Application by Maurice Alexander Management Pty Ltd

[2022] FWC 3236

[2022] FWC 3236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Application by Maurice Alexander Management Pty Ltd

(AG2022/3564)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 DECEMBER 2022

Application for approval of the MAM Casual Flight Attendants Enterprise Agreement 2022

1. The applicant, Maurice Alexander Management Pty Ltd operates a labour hire business, employing casual flight cabin crew for supply to Qantas Airways Ltd in connection with the operation predominantly of domestic flights. Casual cabin crew currently in the applicant’s employ are covered by the Flight Attendants' Association of Australia National Division Casual Flight Attendants Enterprise Agreement 2015 (2015 Agreement). Following a period of bargaining, the applicant sought, and on 11 August 2022 obtained, approval from relevant employees of a new enterprise agreement titled the MAM Casual Flight Attendants Enterprise Agreement 2022 (Agreement). The applicant applies under s 185 of the Fair Work Act 2009 (Act) for the approval of the Agreement by the Commission. The Flight Attendants' Association of Australia (FAAA) was a bargaining representative for the Agreement and it had advised relevant employees to vote against the approval of the Agreement. It is opposed to the approval of the Agreement by the Commission but has given notice that, in the event of approval, it wants to be covered by the Agreement. The relevant reference modern award is the Aircraft Cabin Crew Award 2020 (Award).

1. The 2015 Agreement contains “Schedule 1 – Availability Requirements and Allocation of Duty”, which separates employees into four different ‘Contracts,’ each containing varied amounts of ‘required availability’ or ‘allocation of work’ in 28-day roster periods. The different contracts are:

1.        Contract A – no guaranteed allocation of work;

2.        Contract B – an employee must be available at least 11-13 days of each roster period, including being available on between 3-6 specific dates nominated by the applicant;

3.        Contract C – employees receive 19 days of allocated work; and

4.        Contract D – employees receive between 14 and 19 days of allocated work.

1. The structure of the Agreement is such that, when in operation, it will provide for some wage increases and preservation of existing employment conditions for existing casual employees (Contract A, B, C and D employees); and by Part C of the Agreement, it will provide, inter alia, for new casual employees (described as Contract E employees), lower wage rates than those which will pertain to existing casual employees. The circumstances which are said to have necessitated this structure are later discussed.

1. The FAAA’s opposition to the Agreement’s approval is on several grounds. First, because the group of employees covered by the Agreement was not fairly chosen in accordance with s 186(3) of the Act. Second, there was no genuine agreement by the employees as required by s 186(2)(a), because the employees who were asked to vote on the Agreement will not be subject to Part C which will only apply to new employees. Third, there was no genuine agreement by the employees as required by s 186(2)(a) because the pre-ballot statements made by the applicant meant that the employees did not genuinely agree. Fourth, because the applicant did not comply with certain pre-approval steps in that the applicant did not provide to relevant employees all material incorporated by reference in the Agreement, as required by s 180(2)(a)(ii); nor the time the vote was to occur, as required by s 180(3)(a); nor an explanation as to all the terms of the agreement, as required by s 180(5). Fifth, because the Agreement does not pass the better off overall test (BOOT).

1. For the reasons which follow, I am presently not satisfied that the approval requirements in ss 186(2)(a) and (d) have been met. The applicant will be given an opportunity to provide undertakings after consulting with the FAAA for my consideration before I determine to finality the application. The applicant will also be permitted to make further submissions as to whether s 188(2) has application in respect of the concern about the s 186(2)(a) approval requirement.

1. The applicant issued a notice of employee representational rights to relevant employees on 8 April 2019,[1] following which there was bargaining involving exchanges of claims and no agreement was reached on any particular matter. In early April 2020, following the onset of the Covid19 pandemic and the various resultant governmental restrictions on social and economic activity, all of the applicant’s then approximately 340 cabin crew member employees were stood down because of the significant reduction in domestic flying.[2] Consequently the applicant’s revenue was significantly negatively impacted,[3] and bargaining for a new agreement was effectively put on hold.[4] During 2021, some employees were able to work for periods and bargaining resumed between the applicant and FAAA in around November 2021.[5]

1. By March 2022, the applicant retained around 180 cabin crew employees and these employees were working, but its business was operating at a loss.[6] Taking into account its operating costs, the applicant must be able to employ and on-hire at least 200 cabin crew to break even, and it requires approximately 340 to meet its pre-pandemic profit margin.[7] The capacity to recruit cabin crew appears fundamental to the applicant’s business model.

1. Maurice Alexander is the applicant’s Managing Director. He gave the following evidence by way of background and which I accept.

1. In May 2021, representatives of the applicant met with Nick Bull, Qantas’ Head of Domestic Customer Experience, and Helen Gray, Qantas’ Head of Cabin Crew Planning and Performance for the purpose, inter alia, of discussing the business requirements of both the applicant and Qantas.[8] Mr Bull told the applicant’s representatives that the applicant was not market competitive and that, coming out of COVID, it was going to be critical that flexibility and competitiveness could be improved given the unpredictable nature of Qantas’ flying requirements and the re-emergence of Virgin Australia from external administration with a reduced cost base. The applicant was invited to consider options to improve its cost effectiveness.[9]

1. Subsequently, the applicant developed a proposal the effect of which was to seek to bargain for a new enterprise agreement which would contain changes to the existing agreement permitting new employees to be employed by the applicant to be engaged on terms and conditions which were different to those applying to existing employees. The proposal for different terms and conditions of employment for new employees is reflected in Part C of the Agreement, and the applicant considers that those terms and conditions would allow its service offering to be significantly more market competitive.[10]

1. On 5 November 2021, Mr Alexander received a telephone call from Mr Bull in which Mr Bull told Mr Alexander that Qantas had entered into an arrangement with another labour hire provider, Altara, to engage cabin crew.[11] Mr Bull told Mr Alexander that the applicant would not be allocated any further ground school places because it was commercially uncompetitive.[12] Mr Alexander said that under Civil Aviation Safety Regulations, only the holder of an Air Operators Certificate can endorse a flight attendant as being proficient to fly – this is a pre-requisite to working as an operating crew member. And the process of receiving this endorsement is through a ground school, conducted by Qantas. All new employees need to complete a ground school. If ground school places were not made available to the applicant, it could not recruit new employees.[13]

1. Altara is not covered by an enterprise agreement and engages employees pursuant to the terms of the Award,[14] with the consequence that it is able to operate at a lower cost base compared to the applicant. Mr Alexander said that the emergence of Altara presented a serious threat to the applicant's ongoing viability.[15]

1. Thereafter, the applicant resumed bargaining and sought to make a new enterprise agreement containing Contract E employee terms and conditions, or one that would deliver efficiency and productivity improvements the applicant considered necessary for it to continue operating.[16] According to Mr Alexander, the applicant has determined that if its attempt to bargain for a new agreement as described above failed, they would work with Qantas to transition its workforce to another provider and cease operations because it would have been unsustainable for the applicant to continue operating at a loss in circumstances where its only client – Qantas – had engaged a more cost effective and efficient provider.[17] If the applicant could not become more commercially competitive, it could not recruit new employees as flight crew because Qantas would not allocate ground school places to the applicant.[18]

1. In each of March, June, and August 2022, Qantas conducted ground schools which had initially been planned for the applicant’s employees. The places in those ground schools were taken by Altara employees. According to Mr Alexander, the applicant was not able to take up any of those grounds school places because it had not yet secured a new agreement providing more efficient and cost-effective terms and conditions of employment for new employees.[19]

1. Bargaining with the FAAA did not result in the FAAA endorsing or supporting the Agreement. The applicant ultimately asked its employees to vote to approve the Agreement. A majority of employees who cast a valid vote approved the Agreement, and the Agreement was made at the end of the voting period at midnight on 11 August 2022.

1. Turning then to the matters raised by the FAAA in opposition to the approval of the Agreement.

Fairly chosen and no genuine agreement

Fairly chosen

1. The FAAA contends that the Commission cannot be satisfied for the purposes of s 186(3) that the group of employees who are to be covered by the Agreement was fairly chosen. It contends that the unfairness in the scope arises from the structure of the Agreement.

1. This is because, so the FAAA contends, the employees who voted on the Agreement are only subject to Parts A and B, and will have substantially better conditions than those who will be employed going forward and subject to Part C conditions which are slightly less favourable than the Award. This is the purpose of the Agreement – to make newly hired employees cheaper to the applicant than current employees.

1. The FAAA contends that because of the inferior conditions of Contract E and Part C, current employees of the applicant would have no intention of moving to Contract E. Thus, existing employees, to whom the applicant explained the Agreement, could not be forced on to Contract E and had no conceivable interest in the conditions being decided for the new employees.

1. Consequently, so the FAAA contends, the employees who will be covered are not fairly chosen within the meaning of s. 186(3). The FAAA relies on the same matters summarised above to underpin its contention that the Agreement was not genuinely agreed to by employees as required by s 186(2)(a). This is because the existing employees had no stake in the new classifications for new employees.

1. In substance, the FAAA contends that because of the way in which the applicant has structured the bargain, the bargaining process was manipulated to achieve a result which might not be capable of otherwise being achieved. The applicant’s object was to make an agreement containing more efficient and cost-effective terms and conditions of employment, but the Agreement did not contain uniform reduction to wages and conditions, notwithstanding that that might have achieved the result of making the applicant’s offering to Qantas cheaper. Such an outcome would not have been tolerated by the existing employees and so their conditions were protected while the reductions would be borne only by new employees who necessarily did not participate in voting to approve the Agreement.[20] In the result, the FAAA contends that it is not fair for an employee group, who has no stake in the contents of the new classifications, to lock others into substantially lower conditions. This denies newly hired employees the opportunity to bargain for better conditions as their agreement will be closed, cementing their conditions to less than the level of the Award.  In this regard the FAAA relies on the observations of Buchanan J in Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd in which his Honour observed:

“There is no requirement that employees who vote to make an agreement must have been in employment for any length of time, and there is no requirement that they remain in employment after the agreement is made. Presumably, the presently employed members of such a group will act from self-interest, rather than from any particular concern for the interests of future employees. The potential for manipulation of the agreement-making procedures is, accordingly, a real one. However, no suggestion of that kind is made in the present case and the possibility may therefore be put to one side for the purpose of the discussion. That is an important consideration because it suggests, as the primary judge thought, that determination of whether the group of employees was fairly chosen in the present case needed to bring to account the business rationale for the choice, as well as deal with any possibility of unfair exploitation. It was not irrelevant in that assessment to bear in mind, as the primary judge said, that the agreement provided benefits, not detriments, for those to whom it would apply.

