Mr Andrew Staniforth v Qantas Airways Ltd t/a Qantas Airways

[2018] FWC 2895

[2018] FWC 2895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Mr Andrew Staniforth
v
Qantas Airways Ltd t/a Qantas Airways
(C2017/5484)

DEPUTY PRESIDENT SAMS SYDNEY, 24 MAY 2018

Application to deal with a dispute under the dispute settlement procedure in an enterprise agreement – aviation industry – arrangements when an employee of Qantas is elected an official of the Union – private agreement between the Union and Qantas – allegations of incorrect calculations – Bank of Leave Days – standing of former employee – whether dispute arises from a term of the Agreement – no dispute over a matter in the Agreement – different dispute to one first agitated – no jurisdiction – objections of Qantas upheld – application dismissed.

BACKGROUND

[1] This decision will determine jurisdictional objections lodged on 16 October 2017, by Qantas Airways Ltd t/a Qantas Airways (the ‘respondent’ or ‘Qantas’) to an application filed, pursuant to s 739 of the Fair Work Act 2009 (Cth) (the Act), by a former employee, Mr Andrew Staniforth (the ‘applicant’), on 5 October 2017.

[2] Mr Staniforth’s substantive dispute application was the subject of an earlier decision of the Commission as presently constituted, which concerned orders for production issued by him; see Staniforth v Qantas Airways Ltd[2018] FWC 934. At para 1-2 of that decision, I set out a brief background to the matter and the state of the proceedings at that point:

[1] Mr Andrew Staniforth is the former Secretary of the Flight Attendants’ Association of Australia (‘FAAA’ or the ‘Association’). During his tenure as secretary, Mr Staniforth was also employed by Qantas Airways Limited. However, on 17 September 2017, his employment with Qantas ended when he accepted voluntary redundancy from his position as Customer Service Manager. On 5 October 2017, Mr Staniforth filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), which seeks to have the Fair Work Commission(the ‘Commission’) deal with a dispute under the Dispute Settlement Procedure of the Flight Attendants’ Association of Australia – Short Haul Division (Qantas Airways Ltd) Enterprise Agreemant No 8 (‘EBA8’). For present purposes, it is unnecessary to set out the details of the dispute, although I would observe it is not without some complexity. Shortly stated, the dispute concerns the arrangements Mr  Staniforth had with Qantas when he was employed as a Flight Attendant at the same time as he was performing Union duties for the FAAA. These longstanding arrangements are governed by an agreement between the Association and Qantas where employees are required to undertake duties for the Union while remaining on active duty for Qantas.

[2] The substantive dispute has been the subject of conciliation conferences convened by the Commission and proceedings in the Federal Court of Australia, concerning Mr Staniforth ’s employment with the FAAA which ended when he was dismissed by the Association’s National Council. During the Commission’s conferences, and notwithstanding Mr Staniforth ’s objections that the Association was not involved in his dispute with Qantas, the Association was granted permission to participate in the conference as the Commission was satisfied that the Association had a legitimate interest in the proceedings. There has been no settlement of the dispute. Accordingly, the Commission issued directions on 1 December 2017 for the hearing of Qantas’ jurisdictional objections to the application on 1 and 2 March 2018. Those directions have been complied with by both parties.

[3] As just noted above, the hearing of the jurisdictional objections was listed on 1 March 2018. At the hearing, Ms H McKenzie with Ms K Srdanovic, Solicitors, Ashurst Lawyers appeared for Qantas together with Mr Ryan. Mr C Worthy, National Divisional Councillor, Flight Attendant’s Association of Australia (‘FAAA’ or the ‘Association’) appeared for Mr Staniforth and Mr P Hayward, Solicitor, Haywards Solicitors appeared for the Association’s National Division. Permission had been previously granted for Qantas and the FAAA to be legally represented in the proceedings, pursuant to s 596 of the Act, although I note an automatic right to legal representation is available to any party as a term of the Agreement’s Dispute Settlement Procedure (DSP) at cl 6 (see para 6).

[4] In his dispute notification, filed on 5 October 2017, Mr Staniforth described the dispute as:

The dispute is about ordinary time mis-administrated by the respondent in the applicant’s rosters from 22 August 2016 (start of Roster Bid Period 3115) to 29 August 2017 (part way through Roster Bid Period 3181) resulting in:

a) ordinary time earnings incorrectly calculated and paid; and

b) corresponding allowances, leave accruals, superannuation incorrectly calculated and paid.

