Eastern Australia Airlines Pty Limited T/A QantasLink
[2011] FWA 4261
•8 JULY 2011
[2011] FWA 4261 |
|
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Eastern Australia Airlines Pty Limited T/A QantasLink
(AG2011/676)
COMMISSIONER RAFFAELLI | SYDNEY, 8 JULY 2011 |
Application for approval of the Eastern Australia Airlines Pty Limited Pilots Enterprise Agreement 2010 -objection to approval - voting by management pilots - unlawful terms.
[1] Eastern Airlines Pty Limited trading as Qantas Link (Eastern) has made application pursuant to section 185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement. The name of the agreement is the Eastern Australia Airlines Pty Limited Pilots Enterprise Agreement 2010 (the Agreement). The Australian Federation of Air Pilots (AFAP) has declared that it supports the approval of the Agreement and seeks to be covered by the Agreement.
[2] The Australian and International Pilots Association (AIPA) a bargaining agent in negotiations leading to the Agreement presses Fair Work Australia to refuse to approve the Agreement.
[3] Parties to the proceedings were directed to file relevant material and the matter was heard on 30 June 2011.
AIPA’s Position
[4] Mr Guy, representing AIPA, raised several grounds as to why the Agreement should not be approved. These were firstly that there is no valid application before Fair Work Australia as some employees employed by Eastern have been permitted to vote to approve the proposed agreement in circumstances where these employees hold management positions and are not to be covered by the Agreement. Secondly, the Agreement contains certain discriminatory terms. Thirdly, the Agreement contains several objectionable terms. Fourthly, the Form F17 Employer’s Declaration in Support of the Application for Approval of Enterprise Agreement contains incorrect information. Finally, both Eastern and the AFAP failed to serve certain documents on AIPA.
[5] Turning to the first (and most significant) point of objection. It was not disputed that five pilots occupy management positions in Eastern and were permitted to vote in the approval ballot.
[6] AIPA referred to certain provisions of the Act which are relevant. It put that an Agreement can only be approved if (at least) the requirements of section 186 have been met. This includes section 186(2)(a) which provides:
“Fair Work Australia must be satisfied that:
(a) If the agreement is not a greenfields agreement - the agreement has been genuinely agreed to by the employees covered by the agreement”
[7] As to whether an agreement has been genuinely agreed to by the employees covered by an agreement, section 188 provides:
“188 When employees have genuinely agreed to an enterprise agreement
An enterprise agreement has been genuinely agreed to by the employees covered by the agreement if Fair Work Australia is satisfied that:
(a) the employer, or each of the employers, covered by the agreement complied with the following provisions in relation to the agreement:
(i) subsections 180(2), (3) and (5) (which deal with pre-approval steps);
(ii) subsection 181(2) (which requires that employees not be requested to approve an enterprise agreement until 21 days after the last notice of employee representational rights is given); and
(b) the agreement was made in accordance with whichever of subsection 182(1) or (2) applies (those subsections deal with the making of different kinds of enterprise agreements by employee vote); and
(c) there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.”
[8] Of relevance here is said to be section 188(b) which refers to the agreement being made in accordance with section 182(1) which itself provides:
“182(1) If the employees of the employer, or each employer, that will be covered by a proposed single enterprise agreement that is not a greenfields agreement have been asked to approve the agreement under subsection 181(1), the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
[9] The employees entitled to vote in a ballot to approve an agreement are specified in section 181(1) which provides:
“181(1) An employer that will be covered by a proposed enterprise agreement may request the employees employed at the time who will be covered by the agreement to approve the agreement by voting for it.”
[10] AIPA put that the effect of Section 181(1) is that only those employees who will be covered by the proposed Agreement can be requested to vote for it and that the effect of Section 182(1) is that an agreement is made and can only be made when a valid majority of the employees who will be covered by the proposed agreement vote for it. An agreement cannot be made with those who may, or will not, be covered by an agreement. A valid vote is by a person the employer requests to approve a proposed agreement and who will be covered by the proposed agreement.