. . .

The Full Bench did not say directly that it may not be fair for an enterprise agreement made with three existing employees to cover a wide range of other classifications and jobs in which they may have no conceivable interest, or that the group thereby constituted may not be fairly chosen. I do not exclude the possibility that such an assessment may be available in a proper case but it is not necessary to pursue that question here.” [21] [Underlining added]

1. Section 186(3) of the Act requires the Commission to be satisfied that the “group of employees covered by the agreement was fairly chosen.” The focus is on the group covered by the agreement. Section 186(3) is a protective provision.[22] Understood in context, s.186(3) protects the process of collective bargaining with which Part 2-4 of the Act deals.[23] In Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union,[24] a Full Bench of the Commission summarised the principles that may be discerned from cases decided which concerned the operation and application of ss.186(3) and (3A):[25]

oFirst, the expression “the group of employees covered by the agreement” in s.186(3) refers to the whole class of employees to whom the agreement might in future apply, not the group of employees who actually voted on whether to make the agreement.[26]

oSecond, the references in ss.186(3) and (3A) to whether “the group of employees covered by the agreement was fairly chosen” are, in the case of an enterprise agreement that is not a greenfields agreement, made with a group of employees, particularly a small group, references to a choice made by the employer.[27]

oThird, a decision by a Commission Member as to whether that Member is satisfied that the group of employees covered by an agreement was “fairly chosen” involves a degree of subjectivity and the exercise of a very broad judgment or value judgment, and in a broad sense may be characterised as a discretionary decision.[28]

oFourth, once it has been determined that an agreement does not cover all of the employees of the employer, it is necessary for the Commission to make a finding as to whether the group of employees who are covered is geographically, operationally or organisationally distinct, and then take that matter into account and give it due weight, having regard to all other factors.[29]

oFifth, if the group of employees covered by the agreement is geographically, operationally or organisationally distinct then that would be a factor telling in favour of a finding that the group of employees was fairly chosen, and conversely, if the group of employees covered by the agreement was not geographically, operationally or organisationally distinct then that would likely be a factor telling against a finding that the group was fairly chosen.[30]

oSixth, while the question whether the group of employees covered is geographically, operationally or organisationally distinct must be evaluated and given due weight having regard to all other relevant considerations, that is not a determinative consideration, in that it is not necessary to make a finding that the group is geographically, operationally or organisationally distinct in order to be satisfied that it was fairly chosen.[31]

oSeventh, the selection of the group of employees to be covered on some objective basis (as opposed to an arbitrary or subjective basis) is likely to favour a conclusion that the group was fairly chosen.[32]

oEighth, the considerations that are relevant in assessing whether the group of employees covered by the agreement was fairly chosen will vary from case to case, but the word “fairly” in s.186(3) suggests that the selection of the group covered was not arbitrary or discriminatory, so that for example selection based upon employee characteristics such as date of employment, age or gender would be likely to be unfair.[33]

oNinth, it is appropriate to have regard to the interests of the employer, such as enhancing productivity, and the interests of both the employees included in the agreement’s coverage and the employees excluded.[34]

1. In assessing the matters in 186(3A), the term “geographically” is self-evident, while the term “operational” refers to an industrial or productive activity,[35] and the term “organisation” refers to the manner in which the employer has organised its enterprise in order to conduct those operations.[36] The performance by a group of employees of duties which are qualitatively different from duties performed by other employees may justify a conclusion that the group is organisationally distinct,[37] but the mere performance by a group of employees of different tasks or roles to others may not be sufficient to render it organisationally distinct where the employees work in an integrated way with the other employees to perform a particular business function.[38] Most businesses have organisation structures which will allow organisationally distinct groups to be identified.[39]

1. Therefore, for the Commission to reach a state of satisfaction as to the question whether the group was fairly chosen in respect of an enterprise agreement which does not cover all of the employer’s employees, the Commission must take into account a range of considerations including whether the group is geographically, operationally or organisationally distinct. Distinctiveness is not absolute and can be a matter of degree. Distinctiveness on one or more of the bases identified is a factor usually telling in favour of a finding that the group was fairly chosen. Conversely, if the group of employees is not geographically, operationally or organisationally distinct, then that is a factor usually telling against a finding that the group was fairly chosen. Whether a group chosen is organisationally, operationally or geographically distinct is not decisive. Rather, it is a matter to be given due weight having regard to all of the other circumstances.[40] It must also be accepted that it may be relevant in a given case to consider whether the selection of the group of employees covered by an enterprise agreement amounted to a manipulation of the agreement making procedures such that the group thereby covered by the agreement was not or may not have been fairly chosen.[41]

1. By clause 3.1, the Agreement is expressed to cover “the Company and all Flight Attendants who are employed by the Company in the classifications covered by this Agreement to perform work for Qantas Airways Limited that predominantly involves undertaking domestic flying”. By clause 3.3, “Flight Attendant” means a “Casual Flight Attendant trained and qualified to an operational standard.”

1. The Agreement therefore covers only casual flight attendants. It does not cover all of the applicant’s employees (for example, management and administrative employees of the applicant are not covered). The coverage of the Agreement is directed to the labour the applicant supplies to Qantas which is the applicant’s core business. In this regard the group covered is operationally distinct from other employees of the applicant who are not covered by the Agreement, and I am so satisfied. As the work and duties performed by a group of employees (casual flight attendants) is qualitatively different from work and duties performed by other employees (such as management and administrative employees of the applicant) I am also satisfied that the group of employees covered by the Agreement is organisationally distinct.

1. There is nothing on the face of the coverage provisions of the Agreement which suggests unfairness in the choice. Indeed, it reflects verbatim the coverage of the 2015 Agreement.[42] The group chosen is operationally and organisationally distinct and represents the whole of the class of employees who will be available for supply to Qantas as casual flight attendants. The supply of casual flight attendants to Qantas is the business in which the applicant is engaged.

1. The ‘fairly chosen’ question raised by s 186(3) of the Act is concerned with and arises from the selection of the group coverage of an enterprise agreement – “the group of employees covered by the agreement.” Contrary to the applicant’s submission, a fairly chosen concern is not confined to an examination of an enterprise agreement’s scope as set out in its coverage clause. It is concerned, in a given case, with the choice made by the employer of the agreement’s coverage.[43]

1. The notion that the “fairly chosen” requirement could not be satisfied where a small group of employees entered into an agreement covering a much broader group and thereby deprived future employees in the broader group of the right to collectively bargain, was firmly rejected by the Full Court in John Holland.[44] As Buchanan J noted, it is a consequence of the making of any enterprise agreement under the Act, including a greenfields agreement which does not involve employees,  that future employees are prevented from engaging in bargaining under the Act during the nominal term of the  agreement. By itself, that cannot be a reason, to conclude that the group of employees covered by an enterprise agreement was not fairly chosen.

1. Although the voting group here is not small, the argument advance by the FAAA in substance is the same – it is not fair, for an employee group who has no stake in the contents of the Part C provisions, to lock others into lower conditions because this denies newly hired employees the opportunity to bargain for better conditions as their agreement will be closed.[45]

1. In the instant case, there is evidence of an intelligible and legitimate business rationale for the choice of coverage and structure. The coverage chosen was the same as that which exists under the 2015 Agreement and the applicant’s ability to continue viable operations depended on its ability to recruit more cabin crew. That ability to recruit depends upon its capacity to access ground school training places with Qantas. This in turn depends on the applicant being able to deliver an offering that could compete with the Altara offering, which engaged its employees under the Award. Because of domestic flying restrictions imposed in response to the COVID19 pandemic the applicant’s business was severely negatively impacted. Existing employees were stood down for lengthy periods. When the applicant emerged from the pandemic restrictions and recommenced its labour higher business, its staff quotient was less than that which would enable it to break even. It was trading at a loss. Thus, to the extent that the structure of the Agreement may be said to inform the question whether the group of employees who will be covered by the Agreement was fairly chosen, there was, in my opinion, an intelligible and legitimate business rationale for the choice of coverage and structure of the Agreement. The applicant needed more employees to trade profitably. In view of the position of Qantas as to the applicant’s capacity to gain ground school training places to enable it to recruit, the applicant’s decision to achieve this through price competitive terms for new employees whilst preserving the terms for its existing employees was intelligible and, it seems to me, legitimate.

1. Could the group chosen by the applicant have been more fairly chosen? Perhaps it could. As the FAAA pointed out during the hearing, the group could have been confined to existing employees, and new employees could have been engaged under the Award.[46] But the test is whether the group of employees covered by the agreement was fairly chosen, not whether the group could be more fairly chosen. There is no question here of the applicant seeking to break up a workforce of an enterprise into some artificial employee grouping with the consequence that the workforce of the enterprise is unable to bargain as a single collective.[47]

1. It seems to me on the evidence that the applicant’s purpose was not to avoid bargaining with any new employees, but rather to conclude an enterprise agreement on commercially appropriate terms, having regard to the strictures placed on it by Qantas, to enable it to grow and become profitable. It could only make such an agreement with its existing workforce and it cannot bargain or make an agreement with prospective employees. There was no manipulation of the bargaining process.

1. For completeness, in Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd,[48] a Full Bench of the Commission opined that:

“If the group of employees to be covered by an agreement is selected on the basis that a majority section of the employees may vote to approve an agreement with terms advantageous to themselves but disadvantageous to a minority group, that may support a conclusion that the group was not fairly chosen.”[49]

1. I agree with the observation. However, in Harbour City Ferries the Full Bench was concerned with the import of the fairly chosen requirement on the selection of two groups of employees within a group selected for coverage of the agreement and the capacity of one group for which superior conditions would apply to out vote the other for which disadvantageous conditions would apply because of the first groups’ number. The concern was about the design of the coverage around the voting cohort. It was not a concern, and could not be a concern, about prospective employees who might in the future be covered, but who cannot and do not vote to approve the agreement. Here the members of the group capable of voting did not constitute a majority and minority subclass. Those who might be covered by Part C in the future could not vote because agreements cannot be made with prospective employees of the employer but only with actual employees (as opposed to persons employed but not yet in the business to which the agreement relates).[50]

1. For these reasons, the FAAA’s contentions as to fairly chosen are rejected and I am satisfied, taking into account the matters in s 186(3A) that the group of employees covered by the Agreement was fairly chosen.