Mr Staniforth sought the following relief:

1. Parties to meet to identify and reach agreement of respondent’s erroneous assignment of ordinary time to applicant’s rosters, remedy erroneous ordinary time earnings, superannuation and leave payments paid to applicant.

2. Respondent to re-credit incorrectly deducted Union Leave Bank of Days and reimburse the FAAA for charges already paid.

3. Parties to agree on agreed amount to be repaid having regard to the applicant’s professional costs incurred to examine the respondent’s mis-administration of the applicant’s employment arrangement and Union Leave Bank of days.

Grounds for Jurisdictional Objections

[5] Shortly stated, Qantas maintains four grounds for its claim that the Commission has no jurisdiction to deal with this dispute. These are:

(a) no dispute can arise from an enterprise agreement that has been replaced by a new agreement;

(b) the applicant's employment with the respondent ceased on 17 September 2017 and accordingly, he did not have standing to notify a dispute to the Commission;

(c) based on the evidence filed by the respondent, the Commission will be satisfied that the dispute is not, on a proper characterisation, a dispute that the parties to Flight Attendants' Association of Australia – Short Haul Division (Qantas Airways Limited) Enterprise Agreement 9 (EBA 9) have agreed to confer power on the Commission to determine; and

(d) properly characterised, the dispute is an attempt by the applicant to seek adjudication by the Commission of past rights and obligations. This would involve the exercise of judicial, not arbitral power, which is beyond the Commission's jurisdiction.

[6] It is necessary at the outset, to set out the terms of the Dispute Settlement Procedure in EBA 9 which reads:

6 DISPUTE SETTLEMENT PROCEDURE

6.1 The parties agree that the following procedure will be followed in the event of a dispute arising over any matter(s) contained in this Agreement or in relation to the National Employment Standards.

6.1.1 The parties will first meet and confer in an attempt to resolve their differences at the earliest possible opportunity. A flight attendant who is a party to the dispute may appoint a representative for the purposes of the procedure in this clause.

6.1.2 If the matter is not resolved at such meeting the parties may arrange further discussions which should include more senior company representatives.

6.1.3 If the matter remains unresolved either party may refer the matter to the Commission.

6.2 Provided that the Dispute Settlement Procedure is being followed, the Commission ultimately has the capacity to determine any matter(s) in dispute that have been traditionally regarded as arbitral matters or as traditionally coming within the Commission's jurisdiction. Consequently, neither the Company nor the employee will pursue a jurisdictional objection that would have the effect of preventing this process occurring. To the extent that it is necessary to do so, the Commission can perform a private arbitration function if necessary on matters contained in this Agreement or in relation to the National Employment Standards.

6.3 Should a dispute proceed to arbitration then any party is entitled to be represented including by legal representatives in such proceedings.

THE EVIDENCE

Case for Qantas

[7] Qantas relied on a statement and oral evidence of Mr Ashley Stephenson, Head of Domestic Crew and Lounges. In his statement, Mr Stephenson described what he said were longstanding private arrangements between Qantas and the FAAA in relation to the performance of Union business by cabin crew employed by Qantas. This arrangement was reflected in an agreement made between the parties in 2006, which I annexure to this decision as Annexure A. This private arrangement sits outside of cl 78 of EBA 9 which reads:

78 BANK OF DAYS

78.1 By written notice to the Company, a cabin crew member may elect to allocate a maximum of one day per year of his/her accrued annual leave entitlement into the Union Leave Day Bank, which will be established for the purpose of allowing elected officials of the Association or other cabin crew as nominated by the Association to take leave to attend to Association business for the benefit of cabin crew employed under this Agreement.

78.2 Qantas is authorised to make the deduction from the cabin crew member's accrued annual leave in accordance with sub-clause 78.1 of this clause.

[8] Mr Stephenson said the Union Leave Bank may, or may not be in credit, at any given time. It depends on whether, and how many cabin crew have elected to donate a day/s and is also subject to the number of days accrued by elected FAAA officials and the consequential reduction of the balance in the Bank. Mr Stephenson said the private agreement deals with the situation where the Union Leave Day Bank is not in credit. In these circumstances, the FAAA pays Qantas an amount equal to the value of the Union Leave Days, accessed by the FAAA members. It was Mr Stephenson’s evidence that the practice in relation to cabin crew who are elected as officials of the Association results in:

(a) The cabin crew member’s roster is published in accordance with the provisions of EBA 9. The roster shows the patterns (trips) which the cabin crew member is rostered to fly;

