1
Fair Work Act 2009
s.604 - Appeal of decisions
Qantas Airways Limited
v
Mathew Mazzitelli
(C2020/3401)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT COLMAN
DEPUTY PRESIDENT SAUNDERS
SYDNEY, 19 MAY 2020
Appeal against decision [2020] FWC 2413 of Deputy President Anderson at Adelaide on 8
May 2020 in matter number C2020/3189.
Introduction
[1] Qantas Airways Limited (Qantas) has lodged an appeal, for which permission to
appeal is required, against a decision issued by Deputy President Anderson on 8 May 20201
(decision). In the decision, the Deputy President rejected a jurisdictional challenge made by
Qantas to the arbitration of an application made by Mr Matthew Mazzitelli pursuant to s
789GV(3) of the Fair Work Act 2009 (FW Act) and determined that he would make
arrangements for the application to be arbitrated should further conciliation not be successful
in achieving a resolution of the dispute which was the subject of the application. Qantas
contends that permission to appeal should be granted, the appeal upheld and the decision
quashed because, in summary, the Deputy President erred in a number of respects in rejecting
Qantas’ jurisdictional objection and denied Qantas procedural fairness.
The statutory framework
[2] The Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020
amended the FW Act by introducing a new Part 6-4C, Coronavirus economic response.
Section 789GB provides that the object of the Part is, in summary, to make temporary
changes to assist the Australian people to keep their jobs and maintain their connection to
their employers, during the “unprecedented economic downturn and work restrictions arising
from: (i) the COVID-19 pandemic; and (ii) government initiatives to slow the transmission of
COVID-19”; to help sustain the viability of Australian businesses; to continue the
employment of employees; to ensure the continued operation of health and safety laws during
the pandemic; and to help ensure, where reasonably possible, that employees remain
1 [2020] FWC 2413
[2020] FWCFB 2628
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 2628
2
productively employed during the pandemic and continue to contribute to the business of their
employer where it is safe and possible for the business to continue operating.
[3] The Part allows qualifying employers to give directions to employees and make
certain requests of them. The “jobkeeper enabling directions” which the Part empowers
qualifying employers to make fall into three categories:
a “jobkeeper enabling stand down” under s 789GDC, by which an employee may be
required not to work on a day they would usually work, work for a lesser period on a
day, or work a reduced number of hours overall (which can be nil);
a direction under s 789GE that an employee perform other duties that are within the
employee’s skill and competency and are reasonably within the scope of the
employer’s business operations; and
a direction under s 789GF that the employee work at a different place, including the
employee’s home, provided that it is suitable for the employee’s duties and does not
require the employee to travel an unreasonable distance.
[4] The making of the directions are subject to requirements relating to reasonableness (s
789GK), necessity for the continuation of the employee’s employment (s 789GL), prior notice
and consultation (s 789GM), form (s 789GN) and duration (s 789GP). A jobkeeper enabling
direction must be complied with by the employee to whom it is directed (s 789GQ).
[5] The requests an employer may make, which must be considered and may not
unreasonably be refused by the employee, are:
a request under s 789GG for the employee to work on days or at times that are
different from the employee’s ordinary days or times, but which do not reduce the
employee’s number of hours of work (compared with the employee’s ordinary hours);
and
a request under s 789GJ(1) that an employee take paid annual leave, provided the
request does not result in the employee having a balance of fewer than two weeks. An
employer and employee can also agree to the employee taking twice as much paid
annual leave at half pay (s 789GJ(2)).
[6] In order to be authorised under Part 6-4C to make any of the directions or requests
referred to, an employer must be a national system employer which qualifies for the jobkeeper
scheme and is entitled to a jobkeeper payment in respect of the employee the subject of any
such direction or request. The JobKeeper Payment Scheme is a temporary subsidy enacted by
the Commonwealth for businesses significantly affected by the COVID-19 pandemic under
which such business can apply to receive $1,500 per eligible employee per fortnight to assist
them retain employees in employment. Section 789GC provides that qualification for the
jobkeeper scheme and entitlement to a jobkeeper payment are as determined by the
Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 (Jobkeeper
Payment Rules).