[11] AIPA referred to decisions of Commissioner Roe and then a subsequent Full Bench decision concerning approval the Newlands Coal Surface Operations Enterprise Agreement 2010 (Newlands Coal) ([2010] FWA 4811 PR998772) in support of the proposition that only those employees or classes of employees who will be covered by an agreement can participate in the vote for an agreement.
[12] As to “who will be covered by an agreement”, section 53(1) provides:
“53(1) An enterprise agreement covers an employee or employer if the agreement is expressed to cover (however described) the employee or the employer.”
And section 256A provides:
“256A How employees, employers and employee organisations are to be described
256(1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.
256(2) The employees may be specified by class or by name.
256(3) The employers and employee organisations must be specified by name.
256(4) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job level or grade.”
[13] It was said that the effect of section 53(1) and section 256A is that employees to be covered by an agreement must be expressly set out, in some way, within the agreement itself.
[14] In the present matter clause 3 - Parties Covered in the Agreement provides that:
“. . .
(b) employees employed in the classifications contained in clause 33 of this Agreement . . . ”
[15] Clause 33 sets out the following classifications:
(a) First Officer Dash 8 Series 100, 200 & 300 aircraft;
(b) First Officer Dash 8 Series 400 aircraft;
(c) Captain Dash 8 Series 100, 200 & 300 aircraft;
(d) Captain Dash 8 Series 400 aircraft;
(e) Senior Base Captain;
(f) Ground Instructor;
(g) Training Captain;
(h) Check Captain; and
(i) Check and Training Captain
[16] Given those classifications, it could not be said that the five management employees who are pilots are or would be covered by the Agreement. The five pilots in question and their positions are as follows:
- Captain Mark Davey - Chief Pilot & Manager Flying Operations
- Captain Johanne Parniczky - Fleet Manager NSW/VIC;
- Captain Warwick Walesby - Deputy Chief Pilot & Manager Regulatory Affairs;
- Captain Mario Cipollone - Technical Manager; and
- Captain David MacDonald - Deputy Manager Training and Development
[17] The evidence was that at least some of the management pilots did vote in the approval ballot. Their participation in the vote in circumstances where they would not be covered by the Agreement puts into question the validity of the vote. It could not be said that the Agreement has been genuinely agreed to.
[18] AIPA dismissed the relevance of the fact that the five management pilots are recorded on the pilot seniority list and seniority is provided in the Agreement. There is nothing in the coverage clause or clauses of the Agreement that refers to the seniority list as a point of definition as to who is to be covered.
[19] It was the evidence of AIPA pilot members, Captain Gary Elsass, Captain Jock Richardson and First Officer David Griffiths that coverage of management pilots was not part of the negotiations.
[20] It was also the evidence of First Officer Griffiths that the management pilots differed from pilots covered by the Agreement both as to their duties and the extent of their flying activity.
[21] It was the position of AIPA that, given the evidence, the Agreement does not cover the management pilots. It follows that the management pilots were not eligible to vote. Their participation in the vote when considered alongside the provisions of the Act means that the Agreement should not be approved.
[22] Mr Guy then referred to section 186(4) of the Act which requires Fair Work Australia to be satisfied that an agreement not include an unlawful term. Section 194 then provides that a term of an enterprise agreement is an unlawful term if it is a discriminatory term or an objectionable term.
[23] Section 195(1) defines a discriminatory term as:
“195 Meaning of discriminatory term
Discriminatory term
(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[24] Relevant to the matter at hand, AIPA referred to Clause 54 ‘Duty Travel’ of the proposed Agreement which provides as follows:
“54.1.4 Where a pilot in the course of his employment is required by the Company or the Department of Transport and Communications but subject to the Company’s prior approval, to undertake any local travel by means of using taxi cabs or public transport, he may elect to pay his fares en route, and in such cases, the Company shall reimburse the pilot for all reasonable expenses incurred by him in such travel in accordance with the Company’s reimbursement policy and procedures.”
[25] Because the provision only refers to male employees as having the entitlement it discriminates against women. It is therefore a discriminatory term.