(b) On behalf of the FAAA, the cabin crew member notified a member of the Qantas Workforce Planning team of a request for ‘Bank of Days’ (ie a day from the Union Leave Day Bank) to be allocated for a day on which the employee is otherwise rostered to fly;

(c) Alternatively, the FAAA may email with the request on behalf of an elected official of the FAAA;

(d) Qantas considers the request against operational requirements. Where possible, the request is accommodated. If it cannot be accommodated, alternative arrangements are made (eg for an alternative day);

(e) The cabin crew member receives his or her pay as if they were flying the original roster published. The change is reflected on the employee’s playslip by the code ‘BD’; and

(f) If the Union Leave Day Bank is in credit, a day is deducted from the balance. If there are no days in the ‘Bank’, Qantas invoices the FAAA in accordance with the private agreement.

[9] In respect to Mr Staniforth’s personal circumstances, Mr Stephenson understood that from around 16 July 2016 (when he was elected Secretary of the FAAA), he regularly sent emails to Qantas requesting rostered trips be removed from his flying times. From late August 2017 until October 2017, Mr Staniforth raised issues with him regarding the application of his Bank of Days. On 29 August 2017, Mr Staniforth emailed Mr Stephenson as follows:

Dear Ash

I advise that a dispute has been raised today within the Association around the application of Bank of Days to be released flying duties in my Rosters.

Effective immediately, please arrange to remove all Bank of Days inserted into my Roster for successfully released flying duties on my current Roster, to enable this matter to be investigated.

I will be available tomorrow to discuss or as required.

Best

Andrew

Andrew Staniforth

FAAA National Secretary

[10] The next day Mr Staniforth requested a meeting to discuss the matter. Understandably, Mr Stephenson was unclear as to whether this was a Company matter or an Association matter. He understood that around this time, Mr Staniforth had been stood down as Secretary of the Association. The various exchanges of emails between Mr Stephenson and Mr Staniforth were, in essence, that Mr Staniforth believed he had a dispute with Qantas in which he had been incorrectly overpaid on the basis that days which he did not fly as rostered, should not have been deducted from the Bank of Days or invoiced to the FAAA.

[11] It was Mr Stephenson’s belief that the issues Mr Staniforth raised were issues he had with the FAAA, not Qantas, and were unrelated to the operation of EBA 9. From his inquiries, Mr Stephenson believed that Mr Staniforth had been paid correctly and the FAAA had reimbursed Qantas the amounts invoiced to the Association. It was Mr Stephenson’s evidence, that contrary to Mr Staniforth’s latest claim, he was not on a flexible working arrangement, as contemplated by Cl 9 of Part I of EBA 9. Mr Stephenson added that because of Mr Staniforth’s senior cabin crew position (Customer Service Manager (CSM)), it was necessary for any release and pickup duties to balance. This is based on seniority order and the process is automated. Mr Stephenson claimed Mr Staniforth’s requests for trips to be dropped from the roster were not consistent with how CSM’s released duties, pursuant to a flexibility agreement. Qantas was, and is not in a position to agree to a separate agreement for one CSM.

[12] Mr Stephenson attached to his statement a record of Mr Staniforth’s Union Leave Day Bank from July 2016 to August 2017. Based on this record Mr Stephenson understood:

(a) From July 2016 to 25 December 2016, Mr Staniforth was accessing bank of days under clause 78 of EBA 8;

(b) From 26 December to March 2017, Mr Staniforth was accessing bank of days under clause 78 of EBA 9; and

(c) From April 2017, Mr Staniforth was paid his usual rostered days and Qantas was reimbursed for days Mr Staniforth spent on FAAA business in accordance with the private agreement between Qantas and the FAAA.

[13] In cross examination, Mr Stephenson said that he believed the dispute related to Mr Staniforth’s roster and the application of Bank of Days against his roster. It was Mr Stephenson’s evidence that it is not possible for anyone from the FAAA, or an individual member, to change the code in the roster. In this case, the dispute was around the application of the Bank of Days, whereas the administration of Bank of Days is an agreement between the FAAA and Qantas. His correspondence to Mr Staniforth was about applying Bank of Days to his roster. He agreed only a Qantas employee can change the Bank of Days, or the code to change or credit the Bank of Days. Mr Stephenson was referred to a letter of 22 July 2016, in which Qantas had prepared two alternative suggestions for resolving Mr Staniforth’s issue. These were:

Consistent with Bank of Day arrangements, access to Union Leave Days are best managed where they can be planned into flight attendant activity and notified to the Company within company planning deadlines. As such we would make the following suggestion:

1. Andrew would be considered full time and have pre-allocated Bank of Days pre planned in his roster at the planning stage. He can then bid to a part time low line value around his pre-allocated bank of days:

(a) Andrew would notify the Company of his proposed Bank of Days for the relevant bid period 6 weeks before the start of the bid period (or 10 week before the end of the bid period) to meet planning deadlines;

(b) In order to ensure Workforce Planning could planned the CSM resource activity correctly, we would require Andrew bid to the part time low value during the bidding period for any flying he wished to undertake;

(c) We would invoice the Association for the difference between the part time low value and a full time line value on the bank of Day arrangements.

Alternatively, if Andrew did not want to operate to the Part time low line value, Andrew could have pre-allocated Bank of Days to the value of a full time flying line holder. If he wished to operate less regularly, he could then bid and pick up duties in the regular Open Time process. The Company would convert the pre allocated Bank of Days to duty and invoice the Association accordingly.

[14] Mr Stephenson could not say if any resolution of the matter had been agreed as he was not the author of this letter, nor was he privy to any conversations between the FAAA and Qantas. It was accepted that the letter speaks for itself.

[15] Mr Stephenson said there was no agreement between Qantas and Mr Staniforth about the release of rostered shifts from his original full time flying roster. This arises from the agreement between the FAAA and Qantas, which allows Association delegates to request dropping flying shifts where the bank of days applied. Mr Stephenson was shown an email from Mr Staniforth to Qantas workforce planning staff which reads:

Good morning Marcus & Ben

I hope this short email finds you both well.

I am writing in regard to an agreement that has been reached last week between Helen Grey [sic] and John Playford in respect to my roster build.

This agreement has been reached with my role as a CSM and as the FAAA Secretary in mind, allowing me to facilitate both roles.

I trust you have received a brief regarding the above however if you need further clarification please call me on 0418 833 002

For BID period 3115 commencing 22/08/2016 please remove from my flying line the following patterns:

3000 – 29/08 (3 days)

3519 – 05/09 (1 day)

3593 – 06/09 (2 days)

3731 – 08/09 (1 day)

3964 – 12/09 (3 days)

I look forward to working with you and Marcus and Ben and best regards

Andrew

[16] Mr Stephenson was asked if an agreement was reached must it follow there was a dispute between Mr Staniforth and Qantas. This email connotes any agreement was between Qantas (Ms Gray) and the FAAA (Mr Playford). Moreover, there is no reference to a dispute in the email. The process would involve Mr Staniforth requesting a Bank of Days that would be applied to his roster and handled through the administration of the Bank of Days process. Mr Stephenson agreed Mr Staniforth had used the words ‘dispute has been raised today within the Association’ in his email of 30 August 2017.

Mr Staniforth’s evidence

[17] Mr Staniforth provided a 5 page statement with various annexures. This statement was admitted, without objection, on the understanding its admission was only for the purposes of the jurisdictional objections of Qantas. Accordingly, I will not refer to Mr Staniforth’s statement where he explains his employment history and his concurrent roles as the Association’s Secretary and a Qantas CSM. Much of Mr Staniforth’s statement was a mixture of his opinions and beliefs, his interpretation of emails, correspondence and the Agreement and merit submissions. Given Mr Staniforth’s non-legal representation, this was understandable, but this evidence, such as it was, was not particularly helpful in determining the jurisdictional issues. However, I note that Mr Staniforth asserted that the arrangements entered into between the FAAA’s Director of IR, Mr John Playford and Qantas in respect to his concurrent roles were under the Agreement’s Facilitative Provisions of cl 9 Part A. The clause reads:

To meet the needs of the enterprise, the Company and the Association may agree upon details of the manner in which a particular clause of this Agreement is to operate at the workplace level in relation to particular employees. Where agreement between the Company and the Association is reached, the Company may work employees at such times and under such circumstances as required. Provided that agreed arrangements will not result, on balance, in a reduction in the overall terms and conditions of employment of the affected employees under the relevant award and will not contain unlawful or discriminatory terms within the meaning of sections 194 and 195 of the Fair Work Act 2009 (Cth).