[7] Of central relevance to Mr Mazzitelli’s application, s 789GD provides (statutory notes
omitted):
[2020] FWCFB 2628
3
789GD Obligation of employer to satisfy the wage condition
If:
(a) an employer qualifies for the jobkeeper scheme; and
(b) the employer would be entitled to jobkeeper payment for an employee for
a fortnight if (among other things) the employer satisfied the wage condition in
respect of the employee for the fortnight;
the employer must ensure that the wage condition has been satisfied in respect of
the employee by the end of the fortnight.
[8] The expression “wage condition” used in the section is defined in s 789GC as follows:
wage condition means the wage condition set out in the jobkeeper payment rules.
[9] Rule 10(1) of the Jobkeeper Payment Rules provides, in summary, that the “wage
condition” is satisfied for a fortnight if the employer pays the employee $1,500 in wages or
other employment benefits as prescribed by r 10(2). Rule 10(3) deals with the situation where
the employee in question has a usual pay period in excess of a fortnight as follows:
(3) If there is a regular period for which the employer would usually pay
employees in relation to the performance of work by the employees, and that
period is longer than a fortnight, then in applying this section those payments
are to be allocated to a fortnight or fortnights in a reasonable manner.
[10] In addition to s 789GD, s 789GDA requires that, where a jobkeeper payment is
payable to an employer for an employee for a fortnight, 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 amount of the jobkeeper payment payable to the employer for the fortnight (i.e. $1,500) or
the amounts payable to the employee in relation to the performance of work during the
fortnight.
[11] Sections 789GD and 789GDA are civil remedy provisions.
[12] Section 789GV empowers the Commission to deal with a dispute about the operation
of Part 6-4C in the following terms:
789GV FWC may deal with a dispute about the operation of this Part
(1) The FWC may deal with a dispute about the operation of this Part.
(2) The FWC may deal with a dispute by arbitration.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by
making a recommendation or expressing an opinion (see subsection 595(2)).
(3) The FWC may deal with a dispute only on application by any of the following:
[2020] FWCFB 2628
4
(a) an employee;
(b) an employer;
(c) an employee organisation;
(d) an employer organisation.
(4) The FWC may make any of the following orders:
(a) an order that the FWC considers desirable to give effect to a jobkeeper
enabling direction;
(b) an order setting aside a jobkeeper enabling direction;
(c) an order:
(i) setting aside a jobkeeper enabling direction; and
(ii) substituting a different jobkeeper enabling direction;
(d) any other order that the FWC considers appropriate.
(5) The FWC must not make an order under paragraph (4)(a) or (c) on or after
28 September 2020.
(6) An order made by the FWC under paragraph (4)(a) ceases to have effect at the
start of 28 September 2020.
(7) In dealing with the dispute, the FWC must take into account fairness between
the parties concerned.
[13] Section 789GW provides that person must not contravene a term of an order of the
Commission dealing with a dispute about the operation of Part 6-4C, and is also a civil
remedy provision.