[26] The definition of an ‘objectionable term’ is provided for by section 12 of the Act and provides that:
“objectionable term means a term that:
(a) requires, has the effect of requiring, or purports to require or have the effect of requiring; or
(b) permits, has the effect of permitting, or purports to permit or have the effect of permitting;
either of the following:
(c) a contravention of Part 3-1 (which deals with general protections);
(d) the payment of a bargaining services fee.”
[27] Further, Part 3-1 of the Act confers ‘general protections’ on employees and employers. The objects of the Part are set out in section 336 and provide:
“336 Objects of this Part
The objects of this Part are as follows:
(a) to protect workplace rights;
(b) to protect freedom of association by ensuring that persons are:
(i) free to become, or not become, members of industrial associations;
and
(ii) free to be represented, or not represented, by industrial associations; and
(iii) free to participate, or not participate, in lawful industrial activities;
(c) to provide protection from workplace discrimination;
(d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part.”
[28] As to the current matter AIPA pointed to the following provisions found in the Agreement.
• Clause 21.2 ‘Duty to Consult’ of the proposed Agreement provides as follows:
“21.2.1 Where the Company has made a definite decision that will result in redundancies, the Company must provide the affected employees and the Federation (if requested by an affected employee) in good time, with relevant information including:
a) The reasons for any proposed redundancy;
b) The number of categories of workers likely to be affected; and
c) The period over which any proposed redundancies are intended to be carried out.”
• Clause 23 ‘Seniority’ of the proposed Agreement provides as follows:
“23.1.4(b) Should a situation arise in which observance of this clause 23.1.4 would not be expected to meet the needs of the Company and a solution cannot be agreed between the Company and a pilot, a conference shall be convened between the Federation and the Company or their representative to achieve a solution.”
• Clause 23 ‘Seniority’ of the proposed Agreement provides as follows:
“21.1.13 Unless otherwise agreed by the Federation training required by pilots who are successful bidders will be carried out in order of seniority. Where no agreement is reached and pilots are trained out of seniority order the more senior pilot shall receive by-pass pay from the date the more junior pilot is cleared to the line.”
• Clause 24 ‘Special Conditions’ of the proposed Agreement provides as follows:
“24 Where the Company faces a special set of conditions, an employee may be requested to work outside the normal provisions of this Agreement. Such variations shall be agreed in writing, between the Company, the employee and, if requested by the employee, the Federation, prior to undertaking such work.”
[29] Each of the clauses requires Eastern to exclusively engage in varying degrees of consultation or discussion with the AFAP to achieve a change in work practices. This arrangement creates a situation whereby a pilot is no longer free to not become a member of the AFAP if he or she wishes to enjoy the full benefits of the proposed Agreement.
[30] The four clauses constitute adverse action as defined in Part 3 - 1 of the Act.
[31] The fourth area of AIPA’s concern is to be found in Eastern’s declaration in support of the Agreement (Form F17). Eastern, at item 2.7 in its Form F17 declares that 194 employees are to be covered by the Agreement. However, the evidence (Exhibit Eastern Airlines 1) shows that two employees on the list of voters have had their names duplicated.
[32] Consequently, the current number of employees to be covered is 192. The From F17 is incorrect.
[33] The failure to comply with the statutory requirements as to the filing of correct documents is a further ground for refusing approval.
[34] Finally, it was said that the AFAP had filed with Fair Work Australia a Form 18 - Declaration of Employee Organisation in Support of Application for Approval of the Agreement. However, neither the AFAP nor Eastern had served a copy of the Form F18 on AIPA.
[35] It was said that the Form F16 required that a range of documents including any Form F18s should be served on, at least, each employee organisation that was a bargaining representative.
[36] In responding to AIPA’s first ground of objection, Mr Perry, solicitor for Eastern, accepted that employees who are not to be covered by a proposed agreement are not entitled to vote for any such agreement.
[37] In his view the five management pilots are covered by the Agreement. He firstly referred to the Agreement’s coverage clause 3 which makes reference to employees being employed in classifications set out in clause 33. Those classifications focus on pilots being endorsed to fly certain aircraft. According to the evidence of Chief Pilot Mark Davey all five management pilots are endorsed to fly at least one of the aircraft types. Consequently, each of the five pilots is a pilot covered by the Agreement and was entitled to vote on the Agreement.