Genuine agreement

1.        Sufficient stake, manipulation, authenticity and moral authority

1. Turning then to the question whether the Agreement was genuinely agreed to by the employees covered by it, and specifically whether, by reason of the matters advanced by the FAAA summarised earlier, there are other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the relevant employees (s 188(1)(c)).

1. Paragraph 188(1)(c) of the Act is expressed in very broad terms and is intended to pick up anything not caught by paragraphs 188(1)(a) and (b), so that any circumstance which could logically bear on the question of whether the Agreement of the relevant employees was genuine would be relevant.[51]

1. The essential propositions underpinning the FAAA’s objection on this ground is first, that the voting group of employees – Contract A to D employees – did not have a sufficient stake in the Agreement because the Agreement also made provision for inferior conditions of employment for Contract E employees (in Part C) who would be new employees and the voting employees would never have Part C conditions applied to them. Second, the inclusion of the Part C inferior terms and the protection of existing employees’ conditions of employment amounts to manipulation of the voting group, robbing the Agreement of authenticity and moral authority.

1. It is accepted, as the applicant points out, that notions of “stake” in an agreement, “authenticity” and “moral authority” do not find express voice in the statute. However, that these notions may inform an assessment of whether there are other reasonable grounds for believing that the Agreement has not been genuinely agreed to by the relevant employees cannot sensibly be doubted.[52]

1. That said, the circumstances in the instant case do not rise to the level of raising concerns as to the voting cohort’s stake in the Agreement, nor about the authenticity of the agreement made or the moral authority of those making it for several reasons.

1. First, as the applicant has correctly pointed out, the factual circumstances in which the Agreement was made in the instant case are markedly different from the cases where such considerations have been determinative.[53] There is here, no small cohort of employees making an agreement that will cover a much larger cohort; no disparity between the classifications in which the voting cohort are employed compared to the classifications for which the Agreement provides; no lack of experience by the voting cohort in the work to be performed under the Agreement or the conditions in the industry in which the work will be performed; and there is no suggestion that the voting cohort is subject to some separate contractual arrangement outside of the Agreement guaranteeing much higher wages and conditions, such that the actual terms of the Agreement on which they voted would never in practice apply to them. The Agreement contains the rates of pay which will actually apply to existing employees.

1. Second, satisfaction as to s 186(2)(a) does not require that each and every term apply to each and every employee to be covered by a proposed agreement in order for those employees to genuinely agree to the agreement. Enterprise agreements containing different terms and conditions for different classes of employees, or which provide for some different terms to apply to existing employees and new employees, are commonly made and approved. Terms in enterprise agreements which preserve the position of existing employees while providing some less beneficial conditions for new employees are also not uncommon. That there are such differential conditions as between existing and new employees in an agreement the subject of an approval application, without more, does not raise to the level of reasonable grounds for the purposes of s 188(1)(c).

1. Thirdly, the voting cohort of employees had a sufficient stake in the Agreement. They are covered by an existing agreement that regulates the work of flight attendants who have worked and continue to work as flight attendants on Qantas flights as assigned. They understood the work and the conditions under which the work is to be undertaken. The work to be undertaken by Contract E is in substance identical. The employees each had an interest in the ongoing viability of the applicant’s business in which they are employed and, in this sense, also had an interest in the terms of employment for Contract E employees in Part C of the Agreement upon which they voted. The evidence discloses that the applicant was candid with its employees about the ongoing viability of the business in which they were employed, the reasons for it and the solution proposed. The applicant explained to its employees the need for it to have competitive terms of employment in place to secure Qantas ground training school places; that securing ground training school places was central to its capacity to increase employee  numbers to become a viable business; and the central importance of the Contract E terms to achieving that aim.[54] The materials given to employees during the agreement making process explained that it was in the interests of employees to approve the Agreement, including Part C, so that the applicant would be able to sustain its operations. Employees doubtless faced a difficult choice – so much is reflected in the closeness of the voting outcome. But that they had a sufficient stake in the Agreement so as not to undermine the genuineness of the agreement of employees cannot in my assessment be doubted.

1. Fourthly, given the clarity of the applicant’s communications with its employees and with the FAAA  (regarding its viability; the reasons for it; and the proposed remedy by seeking to make an enterprise agreement containing less favourable terms for new employees, combined with the advocacy by the FAAA for a “no” vote),[55] it cannot be said that the relevant employees did not have an informed and genuine understanding of what they were being asked to approve when voting for the Agreement.

1. Fifthly, it is doubtless the case that the existing employees can be presumed to have voted in self-interest, after all they were told in effect that without the approval of the Agreement the applicant’s business would not be viable for the reasons earlier described. They were also told that their conditions would not diminish and that they could not be forced onto Part C conditions. As the FAAA rightly points out, it is a matter of common human experience that those persons would have been motivated by the fact that there were no changes to their terms and conditions. But I do not consider that this alone, or in combination with the other matters considered above, provides reasonable grounds for believing that the Agreement was not genuinely agreed to by the employees. In this regard, I agree with the applicant that s 188(1)(c) of the Act is not a consideration to be deployed whenever the commercial or industrial strategy surrounding the making of an enterprise agreement might be viewed by a contradictor as odious. Rather, s 188(1)(c) is concerned with an examination of the quality of the consent given by the voting employees. Or, perhaps to express it somewhat differently, it is concerned with matters that may have a logical bearing on the quality of the consent given by the voting employees.  As the Full Court observed in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union,[56] any circumstance which could logically bear on the question of whether the agreement of the relevant employees was genuine would be relevant.[57]

2.        Pre-ballot statements

1. The FAAA also contends that there was no genuine agreement by the employees as required by s 186(2)(a) because the pre-ballot statements made by the applicant meant that the employees did not genuinely agree to the Agreement. In addition to the matters already canvassed, the FAAA contends there are other reasonable grounds for believing that the employees did not genuinely agree to the Agreement by reason of some of the statements made by the applicant in connection with the approval of the Agreement. It says that there was substantial pressure exerted on employees to vote in favour of the Agreement and that at various stages during the bargaining and access period the applicant made various claims to the effect that, if the Agreement was not voted up that MAM would cease to operate, and the relevant employees would lose their jobs. It says that, as a consequence, employees were not given a choice in any real sense, and this affected the genuineness of the employees’ agreement.

1. Some of the other purported misleading statements on which the FAAA relies[58] are contained in material footnoted as supporting the contention, but is not supported by evidence as sections of a statement filed by the FAAA containing them was not ultimately admitted into evidence.[59] It also points to inaccurate statements made by the applicant to the FAAA’s role in the Award. The FAAA says that the applicant’s comments must be considered in light of the result of the ballot. The Agreement was approved by a very slim margin and if one vote had changed from yes to no, the Agreement would not have been made. It says that given the small margin, the capacity for the adverse comments to have affected the result of the ballot is plain.

1. The complaint here is not that there was a misrepresentation or error by the applicant concerning the terms of the proposed agreement or the operation and effect of those terms. Rather, the principal concern is about representations the applicant made to its employees relating to the consequences for the applicant’s business and for the employees it employed if the Agreement was not approved, and if it could not recruit enough new cabin crew employees. As noted earlier, the applicant’s capacity to recruit new cabin crew rested entirely on its ability to obtain from Qantas new ground school training places. Qantas had told the applicant that it would not be allocated any further ground school places because it was commercially uncompetitive; or, as Mr Alexander confirmed during his oral evidence, Qantas is not making available training school places because of the terms of the applicant’s current enterprise agreement.[60]

1. The impugned representations are set out below:

“9. What will happen if MAM is unable to recruit going forward?

The reality is that without the ability to recruit Contract E, MAM will become unviable as a business and would advise Qantas of its need to close.[61]

____________

I am writing to you today as we have concerns given the misinformation that has been circulated by the FAAA which fails to grasp the seriousness of the situation that MAM and our employees are in. The Aviation industry has changed considerably due to the pandemic. Rex has entered major route and is recruiting cabin crew on the Modern Award, while Virgin has re-emerged on a far lower cost base and is recruiting cabin crew just above the Modern Award. It is clear that Qantas needs to be efficient and competitive moving forward, which is why they have had to engage Altara to provide them with immediate cabin crew on the Modern Award as MAM has been unable to provide them with a market competitive option.

MAM commenced EBA negotiations with both Unions in 2019 at which point we were considering a number of claims, however due to the impacts of the pandemic and the reality of the current situation, we are not in a position to agree to claims that would make our existing crew any more costly or any less efficient. The reality is that our exist ing MAM crew Contracts, rates and conditions are significantly more generous than any alternative provider is offering or any other major airline in Australia is recruiting under, and it is an enormous achievement that MAM’s new EBA is able to protect your Contract conditions.

One of the main objectives of this EBA is the ongoing protection of your wages and conditions on Contract A, B, C & D. There is no ability or intention to change anyone’s category to Contract E, nor is this legal within our EBA, and in over 20 years no MAM Flight Attendant has been forced to transfer category ever.

As you know it has been a challenging 2 years for MAM as a business. MAM has continued to operate throughout the pandemic under economic hardship with the commitment to you all that we would protect your employment and see this through to the other side. It is critical for MAM’s survival as a business that we are able to recruit cabin crew to backfill our reduced numbers otherwise the business is simply unviable, and in this case it would not be a matter of if MAM closes but when MAM closes.

Qantas have given us a guarantee that if we can deliver a market competitive rate in this EBA that we will be able to recommence recruitment immediately to fill training ground schools from October onwards. If MAM is unable to recruit and we are forced to close, the result will be that all MAM employees will lose their job. I understand that this is an uncomfortable truth, however we want to ensure that you have the correct information regarding what the outcome will be if this vote is unsuccessful.

We will be running webinars each day this week at 1400 hours (EST) to provide everyone with the opportunity to join and discuss the EBA. I appreciate that this situation may be causing stress to some crew and I want to remind you that EAP (1300 687 327) is available should you need their support at this time.

