Discussion
66 For the reasons given below, we consider that Qantas's construction is to be preferred. Accordingly, we would allow Qantas's appeal and dismiss the respondents' cross-appeal.
67 First, the respondents' submissions do not properly characterise Qantas's construction. It is not Qantas's construction that "payable" in s 789GDA(2) means "paid". Qantas's construction is that "payable" means what it says - that is, liable or required to be paid. The very word "payable" in s 789GDA(2), in our view, necessarily calls up for consideration the question of the source of the obligation to pay. In common with s 323(1) of the Fair Work Act, the source of the obligation to pay is in the contract or industrial instrument which both statutory provisions pre-suppose govern the liability or requirement on the employer to pay. Nor is it Qantas's case that subs 789GDA(2)(b) is to be read as "the amounts payable paid to the employee during the fortnight in relation to the performance of work during the fortnight whenever undertaken". On Qantas's construction, the phrase "the amounts payable to the employee in relation to the performance of work" are to be read as a whole and the words "during the fortnight" are to be read as qualifying the whole phrase. That is, the amounts payable to the employee in relation to the performance of work is a phrase which has been copied over from s 323(1) and takes the same meaning in subs 789GDA(2)(b) as it does in s 323(1). It means the amounts which are required to be paid to the employee in accordance with the applicable contract or industrial instrument. The words "during the fortnight", which have been added to the end of the phrase common to s 323(1) and subs 789GDA(2)(b), have been added to make it clear that under s 789GDA(2) the payment obligation relates to the jobkeeper fortnight. This is then facilitated by s 10(3) of the Coronavirus Rules which permits attribution of pay to the relevant jobkeeper fortnight.
68 Second, the urgency with which the legislative package was introduced is material to its proper construction. Ambiguity in the text (including by repetition and redundancy and apparent clumsiness of language) and anomalies in outcome are not necessarily a reliable guide to the meaning intended by the legislature. They may equally reflect the exigencies of the drafting process. Once this is recognised, the fact that subs 789GDA(2)(b) was copied from s 323(1) (including the copying over and adaptation of Note 2 to s 323(1)) takes on significance. It indicates that it is unlikely that Parliament intended that the same phrase in the two sections have a different meaning. The phrase "amounts payable to an employee in relation to the performance of work" in s 323(1) of the Fair Work Act does not mean the amounts earned by the employee. Nor does it mean the amounts earned by and payable to the employee. It means only that the employer is liable to pay the amounts to the employee. The amount to be paid and the time at which the payment must be made are not regulated by s 323(1) (other than the requirement that employees be paid at least monthly). They are regulated by the applicable contract or industrial instrument. This forms an important part of the context in which s 789GDA was enacted. It indicates that, to the extent possible, the phrase in subs 789GDA(2)(b) should be given the same meaning as is given to that same phrase in s 323(1). It also indicates that Parliament did not intend by subs 789GDA(2)(b) to impose on employers a new obligation to ascertain not merely what is payable to an employee but also what the employee earned during the fortnight whether or not the amount earned would be payable to the employee during the fortnight.
69 This unlikelihood is reinforced by two matters:
(1) the obligation imposed by s 789GDA(2) is to be found in the chapeau to the provision (the employer must ensure that the total amount payable to the employee in respect of the fortnight is not less than the greater of the following). Subsections (a) and (b) do no more than identify amounts. It would be odd if that part of a provision doing no more than identifying an amount had the effect of requiring employers to ascertain the amounts employees had earned during each relevant fortnight; and
(2) as Qantas submitted, if s 789GDA(2) applies to an employer, the employer is necessarily in significant financial distress (otherwise the employer would not qualify for the JobKeeper Scheme). It would again be odd to discern from the text and context a legislative intention to impose substantial new administrative burdens on employers in significant financial distress.
70 Third, ss 789GD and 789GDA are both civil penalty provisions. It is essential that each provision is construed in a manner that enables any contravention to be certain and ascertainable: Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 248 CLR 619 at [48]. On the respondents' construction the obligation imposed by s 789GDA(2) never crystallises. There is no time by which the employer must pay the employee the greater of the two amounts in subss 789GDA(2)(a) or (b). Such a construction is to be avoided if possible given the uncertainty which it creates for the ascertainment of a contravention of a civil penalty provision. It is possible to avoid that uncertainty by construing the words "in respect of the fortnight" in the chapeau to s 789GDA(2) as imposing a temporal requirement. At worst, this approach involves recognising that the words "respect of" are redundant and the phrase in the chapeau could equally be "in the fortnight". Even if the imposition of this temporal requirement is not open on the text of the chapeau to s 789GDA(2) it does not mean that Qantas's construction is necessarily wrong. It means merely that there is uncertainty about the time at which the obligation in the chapeau is to be fulfilled.