[18] Mr Staniforth set out his understanding of the arrangements Mr Playford had discussed with Qantas as to his desire to continue some flying duties. He understood there was a long standing private invoicing arrangement between Qantas and the FAAA when a Union official was removed from a duty/shift that had already been allocated. The invoiced amount was for the cost of the ‘lost planned resource, plus 12%’. Mr Staniforth described his understanding of the agreement ultimately reached with Qantas as to his arrangements. He made the first request for a removal from CSM duties on 9 August 2016 and it was actioned by Qantas’ Workforce Planning Staff. Mr Staniforth claimed he was unfamiliar with the relationships between the rostering code and the pay related action – which is a debit from the number of days in credit in the Bank of Days. He now understood that the code triggering the action did not form part of any Individual Facilitative Agreement reached between Ms Gray and Mr Playford. Mr Staniforth further claimed that had he understood the practical application of the roster code, he would have required reversal of its insertion into his adjusted roster, as it contravened the flexibility agreement and cl 78.1 of the Agreement.

[19] Mr Staniforth also dealt with discussions between the FAAA President, Mr Scanlon and Ms Ellen Burt, Senior Qantas Management IR, in which he claimed his remuneration was disclosed to Mr Scanlon without his consent. He believed this to be a breach of his privacy. He further claimed Mr Scanlon was receiving information from Qantas about his remuneration and Bank of Leave Days around July 2017 and about which he had no knowledge. Mr Staniforth had examined and compared this information to his rosters, invoices and the earlier correspondence. He believed that this comparison demonstrated he had been paid incorrectly (overpaid) since the commencement of his alleged flexibility agreement. (22 August 2016). At this point, he said, he realised that by inserting the roster code into his rosters it had adversely affected his pay associated with the removed duties which should have resulted in a salary and amount pro rata. This created an overpayment of salary, allowances, superannuation and income tax. Mr Staniforth claimed he initiated a dispute notification with Qantas on 29 August 2017 as follows:

At 8:49pm on 29 August 2017, I initiated a Dispute Notification to QAL concerning Bank of Days (EBA9 Clause 78) as a consequence of roster code “BD” being inserted by QAL Workforce Planning staff into my adjusted rosters each bid period in lieu of removed CSM duties, in contravention of the Individual Facilitative Agreement reached in the first week of August 2016 and EBA9 Bank of Days provisions.

[20] Mr Staniforth said that the non-agreed, non insertion of Bank of Days into his roster resulted in him being overpaid for Association related duties which were not authorised under cl 78.1 of EBA 9, because general FAAA duties which typically involve work for cabin crew of other airlines, do not directly ‘benefit cabin crew employed under this Agreement’ (cl 78.1). He believed this was ‘unconscionable’.

[21] Mr Staniforth said that Mr Stephenson acknowledged his dispute on 30 August 2017 and arranged to have his last roster adjusted by removing the Bank of Days code with a remuneration code DWOP (Day Without Pay).

[22] It was Mr Staniforth’s belief that by early to mid-September 2017, it was becoming clear that Qantas was not willing to accept that this dispute concerned Qantas. He said that despite seeking documents from the FAAA, he was prevented from doing so. He attempted to arrange a meeting with Qantas to gain information denied him by the Association. He claimed there was a direct nexus between the Qantas rosters and the remuneration paid to him by Qantas. Mr Stephenson had not explained why the matter only involved him and the FAAA, given Qantas is directly in control of the payroll process.

[23] Mr Staniforth responded in detail to Mr Stephen’s statement, primarily by reiterating his beliefs, opinions and submissions which he believed supported his merit’s case.

[24] Mr Staniforth further asserted that negotiations in November 2016 between Ms Burt of Qantas, Mr Playford and himself resulted in a signed replacement Facilitative Agreement, regarding cl 78 Bank of Days and the private agreement of 2006. Mr Staniforth provided an unsigned and undated letter which he claimed to be this Agreement. Further, be believed that Qantas had been invoicing amounts contrary to this Agreement, by using a non-agreed formula.

[25] By reference to individual invoices, Mr Staniforth stated that it was now very clear the line items in each invoice, do not equate to the actual amount paid by Qantas to FAAA officials/delegates. Mr Staniforth claimed that at the time, he had no reason to question the FAAA or cross check the invoices. He had not been trained or briefed on the issue.

[26] Mr Staniforth disputed various emails from Mr Stephenson in July and August 2017, not by relying on the actual terms of the emails, but by putting his interpretation on the words, or intention as to the meaning of the words. He simply disputed Mr Stephenson’s view that his dispute of 24 August 2017, and subsequent correspondence, related to issues with the FAAA, and not him personally.

