Qantas faces High Court challenge after unions allege misuse of JobKeeper

It could be bad news for employers if the unions succeed

Qantas faces High Court challenge after unions allege misuse of JobKeeper

Qantas is facing a High Court challenge from unions after they claimed the airline had misused JobKeeper subsidy.

The unions say Qantas manipulated rosters so staff who had worked overtime such as weekends and public holidays were only paid the minimum JobKeeper wage.

The Transport Workers Union, along with the three other unions involved in Wednesday’s legal action, say it goes against the spirit of JobKeeper in enabling employers to retain their workers during lockdown.

But Qantas has repeatedly denied any wrongdoing, arguing it has always followed the ATO’s guidance on how to calculate the subsidy scheme.

The initial Federal Court ruling in September last year found in favour of the unions, with the judge deciding Qantas would have to back pay employees who had worked overtime shifts.

The decision sparked huge concern among employer groups over the prospect of exposing other businesses to backpay claims.

But on appeal in December, the full Federal Court overturned the decision with two out of the three judges siding with Qantas.

Justices Jayne Jagot and Michael Wheelahan raised concerns about the administrative burden on businesses which would have to separate earnings during a JobKeeper fortnight and those paid in arrears.

They ruled adding to employers’ financial stress during the pandemic was not the intention of the legislation.

In response, the unions have applied for special leave to appeal to the High Court, Australia’s highest legal power.

Speaking at a press conference on Wednesday, TWU Assistant National Secretary Nick McIntosh accused Qantas of “rorting the system”.

“It’s not good enough from what should be a proud Australian company,” McIntosh said.

“It’s not acceptable and Qantas should be called out for it. The Prime Minister did the right thing in introducing JobKeeper but unfortunately what they did not do was attach conditions to it.

“Now it’s time for the High Court to decide this matter and we’re hoping the High Court will see this for what it is.”

Read more: Qantas announces 2,000 job losses as it outsources ground handling operations

Qantas said it has maintained the same system for paying overtime and penalty rates during the pandemic and that rostering was done in consultation with the unions.

“The unions are again wasting their members money and our money on continuing this legal action during the middle of a crisis,” a Qantas spokesperson told HRD.

“The court found we are administering JobKeeper as the Government intended and we have always made JobKeeper payments according to advice from the Australian Tax Office.

“There are tens of thousands of small and big businesses, that like Qantas have been severely impacted by COVID-19, that have been making JobKeeper payments in the same way as we have.  This legal action creates further uncertainty for these businesses at the worst possible time.”

The High Court is expected to respond to the unions’ application in the next few weeks.

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