Mr Mazzitelli’s application and the proceedings before the Deputy President
[14] Mr Mazzitelli is employed by Qantas pursuant to an employment contract under which
he is paid a monthly salary. On 27 March 2020 he was informed by Qantas that he would be
stood down from work effective from 6 April 2020 pursuant to s 524 of the FW Act as a
result of the impact of the COVID-19 pandemic on Qantas’ business. He was advised that the
standdown would continue until 31 May 2020 but would continually be under review. He was
subsequently advised by Qantas that it was eligible to receive the JobKeeper subsidy for his
position, and he completed a JobKeeper Employee Nomination Form for that purpose. His
dispute with Qantas arose from the first payment he received from Qantas pursuant to the
scheme. His application to the Commission, which he lodged on 5 May 2020, explained the
issue concerning that payment in the following way:
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789da.html#paragraph
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#made
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789da.html#paragraph
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#jobkeeper_enabling_direction
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#jobkeeper_enabling_direction
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#jobkeeper_enabling_direction
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#setting
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#jobkeeper_enabling_direction
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#setting
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#jobkeeper_enabling_direction
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#jobkeeper_enabling_direction
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#jobkeeper_enabling_direction
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#organisation
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employer
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s12.html#organisation
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employer
http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s789gc.html#employee
[2020] FWCFB 2628
5
“…(3) I received my first JobKeeper payment on 15th April. I understand from Qantas
that my payment is for the month of April (I am paid monthly on the 15th of each
month) and has been split between two payslips (attached for reference), the first
payslip covering the first week of April, in which I worked, and the second payslip
being a ‘JobKeeper Top-up’ payment.
(4) I have reviewed my April payslips and JobKeeper Top-up payslip and there
appears to be a discrepancy with what I am expecting to be paid versus what I was
actually paid. According to the ATO I should be receiving the JobKeeper payment for
each fortnight.
(5) Here is a summary of my issue below:
(a) For the first JobKeeper fortnight (30th March – 12th April), I worked/earned
over $1,500 and therefore was not eligible for the JobKeeper payment or top-
up.
(b) For the second JobKeeper fortnight (13th – 26th April), I did not work or earn
any income and therefore I should have been paid $1,500 gross under the
JobKeeper payment for this fortnight. However, I only received $647.70 gross
for this fortnight which is $852.30 less than what I should have been paid for
this fortnight ($1,500).”
[15] By way of explanation, the JobKeeper scheme prescribes 13 “JobKeeper fortnights”,
the first of which is for the period 30 March-12 April 2020 inclusive, and the second of which
is 13 April-26 April 2020. Mr Mazzitelli receives a monthly salary which is payable on the
15th of each month. Mr Mazzitelli’s position is that he earned $2,352.30 for the period that he
worked in April until his standdown took effect, and that is the amount he should have been
paid for the first fortnight pursuant to s 789GDA. He then says he earned nothing for the
second fortnight, and should have received the jobkeeper payment of $1,500 for the second
fortnight. However Qantas – presumably pursuant to r 10(3) of the Jobkeeper Payment Rules
– appears to have split Mr Mazzitelli’s earnings for April into two fortnightly payments of
$1,176.15, and then topped that up for each fortnight to the amount of $1,500. The difference
in the two methodologies amounts to $852.30.
[16] In his application, in answer to the question “How do you want the dispute to be
solved?”, Mr Mazzitelli said:
“I am asking that my issue is reviewed against the ATO Guidelines, and I would like to
know whether I am entitled to be paid the additional $852.30 for the second
JobKeeper fortnight 13/4-26/4 to bring my JobKeeper payment up to $1,500 for that
fortnight.
If I am entitled to receive this payment, I would appreciate support from Fair Work
Commission to request my employer pass on my full JobKeeper payment.”
[17] After Mr Mazzitelli filed his application, the Deputy President immediately directed
Qantas to file a brief written response to the application. Qantas did so on 6 May 2020. In that
response Qantas explained its payment method, and contended that the Commission had no
jurisdiction to deal with the dispute because it would amount to the exercise of judicial power
[2020] FWCFB 2628
6
in that it would be about determining existing rights or liabilities under ss 789GD and
789GDA of the FW Act and r 10 of the Jobkeeper Payment Rules.
[18] The application came on before the Deputy President for an initial conference on 7
May 2020. The following exchange between the Deputy President and Mr Mazzitelli occurred
towards the beginning of the conference:
THE DEPUTY PRESIDENT: Yes, so what is it that you're wanting to achieve? Am I
correct in saying that I said a moment ago and that is that you're wanting to know
whether you are entitled to an additional amount of money for the second fortnight
that you were paid a JobKeeper wage subsidy? Is that right?