This EBA is a great deal and provides you with increases in pay rates, allowances and flexibility, while protecting your existing Contract of employment with the commitment that MAM will continue to operate. This EBA is a job saving deal for our existing employees, however we need your support to gain a YES vote.

At the end of the day this is your decision, and we will respect the outcome, but we need to ensure that you fully understand the reality of the situation.”[62] [Underlining added]

1. As earlier noted, the FAAA contends that these representations were regular and severe, and they affected the genuineness of the employees’ agreement. As already noted, the FAAA does not contend that these representations were false or misleading. Nor was it put to Mr Alexander during his oral evidence that the representations had that character or that he was otherwise exaggerating the viability of the business or embellishing Qantas’ representation to the applicant earlier noted.

1. Moreover, I do not consider the representations to be severe or as affecting the genuineness of the employees’ agreement. Yes, the representations contained uncomfortable truths, but they were ones that needed telling. As I earlier described the applicant’s communications – they were candid. The applicant would rightly have been criticised (if not also failing to meet its good faith bargaining requirement under s 228(1)(b) of the Act), if it did not disclose to the employees and the FAAA its circumstances and the proposed agreement had been defeated at ballot, with the most likely consequence – the dissolution of its business – to follow. The representations were necessary to be made so that employees could make an informed choice, albeit an uncomfortable one. That the choice was uncomfortable does not mean that the choice was not genuinely made. The representations are also a long way short of coercive or intimidating. The disclosures were in my opinion necessary so that employees could make a fully informed decision whether to vote for or against approving the Agreement.

1. As to the close result of the vote, I accept that the result may be relevant at least to an assessment whether there had been an informed vote and genuine agreement by the employees. The FAAA suggests that the specific comments by the applicant that its business would otherwise be forced to close if there was not a positive vote for the Agreement, was a significant factor in how many employees voted. Although there is no evidence to support the contention, common sense dictates that at least some employees would have been so influenced. But it does not follow that the agreement of the employees was not genuine. As I have acknowledged, the choice facing the employees was a difficult one, but one made, as should be the case, with full disclosure. The close vote reflects the difficult choice but not coercion or misrepresentation.

1. As to other representations with which the FAAA takes issue, Gareth Uren, the FAAA’s Assistant Federal Secretary (Domestic), gave evidence that:

“39. MAM have made comments to the effect that domestic cabin crew employed by Virgin were on ‘just above the Modern Award’ (GU-24). This is not correct; they are covered by an Enterprise Agreement, the Virgin Australia Cabin Crew Agreement 2021. The agreement was negotiated in extremely difficult circumstances during the pandemic and after Virgin’s administration and sale. Whilst employees had to make some concessions in the agreement it still contains many above-award conditions, and it is simply incorrect to say the employees are just above the conditions of the Modern Award.

40. The representation that the FAAA approved or supported the Modern Award is also incorrect. The FAAA participated in the Modern Award process like most unions but did not at any stage agree to, or approve the standards in some parts of the Modern Award and was strongly opposed to parts of the award that were ultimately made.

41. The FAAA also did not delay the agreement because we did not want another union involved. The current agreement makes reference to a number of areas where MAM is required to consult with the FAAA or reach agreement with the FAAA in certain circumstances. We simply took the position that, in the FAAA’s view, these clauses did not need to change and questioned how they would work in practice if they changed to refer to registered organisations (e.g. would MAM seek the agreement of all registered organisations). There is no reason that this feedback would have delayed the agreement and it was not a significant factor in the FAAA not supporting the agreement.

42. Before the vote there was also a significant amount of discussion on the FAAA’s dedicated MAM Facebook group.”[63]

1. Neither the applicant’s opinion that domestic cabin crew employed by Virgin were on ‘just above the Modern Award,’ nor Mr Uren’s alternative opinion, were the subject of any forensic examination by reference to the Award and the Virgin Australia Cabin Crew Agreement 2021, but it seems clear that the assessment that employment conditions of Virgin’s cabin crew were just above the Award is value laden as is the assessed response. I do not consider the communication to be significant and in any event, the FAAA doubtless had ample opportunity to put its contrary view to employees, including through the “FAAA’s dedicated MAM Facebook group”. Similarly, the matters raised in [40] of the extract above, are not supported by any document recording the FAAA’s position on the Award, but I accept that Mr Uren was not cross-examined about the veracity of his statement. In any event, I do not consider the statement, even if incorrect, to be of any particular moment, and if the FAAA thought it was, it doubtless would have taken steps to advise employees of the correct position. The matters at [41] of the extract are similarly of no moment. It is not in dispute that the FAAA communicated to its members its opposition to the approval of the Agreement.

3.        Pre-approval steps

1. The FAAA contends that the applicant did not comply with certain pre-approval steps because it did not provide to relevant employees all material incorporated by reference in the Agreement as required by s180(2)(a)(ii), nor the time the vote was to occur, as required by s180(3)(a), nor an explanation as to all the terms of the Agreement as required by s180(5).

3.1.All reasonable steps – provision of or access to material incorporated by reference

1. The FAAA contends that in multiple instances, the Agreement incorporates rules or entitlements that apply in the ‘client airline’ business, which is a reference to Qantas Airways Ltd. Specifically:

·Clause 35.2 notes that Flight Attendants will have ‘the same rest requirements as a Flight Attendant in the client airline’;

·Clause 13.2 provides Flight Attendants will have insurance no less favourable than the client airline;

·Clause 18.6 provides that Flight Attendants will be obliged to follow the policies of the client airline;

·Clause 37.4 provides that any specific up-line reallocation to the crew of the client airline also applies to MAM employees under the Agreement;

·Clause 41 provides that if a client airline makes a country payment, then that will also apply under the Agreement; and

·Clause 43 defines regional duty by reference to the client airline.

1. The FAAA says that each of the abovementioned matters are entitlements which are reduced to writing at the client airline. It says that, despite the Agreement providing that those entitlements will apply under the Agreement, copies of the documents were not provided, nor were the employees given access to those documents.

1. Relevantly, s 180(2)(a) of the Act requires that reasonable steps be taken to ensure that “during the access period” a copy of any other material incorporated by reference in an enterprise agreement is given to relevant employees, while s.180(2)(b) allows for an alternative, so that s 180(2) might be satisfied if an employer takes all reasonable steps to ensure that the relevant employees have access, throughout the access period, to those materials.

1. Before dealing with the provisions identified specifically, it is necessary to say something briefly about a submission made by the applicant. By reference to a paragraph of my decision in SGS Australia Pty Ltd,[64] the applicant contends that the question whether an enterprise agreement incorporates material by reference turns on whether the agreement imposes any obligation on employees who are covered by the Agreement to comply with the material to which reference is made. This is one matter, but not the only matter, as the referenced passage of my decision and the three paragraphs immediately preceding it, I think, makes plain:

“[8] Clause 31 of the Agreement deals with leave entitlements and provides that the leave entitlements provisions of the Agreement are “to be read in conjunction with the SGS Australia Leave Policy”.

[9] Clause 33 of the Agreement deals with an employee’s health and safety obligations and provides that employees must, inter alia, “comply with Fitness for Work and Drug and Alcohol Policies, including Rules for Life”.

[10] Clause 36 of the Agreement deals with fitness for work and provides, inter alia, that employees are required to “comply with any health and safety policies, requirements or the like of clients or customers of the Company when working on any of their sites or projects”.

[11] The question whether the policies referred to in each of the above-mentioned clauses of the Agreement are incorporated into the Agreement by reference may, for present purposes, be answered by asking whether the provisions of these clauses of the Agreement impose any obligation on employees who are covered by the Agreement to comply with the policies to which reference is made. I have not been provided with a copy of the SGS Australia Leave Policy and it is therefore not clear to me what effect reading the leave provisions of the Agreement in conjunction with the policy will have, and for reasons which follow it is unnecessary for me to express a view about whether or not the SGS Australia Leave Policy is incorporated by reference into the Agreement.”[65] [Underlining added]

1. The second sentence deals with a specific policy (SGS Australia Leave Policy) noted at [8] of my decision and was not further considered. The agreement at issue stated that it was to be read in conjunction with that policy. As to the other policies with which the first sentence is concerned, the agreement at issue required employees to “comply with” the identified policies, as is clear from [9] and [10] of the decision. It is for that reason that the underlined words at [11] above appear and the question posed is confined. The decision plainly does not propound an idea that this is the only way in which material referenced in an enterprise agreement will be incorporated by reference. Nor does the decision suggest that enterprise agreement obligations on employees to comply with a policy will in every case result in incorporation by reference.

1. Section 180(2) is relevantly concerned with other material that is incorporated by reference. In other words, the material said to be incorporated must be identifiable in the Agreement either by mentioning the material or by alluding to it. Formal words of incorporation need not be used. However, the mere mention of external material in an agreement does not, without more, mean the material is incorporated by reference. For example, a provision in an agreement providing that “annual leave will be in accordance with the National Employment Standards” (NES), does not result in the incorporation of the NES, or the annual leave provision of the NES, by reference. The NES provisions operate according to their terms and the agreement is merely pointing to the material where annual leave entitlements may be found.

1. Clause 35.2 provides:

“Flight Attendants’ daily duty limitation for tour of duty for a domestic duty will be 12 hours and up to 15 hours during disruption with the same rest requirements as a Flight Attendant in the client airline, including any special arrangements agreed between the client airline and a registered organisation covered by this Agreement in relation to those rest requirements. [Underlining in original]

1. No identifiable material is referenced in the provision, although it may be inferred that at least part of the rest requirements is to be found in the Flight Attendants’ Association of Australia – Short Haul Division (Qantas Airways Limited) Enterprise Agreement. That was Mr Uren’s evidence.[66] But I do not consider the provision at issue as incorporating by reference the instrument or the relevant parts of the instrument which sets out the rest requirements. There is a separate question about whether there were reasonable steps taken to explain the term and its effect, particularly since the actual rest requirement is not stipulated. In addition the reference to “any special arrangements agreed between the client airline and a registered organisation covered by this Agreement in relation to those rest requirements” [underlining in original] cannot operate so as to vary the Agreement’s terms without recourse to the variation provisions of the Act, so I read the reference as one relating to existing arrangements agreed. Similarly, the question arises – what are these arrangements? And were reasonable steps taken to explain their terms and the effect of those terms? I will return to these questions later.

