JobKeeper cases on backpay and backdated ABNs

[lwptoc]

Two cases decided in December 2020 provide much needed guidance as to the operation of specific aspects of the JobKeeper scheme.

The Full Federal Court judgment in Qantas Airways Limited v Flight Attendants’ Association of Australia [2020] FCAFC 227 means that employers may reduce the necessary ‘top-up’ JobKeeper payment to an employee for a fortnight by any payments made in arrears during that fortnight in relation to work performed prior to that fortnight.

Meanwhile, in Apted and FCT [2020] AATA 5139 the Tribunal confirmed that an ABN with an effective date no later than 12 March 2020 will satisfy the eligibility requirement to hold an active ABN on that date, even if the application to reactivate (or register) a backdated ABN was granted after that date.

The Qantas case

The JobKeeper minimum payment guarantee

Section 789GDA of the Fair Work Act 2009 (the FW Act) provides that an employer must ensure that the total amount payable to an eligible employee in respect of a JobKeeper fortnight is at least the greater of the following:

• the amount of JobKeeper payable to the employer for the employee for the fortnight; and
• the amounts payable to the employee in relation to the performance of work during the fortnight.

About the case

The case concerned two proceedings which were heard together:

• an appeal by Qantas Airways Limited and QF Cabin Crew Australia Pty Limited against the Flight Attendants’ Association of Australia who cross-appealed; and
• an appeal by Qantas Airways Limited and Qantas Ground Services Pty Ltd against the Transport Workers’ Union of Australia and the Australian Municipal, Administrative, Clerical and Services Union who both cross-appealed.

In this article, the appellants are collectively referred to as ‘Qantas’ and the respondents as ‘the unions’.

Qantas’s position: Qantas contended that expression means the amount that would ordinarily be payable to the employee during the fortnight in relation to the performance of work. In the example, this means that the $500 payment for work performed in February 2020 counted towards the minimum payment guarantee for Sally. Qantas was required to make a ‘top-up’ payment of only $1,000 to Sally to satisfy the minimum amount of $1,500 for the fortnight commencing 30 March 2020.

The unions’ position: The unions contended that the expression means the amount that was earned by the employee in relation to the performance of work during the fortnight. In the example, this meant that the $500 payment in arrears did not count towards the minimum payment guarantee. Qantas should have made a ‘top-up’ payment of $1,500 to satisfy the JobKeeper rules — on top of the $500 for work performed prior to 30 March 2020.

The primary judge, in a Federal Court judgment dated 24 September 2020, concluded that it means the amount that was both payable to and earned by the employee in relation to the performance of work during the fortnight.

The Full Court’s decision

The majority of the Full Court allowed Qantas’s appeal. Jagot and Wheelahan JJ held that there was ambiguity but preferred Qantas’s construction of s. 789GDA(2) for reasons including:

• The word ‘payable’ takes its ordinary meaning of liable or required to be paid. The source of the obligation was in the contract or industrial instrument.
• The ‘manipulation’ suggested by the unions (i.e. overtime being payable in arrears) was in accordance with Qantas’s obligations under the applicable industrial instruments and reflected its ordinary pay cycle.
• The fact that s. 789GDA(2)(b) was copied from s. 323(1) of the FW Act indicated that Parliament did not intend the same phrase in two sections to have different meanings. The phrase in s. 323(1) means only that the employer is liable to pay the amounts to the employee.
• Note 2 to s. 789GDA refers to incentive-based payments, allowances and leave payments, none of which are necessarily related to work performed. This suggests that the focus of the provision is not the work performed by the employee during the fortnight, but the amount which is payable by the employer.
• The purpose of the JobKeeper scheme was to provide a wage subsidy and not to impose a new obligation on employers to pay what the employee had earned in the fortnight irrespective of whether or not that amount would be payable under the contract or industrial instrument.

Bromberg J, dissenting, preferred the unions’ construction — i.e. ‘amounts payable’ is concerned with liability in a JobKeeper fortnight for performance of work in that fortnight.

Implications

The Full Court’s decision means that Qantas will not be required to backpay hundreds of workers, as payments in arrears count towards the minimum payment requirement. Under the overturned decision of the single judge, Qantas would not have been able to count these amounts and would therefore have had to make larger top-up payments to reach the minimum JobKeeper amount per fortnight. The overturned decision had also meant that if an employee was not paid for work performed in a fortnight in the same fortnight, then those amounts will not count towards the minimum payment guarantee in any fortnight.