71 Fourth, it is clear there is some overlap and circularity in the statutory provisions. Section 789GD requires the employer to satisfy the wage condition by the end of the fortnight. The wage condition requires the employer to pay to the employee a total amount which equals or exceeds $1,500: s 10(1) of the Coronavirus Rules. Section 789GD itself, however, applies only if the employer would be entitled to a jobkeeper payment if the employer satisfied the wage condition. Further, satisfaction of the wage condition in s 789GD overlaps with the obligation in s 789GDA(2) to pay to the employee the greater of either the amount of the jobkeeper payment (which is the same amount as the wage condition) or the amounts payable to the employee in relation to the performance of work during the fortnight. This suggests that apparent infelicities of language in s 789GDA(2) should not necessarily determine its construction. This should be kept in mind when considering the meaning of the words "in respect of the fortnight" in the chapeau to s 789GDA(2). This also reinforces our conclusion that the language of s 789GDA(2) is not clear and unambiguous (in contrast to the conclusion of the primary judge). It seems to us that there is ambiguity in the provision. At the least, the meaning of "in respect of the fortnight" in the chapeau and of "during the fortnight" in (b) are open to more than one possible interpretation. This means that the ascertainment of the meaning of the provision involves a choice of constructions having regard to the text, context and purpose of the provision.
72 Fifth, given that the phrase "the amounts payable to the employee in relation to the performance of work" in subs 789GDA(2)(b) has been copied over from s 323(1), there is nothing strained or artificial in Qantas's approach of reading the words "during the fortnight" as an addition, necessitated by the fortnightly pay structure of the JobKeeper Scheme, which qualifies everything that precedes it in (b) and does not qualify merely the words "in relation to the performance of work". The constructions preferred by the primary judge and the respondents read the words "during the fortnight" as if they relate only to the "performance of work". This is the foundation for the proposition that the section is concerned with payment for the work in fact performed during the fortnight whether or not such payment would ordinarily be payable "in respect of the fortnight" under the applicable contract or industrial instrument. If, however, the words "amounts payable to the employee in relation to the performance of work" are seen as a composite phrase copied over from s 323(1) which have the same meaning as in that section (which is concerned not with when work is performed but payment assumed to be regulated by a contract or industrial instrument), then the words "during the fortnight" can be more readily seen as qualifying the whole composite phrase which precedes those words. The effect of this reading is that the relevant relationship is not between the fortnight and the work performed during the fortnight but is between the fortnight and the amounts payable in relation to the performance of work (that is, as per s 323(1), the amounts payable in relation to the performance of work whenever the work was actually performed) during the fortnight. The argument against this approach, that this involves re-writing subs 789GDA(2)(b), at least by transposing the words "during the fortnight", so that the section reads "the amounts payable to the employee during the fortnight in relation to the performance of work during the fortnight", does not carry particular weight once it is recognised that:
(1) "amounts payable to the employee in relation to the performance of work" is a composite phrase copied over from s 323(1);
(2) it was necessary to link that concept to the jobkeeper fortnight for the statutory scheme to function; and
(3) it is unsurprising that the drafter chose to link the concepts merely by adding the words at the end of the phrase, even if this had the effect of introducing a level of ambiguity that would not exist if the words "during the fortnight" had been added after the word "employee".
73 It is easier to accept that there is a drafting infelicity in s 789GDA(2) than it is to accept that the Parliament intended the phrase "amounts payable to the employee in relation to the performance of work" to mean something different in subs 789GDA(2)(b) from the meaning they take in s 323(1). This, however, is the consequence of the construction of the primary judge and the respondents. Those words, on their construction, do mean the amount the employer is liable to pay in accordance with the applicable contract or industrial instrument during the fortnight but mean the amount the employee has earned and the employer is liable to pay in accordance with the applicable contract or industrial instrument during the fortnight (the primary judge's construction) or the amount the employee has earned in accordance with the applicable contract or industrial instrument during the fortnight irrespective of whether that amount would be payable to the employee during the fortnight in accordance with the applicable contract or industrial instrument (the respondents' construction).