[38] It was also put that such conclusion is reinforced by the fact that firstly, all five management pilots are part of the seniority list which is provided for in the Agreement. Secondly, the participation of management pilots in approval votes accords with past practice. Thirdly, the five management pilots are integrated into the Flight Administration Manual. Finally, the five management pilots can be ‘duty pilots’ from time to time.
[39] Mr Perry also put that notwithstanding the above, if the five management pilots were not covered by the Agreement, their inclusion on the list of voters had no impact on the outcome. Section 182(1) provides that the Agreement is made when a majority of employees who voted approve the Agreement.
[40] In that regard, on the evidence of Mr Phil Lewis, of Elections Australia Pty Limited there were 194 pilots eligible to vote of which 88 voted in favour and 82 voted against the Agreement. According to the evidence of Mr Lewis, only three of the five management pilots voted. Consequently, if it is assumed that all three voted in favour of the Agreement (and they should not have voted) there would still have been an outcome of 85 to 82.
[41] The decisions in Newlands Coal do not assist, given the facts on hand.
[42] Mr Perry then turned to the alleged discriminatory term found in clause 54. He put that the objection was frivolous. He pointed to other clauses in the agreement where the words “he” or “she” appear.
[43] The limitation to the male gender in clause 54 is a typographical error.
[44] As to the alleged objectionable terms, none of those terms suggest that Eastern is precluded from dealings with anyone other than the AFAP. Nor is the ability of an employee or representative of their choosing restricted because of the role afforded to the AFAP.
[45] There is no adverse action to any employee because of the operation of the clauses.
[46] In response to Eastern’s reply at item 2.7 of its Form F17, this represents a very minor shortcoming. Fair Work Australia should exercise its power to correct any such deficiency.
[47] Eastern pressed for the Agreement to be approved.
[48] In responding to AIPA’s first objection, Mr Lutton, who represented the AFAP, referred to the evidence of Captain Robert Lukman (Exhibit AFAP 1) and Captain Guy Yarrow (Exhibit AFAP 2). Those two pilots were part of the AFAP negotiating team and their evidence included that they were bargaining for an agreement covering all pilots employed by Eastern, including management pilots.
[49] The AFAP also referred to the past practice of including all pilots (including management pilots) in the voting process. Indeed, a recent protected action ballot included management pilots.
[50] As to discriminatory and objectionable matters, the AFAP supported the position put by Eastern.
[51] Mr Lutton rejected any failure by the AFAP to comply with regulations and rules concerning the service of its Form F18.
[52] Finally, Mr Lutton referred to AIPA’s conduct in continuing to raise a range of matters (some of which were later dropped) aimed at doing all to prevent the Agreement from being approved.
[53] The AFAP pressed for the approval of the Agreement and also that it be a party to it.
Determination
[54] Section 186(1) provides that Fair Work Australia must approve an enterprise agreement if the requirements under section 186 and 187 are met. This includes the requirement, under section 186(2)(a), that:
“. . . the agreement has been genuinely agreed to by employees covered by the agreement”.
[55] It was not in dispute that an agreement cannot be agreed to by employees not covered by the Agreement. Thus, Eastern did not suggest that the Agreement was agreed to including because of the votes of persons not covered by the Agreement. Rather it was agreed including because of the votes of management pilots who were entitled to vote because they are covered by the Agreement.
[56] I do not propose to determine the issue of whether or not the five management pilots were entitled to vote. For present purposes, I will assume that they were not entitled to vote, because they were not to be covered by the Agreement.
[57] In proceeding on that assumption, I find that there is no evidence that the existence of the five management pilots somehow influenced the votes of other electors. There may be circumstances such as at an open attendance vote at a convened meeting that voting by management employees might influence or indeed infect the voting process. The evidence was that voting here was by an on-line voting method.
[58] The evidence reveals that 170 employees voted with 88 voting in favour of the Agreement and 82 voting against it (Exhibit Eastern Airlines 1/16).
[59] It is also the evidence that three management pilots voted and if their vote is assumed as favouring the Agreement and they are excluded the outcome is corrected to 85 to 82.