MR MAZZITELLI: That is partly right. That is correct. In addition I - the part before
the payment is I'd like to ensure that the Act is being interpreted correctly,
which would then result in the correct amount of money being paid.2
[19] Mr Mazzitelli subsequently said in the conference:
… In addition to this, I'd like to raise that this is not a dispute about underpayment. It
is about Qantas's interpretation of subsection 789(g)(d) and 789(e)(a) of the Act as
characterised by Rania in point 4 of Qantas's response letter. This has resulted in an
underpayment as pointed out in point 7 of my original dispute form.3
[20] The Deputy President then heard argument in relation to Qantas’ jurisdictional
objection, and issued the decision in relation to this the following day.
The decision
[21] In the decision, the Deputy President first dealt with the question of whether Mr
Mazzitelli’s application constituted “a dispute about the operation of this Part” within the
meaning of section 789GV(1), and said that the first step in resolving the question was to
characterise the dispute. The Deputy President noted Qantas’ submission that the dispute,
properly characterised, was about “the proper interpretation of ss 789GD and 789GDA and r
10 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020,
which is a matter over which the Commission does not have jurisdiction”, and said:
“[36] I agree with these characterisations but not Qantas’s conclusion. The dispute is
about the Employer Payment Obligations in sections 789GD and 789GDA and, to the
extent relevant to the application of those provisions, the Payments and Benefits
Rules.”
[22] The Deputy President then concluded as to this issue:
“[42] Mr Mazzitelli was, at the time of making his application an eligible employee and
his employer was an eligible employer. He was in receipt of a top up payment by his
employer under the JobKeeper scheme. The payment fortnights that are the subject of
his dispute are payment fortnights related directly to his employer’s application of the
2 Transcript, 7 May 2020, PNs 9-10
3 Transcript, 7 May 2020, PN 65
[2020] FWCFB 2628
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Payments and Benefits Rules and the employer’s obligation under Part 6-4C to meet
the wage condition and the minimum wage guarantee.
[43] For these reasons I conclude that Mr Mazzitelli’s dispute is a dispute about the
operation of Part 6-4C and thereby within the Commission’s jurisdiction. I reject the
first jurisdictional ground advanced by Qantas.”
[23] The Deputy President then dealt with the contentions advanced by Qantas that the
remedy sought by Mr Mazzitelli would require the exercise of judicial power and was not
within jurisdiction because it was in the nature of an underpayment claim. The Deputy
President did not accept that dealing with the dispute notified by Mr Mazzitelli, as properly
characterised, required the Commission to exercise judicial power.4 The Deputy President
accepted that “a determination that an employer is in breach of the law for having underpaid
an employee and a consequential order requiring monies to be paid” would constitute an
exercise of judicial power that would be beyond the power of the Commission,5 but said:
“[49] The proposition that dealing with disputes over the JobKeeper wage condition or
the minimum wage guarantee generally or in the specific circumstances of Mr
Mazzitelli’s application necessarily involves the exercise of judicial power is rejected.
Such a proposition would come close to rendering nugatory the capacity of the
Commission to deal with disputes concerning sections 789GD and 789GDA. The
legislature has clearly intended that not be the case. Whilst it is so that decisions and
orders in the nature of the exercise of judicial power would not be permissible when
exercising jurisdiction under Part 6-4C, dealing with a dispute, whether by
conciliation or arbitration and whether by making recommendations, decisions or even
orders, is capable of being undertaken without impermissibly exercising judicial
power.
[50] Mr Mazzitelli’s application does indicate that he “would like to know whether I
am entitled” to a higher payment with respect to the second JobKeeper fortnight in
April 2020. Whilst the final determination of lawful rights are matters for the courts
not the Commission, with respect to Mr Mazzitelli’s application, as well as
applications generally, the Commission is not limited to the relief sought or the
specific terms of the relief sought. Mr Mazzitelli sought that the payment practice of
his employer be reviewed against the Payment and Benefit Rules. Those rules
centrally raise matters concerning the practices of Qantas in applying its wage
condition and minimum payment guarantee obligation under Part 6-4C.