1. Clause 13.2 provides (and, for context, I include the text of clause 13.1):

“13.1 A Flight Attendant shall not be required to operate services into hostile or warlike areas, but may volunteer for such operations.

13.2 Volunteers shall be provided with insurance coverage no less favourable than applying to Flight Attendants in the client airline.”

1. There is no material incorporated by reference in or by clause 13.2. It obliges the applicant to provide insurance coverage to any Flight Attendant who volunteers to operate services into hostile or warlike areas which is no less favourable than applying to Qantas employed Flight Attendants (presumably operating services into hostile or warlike areas). It does not incorporate the insurance policy or any instrument which obligates Qantas to provide the insurance. The separate question whether reasonable steps were taken to ensure the term and its effect was explained is later addressed.

1. Clause 18.6 provides:

“The Flight Attendant must comply with Company policies and procedures as varied and advised from time to time, including compliance with policies issues (sic) by client airlines. Policies include but are not limited to those relating to general conditions, equal employment opportunity, Occupational Health and Safety and drugs and alcohol.”

1. The applicant seems to accept that clause 18.6 has the effect of incorporating the relevant policies and procedures very generally identified. I doubt it is intended that every Company and Qantas policy or procedure be incorporated by the generalised reference in the clause, but rather, if there is incorporation, it is limited to those identified and others which focus on employees, their obligations or entitlements, and the airline operations as may affect a flight attendant. For example, it is unlikely to have been intended to include a general procurement policy or a procedure for the payment of creditors. The words “must comply” suggests the policies and procedures are those which are on their face applicable to or related to the employees covered by the Agreement. The fact that the policies and procedures are not specifically identified (save for those in the non-exhaustive description of policies in the second sentence) raises a question whether there can be incorporation by reference in this fashion. If one cannot identify the material on the face of the Agreement, how can the material be said to be incorporated by reference?

1. Although a term of an enterprise agreement requiring employee compliance with an identified policy may incorporate the policy by reference, that will not be so in every case. Context and the express terms of the enterprise agreement is important. Here clause 18.6 only places obligations on employees to comply with policies and procedures. It places no obligation on the applicant to comply with the same policies and procedures. And to the extent that we are concerned with Qantas’ policies and procedures, the Agreement could not impose compliance requirements on Qantas. Incorporation by reference of policies and procedures which also place obligations on the applicant would have the effect that the policies and procedures become terms of the Agreement and that the applicant is bound to comply with the policies and procedures as a term of the Agreement, even though clause 18.6 only imposes an obligation to comply on employees. It would be surprising if policies dealing with equal employment opportunity and occupational health and safety, as examples, did not also contain employer obligations. So then, what is incorporated – the whole of a policy or only those portions which impose obligations on employees to do or to refrain from doing something?

1. Some of the policies and procedures are set out in Mr Alexander’s witness statement,[67] but the Qantas policies and procedures themselves are not in evidence. A perusal of the listed policies and procedures (by title) suggests that a number are likely to have no application to employees covered by the Agreement, for example Qantas’ Group Policies titled “Business Resilience Policy,” and its associated procedure; “Contract Execution Policy,” and its associated procedure; and “Risk Management Policy,” and its associated procedures.

1. In my view, the clause is couched in such uncertain terms as to the generalised description of the materials, that it is incapable of incorporating any material by reference. Clause 18.6 nonetheless requires an employee to comply with the generalised description of policies and procedures. This necessarily raises a separate question whether there were reasonable steps taken by the applicant to ensure the term and its effect were explained to employees. That question is address later in this decision.

1. Clause 37.4 provides:

“Any specific up-line reallocation that applies to the crew of the client airline will also apply to Flight Attendants under this Agreement.”

1. No material is mentioned or identifiable. The clause simply tells employees that “[a]ny specific up-line reallocation that applies” to Qantas crew will also apply to them. There is no incorporation of any material by reference. That this issue might also be regulated by a Qantas industrial instrument does not alter the conclusion. There is a difference between on the one hand, a term of an agreement which merely compels the doing of an act or conferring a benefit that is required of or applies to others elsewhere employed (even if dealt with in an industrial instrument), and, on the other, incorporating by reference the terms of an instrument that compels the doing of an act or conferring a benefit that is required of or applies to others elsewhere employed as a term of the agreement for the purpose of applying that term to employees covered by the agreement. This clause falls squarely in the former. But a question whether there were reasonable steps taken by the applicant to ensure the term and its effect were explained to employees arises and is later addressed.

1. The table under clause 41 relevantly provides:

Country Payment (per pairing) If the client airline makes an additional ‘country’ payment, then it will also apply to the flight attendants under this part of the Agreement at the same rate [underlining in original]

1. Again, no material is mentioned or identifiable. There is no incorporation of any material by reference. That this issue might also be regulated by a Qantas industrial instrument does not alter the conclusion. This clause falls squarely in the former example discussed at [73], above. However, the separate question whether reasonable steps were taken to ensure the term and its effect was explained is later addressed.

1. Clause 43 is a definitional provision and contains the following definition:

“Regional Duty is a period of continuous duty containing an international sector that is categorised as a regional pairing for flight attendants in the client airline.” [Bold and underlining in original]

1. It is seriously to be doubted whether defining a term by reference to another document extraneous to the Agreement has the effect of incorporation by reference. Be that as it may, here there is no material mentioned or identifiable. That continuous duty containing an international sector may be categorised in a Qantas industrial instrument does not incorporate the relevant provision by reference. This clause simply tells an employee that “Regional Duty” in the Agreement has the same meaning as that applied to Qantas’ flight attendants. The separate question whether reasonable steps were taken to ensure the term and its effect was explained is later addressed.

3.2.All reasonable steps – time at which the vote will occur

1. Section 180(3) of the Act requires an employer to take all reasonable steps to notify the relevant employees by the start of the access period for the agreement, of the time and place at which the vote will occur and the voting method that will be used. The FAAA contends the applicant did not comply with s 180(3). It says that the covering email and Explanatory Statement communication[68] provided to employees by the applicant specified that there would be an online vote which would open on Wednesday 3 August 2022 and close on Thursday 11 August 2022. It also points to the voting instructions provided by Elections Australia Pty Ltd stating that employees could vote from 3 to 11 August.[69] As there are no references made to the time the voting opened or closed, the FAAA contends that it is unclear what effect this could have had on employees who intended to vote but did not.

1. The FAAA contends that its complaint is no technical quibble. It says that 158 valid votes were cast of a possible 161. Of the valid votes, 80 voted in favour and 78 voted against the Agreement. It says that if two of the three people who did not vote had voted, the result of the ballot may have changed and so submits that the Commission cannot be satisfied that the failure to publicise the time of the vote as required by the Act did not impact the result of the vote.

1. The word “time” can have variable meanings depending on the context in which it is used. “Time” may be used to describe an indefinite continued progress of existence and events in the past, present, and future regarded as a whole or a single but indefinite or undefined period; it may refer to a point of time as measured in hours and minutes past midnight or noon; it may refer to time as allotted, available, or used or to a period between two points of time.

1. In s 180(3) of the Act, the word is used to identify the time at which the vote will occur. The time at which the vote will occur may differ depending on the choice made by the employer and the size, location and patterns of work of the employees to be balloted. The method chosen may also impact the time at which the vote will occur. In a small single location workplace and single shift workforce, the specification may be that the vote will take place at a meeting commencing at 10:00am on 11 April 2023 in the lunchroom. Employers with a large workforce of disparate shift patterns and work locations may opt for an electronic ballot held during a specified period of time. The appellant’s notice specified that “the ballot will open for voting on Wednesday 3 August 2022 and close on Thursday 11 August 2022.” True it is that the notice did not specify a “time” in the sense of a point of time as measured in hours and minutes past midnight or noon, but in my view, the notice specified a period of time – voting could be undertaken from the beginning of 3 August 2022 to the end of 11 August 2022.  Mr Alexander’s evidence was that the voting opened at 0000 hours on 3 August 2022 and closed at 2400 hours on 11 August 2022.[70] In the absence of any indication to the contrary, the days specified in the notice refer to the whole of each day. Consequently, the notice specified a period of time during which employees could vote, and therefore the time at which the vote will occur was specified. On the material before me, the appellant took all reasonable steps by the start of the access period for the Agreement to notify the relevant employees of the time and place at which the vote will occur and the voting method that will be used. It has complied with s 180(3).

3.3.All reasonable steps – explanation of terms and their effect

1. Section 180(5) requires the employer to take all reasonable steps to ensure that the terms and effect of the Agreement are explained to the relevant employees, and that the explanation is provided in an appropriate manner taking into account the particular circumstances and needs of the relevant employees.

1. The FAAA contends that there was little attempt by the applicant to explain the conditions of Part C of the Agreement which will cover the new Contract E employees whom the applicant will hire after the Agreement’s approval. The FAAA points to the explanatory document provided by the applicant and the column identified as “Explanation of Term” and which it says merely identifies the topic of many of the Part C clauses. It contends that merely describing the topic dealt with by the clause is not an explanation of the clause or its effect.

1. The FAAA contends further that where proposed clauses applying to the new employees differed from that in the Award there was little attempt to explain why, or what the effect of the change would be. It says that some of the provisions of Part C of the Agreement are based on the domestic provisions of the Award however others are from the international provisions of the Award and this would enable Contract E employees to fly longer international flights than current employees under the 2015 Agreement, and which does not appear to have been explained. In addition, the FAAA says that the terms of clauses 35.2, 41, 43 and 46.4 are all new in the Agreement, and so the Commission cannot be satisfied that the applicant has taken all reasonable steps to ensure that the terms and the effect of those terms have been explained to relevant employees as required by s 180(5).

1. I do not accept that the explanatory materials circulated by the applicant to relevant employees “merely identifies the topic of many of the Part C clauses”. This may be true of one document – the explanatory table[71]- but it is not reflective of the material viewed as a whole. A document titled “MAM Casual Flight Attendants Enterprise Agreement 2022”[72] which the applicant issued to relevant employees is responsive to questions raised by some employees. The document explains in its opening paragraph:

“On 25 July 2022, MAM provided to employees a copy of the proposed MAM Casual Flight Attendants Enterprise Agreement 2022 and an accompanying explanatory statement. Since then, MAM has engaged with employees via the MAM EBA Q&A page on Facebook and through various webinars held on 26 July 2022 and 28 July 2022. This FAQ document highlights some of those areas in which there have been questions. Further FAQs will be issued as required.”

