P Boncardo
Solicitor for the Respondent (NSD 1124 of 2020):	Flight Attendants’ Association of Australia
Solicitor for the First Respondent (NSD 1125 of 2020):	Transport Workers’ Union of Australia
Solicitor for the Second Respondent (NSD 1125 of 2020):	Australian Municipal, Administrative, Clerical and Services Union

Table of corrections
14 October 2021	In paragraph 33, a closed bracket has been inserted after the words “that may be paid”.
14 October 2021	In paragraph 67, the word “from” has been inserted after the words “copied over”.

ORDERS

		NSD 1124 of 2020
BETWEEN:	QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Appellant ; QF CABIN CREW AUSTRALIA PTY LIMITED (ACN 128 382 105) Second Appellant
AND:	FLIGHT ATTENDANTS' ASSOCIATION OF AUSTRALIA Respondent

order made by:	JAGOT, BROMBERG AND WHEELAHAN JJ
DATE OF ORDER:	17 DECEMBER 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The cross-appeal be dismissed.

3. The declaration made on 13 October 2020 be set aside.

4. The parties are to provide a proposed form of order which substitutes the declaration made on 13 October 2020 to give effect to these reasons within 14 days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		NSD 1125 of 2020
BETWEEN:	QANTAS AIRWAYS LIMITED (ACN 009 661 901) First Appellant ; QANTAS GROUND SERVICES PTY LIMITED Second Appellant
AND:	TRANSPORT WORKERS’ UNION OF AUSTRALIA First Respondent ; AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION Second Respondent

order made by:	JAGOT, BROMBERG AND WHEELAHAN JJ
DATE OF ORDER:	17 DECEMBER 2020

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The cross-appeal be dismissed.

3. The declaration made on 13 October 2020 be set aside.

4. The parties are to provide a proposed form of order which substitutes the declaration made on 13 October 2020 to give effect to these reasons within 14 days.

[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.]

REASONS FOR JUDGMENT

JAGOT AND WHEELAHAN JJ:

Introduction

1. This appeal concerns the meaning to be given to a provision which forms part of the legislative package known as the JobKeeper Scheme enacted by the Commonwealth Parliament in response to the Coronavirus pandemic. The provision, s 789GDA of the Fair Work Act 2009 (Cth) (the Fair Work Act), provides a minimum payment guarantee by which an employer must ensure that, if a jobkeeper payment is payable to an employer for an employee for a fortnight, the total amount payable to the employee in respect of the fortnight is the greater of the jobkeeper payment amount ($1,500 initially and then subsequently reduced) or “the amounts payable to the employee in relation...