[51] For these reasons I reject the second and third grounds of jurisdictional challenge
advanced by Qantas.”
[24] The Deputy President concluded that the Commission had jurisdiction to deal with the
dispute notified by Mr Mazzitelli6 and said:
“[53] The provisional listing of this matter scheduled for 4.00pm today will proceed. At
that time I will further conciliate the merits of Mr Mazzitelli’s dispute. Should
4 [2020] FWC 2413 at [45]
5 Ibid at [46]-[47]
6 Ibid at [52]
[2020] FWCFB 2628
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conciliation not be successful and arbitration of the merits be required, arrangements
will be put in place for that to occur. Arbitration will not occur at today’s further
proceedings but will be conducted promptly if needed.”
[25] Subsequent to but on the same day as the publication of the decision, the Deputy
President conducted the foreshadowed further conciliation conference and, when that proved
unsuccessful in resolving the dispute, listed the matter for arbitration and made directions for
the filing of materials in connection with the arbitration. However, after Qantas filed its
appeal, the Deputy President acceded to an application that the notice of listing and directions
be set aside pending the hearing and determination of the appeal.7
Qantas’ submissions
[26] Qantas’ notice of appeal contained four grounds of appeal, but in its submissions
Qantas categorised these into three broad contentions of error. The first of these was that the
Deputy President erred in too broadly characterising the subject matter and ambit of the
dispute. In this respect, Qantas submitted:
at its highest, the dispute concerned Qantas’s interpretation of ss 789GD and 789GDA
of the FW Act and r 10 of the Jobkeeper Payment Rules as it concerned the calculation
of Mr Mazzitelli’s pay for the period 13 April to 26 April 2020;
the remedy sought by Mr Mazzitelli to review his payment for that period, ascertain
whether he was entitled to the additional claimed amount of $852.30 and, if so,
request that Qantas rectify the underpayment;
the Deputy President erred by characterising the dispute in a way which did not
confine it to the past period identified by Mr Mazzitelli;
this error infected the Deputy President’s assessment of Qantas’ jurisdictional
objections, in that he acknowledged the Chapter III difficulty if he were to deal with
the dispute by arbitration but then noted that the Commission was not limited to the
relief sought;
it is very difficult to identify any form of arbitral order that could be made to settle a
dispute involving an alleged past underpayment; and
the Deputy President’s conclusion that some form of unspecified arbitral relief might
be available confirms that he characterised the dispute too broadly and thus dealt with
Qantas’ jurisdictional objections on the wrong basis.
[27] The second contention of error was that, while the Deputy President was of course
required to ask whether the dispute was “about the operation of [Part 6-4C]” as a necessary
step in satisfying himself of jurisdiction, it was not sufficient to merely ask that question in
circumstances where Mr Mazzitelli sought arbitral relief. The Deputy President was then
required to assess, in the circumstances of the particular case, the nature of the power the
Commission would exercise were it to arbitrate that dispute. In this case, the dispute as
properly characterised necessarily required the ascertainment of legal rights and obligations,
7 [2020] FWC 2476
[2020] FWCFB 2628
9
which involved the exercise of judicial power. An arbitral award could only properly be
concerned with the ascertainment of what rights and obligations should exist in the future, and
the Commission can only validly form an opinion as to existing rights and obligations as a
necessary step along the way to settling a dispute by creating new right via an arbitral award.
In this case, no new rights were sought by Mr Mazzitelli; his application was wholly
concerned with the enforcement of existing rights.
[28] The third contention was that the Deputy President proceeded on the basis that he was
not confined in arbitrating the matter to the specific relief sought by Mr Mazzitelli without
identifying to the parties what sort of relief other than that sought by Mr Mazzitelli might be
available, nor did he raise with the parties the possibility that he might issue relief in a
different form. In determining the dispute on a basis not agitated by either party and without
alerting them that he might do so, the Deputy President denied Qantas the opportunity to
address this in submissions and thus denied it procedural fairness.