1. The document thereafter sets out questions and answers, including the following:

“10. What are the conditions which apply to Contract E Flight Attendants?

Category E Flight Attendants include:

1.        Employees who are hired as Category E Flight Attendants after the Agreement comes into operation; and

2.        Employees in Categories A, B, C and D who apply for and are permitted to move to Category E, in which case Part B will cease to apply to these employees and Part C will apply instead.

The Category E Flight Attendant conditions are set out in Part C of the Agreement. We draw your attention to the following clauses. Each of these clauses are important and we encourage you to read them carefully.

1.        Definitions

o Clause 43 defines various terms used in Part C of the Agreement.

2.        Base hourly rate

o Clause 44 sets out that a Category E Flight Attendant will receive a 25% casual loading in addition to the minimum hourly rate (see clause 45) and is entitled to a minimum payment of 4 hours' work.

3.        Allowances

o Clause 46 sets out applicable allowances and the rules which apply to those allowances, including the rules for claiming allowances. Allowances include:

▪ Accommodation for employees on duty away from home base;

▪ Ground transport allowance;

▪ Flying allowance; and

▪ Meal allowance

o It should be noted that the flying allowance replaces the:

▪ daily travelling allowance (DTA);

▪ uniform and grooming allowance;

▪ hose allowance;

▪ shoe allowance; and

▪ miscellaneous expense reimbursement (MER) allowance. o A component of the flying allowance is paid as reimbursement for meals and incidentals.

o Clause 46 also sets out the circumstances in which paid meal breaks can be taken, including meal breaks when undertaking regional flying.

4.        Ordinary hours

o Clause 47.1 sets out that ordinary hours of work for Flight Attendants are 1872 hours each year, including attendance caused by flight delays and roster changes.

o Clause 47 sets out the roster periods in which planned duty hours can be rostered over. It is important to note that ordinary hours may include weekends and public holidays and Flight Attendants may be required to perform work in any pattern of hours (including on weekends and public holidays).

5.        Rostering

o Clause 48 is an important clause and you are encouraged to read it carefully. It sets out how the availability and rostering provisions will operate. It is important to note that clause 48 is read subject to clause 18 of the Agreement.

o Note that clause 48 sets out availability requirements and the requirement to provide availability for the following roster via webCIS.

o Client airline operations will allocate duties to Flight Attendants or advise if their availability is not required seven days in advance of the start of the roster period. Note that in the first operational week of any roster period, such notice may not be achieved in which case as much notice as possible will be given.

o The clause also sets out the circumstances in which being "Available" will not attract a Fixed Standby payment.

6.        Duty limitation and rest periods

o Clause 49 sets out the circumstances in which duty hour limitations will apply for domestic and regional duties. Duty time is calculated from the sign-on time for that duty.

o Please read the clause carefully because it also sets out how rest periods are calculated and planned for domestic and regional duties. A rest period is calculated from the sign-off time of any duty.

o Please note that no Flight Attendant will be planned to work more than six consecutive days, nor be rostered beyond a maximum of 6 sectors in any duty period.

7.        Overtime

o Clause 50 sets out the circumstances in which overtime will be paid. Overtime is paid at 100% of the minimum hourly rate, pro-rated for time less than a completed hour.

o Overtime is payable for all time worked:

▪ in excess of 1872 hours in a year;

▪ in excess of the Flight Attendant's roster cycle maximum (as specified in clauses 47.1(a), 47.1(b) or 47.1(c)).

o Payments for unplanned extensions will be in accordance with clause 8.

8.        Call in and work on days off

o Clause 51 sets out that Flight Attendants will not be allocated duty on more than 20 days in a roster period or 23 days in a roster period with the consent of the Flight Attendant. Rest periods and days off may overlap.

9.        Deadhead

o Clause 52 sets out that deadhead sectors may occur at any stage during a duty period. Flight Attendants may be directed to operate on deadhead duty.

10.      AV span

o Clause 53 sets out the arrangements with respect to the AV Span and contact arrangements with the client airline. Clause 53 also sets out the payment arrangements and duty credit arrangements relating to the AV Span.

11.      Additional or varied duties

o Clause 55 sets out that any additional or different duties offered to a Flight Attendant after sign-on will be paid at the casual hourly rate of pay as set out in clause 45.

1. Additionally, Mr Alexander gave the following evidence, which I accept, about the steps taken to explain the Agreement terms and their effect:

“39. On 26 July, 28 July, 1 August, 2 August, 3 August, 4 August and 5 August 2022, MAM hosted webinars with crew to discuss the proposed agreement and answer any questions they had. Mr Uren did not attend those webinars. I attended each of the webinars with Jackson. There were approximately 50-60 attendees at the first couple of sessions, although attendance was at approximately 15-25 attendees at the later sessions.

40.      At the start of each webinar, Jackson and I provided an overview of the purpose of the webinar, and explained that the delay in the process resulted from introducing suitable drafting for new Part C (Contract E) into the proposed agreement. Jackson and I further said that the agreement was made of three parts: Part A that applies to all crew, Part B that applies to existing employees on Contracts A to D, and a new Part C that applies to Contract E i.e. new employees. We said that the agreement was structured in this way to endeavour to protect the terms and conditions of existing employees but to provide more flexibility and competitiveness to be able to grow and undertake new recruitment.

41.      Further to the update to crews sent on 8 November 2021, I also said that the current market environment for MAM was very challenging, and I said that it was critical to MAM's survival that it was able to recruit new cabin crew going forward. We further said words to the effect that we would be able to continue to support Qantas if we could deliver a market competitive rate.

42.      During the webinars Jackson and I explained the key changes for the current crew, including saying that pay rates and allowances would increase by 4% with back pay components to April 2021, with 2% increases in April 2023 and 2024. We also told attendees that duty hour limitations would increase from 9:45 up to 12 hours (and up to 15 hours during disruption), but that the current overtime triggers would remain unchanged. This meant that Contract A to D employees received daily overtime payments, something not provided in the Virgin Agreement or the Award. The other key change we told attendees about was that the agreement provided an opportunity for MAM crew to become in-flight trainers and ground trainers.

43.      In relation to the introduction of Contract E for new employees, in the webinars (which I attended) Jackson said that:

1.   the terms were based largely on the Award (which applied to Altara employees) save that the minimum casual hourly rate was approximately 60 cents above Award;

2.   no daily travelling allowance was paid to Contract E employees however a flying allowance of $14.80 would be paid for block hours;

3.   overtime would only be paid for hours above 144 in a roster period and 1872 per year, and at single time excluding loading;

4.   on an AV (reserve) span, employees would accrue a duty credit at a rate of one hour for every four hours on an AV span; and

5.   rostering for Contract E employees would be similar to existing Contract B2 crew, i.e. up to 6 mandatory days with a minimum of 11 available days. It was also explained that this allowed current Contract B employees to swap mandatory days with Contract E employees, which we knew was becoming difficult for crew in most bases.”

1. The applicant provided further explanatory material to relevant employees by emails of 29 July 2022 and 2 August 2022 following webinars conducted by the applicant with employees for the purpose of explaining the Agreement terms and their affects.[73]

1. The applicant took the additional step of amending its explanatory statement to take account of concerns raised by the FAAA, and in the result the FAAA advised the applicant that it did not have any other concerns about the explanatory statement.[74]

1. When read as a whole, and save as indicated further below, I am not persuaded that the criticisms by the FAAA set out earlier are made out.

1. As I earlier noted, clause 18.6 requires an employee to comply with the generalised description of policies and procedures and that this necessarily raises a question whether there were reasonable steps taken by the applicant to ensure the term and its effect were explained to employees. I can see nothing in the materials which shows that any reasonable step was taken to ensure that the effect of this clause was explained to employees.  Without knowing which policies applied, how could an employee judge what affect the requirement to comply with a policy would have on their terms and conditions of employment. Moreover, a breach of the obligation, that is the failure to comply with a policy as required by clause 18.6, would be a breach of the Agreement which would expose the employee to civil penalties. There is nothing in the materials which suggests that this was explained.

1. Clause 35.2 does not indicate the relevant rest break to which the employee is entitled and there is no material suggesting that the actual entitlement was explained. Similar concerns arise in respect of the provisions discussed at [66], [73], [75] and [77] above. Additionally, the reference in clause 35.2 (discussed at [64] above) to “any special arrangements agreed between the client airline and a registered organisation covered by this Agreement in relation to those rest requirements”, as I have already noted, cannot operate so as to vary the Agreement’s terms without recourse to the variation provisions of the Act. Properly construed the reference is one confined to existing arrangements agreed. But the “special arrangements agreed” are not identified. So how is it that an employee would have understood what right, obligations or conditions affecting their employment arise from these arrangements, if any? There is nothing in the materials which suggests that there were any reasonable steps taken to explain the terms of any applicable special arrangements or the effect of those arrangements.

1. Clause 8.2 similarly refers to special arrangements made between the applicant and a registered organisation covered by the Agreement the effect of which would be for the special arrangements to apply despite specific terms of the Agreement. What practical effect this provision might or will have on employees’ terms and conditions of employment is unknown because the terms of any future (or perhaps existing) special arrangement is unknown. There is no explanation about the effect of this term evident in the materials. A provision to substantially the same effect exists in the 2015 Agreement. The explanatory material notes this and notes the only change to the existing provision is to replace reference to the FAAA with registered organisation covered by the Agreement. But that is no answer to the concern about the explanation of the effect of the term. Are there existing arrangements? Is the provision effective in relation to arrangements made in the future? Will existing arrangements have the effect of varying rights and obligations under the Agreement? If that is intended, then which provisions of the Agreement are affected or are likely to be affected, and is the intended effect legally effective to vary rights and obligations contained in the Agreement?

1. For these reasons I am not satisfied that the applicant complied with s. 180(5) of the Act, with the consequence that I am not satisfied that the approval requirement in s 186(2)(a) has been met. I will allow the applicant a period to offer any undertakings it may consider appropriate to address this concern and to consult with the FAAA before doing so, or to otherwise address whether the failure to comply with s 180(5) is otherwise able to be cured by recourse to s 188(2).