74 Sixth, the importance of s 323(1) of the Fair Work Act to the context of s 789GDA(2) is reinforced by the fact that it is also clear that Note 2 has been copied from the former provision in the latter provision. We accept Qantas's submissions about the relevance of the Notes. They are able to be taken into account whether or not they form part of the Act. In circumstances where Note 2 explains the very provision which is under consideration the Note is entitled to material weight in ascertaining the meaning of the provision. It may be accepted that Note 2 to s 323(1) uses the words "amounts…if they become payable during a relevant period". Note 2 to s 789GDA uses the words "amounts…if they become payable in respect of the fortnight". This introduces a further source of ambiguity. Why change the word "during" to "in respect of" if the intended meaning was the amounts payable during or in the fortnight? All that can be said is that we acknowledge that this is a further source of ambiguity. Had Note 2 said "amounts…if they become payable during the fortnight", the construction of s 789GDA(2) proposed by the primary judge and the respondents would be plainly inconsistent with the Note. The fact that Note 2 does not say this, but instead says "amounts…if they become payable in respect of the fortnight" reinforces the ambiguity of the provision.
75 The ambiguity exists then, but is perhaps all the greater on the construction of the primary judge and the respondents if Note 2 is read as a whole. For one thing, Note 2 contains no reference to work during the fortnight. In its terms, it is concerned not with work performed during a fortnight but whether amounts are payable in respect of the fortnight. This is conceptually the same as Qantas's construction of the provision. It is also conceptually distinct from the constructions of the primary judge and the respondents which focus on work performed during the fortnight. Further, and as Qantas submitted, Note 2 expressly refers to incentive-based payments and bonuses, monetary allowances and leave payments, none of which are necessarily related to work performed during the fortnight, one of which, leave, is about the direct opposite (work not being performed in the fortnight), and all of which are clearly intended to form part of the amounts payable by the employer to the employee under (b). The fact that Note 2 explains that subs 789GDA(2)(b) is to cover all of these amounts (in common with s 323(1)) strongly suggests that the focus of subs 789GDA(2)(b) is not the work performed by the employee during the fortnight, but the amount which is payable by the employer to the employee during the fortnight, in a general sense (as with s 323(1)), in relation to the performance of work whether or not the work has been performed during the fortnight.
76 Seventh, we are unable to accept the respondents' conception of s 789DGA(2) as a safety net for employees if, but only if, it is construed in the manner for which the respondents contend. As Qantas observed, s 789GDA(2) operates whether or not an employer has given a direction to employees authorised by Pt 6-4C of the Fair Work Act. Further, on any of the constructions available, s 789GDA(2) operates as a form of safety net for employees. On Qantas's construction, for example, the employees are guaranteed to be paid the greater of the jobkeeper payment or the amount that would otherwise be payable to them during the fortnight in accordance with the applicable contract or industrial instrument. This is a meaningful safety net for employees. It guarantees them a right to the payment of the greater amount if the amount payable exceeds the jobkeeper payment. It guarantees them a payment of the jobkeeper payment if the amount payable is less than the jobkeeper payment.
77 Eighth, and consistently with the seventh point made above, we do not accept an oral submission made by the respondents that Qantas's construction gives s 789GDA(2) no work to do because s 789GD guarantees the payment of the jobkeeper amount and the applicable contract or industrial instrument guarantees the payment of the amount payable so that s 789GDA(2) adds nothing. We consider this involves a misconception. For one thing, s 789GD, 789GDA, and 789GDB are a cascading set of provisions, with the later provisions building on (and overlapping with) the earlier provisions. Thus, s 789GD requires the wage condition to be met by the end of the fortnight. Section 789GDA provides for the minimum payment guarantee. Section 789GDB provides for the hourly rate of pay guarantee. For another, as we have said, all the competing constructions provide employees with a meaningful safety net. The respondents have not explained why the function of s 789GDA(2) as a safety net for employees (a function which may be acknowledged) drives the outcome towards the particular construction which the respondents propose. On Qantas's construction s 789GDA(2) is ensuring that, whatever else may be the case, if the employee is otherwise entitled to be paid greater than the jobkeeper payment, the employer must pay that greater amount. It cannot rely on the JobKeeper Scheme to justify paying some lesser amount.
