The saga with Qantas over JobKeeper continues. As we reported back in April 2020, Qantas believes that in a fortnight an employee did not work it can nevertheless use the $1500 fortnightly JobKeeper payment to pay for penalty rates from the preceding fortnight. We have maintained from the start that this is wrong.
Monthly employees at Qantas have also seen this happen to them because of the timing of their pay. As you know, one staff member took this issue to the Fair Work Commission and Qantas fought this case from the start.
First Qantas said that the Fair Work Commission did not have the power to hear the dispute about JobKeeper. They lost this argument initially and then on appeal (which also involved the ACTU).
Then the Fair Work Commission made a recommendation in favour of the employee concerned (against Qantas), saying it was not reasonable for Qantas to offset the pay from the previous month against JobKeeper.
Qantas decided that they would not follow the FWC recommendation because they did not have to and because they could. Qantas also told us that they have advice from the Australian Tax office (ATO) that supported their interpretation of how they are offsetting penalties and payments against JobKeeper and so would not follow the Fair Work Commission position.
Two days ago though the ASU found out that in fact, the Australian Tax Office does not support Qantas’ position.
In fact, the ATO website has advice on the very issue of staff on monthly pay that was the subject of the case against Qantas and what we have been raising for our members.
Here is the employer advice on the ATO website (added on 18 June 2020):
What if you pay monthly?
If you usually pay your employees monthly, the payment can be allocated between fortnights in a reasonable manner. What is reasonable will depend on your particular circumstances. There might be more than one reasonable method of allocation and what is reasonable in one context may not necessarily be reasonable in another.
In many circumstances, an allocation that fairly reflects what the employee would have been paid in each relevant fortnight had the employer had a fortnightly rather than a monthly pay cycle would be considered reasonable.
If an employee’s work pattern and employment status remains constant throughout the relevant period, it will be reasonable to allocate a monthly payment equally to each fortnight. We will also accept an equal allocation as reasonable even if there is only minor variation between fortnights.
However, if the work performed by the employee differs significantly over the period, it may not be reasonable to allocate a monthly payment equally to each fortnight. An equal allocation is more likely to be unreasonable in cases where the difference is caused by a change to the employee’s usual work patterns or employment status – for example, the employee is stood down or their usual hours of work are significantly reduced during the month.
In some cases, employers who have paid at least $3,000 before tax to employees in a four-week period may have, in good faith, simply allocated that payment equally to each fortnight. There may be some circumstances where that allocation is not reasonable (for example, because the work performed by the employee significantly differed between the two fortnights). In these cases, for JobKeeper fortnights ending in April or May, we will allow you until the end of June to make any additional payments necessary to ensure that a reasonable allocation of the payments you have made is at least $1,500 per fortnight.
On 29 June 2020, as soon as we were made aware of the ATO position we wrote to Qantas saying that the above interpretation also applies to fortnightly paid ASU employees and that Qantas must apply this to our members who have not had JobKeeper applied properly.
We think that failing to correct this situation is wage theft. It’s even more appalling that Qantas chose not to disclose they knew about the ATO’s position.
As soon as we caught them out of course Qantas shot back a reply on 30 June as follows:
Having regard to the ATO’s updated guidance relating to monthly paid employees, Qantas will be following that updated guidance and is in ongoing discussions with the ATO with respect to this, including as to timing, to ensure that all employees are paid the Job Keeper top-up payments as required.
However, Qantas does not consider that the updated guidance applies to fortnightly paid employees. We have previously corresponded with you on the issues you have raised in your email as it relates to fortnightly paid employees, and maintain our position that we are administering JobKeeper payments for fortnightly paid employees correctly, including in a manner consistent with ATO guidance.
There is only one conclusion to draw from this response – Qantas has no regard for principles even when they are in black and white, from the ATO, and they will not tell staff what is going on unless confronted with the truth.
Enough is enough
We have tried to reason with Qantas Industrial Relations – but they would rather spend money on lawyers and ignore principles than pay staff who are stood down what they’re owed.
We are going to take legal action against them immediately and we don’t think we will be the only ones. We deserve better than this and we will fight them, as that is clearly the only thing that Qantas understands.
Update on Redundancies
Since the announcement on 25 June 2020 of widespread redundancies across the Qantas Group in the Next 100 plan we have done a number of things to ensure that ASU members are best placed to deal with what Qantas proposes. Over 100 of your ASU delegates from across the group met on the night of 25 June and agreed that we need to ensure that when entering discussions on how our areas are affected we must ensure we have as much information as possible and plenty of time to consult with our members about what is proposed – we have put a list of what we require to Qantas to start discussions and are awaiting their response.
We definitely need clarification and explanation of the estimates of the numbers of staff who will be back at work at particular dates and the numbers in continuing workforce that were shared. For example, we need to know how the estimate of 8,000 staff at work by July 2020 was reached, where those staff are, whether they are part-time/full-time etc.
Similarly, we need this information for the December 2020 estimate of 15,000 staff at work, and finally for how the estimate of 23,000 staff at work by July 2022 was reached.
We need to understand the modelling which is related to flying but similarly, we need to understand how increased flying affects particular areas. For example, if flying increases to 60% by December 2020 does that mean all areas increase staff by 60% or are there some other metrics?
We have asked what Qantas knows about JobKeeper continuing given that Alan Joyce says he and the Prime Minister have spoken about this. We have asked for details of the rationale for every single proposed redundancy.
Members may remember back in 2014 when Qantas shed 5,000 jobs a lot of dodgy things happened which we only recently found out about – not the least of which was the misclassification of new jobs during this process outside our EBA.
As we know there was an underpayment of around $10million to staff because of this, all of which was the subject of a year-long Fair Work Ombudsman investigation and fine. We are not going to go through that again…
We must examine every proposition put line by line, location by location and test the truth of what we are being told with the people who are affected. To do this means a lot of work for ASU delegates but we must have representatives from all areas affected scrutinising what is being put to us if we are to avoid the problems from the past.
Despite what you have been told we do not have any meetings set with Qantas yet – we expect a date soon for Airports and lounges. Rest assured you will know when we do have meeting dates, and ASU delegates will be front and centre in those discussions.
What about EBA 12?
Our Qantas EBA 11 expired on 30 June 2020 but it continues until replaced by EBA 12. Negotiations were suspended in March 2020 because of COVID -19 and the stand-downs but we have asked Qantas to discuss with us what their position is on our EBA and how negotiations can progress. Your national negotiating team has been holding regular fortnightly meetings to discuss what we should be doing in all the circumstances. As soon as we hear back from Qantas we will report back to members.
Time for the Federal Government to Act is NOW
A vital part of the recovery is going to be the support the aviation industry gets from the Federal Government. In particular, the continuation of JobKeeper payments post-September 2020 will be vital for both the industry and workers survival as the recovery occur.
We’re calling on the Morrison Federal Government to immediately bring in an AviationKeeper payment scheme for all aviation workers across Australia.
We need our jobs and companies protected so that when Australia is ready to fly, we are too.
ASU members need to get involved with the campaign and you can start by signing the petition we have created and get all your workmates and friends and family to sign it too.
You can sign the petition at https://bit.ly/AviationKeeperNow