[29] Qantas submitted that permission to appeal should be granted because the appeal
raises questions about the Commission’s power to deal with disputes under Part 6-4C which
are novel and of general application and importance. It seeks that permission to appeal be
granted, the appeal allowed and the decision quashed. It further seeks, on a rehearing, that we
determine that the Commission lacks jurisdiction to deal with the dispute by arbitration and,
given that the conciliation process has been exhausted, that Mr Mazzitelli’s application be
dismissed.
Consideration
[30] We consider that permission to appeal should be refused, for five reasons.
[31] The first is that the decision under appeal involved no more than a determination that,
if further conciliation did not resolve the matter, Mr Mazzitelli’s application should be listed
for an arbitral hearing. The only matter about which the Deputy President needed to be
satisfied to take that step was whether there was a dispute about the operation of Part 6-4C of
the FW Act between Mr Mazzitelli and Qantas such as to attract the Commission’s
jurisdiction under s 789GV. The Deputy President found that such a dispute existed, and
Qantas’ appeal does not challenge that finding.
[32] Qantas’ jurisdictional objection at first instance was, in substance although not
expressly described as such, an application for the summary termination of the proceedings.
The Commission has power to summarily dismiss an application under s 587(1) of the FW
Act where the application is not made in accordance with the FW Act, or is frivolous or
vexatious or has no reasonable prospects of success. However, as was stated in the Full Bench
decision in Bibawi v Stepping Stone Clubhouse Inc8:
“[17] … Section 587(1)(a) of the FW Act empowers the Commission to dismiss an
application where it has not been made in accordance with this Act, and s 587(1)(c)
similarly empowers dismissal where an application has no reasonable prospects of
success. This power may be exercised summarily - that is, an application may be
dismissed pursuant to s 587(1) prior to a full hearing being conducted. Full Bench
decisions such as Townsley v State of Victoria (Department of Education & Early
8 [2019] FWCFB 1314, 285 IR 190
[2020] FWCFB 2628
10
Childhood Development) ([2013] FWCFB 5834 at [17]-[19]) and Toma v Workforce
Variable Pty Ltd ([2018] FWCFB 5811 at [15]) have emphasised that the power to
dismiss applications summarily should be exercised cautiously and sparingly,
consistent with the principle stated by Barwick CJ in General Steel Industries Inc v
Commissioner for Railways (NSW) ([1964] HCA 69, 112 CLR 125 at 128-129):
... the jurisdiction summarily to terminate an action is to be sparingly
employed and is not to be used except in a clear case where the Court is
satisfied that it has the requisite material and the necessary assistance from the
parties to reach a definite and certain conclusion... the plaintiff ought not to be
denied access to the customary tribunal which deals with actions of the kind he
brings, unless his lack of a cause of action ... is clearly demonstrated.”
[33] In this case, we consider that it was necessary for Qantas to succeed in such an
application for summary dismissal for it to demonstrate that there was no order which could
be made by the Deputy President which would be within the power conferred on the
Commission by s 789GV(4). We are not persuaded that this was demonstrated by Qantas at
first instance or in its appeal submissions. It is not in issue that the Commission may not, in
dealing with a dispute, exercise the judicial power of the Commonwealth which, under
Chapter III of the Australian Constitution, is conferred on courts established pursuant to that
chapter. The Commission therefore cannot by arbitration determine whether Qantas has
complied with s 789GD or s 789GDA, nor can it order Qantas to pay amounts to which Mr
Mazzitelli claims to be legally entitled. However that does not exclude the possibility that the
Commission may properly exercise its arbitral power under s 789GV(4) to deal with the
dispute between Mr Mazzitelli and Qantas, even assuming the narrow characterisation of the
dispute postulated by Qantas, having regard to the fact that s 789GV(4)(d) empowers the
Commission to make any order it considers appropriate.