78 Ninth, although we have provided examples of the different outcomes which the different constructions yield based on the three scenarios provided by the primary judge, we are not persuaded by the submissions of any of the parties that the supposedly anomalous results driven by a particular construction should determine the construction adopted. In particular, the concepts of a "windfall" to an employer (as relied upon by the respondents) or to an employee (as relied upon by Qantas) do not seem to us to be a reliable guide to the construction of the provision. The JobKeeper Scheme as a whole provides a wage subsidy to employers. In one sense, this is a necessary "windfall" for an employer as their wages bill will be subsidised either in whole or in part by the scheme. A condition of the scheme is that the employer must pay the wage subsidy (at least) to the employee whether or not the employee has performed work for the employer. This is a form of "windfall" to the employee. By this means, the scheme achieves its object, as set out in the second reading speech, of supporting employers to maintain their employment connection to employees so that they can reactivate their operations quickly, and without having to rehire staff, once the Coronavirus crisis is over. That different fact combinations give rise to different extents of so-called "windfalls" depending on the construction adopted is not a reason to prefer one construction over another. On all three constructions, the employer will always receive the jobkeeper payment and the employee will always receive that amount per fortnight - that is the object of the scheme and it is achieved on any construction. Parliament must be taken to have accepted that there will be apparent anomalies in the operation of the scheme, particularly given that the jobkeeper payment is an arbitrary amount, unconnected to any amount that is otherwise payable to any particular employee. For this reason, apparent anomalies do not appear to us to be a reliable guide to the preferable construction. Otherwise, we do not accept the respondents' submission that Qantas's construction results in anomalies as a result of an "accident" of timing. The timing that the respondents have in mind is no "accident" - it is the time at which the employer is required to pay the employee in accordance with the applicable contract or industrial instrument the existence of which ss 323(1) and 789GDA(2) both pre-suppose.
79 Tenth, leaving aside Note 2 to s 789GDA(2), which we have already discussed above, we consider that the balance of the extrinsic material is either consistent with or supports Qantas's construction. The second reading speech said the purpose of the JobKeeper Scheme is to provide a "wage subsidy to those employers significantly impacted by the coronavirus outbreak to continue paying their employees". It did not say that the purpose was to impose a new obligation on employers to pay to their employees what the employee had earned in the fortnight irrespective of whether or not that amount would be payable to the employee under the applicable contract or industrial instrument. The Explanatory Statement referred to amounts "ordinarily" received by an employee per fortnight and said, if that amount was $1,500 or more, the employee "will continue to receive their regular income according to their workplace arrangements". This focus on what is ordinarily payable to an employee continuing if it is $1,500 or more supports Qantas's construction and is inconsistent with the competing constructions. The references in the Explanatory Memorandum, on which the respondents relied, as Qantas submitted, merely re-state the statutory language or, in fact, are supportive of Qantas's construction.
80 Eleventh, it is difficult to escape the fact that subs 789GDA(2)(b) is concerned with the amounts "payable" to an employee. As both parties submitted, "payable" does not mean "paid" or "earned". "Payable" means liable or required to be paid. The constructions of the primary judge and the respondents both involve construing "payable" other than in accordance with its ordinary meaning. On the primary judge's construction "payable" means "earned by and payable to the employee". On the respondents' construction, "payable" means "earned by the employee". It is only on Qantas's construction that the word "payable" takes its ordinary meaning of liable or required to be paid. This is a powerful indicator that Qantas's construction is to be preferred even if it most naturally (but not essentially) involves the imposition of a temporal obligation (that is, a required time for payment) on the employer which is less than clear on the face of s 789GDA(2).
81 Twelfth, the concept of "manipulation" by an employer of pay cycles seems inapt. On Qantas's construction, the employer will be bound to pay employees in accordance with the applicable contract or industrial instrument and subject to the requirements of s 323(1) and, pursuant to the JobKeeper Scheme, ss 789GD, 789GDA, and 789GDB. Whatever is payable to the employees under those provisions will remain payable if it exceeds the jobkeeper payment. Any flexibility given to an employer in respect of what is payable to an employee will be given by the applicable contract or industrial instrument. It is difficult to characterise payments required to be made as the result of "manipulation" by an employer if the employer is satisfying the applicable contract or industrial instrument. The "manipulation" which the respondents suggest in the present case (by, for example, overtime being payable by Qantas in arrears and thus Qantas not being required to pay that amount in the fortnight in which the overtime was worked), in fact, is in accordance with Qantas's obligations under the applicable industrial instruments and reflects the continuation of Qantas's ordinary pay cycle.