BOOT

1. The FAAA contends the Agreement cannot be approved because it does not pass the BOOT. It says that in creating Contract E, the applicant has combined some ‘in-house’ provisions in Part A of the Agreement, and various clauses from the Award, including from the Award’s discrete Schedules that apply to different types of flying, and do not otherwise co-exist in the Award. It says that this approach has resulted in an agreement that would leave employees employed into Contract E worse off than were they under the Award. The fifty-cent increase to the base rate does not compensate these prospective employees for the differences outlined above between the Agreement and the Award. Specifically, the concerns raised by the FAAA fall into two categories. First, the operation of clause 8 and the provisions that rely on conditions applicable at the client. Second, Part C of the Agreement which the FAAA says provides conditions which are less favourable than the Award.

1. As to clause 8, and clauses, 18.6, 35.2, 37.4 and 41 of the Agreement earlier discussed, each engages with rights or obligations that are sourced from arrangements which do not involve the participation of the employees covered by the Agreement and some engage with conditions applicable to Qantas and its directly employed flight crew. No detail about any of these matters and how they will affect the employment conditions of the relevant employees employed under the Agreement particularly when compared to the Award is in evidence. It may be that some of the matters have a beneficial effect (for example clause 41), some may have a detrimental effect, and some may be neutral or insignificant. The point is that I simply do not know and cannot ascertain this from the material in evidence and therefore cannot properly assess these matters for the purpose of assessing whether the Agreement passes the BOOT.

1. Moreover, some of the provisions appear to have the effect of altering the terms of the Agreement, or at least the effect of some terms of the Agreement, without specifying how existing provisions would be altered. This would seem to be enabled without recourse to the mandatory flexibility term in clause 5 of the Agreement or to a variation of the terms of the Agreement under the Act, or by setting out how particular provisions of the Agreement will not operate in particular circumstances and what other specific externally derived conditions will apply in particular circumstances when one or more operative terms of the Agreement does not apply. 

1. I need not, for present purposes, determine whether any of the provisions amount to an impermissible variation such that the provisions are (or would be if the Agreement is approved) of no effect. It is enough to proceed on the basis that they are valid and will be operative provisions of the Agreement.  The applicant contends that whilst the consequences of the impugned provisions’ operation might change over the life of the Agreement, the impugned provisions themselves – and the obligations they create – do not change. That may be correct, but it misses the point. I do not know the effect of these terms. Other than the creation of a right or obligation by reference to one or more arrangements or policies that may or may not currently exist, the terms or any that do exist are not before me to assess. The obligation to comply with a policy of Qantas – for example, the details of which is unknown to me – makes it difficult to assess vis-à-vis the Award, save to note that the Award contains no such obligations. And that a breach of the provisions creating the obligation might sound in a civil penalty whereas no such obligation (and thus no breach of it) arises under the Award. These together are reason enough for reaching the conclusion that I am not satisfied that the Agreement passes the BOOT, but I will address the other matters raised below. The applicant will be given an opportunity to provide undertakings to address the concern identified after consulting with the FAAA for my consideration or to otherwise address these concerns.

1. The FAAA sets out various provisions of the Agreement which it says are inferior compared to the Award, and which result in the Agreement not passing the BOOT. These are considered below.

International Duty Hours

1. The FAAA contends that provisions of the Agreement relating to Contract E employees contain both the international and domestic duty limitations from Schedule C and Schedule A of the Award respectively. It says that consequently, within one roster, a Contract E employee could potentially complete a rostered duty of up to 18 hours at the beginning of a roster period, ending up in a port such as Los Angeles or London. And once returned home and rested, the employee could commence a series of single day domestic duties, followed by another Los Angeles or London trip. It says that this pattern of work is not possible under Schedule A of the Award.

1. I do not accept these contentions. As the applicant correctly points out, the scenario proffered by the FAA is hypothetical – involving trips to London and Los Angeles – and are not performed by the applicant’s employees who undertake flying that is also undertaken by Qantas employees to whom the Flight Attendants' Association of Australia-Short Haul Division (Qantas Airways Limited) Enterprise Agreement 9, currently applies. Mr Alexander gave the following evidence, which I accept:

“55. MAM cabin crew are employed to undertake predominantly domestic flying. They perform flying that is also undertaken by Qantas employees subject to the Short Haul EA. They do not perform flying that is undertaken by Qantas employees performing work subject to the Flight Attendants' Association of Australia, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2022 (EBA11). I have caused to be undertaken, a review of the flying performed by MAM employees in the 2019 calendar year and in 2022 year to date. In 2019, 7% of the flying undertaken by MAM employees was international, and in the year to date it is 3%.

56. MAM cabin crew are trained and endorsed to operate only on Boeing 737 or Airbus A330 aircraft. The A330 has traditionally operated on domestic routes and on some international flights between Australia and Asia and New Zealand. The B737 operates on domestic routes and some international flights between Australia and New Zealand, Bali, Papua New Guinea and New Caledonia.

57. Qantas long haul international routes are serviced by its Boeing 787 and Airbus A380 aircraft (and some routes by the A330). MAM does not have any cabin crew trained or endorsed on the B787 or A380.

58. No MAM cabin crew employees have ever undertaken a duty to Bangalore, Los Angeles or to London. To the extent they undertake international flying, it is typically short haul international flights to ports served by the B737 and A330 described above.

59. I have reviewed GU-30 to Mr Uren's statement. The pattern referred to is not one which MAM employees can work under the 2015 Agreement or the proposed agreement (and as described above, no MAM employees have ever undertaken a duty to Bangalore). That is because it is an eight day trip (the dates are listed in the example as 2 October to 9 October) whereas MAM employees (Contracts A to D, and Contract E) are limited to duties on not more than six consecutive days. This limitation is consistent with the limitations in the Award prescribed for predominantly domestic cabin crew.”

1. Mr Uren was not able to cite any example of the applicant’s crew rostered to perform international flying.[75] Mr Alexander also gave the following evidence during cross-examination:

“So whilst you haven't done this in the past, is there any contractual impediment to you supplying crew internationally to Qantas?‑‑‑Yes, there is.  Our contract, if you notice, is a domestic flight attendant it talks about, domestic flight attendant.  If the aircraft is for a domestic aircraft, fine, there is not a problem because we are hired - the main crew are now hired as domestic flight attendants and domestic conditions and domestic aircraft.  Now, if you're going to put in a new domestic aircraft - it's happened - for the AF3, A300s, 727s, DC-9s, right through history, we've changed aircraft types - 767s.

A moment ago you just said the contract is for domestic crew.  Is that your contract with Qantas?‑‑‑Yes, the contract with Qantas to supply domestic crew.  I have no contract to supply international crew with them.

Do you say that under that contract, you cannot supply to perform international duties?‑‑‑I can't.  I can only supply - my award or my EBA is to provide domestic.  It's called the Flight Attendants Domestic - it's called the FAAA Domestic Airlines Agreement, for goodness - - -

It's fair to say, isn't it, that the proposed agreement contract E provides for duty spans of up to 18 to 20 hours?‑‑‑Yes, that's in the agreement, yes.

That's not domestic flying, is it?‑‑‑That was for international flying where our crew on our aircraft, domestic aircraft, fly what I call regional flying, yes, we do.

So there's no prohibition in your contract with Qantas which prevents your crew working on international flights?‑‑‑No, domestic crew, way back to TA and Ansett, always flew international services to New Zealand, Papua New Guinea, Vanuatu, they've always done some sort of international flying.  What the point is, they are domestic crew who fly international, very different from an international crew who fly international.

Can I suggest to you, based on what you've said, that if Qantas asked for you to supply labour for international flights, there would be no problem with you doing that?‑‑‑Under our domestic conditions, there would not be a problem.  Under our domestic award, our domestic EBA, as it states, it's not a problem.  We'll do international flying on our domestic aircraft and our domestic operations.  It's a very small part - international flying is a very small part of a domestic crew flight attendants, probably around 3 to 5 per cent of their flying would be international.”[76]

1. In short compass, given the matters to which Mr Alexander refers, the likelihood such international flying as may be undertaken by domestic flight attendants is very small, and likely even smaller for employees covered by the Agreement since they would need to be part of a Qantas domestic crew which is undertaking international flying. 

1. Consequently, the issue raised is not significant in the overall assessment.

Meal allowances

1. The FAAA’s complaint here is the comparison of meal allowances under the Agreement with the international incidentals allowance and a meals allowance for which the Award makes provision. As the applicant correctly points out, the complaint ignores that for a predominantly domestic flight attendant under the Award – the relevant comparator for Contract E employees – is entitled to meal breaks and rest provisions in accordance with Schedule A not Schedule C of the Award. Schedule C of the Award provides more generous rest periods than Schedule A, and Contract E employees receive those more generous entitlements. Clause A.3.6 of Schedule A to the Award provides that every endeavour will be made to provide a break but imposes no penalty if none is provided. As to meal allowances, Schedule C of the Award prescribes a meal allowance. That is met by the flying allowance Contract E employees receive under clause 45 of the Agreement. But in any event, for the reasons given earlier, regular or frequent international flying under the Agreement is unlikely, and so such differences as exist are not material in the overall assessment.

Maximum Duty Period Sectors and Lengths

1. Schedule A clause A.3.5 of the Award deals with the maximum sectors and consecutive days to which Flight Attendants may be rostered and provides that “[a]n employee will not be rostered beyond a maximum of 6 sectors in any duty period and will not be rostered to work on more than 6 consecutive days”. A duty period is the elapsed time between sign-on and sign-off at home base required to complete a duty or series of duties as directed (Award cl 2).

1. The FAAA contends that if a flight attendant signed on for a duty period at their home base, completed a series of ‘sectors’ finishing the day’s work in a base not their own, only to commence further ‘sectors’ the next day before completing work and signing off in their home base, then that entire duty period is still limited to 6 sectors. However, clause 49.4 of the Agreement which applies to contract E employees, provides that “[n]o Flight Attendant will be planned to work more than six (6) consecutive days. A Flight Attendant will not be rostered beyond a maximum of 6 sectors per day”.

1. The detriment is said to be that under the Agreement the six-sector limit is directed to a day, whereas under the Award the sector limit is directed to the duty period, which can be over more than one day.

