Australian and International Pilots Association v Qantas Airways Limited
[2013] FWCFB 1706
•3 MAY 2013
[2013] FWCFB 1706 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.266 - Industrial action related workplace determination
v
Qantas Airways Limited
(B2011/3994)
SENIOR DEPUTY PRESIDENT WATSON | MELBOURNE, 3 MAY 2013 |
Industrial action related workplace determination - settlement of workplace determination.
Introduction
[1] On 17 January 2013, a Full Bench of the Fair Work Commission published a decision 1 determining an industrial action related workplace determination. The decision was consequent upon an order2 made by a Full Bench of Fair Work Australia pursuant to s.424 of the Fair Work Act 2009 to terminate industrial action in relation to a proposed enterprise agreement to replace the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2005-2006 (EBA 7, as varied) (EBA7v)3 being negotiated between Qantas Airways Limited (Qantas) and the Australian and International Pilots Association (AIPA).
[2] The decision provided Qantas and AIPA with an opportunity to agree upon a draft workplace determination to give effect to the decision.
[3] Qantas and AIPA have provided a draft workplace determination to give effect to the decision which is agreed, except in relation to two provisions:
• Clause 11 - Flexibility provision; and
• RM20.2.2, within the Rostering Manual which forms part of the workplace determination - Concessions by the Aviation Regulatory Authority.
[4] We are satisfied that the draft workplace determination properly gives effect to our decision in respect of all other matters. This supplementary decision records our decision as to the two provisions about which agreement was not reached.
[5] On 15 March 2013, the Full Bench was reconstituted by the President of the Fair Work Commission, replacing Commissioner Gay, following his retirement with Commissioner Gregory.
[6] In settling the order, by deciding the terms of the workplace determination in respect of the two outstanding issues, we have given effect to the 17 January 2013 decision, having regard to written submissions filed by Qantas and AIPA. 4
[7] Another employee bargaining representative, Captain Woods, advised 5 that he was satisfied that the draft workplace determination submitted by Qantas and AIPA “faithfully encapsulates” the decision of 17 January 2013. Captain Woods offered no view in relation to the two outstanding provisions.
[8] We turn to deal with the two remaining outstanding provisions.
Clause 11 - Flexibility provision
The competing provisions proposed
[9] Qantas proposes that clause 11 should take the following form:
“In circumstances where the Company and the Association agree to adjust the flight and duty limitations (including agreed variations) or introduce a fatigue risk management system (‘FRMS’), the adjusted limitations will take precedence over the limitations set out in the Determination until either replaced or repealed by a request from either party. Agreement to have the provisions of any FRMS which has been approved by CASA take precedence over the limitations set out in the Determination will not be unreasonably withheld. The adjusted limitations will be promulgated to all flight pilots at least 28 days prior to the bid period in which they will become operative. Any agreed changes to flight and duty limitations will be constrained by the flight and duty limitations prescribed by the Aviation Regulatory Authority.”
[10] AIPA proposes the following in respect of clause 11:
“In circumstances where the Company and the Association agree to adjust the flight and duty limitations (including agreed variations) or introduce a fatigue risk management system (‘FRMS’), the adjusted limitations will take precedence over the limitations set out in the Determination until either replaced or repealed by a request from either party. Agreement in relation to a FRMS will not be unreasonably withheld. The adjusted limitations will be promulgated to all pilots at least 28 days prior to the bid period in which they will become operative. Any agreed changes to flight and duty limitations will be constrained by the flight and duty limitations prescribed by the Aviation Regulatory Authority.”
[11] The clauses proposed are the same, reflecting the terms of the equivalent provision in EBA7v (clause 11B), save as to the sentence giving effect to the part of the Full Bench decision that stated that “[i]n respect of agreement to have the provisions of any FRMS, which has been approved by CASA take precedence over the limitations set out in the workplace determination, the provision in clause 11B of EBA7v will continue to apply, subject to a proviso that agreement will not be unreasonably withheld”. 6 The proviso as proposed by Qantas adopts the words of the decision. AIPA proposed a broader formulation being that: “Agreement in relation to a FRMS will not be unreasonably withheld”.
Decision
[12] The decision to retain the relevant EBA7v provision in the workplace determination, subject to the proviso that agreement will not be unreasonably withheld followed a decision to not include in the workplace determination a provision proposed by Qantas to afford precedence of flight and duty time limitations within a Civil Aviation Safety Authority (CASA) approved FRMS over those in the workplace determination, where the workplace determination is, in some circumstances, more restrictive.
[13] The proviso added to the relevant provision drawn from EBA7v, that agreement will not be unreasonably withheld, was clearly stated to apply in respect of agreement to have the provisions of any FRMS which has been approved by CASA take precedence over the limitations set out in the workplace determination and, in the context of the Qantas claim being determined, was limited to such agreement. The decision does not otherwise alter the terms, or effect, of clause 11B of EBA7v.
[14] Clause 11 of the workplace determination will be in the form proposed by Qantas.
Clause RM20.2.2 – Concessions by the Aviation Regulatory Authority
[15] Clause RM20.2.2 appears in Chapter 6 of the Rostering Manual which forms part of the workplace determination. It provides:
“RM20.1 Applicable Aviation Regulatory Order
RM20.1.1 Civil Aviation Order Part 48 applicable at the date of the Determination or any successor Order is the applicable Aviation Regulatory Order governing flight and duty time limitations.
RM20.1.2 For the purposes of the Determination, the ‘Standard Industry Exemption’ to Civil Aviation Order Part 48 in the form of Schedule 3 of Instrument Number CASA EX79/11 (‘CAO48E’) as issued by the Aviation Regulatory Authority to the Company is the aviation regulatory instrument governing flight and duty time limitations.