82 Finally, while we accept that Qantas's construction does not perfectly resolve every textual ambiguity in s 789GDA(2) (in particular, the provision would work better with Qantas's construction if, in the chapeau to s 789GDA(2), the phrase used was "total amount payable to the employee in the fortnight" and if, in subs 789GDA(2)(b), it said "the amounts payable to the employee during the fortnight in relation to the performance of work"), this must be compared with the textual and contextual difficulties which arise on the competing constructions but not on Qantas's construction, namely:
(1) "payable" is to be given a meaning other than its ordinary meaning of liable or required to be paid. On the competing constructions "payable" must be given the meaning of "earned by and payable to" (the primary judge) or "earned by" (the respondents);
(2) the composite phrase copied over from s 323(1) of the Fair Work Act into subs 789GDA(2)(b) ("the amounts payable to the employee in relation to the performance of work") is to be given a different meaning in subs 789GDA(2)(b) than it has in s 323(1). In subs 789GDA(2)(b) the phrase will mean "earned by and payable to" (the primary judge) or "earned by" (the respondents) when in s 323(1) the phrase will mean liable or required to be paid;
(3) the words "during the fortnight" in subs 789GDA(2)(b) will be read as qualifying only the words "in relation to the performance of work" and not the words "the amounts payable to the employee" in circumstances where it is apparent that the whole of the composite phrase "the amounts payable to the employee in relation to the performance of work" has been copied over from s 323(1) and the words "during the fortnight" have been tacked on to the end of the composite phrase in a manner which is most naturally understood as tying the whole of the composite phrase to the relevant fortnight which is the foundation of the JobKeeper Scheme;
(4) the clear legislative intention expressed in Note 2 to s 789GDA(2) to ensure that exactly the same kind of payments as are identified in s 323(1) are also payable to employees under s 789GDA(2) cannot be given effect without straining the language because annual leave is not payable to or earned by the employee (the primary judge's construction) or earned by the employee (the respondents' construction) in relation to the performance of work during the fortnight and incentive-based payments and bonuses and monetary allowances may not also not be so earned;
(5) the clear legislative intent apparent from the scheme as a whole to make payments relate to the jobkeeper fortnight will not be given effect, as on the respondents' construction there will be no time at which the obligation to pay in accordance with subs 789GDA(2)(b) crystallises (in contrast to subs 789GDA(2)(a) where the timing obligation is "by the end of the fortnight" as provided for in s 789GD). As a result, it will not be possible on the respondents' construction to ascertain when a contravention of subs 789GDA(2)(b) has occurred despite that being a civil penalty provision;
(6) the minimum payment guarantee will not guarantee to employees that that they receive the amount to which they would ordinarily be entitled to be paid in relation to the performance of work in accordance with the applicable contract or industrial instrument if that amount exceeds the jobkeeper payment. Rather, if a jobkeeper payment is payable to the employer, the employee is to be paid, at some indefinite time, only the amount which they have earned in relation to the performance of work during the relevant fortnight, if that amount exceeds the jobkeeper payment. The amount earned during the fortnight may be greater or less than the amount to which the employee would ordinarily be entitled to be paid in relation to the performance of work in accordance with the applicable contract or industrial instrument but that is immaterial as only the amount earned in each jobkeeper fortnight by the performance of work in that fortnight is covered by subs 789GDA(2)(b) on the competing constructions; and
(7) employers will be subject to a new obligation to ascertain the amounts earned by the employee in a jobkeeper fortnight which, depending on the existing payment obligations of the employer, may involve substantial additional administrative costs in circumstances where the very purpose of the JobKeeper Scheme is to provide financial assistance to businesses in significant financial distress. On the evidence, at least in the case of Qantas, this will present substantial difficulties of compliance: see the affidavit of Douglas Haigh sworn 24 August 2020. Given that payment in arrears is commonplace (as are other combinations of payment obligations) and the JobKeeper Scheme is both intended to potentially apply to all employers and to provide a wage subsidy to all qualifying employers, who are by definition in significant financial distress as a result of the Coronavirus crisis, it is difficult to accept that it was the legislature's intention to impose such a potentially large administrative burden on employers.
83 For these reasons, we prefer Qantas's construction. As a result, we consider that the appeal should be allowed and the cross-appeal dismissed. The declaration made by the primary judge should be set aside. Further consideration should be given to the terms of a substitute declaration.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Jagot and Wheelahan.