By Kelly Godfrey

Under the JobKeeper scheme, eligible employees are entitled to receive $1,500 gross per fortnight between 30 March 2020 and 27 September 2020. The first JobKeeper fortnight was 30 March 2020 to 12 April 2020. The second fortnight was 13 April 2020 to 26 April 2020.

During the COVID-19 pandemic, Qantas stood down most of its employees, who were subsequently in receipt of JobKeeper payments. On 6 April 2020, Mr Mazzitelli, a Planning and Engagement Manager for Qantas, was stood down. Mr Mazzitelli was paid monthly. On 15 April 2020, Qantas made two payments to Mr Mazzitelli to a total of $3,000:

• $2,352.30 (gross) for work performed in the month of April 2020 (that is, work up to the commencement of Mr Mazzitelli’s stand down on 6 April 2020); and
• $647.70 (gross) as a JobKeeper ‘top up’.

Qantas argued the JobKeeper rules (namely rule 10(s3)) permitted payments for monthly paid employees to be applied across two fortnights in a ‘reasonable manner’. Mr Mazzitelli argued that the JobKeeper top up paid to him by Qantas on 15 April 2020 should have been $1,500 (gross) (not $647.70 gross), being an amount payable for the second JobKeeper fortnight for the month of April 2020 (13 April 2020 to 26 April 2020). Mr Mazzitelli argued Qantas should have paid him an additional $852.30.

Mr Mazzitelli argued that Qantas had incorrectly applied the JobKeeper legislation and the payment rules. He argued that because he was paid monthly, he was disadvantaged compared with Qantas employees who are paid fortnightly, as these employees received the full $1,500 for the second payment fortnight in April 2020. Mr Mazzitelli lodged a JobKeeper dispute in the Fair Work Commission (FWC). Qantas argued the FWC had no jurisdiction to deal with the matter as:

• this was not a JobKeeper dispute, given Mr Mazzitelli had not been stood down under a JobKeeper direction;
• this required an exercise of judicial and not arbitral power by the FWC; and
• Mr Mazzitelli’s claim was an underpayment claim.

The FWC dismissed these judicial arguments and held it did have grounds to hear the matter.

The FWC stated that Mr Mazzitelli’s position was correct. While the JobKeeper rules arguably permitted Qantas’ approach, according to the FWC, the payments were not applied to fortnights in a reasonable manner. This was because Qantas obtained a benefit in assessing and allocating the payments in that manner.

The FWC stated: “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.”