1. I do not accept that the differences are necessarily detrimental. One employee may so regard the difference, but another may take the view that the Award is overly restrictive on their capacity to work. The ‘detriment’ such as it is also contingent and is only apparent if a duty period does not involve a return to home base on the same day as the duty period commenced.

1. It is a factor that must be taken into account, but it is not a significant one.

Availability span

1. The availability span provision in clause 53 of the Agreement, which applies to Contract E employees, has no equivalent under the Award. It requires, inter alia, contact and duty availability, during the span period (not exceeding 12 hours) and requires the employee to contact Qantas between 1700 and 2000 hours the day before the span to enquire if there is an alternative duty available.

1. I do not consider the provision to be detrimental for several reasons. First, as casual employees, it seems to me that allocation to an availability span may be refused. Second, the allocation is contingent, it relies on Qantas notification that there will be a span and allocation of an employee to it. Third, the period attracts compensation as clause 53 makes clear. Fourth, even absent the provision, the applicant could make provision in the contracts of employment of Contract E employees, terms requiring contact and duty availability notification, as there is nothing on the face of the Award which would prohibit, or be inconsistent with, such a term.

Miscellaneous Provisions

1. The FAAA contends the Agreement is less beneficial than the Award in the following respects:

·The Award provides for a longer monetary credit for sign on before an international duty than the Agreement;

·The Agreement does not provide for casual conversion to permanent employment and the ability to progress disputes about casual conversion whereas the Award does;

·The Award allows an employee and employer to agree to time off in lieu of overtime rates when the Agreement does not;

·The Agreement requires employees to contact both the applicant and Qantas if unwell with at least 3 hours’ notice before a duty (and may require them to provide a medical certificate) even though there is no entitlement to paid personal/carer’s leave;

·There is no reference in the Agreement to employees’ entitlements to community service or family and domestic violence leave (despite these being referred to in the Award and being applicable to casual employees);

·There is no requirement in the Award for casuals to be available for a minimum amount of days per roster period or on specific days nominated by their employer; and

·There is no reference in the Agreement to the consequences of duties which infringe rostered days off where the Award provides for substitute days off.

1. The matters identified in the second and fifth dot points above are dealt with in the NES which applies to employees covered by the Agreement. And though it need not have been said, clause 3.5 of the Agreement makes clear that the Agreement is to be read in conjunction with the NES. The Award contains no entitlement about these matters. It simply directs attention to the entitlements under the NES. The first dot point relates to international duty, and for reasons earlier given, is unlikely to be significant in the assessment. As to the third dot point, I agree with the applicant, that while there may be certain employees to whom a TOIL arrangement might be considered advantageous, that advantage is marginal in the context of a casual workforce covered by the Agreement. I accept that the matter raised in the fourth dot point creates some burden but given the likely frequency with which the obligation to make all reasonable efforts to make the requisite contact will arise, I do not consider the matter as particularly weighty. 

1. As to the sixth dot point, minimum availability requirements for casual employees are not found in the Award. Under the Agreement, availability for rostering during specified periods is required, for which a minimum number of days are to be specified. This may be regarded as detrimental but, in the end, these provisions are subject to clause 18 of the Agreement which allows an employee to decline specified duty within 24 hours of the roster being issued. In substance there is little practical difference to the position under the Award.

1. As to the final dot point, it is to be doubted whether the rostering provisions, and therefore the rostered days off provisions apply to casual employees since clause A.3.1 of schedule A – domestic flying of the Award, provides that the “employer must prepare a roster for the roster period for full-time and part-time employees showing sign-on and sign-off times, stand-by, duties, rostered days off, flight details, dates and ports of overnight stays”. But in any event, I accept, as the applicant submits, that as the employees covered by the Agreement are casual employees, any detriment is theoretical.

1. The matters discussed at [100]-[116] do not raise concerns that the Agreement does not pass the BOOT.

Conclusion

1. For the reasons stated I am not satisfied that the approval requirements in ss 186(2)(a) and (d) have been met. The applicant will be given an opportunity to provide undertakings after consulting with the FAAA for my consideration before I determine to finality the application. The applicant will also be permitted to make further submissions as to whether s 188(2) has application in respect of the concern about the s 186(2)(a) approval requirement.

1. Save as indicated above, I am satisfied based on the material accompanying the application and the evidence admitted during the hearing that each of the other requirements of ss.186 and 187 of the Act relevant to this application have been met.

1. In order to determine the application to finality I direct:

1. The applicant is to provide proposed undertakings (if any and after consulting the FAAA) directed to the concerns raised at, [91]-[94] and [96]-98] and may file and serve further submissions as discussed at [94] and [98] by 9 January 2023.

2.        The FAAA may file and serve a response to any proposed undertakings and submissions of the applicant by 16 January 2023.

3.        The applicant may file and serve any reply by 23 January 2023.

DEPUTY PRESIDENT

Appearances:

Mr R. Dalton KC with Mr A. Pollock of counsel, for the applicant

Mr C. Massy of counsel for the respondent

Hearing details:

2022
Melbourne
8 November

[1] Court Book (CB) 167 at [7]

[2] CB167 at [10]

[3] Ibid

[4] CB167 at [11]

[5] CB167 at [12]-[13]

[6] CB167 at [13]

[7] Ibid

[8] CB168 at [15]

[9] CB168 at [15]-[16] 

[10] Ibid at [17]

[11] Ibid at [18]

[12] Ibid

[13] CB169 at [20]

[14] Transcript PN95, PN617

[15] CB169 at [20]

[16] CB170-170 at [27]

[17] CB169 at [22]

[18] CB169 at [21]

[19] CB172 at [36]

[20] Transcript PN823-PN844

[21] [2015] FCAFC 16; (2015) 228 FCR 297 at [33], [83]

[22] ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593; (2017) 270 IR 459 at [84] and [87]; One Key Workforce Pty Ltd v Construction, Forestry, Mining, and Energy Union (2018) 262 FCR 527 at [154]

[23] Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia [2018] FCAFC 74 at [19]

[24] [2017] FWCFB 5826

[25] Ibid at [26]-[27]

[26] Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; (2015) 228 FCR 297 at [34]-[41]

[27] Ibid at [28]-[32]

[28] Ibid at [60]-[62]; Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union[2012] FWAFB 2206; (2012) 219 IR 139 at [8]

[29] Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union [2012] FWAFB 2206; (2012) 219 IR 139 at [10]

[30] Ibid at [19]

[31] Ibid at [15] and [20]; The Australian Maritime Officers’ Union v Harbour City Ferries Pty Ltd[2016] FWCFB 1151 at [31]

[32] Cimeco Pty Ltd v Construction, Forestry, Mining, and Energy Union[2012] FWAFB 2206; (2012) 219 IR 139 at [16]

[33] Ibid at [21]

[34] Ibid at [21] - [22]; Construction, Forestry, Mining, and Energy Union v Resco Training and Labour Pty Ltd[2012] FWAFB 8461; (2012) 228 IR 5 at [34]

[35] QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165 at [44]

[36] Ibid; see also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [27]

[37] United Firefighters’ Union v Metropolitan Fire & Emergency Services Board[2010] FWAFB 3009; (2010) 193 IR 293 at [60]; see also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [27]

[38] QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165 at [44]-[45]; see also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [27]

[39] Australian Workers’ Union v BP Refinery (Kwinana) Pty Ltd[2014] FWCFB 1476; 242 IR 238 at [15]; see also National Union of Workers v Cotton On Group Services Pty Ltd[2014] FWC 6601 at [15]-[16] (permission to appeal refused in [2014] FWCFB 8899) and ASU v Shine Lawyers Pty Ltd[2017] FWC 4158 at [68]-[71] as examples of where the employer’s organisational structure was used to determine organisational distinctiveness; see also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia; Australian Municipal, Administrative, Clerical and Services Union [2017] FWCFB 5826 at [27]

[40] See also QGC Pty Ltd v Australian Workers’ Union[2017] FWCFB 1165 at [42]; See also Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers’ Union of Australia [2018] FCAFC 74 at [12] in which the Full Court describes the guidance summarised at [42] above as persuasive

[41] Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; (2015) 228 FCR 297 at [33], [83]

[42] See clauses 2.1, 2

[43] Construction, Forestry, Mining, and Energy Union v John Holland Pty Ltd [2015] FCAFC 16; (2015) 228 FCR 297 at [32]

[44] Ibid at [68], [72]

[45] FAAA outline of submissions at [26]

[46] Transcript PN757

[47] See for example, Aerocare Flight Support Pty Ltd v Transport Workers’ Union of Australia [2018] FCAFC 74 at [19]

[48] [2016] FWCFB 1151

[49] Ibid at [29]

[50] ALDI Foods Pty Ltd v Shop, Distributive & Allied Employees Association [2017] HCA 53; (2017) 262 CLR 593; (2017) 270 IR 459

[51] One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [142]

[52] See KCL Industries Pty Ltd [2016] FWCFB 3048 at [29]-[36]; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527 at [163]-[165]; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Ors [1999] FCA 847; (1999) 93 FCR 317 at [126]

[53] See KCL Industries Pty Ltd [2016] FWCFB 3048; One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; (2018) 262 FCR 527; Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission and Ors [1999] FCA 847; (1999) 93 FCR 317];

[54] See for example Exhibit 4, annexure MA-1

[55] See Exhibit 1 at [35]

[56] [2018] FCAFC 77; (2018) 262 FCR 527

[57] Ibid at [142]

[58] FAAA Outline of Submissions at [29] last sentence, [32] second sentence

[59] Transcript PN17-PN26

[60] Transcript PN665

[61] Exhibit 1, annexure GU-23

[62] Exhibit 1, annexure GU-24

[63] Exhibit 1 at [39]-[42]

[64] [2015] FWC 1302 at [11]

[65] Ibid at [8]-[11]

[66] Exhibit 1 at [63]

[67] Exhibit 4 at [51]-[52]

[68] Exhibit 1, annexure GU-22, GU-22-2

[69] Exhibit 1, annexure GU-22-3

[70] Exhibit 4 at [50]

[71] Exhibit 1, annexure GU22-2

[72] Exhibit 1, annexure GU-23

[73] Annexures to Exhibit 3

[74] Exhibit 1, annexure GU-20

[75] Transcript PN301

[76] Transcript PN609-PN615

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