[60] It later emerged that the names of two pilots in the list of electors appeared twice. While there was some suggestion that those two pilots did not vote, if we assume that they did vote and voted in favour that would represent two votes (the duplicate vote of each of the pilots) which were not valid. That suggests an approval vote of 83 to 82.
[61] Section 182(1) provides that:
“. . . the agreement is made when a majority of those employees who cast a valid vote approve the agreement.”
Therefore it is clear that the Agreement was made when, at least, 83 voted for it against 82 who did not.
[62] I find that:
“. . . the agreement has been genuinely agreed to by the employees covered by the agreement.” (section 186(2)(a))
[63] As to the alleged discriminatory term found at clause 54, I am satisfied that this represents a typographical error. I note the correct references to both genders in other clauses.
[64] I find that the Agreement does not include an unlawful term that is a discriminatory term.
[65] As to AIPA’s argument that the Agreement contains unlawful terms that are objectionable terms, I turn to the respective clauses.
[66] Clause 21.2 (see [28] above) does not require Eastern to exclusively deal with the AFAP. It provides for dealings with any affected employees. Moreover, it should be observed that the mandatory consultation clause found at clause 12 provides for an obligation to consult and not only as to redundancies. It provides for employees to be represented.
[67] Clause 23.1.4(b) (see also [28] above) provides for a process in which the AFAP participates. It does not provide for anything more including anything that would have a binding effect on any pilot, member or not of the AFAP.
[68] It should be observed that clause 10 provides procedures for dealing with disputes about matters (including seniority) that arise under the Agreement. Clause 10.1.9 provides for an employee to be represented.
[69] As to clause 24 (see [28] above), it provides for working outside of the normal provisions of the Agreement. Such is to occur with the agreement of an employee. The ability of an employee to wish to have the AFAP’s agreement in no way impacts on the rights of a non AFAP member, or indeed an AFAP member who does not wish for the AFAP’s agreement.
[70] I find that none of the clauses requires Eastern to exclusively engage with the AFAP. None of the clauses prevents employees from being represented (by other than the AFAP).
[71] The contention that the clauses are objectionable is without substance.
[72] However, I find that clause 23.1.13 which reads:
“23.1.13 Unless otherwise agreed by the Federation training required by pilots who are successful bidders will be carried out in order of seniority. Where no agreement is reached and pilots are trained out of seniority order the more senior pilot shall receive by-pass pay from the date the more junior pilot is cleared to the line.”
provides for the AFAP to agree to training out of order of seniority. No other employee or their representative is provided with such ability to agree. Further, the effect of the AFAP’s agreement is that there may no entitlement to by-pass pay. Whether the AFAP’s attitude will be influenced by whether or not the more senior pilot to be passed over is or is not a member of the AFAP is unclear. In my view, there is at least a potential that a non-member’s circumstance may not be fully addressed by the AFAP. This may have adverse consequences for the employee.
[73] I consider that, as currently provided, clause 23.1.13 is an objectionable term. It should be susceptible to an undertaking. I leave it to the Applicant to approach the Fair Work Australia in accordance with section 190 of the Act.
[74] AIPA’s objection as to the error at item 2.7 in its Form 17 is a minor shortcoming. Pursuant to section 586, I will allow the amendment of the Form F17.
[75] Finally, I dismiss AIPA’s argument as to the AFAP’s failure to comply with the service obligation as to its Form F18. There is nothing to suggest that the Form F18 has to be served on other bargaining agents. There may be an obligation (see Form F16) on an employer to provide Fair Work Australia with a copy of a Form F18, but that is not on point.
[76] In the light of the above, I would be prepared to approve the Agreement. However, until an appropriate undertaking is received concerning clause 23.1.3 I do not formally approve it.
COMMISSIONER
Appearances:
D. Perry with E. Ferrier for Eastern Australia Airlines Pty Ltd T/A QantasLink.
A. Guy with J. Mallios for Australian and International Pilots Association;
S. Lutton for Australian Federation of Air Pilots;
Hearing details:
2011
Sydney:
May 23 (by telephone);
June 30.
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