RM20.1.3 The provisions of the Determination that are more limiting than the applicable flight and duty time limitations prescribed by the Aviation Regulatory Authority will be used.
RM20.2 Concessions by the Aviation Regulatory Authority
RM20.2.1 Despite the scheduled flight and duty limitations contained in this RM20, any concession given to the Company by the Aviation Regulatory Authority may be applied subject to RM20.2.2.
RM20.2.2 DISPUTED CLAUSE”
[16] Qantas proposes that clause RM20.2.2 should take the following form:
“Any concession or exemption (other than CAO48E under RM20.1.2) to statutory flight time limitations that has a general and ongoing effect cannot be implemented without the Association’s prior agreement. Those concessions will be promulgated in the FAM. Nothing in this clause prevents the Company from operating to a successor Order within the meaning of RM20.1.1.”
[17] AIPA proposes the following form for RM20.2.2:
“Any concession or exemption (other than CAO48E referred to in clause RM20.1.2) to statutory flight time limitations which has a general and ongoing effect cannot be implemented without the Association's prior agreement. Those concessions will be promulgated in the FAM.”
[18] Three differences are apparent:
• in the bracketed reference to CAO48E “under RM20.1.2” as against “referred to in clause RM20.1.2”;
• “that” or “which” immediately following “statutory flight time limitations”; and
• an additional final sentence proposed by Qantas being that “Nothing in this clause prevents the Company from operating to a successor Order within the meaning of RM20.1.1”.
[19] The first two matters appear to go to expression rather than substance. Neither was addressed by Qantas or AIPA in their written submissions.
[20] Other than the inclusion of the bracketed reference to COA48E in RM20.1.2 to reflect the 17 January 2013 decision in respect of CAO48E 7 and the disputed final sentence proposed by Qantas, clause RM20.2.2 as proposed by Qantas and AIPA is in the same terms as clause 27.8.9 of EBA7v.
Decision
[21] In the proceedings leading to the 17 January 2013 decision, Qantas, through its claim QAL20, sought to change the flight and duty time limits to appear in the workplace determination and to remove clause 27.8.9 of EBA7v from the workplace determination. In its decision the Full Bench rejected the Qantas claim and decided to include the terms of the AIPA Compromise Workplace Determination (CWD) in the workplace determination. 8 Other than in respect of Additional Flight Duty Payments provisions,9 the Full Bench was not persuaded to amend the slip times, flight and duty time provisions in the CWD.10 The CWD included clause 27.8.9 of EBA7v.
[22] Qantas submits that its additional wording does no more than make it clear that Qantas will be able to operate to any successor order to CAO48 that may be introduced by CASA.
[23] Clause RM20.2.2, as proposed by AIPA, reflects the terms of the Full Bench decision. The clarification suggested by Qantas is unnecessary in light of clause RM20.1.1.
[24] Clause RM20.2.2 of the workplace determination will be in the form proposed by AIPA.
[25] We note that clause RM20.2.1, as proposed by both Qantas and AIPA, requires minor editing to read “Despite the scheduled flight and duty limitations contained in RM20 . . .”, to remove a superfluous ‘this’ before RM20.
Implementation Schedule
[26] Operationally, the utilisation of certain clauses in the workplace determination will require necessary supporting systems to be developed and implemented by Qantas and will only be utilised once those systems are in place. To that end, Qantas and AIPA have developed an Implementation Schedule setting out target implementation dates for some workplace determination provisions requiring necessary supporting systems.
[27] On behalf of the Full Bench, Senior Deputy President Watson raised with the parties whether or not it was necessary to incorporate the Implementation Schedule within the workplace determination to avoid legal doubt as to dates on which such clauses would have effect. Qantas believed the inclusion of the Implementation Schedule was desirable. AIPA did not oppose such a course but objected to the words proposed by Qantas, preferring those suggested by Senior Deputy President Watson in correspondence with the parties.
[28] We have decided to include the Implementation Schedule as a new Schedule 3 to the workplace determination and to adopt the words as proposed by Qantas and insert a new clause 1.3 as follows:
1.3 The Determination operates from the day it is made. For avoidance of doubt, the clauses specified in the Implementation Schedule (Schedule 3 of the Determination) will have effect according to the terms of that Schedule (including the operation of certain provisions of EBA7v until those clauses take effect).
[29] In our view that wording is of the same effect as that suggested in the correspondence by Senior Deputy President Watson and will not conflict with s. 276(1) of the Act.
[30] Clause 1.3 in the agreed proposed workplace determination, which specifies the nominal expiry date, will be renumbered as clause 1.4 and the Implementation Schedule will be inserted to the workplace determination as Schedule 3.
Conclusion
[31] The Qantas Airways Limited Pilots (Long Haul) Workplace Determination 2013 is published in AG401015 PR536132.
SENIOR DEPUTY PRESIDENT
Final written submissions:
Qantas Airways Limited, 15 March 2013.
Australian and International Pilots Association, 15 March 2013.
1 [2013] FWCFB 317.
2 [2011] FWAFB 7444 and PR516214.
3 AG844026.
4 On 15 March 2013.
5 In correspondence dated 19 March 2013.
6 [2013] FWCFB 317 at para 115.
7 Consistent with the decision in [2013] FWCFB 317 at paras 297 and 300.
8 [2013] FWCFB 317 at para 300.
9 [2013] FWCFB 317 at para 301.
10 [2013] FWCFB 317 at para 302.
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