[34] Two hypothetical examples of this may be postulated. The first is that the Deputy
President may simply order the dismissal of Mr Mazzitelli’s application on the basis of an
expression of opinion that Qantas has reasonably allocated its payments to Mr Mazzitelli over
two fortnights in accordance with r 10(3) of the Jobkeeper Payment Rules. The second is that
the Deputy President orders Qantas and Mr Mazzitelli to confer in relation to the expression
of an opinion by him Qantas has not reasonably allocated its payments under r 10(3). In either
case, the order would appear to resolve the dispute in a manner consistent with the way in
which Mr Mazzitelli said that he wanted the dispute resolved in his application. These
examples, although not exhaustive, illustrate why Qantas could not succeed in making out its
jurisdictional objection.
[35] Secondly, there is no basis to conclude that the Deputy President will, in arbitrating
the dispute, purport to exercise judicial power. It is clear, we consider, from paragraphs [49]-
[50] of the decision that the Deputy President fully comprehends the limits on the
Commission’s power in that respect. In any event, if the Deputy President ultimately makes
some order which Qantas considers is beyond jurisdiction, it may lodge an appeal against that
order and seek a stay of the order pending the determination of the appeal. There is no need
for us at the present time to engage in some speculative exercise as to what orders the Deputy
President might make if he proceeds to arbitrate the dispute.
[36] Third, we consider that Qantas’ submissions concerning the characterisation and ambit
of the dispute are somewhat artificial, having regard in particular to the facts that Mr
[2020] FWCFB 2628
11
Mazzitelli is a self-represented litigant and his application is not to be treated as a formal
pleading. In his application, Mr Mazzitelli has attempted to define the dispute by reference to
the two fortnightly payment periods in April, and it is also the case that he refers to the
dispute as one relating to the question of his entitlement, but he has equally made it clear that
he does not regard himself as pursuing (or simply pursuing) an underpayment claim.
Although his application states that he wishes to know whether he is entitled to be paid an
additional $852.30 for the second JobKeeper fortnight, he has not in terms sought an order for
payment of this amount. His concern rather seems to be to obtain the opinion of the
Commission as to the operation of certain aspects of Part 6-4C. The Commission could in our
view express such an opinion if it so wished, although it would not be one that is in any way
binding on the parties. In that respect, the position may arguably be analogous to that
discussed by the Federal Court Full Court in Central Queensland Services Pty Ltd v CFMEU9
at [48]-[49].
[37] Fourth, Qantas’ procedural fairness point has no merit given that the Deputy President
has not yet made any order in the proceedings adverse to its position in the dispute.
[38] Fifth, Qantas’ appeal concerns an interlocutory decision. Permission to appeal against
such decisions is not usually granted.10 In this case, there are strong policy reasons why
permission to appeal against a decision of this type should not be granted. Part 6-4C has been
enacted to respond to what may reasonably be characterised as a health and economic crisis.
The Commission has been invested with the power to deal with disputes about the operation
of the Part, and we consider it crucial that it should exercise that power in an expeditious and
efficient manner. Except in the clearest of cases, appeals against interlocutory decisions
would not in that context be given any encouragement.
[39] For these reasons, we are not satisfied that it would be in the public interest to grant
permission to appeal, nor do we consider that permission should be granted on a discretionary
basis. We order that permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr A Pollock of counsel on behalf of Qantas Airways Limited.
Mr M Mazzitelli on behalf of himself.
Mr T Slevin of counsel on behalf of the Australian Council of Trade Unions.
Hearing details:
9 [2017] FCAFC 43, 249 FCR 154, 268 IR 212
10 Krcho v University of New South Wales & ors [2019] FWCFB 8269 at [41]
F THE FAIR WORK THE F REAL ISSION THE
[2020] FWCFB 2628
12
2020.
Sydney and Melbourne (video hearing):
18 May.
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PR719493