This decision will potentially have implications for other businesses which, like Qantas, had furloughed or significantly reduced the work hours of its employees and were therefore liable to pay a top-up JobKeeper amount for a fortnight, and — critically — was also making payments in arrears for work actually performed prior to the relevant fortnight. Such businesses, which may have been preparing to backpay workers extra top-up payments in light of the Federal Court decision in September, may now no longer have to do so (but check the application of the JobKeeper and Fair Work rules to each business’s specific circumstances).

On 14 January 2021, the Flight Attendants’ Association of Australia and others lodged an application for special leave to appeal to the High Court against the decision of the Full Federal Court.

The Apted case

The ABN condition — JobKeeper eligibility

Section 11 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (the Rules) contains the JobKeeper scheme eligibility criteria for an entity, including the following integrity rule:

The facts

The Taxpayer — Mr Apted — operated a business as a sole trader. He retired in 2018 and cancelled his ABN registration. In mid-2019, he came out of retirement and resumed his business. However, he did not reactivate his ABN at that time due to a misunderstanding of the no-ABN withholding rules.

On 31 March 2020, the Taxpayer successfully applied to reinstate the ABN with an effective date of 31 March 2020.

In April 2020, the Taxpayer lodged a JobKeeper application for himself as a business participant in relation to his business. The Commissioner advised the Taxpayer he was not eligible for Jobkeeper as he:

• did not register for an ABN on or before 12 March 2020; or
• registered for an ABN on or before 12 March 2020 and applied a later start date.

The Taxpayer subsequently applied for the Commissioner to exercise his discretion to allow an entity further time to meet the requirement to have had an ABN on 12 March 2020. The Commissioner did not grant the request because the ABN was not active as at 12 March 2020 and the reactivation had occurred after that date.

In June 2020, the Registrar of the Australian Business Register (ABR) agreed to adjust the ABR to amend the effective date of the reactivated ABN to 1 July 2019 (when the Taxpayer resumed his business). However, the Commissioner maintained his position that the Taxpayer was ineligible for JobKeeper as he did not hold an active ABN on 12 March 2020, but rather, had reactivated a dormant ABN after that date.

The Tribunal’s decision

The Tribunal found that the Taxpayer did have an active ABN on 12 March 2020 for the purposes of s. 11 of the Rules.

The integrity rule assumes a level of confidence in the integrity of the ABN registration process. That process includes a determination by the Registrar of the date of effect, including one which predates the application. The Tribunal was not provided with any evidence to suggest the ABN registration process lacked integrity or rigour.

The Tribunal also found that it was within its jurisdiction to review the Commissioner’s exercise of the discretion to allow a later date. While it was not necessary for it to determine this issue, the Tribunal addressed the question because this was a test case to provide guidance on the administration of the ABN rule. The Tribunal further concluded that if its decision that the Taxpayer had an active ABN on 12 March 2020 was wrong, then the discretion should be exercised in the Taxpayer’s favour.

The Tribunal observed that most entities in the Taxpayer’s position will not require the Commissioner to consider exercising the discretion, and instead will be more appropriately dealt with by engaging with the established ABN registration process. Provided the ABN has a date of effect that pre-dates 12 March 2020, even if the registration or re-registration was granted retrospectively after that date, the integrity rule will be satisfied. In other cases, entities which have to rely upon the exercise of the discretion have access to Tribunal review.

The ATO’s position

The ATO has published an interim Decision Impact Statement (DIS) on the Apted case. The DIS states that the decision is inconsistent with the Commissioner’s view. In particular, the Commissioner considers that:

• whether an entity had an ABN is to be determined by reference to whether an entity had an active ABN on 12 March 2020 — i.e. this is a point-in-time test and a backdated ABN will not meet the requirement;
• his discretion is not reviewable by the Tribunal, although judicial review may be sought; and
• a favourable exercise of the discretion was not appropriate. The Commissioner’s view on when the discretion would be appropriately exercised is outlined in PS LA 2020/1.

The Commissioner has filed an appeal to the Full Federal Court in respect of the Tribunal decision. Pending the conclusion of the appeal:

• where an entity’s eligibility can otherwise be resolved in a manner favourable to them, those decisions will continue to be made; and
• the ATO will postpone finalising decisions in circumstances where eligibility might depend on the view of the Full Court. However, if the entity would like a decision to be made over this time, the ATO will do so in line with PS LA 2020/1.

The Cash Flow Boost rules contain an identical requirement to have an ABN on 12 March 2020 (or a later time allowed by the Commissioner). The Commissioner intends to apply the same approach as outlined here to the Cash Flow Boost.

Further info and training

TaxBanter’s upcoming February Tax Update will discuss the reasoning of these decisions.

Future outcomes of the appeal applications will be covered in Tax Updates in future months.