[27] Mr Staniforth disputed the claim that he had been paid correctly, as he was on a flexibility agreement. He believed Ms Gray may be the best person to provide evidence of his agreement with Qantas to demonstrate he had been overpaid. He further believed that later documents, not provided to him, will clarify the position. Mr Staniforth strongly asserted he did not request, or authorise anyone, including Mr Scanlon, to request access to the Bank of Days to be inserted into his rosters, in place of his removed CSM duties.

SUBMISSIONS

[28] Ms McKenzie identified the basis of the Commission’s jurisdiction in respect to its dispute settlement functions. The source of the Commission’s powers of what is essentially a private arbitration, is the combination of the Act’s provisions with the terms agreed to by the parties in the DSP of an Agreement, including any terms of limitation. Ms McKenzie submitted the question of what the dispute is about derives from the agreement between Qantas and the FAAA in relation to Mr Staniforth’s flying duties. The starting point is that because Mr Staniforth is no longer an employee of Qantas, the dispute he lodged on 5 October 2017 (after his voluntary redundancy) must be the same dispute he initiated and agitated prior to the termination of his employment. The law is well settled in this regard; see ING Administration Pty Ltd v Jajoo PR973602 [2006] AIRC 483 (‘Jajoo’).

[29] Importantly, the dispute must be about a matter which arises under the Agreement. It was Qantas’ submission that the dispute Mr Staniforth notified on 5 October 2017 was a very different dispute that he raised with Mr Stephenson on 29 August 2017, when he was employed. So much so is evident from his F10 answer to what the dispute is about. In attempting to characterise the dispute he raised for the first time the notion of a flexible work arrangement. It is clear, Ms McKenzie submitted, that when reading the contemporaneous emails at the time, that what Mr Staniforth was attempting to do, was redescribe the real issue in a way that called up terms in the Agreement.

[30] Either there are two separate disputes in the F10 description and the issues first raised, or the dispute is really about the private arrangements between Qantas and the FAAA, in relation to how flight crew who perform official duties for the Association can be released to do those duties without loss of pay, which is not a matter arising under the Agreement.

[31] On either count, there are jurisdictional problems for Mr Staniforth. Ms McKenzie noted that Mr Staniforth attempted to link his dispute to cl 78 Bank of Days in EBA 9. However, the Agreement did not even exist when Mr Staniforth first raised his issues in 2016. In any event, cl 78 only deals with the creation of a Bank of Days. How it is accessed, or applied and what administrative arrangements are in place, are set out in the private agreement between the Association and Qantas. This agreement deals with the two circumstances of where the Bank of Days for an individual is in credit or not in credit. In the later circumstance, the FAAA reimburses Qantas for the value of the day the individual is released from duty. Ms McKenzie said that despite Mr Staniforth’s claim that he was involved in discussions about replacing this private agreement in November 2016, it was not replaced and remains in force.

[32] Ms McKenzie put that Mr Staniforth’s dispute is really a dispute he has with the Association as to being paid from August 2016 both his Qantas salary and his salary from the Association. His communication with Mr Stephenson indicates an issue within the Association and he wished to have Qantas put on hold what had been happening because there is an internal problem in the Association. As all of the emails are signed off by him as the ‘FAAA National Secretary’, this means he is not acting in a private capacity as an employee of Qantas.

[33] Ms McKenzie noted that in his 1 September 2017 email, he said:

The specifics I wish to discuss relate to the Association's arrangement with Qantas regarding my release flying duties in my roster to remain unpaid for July 16 onwards.

[34] This is an obvious reference to the application of the 2006 private agreement and there is nothing in EBA 9 which deals with this. At this point, Mr Stephenson makes it clear that this issue has nothing to do with Qantas. It is not a question of overpayment because of some misapplication of an EBA provision. By 5 September 2017, Mr Stephenson said:

I don't believe the grievance process is an appropriate avenue for a dispute over the commercial arrangements for invoicing the Association above and beyond the union bank leave days, a process which is offered to the Association and you as its secretary beyond our obligations under the EBA so I think it is inappropriate for you to make this an employment-related matter and a grievance.

[35] By 8 September 2017, although Mr Staniforth was still an employee of Qantas, the FAAA informed Mr Stephenson that Mr Staniforth was no longer authorised to act for the Association and by 15 September 2017 he was suspended. So throughout this period, it is clear that Mr Staniforth had been agitating his issues on behalf of the FAAA as National Secretary, but it is his personal issue affecting his remuneration.

[36] Ms McKenzie said that if the Commission found against Qantas’ objection just discussed, there is the secondary issue of Mr Staniforth’s standing to bring this dispute. She submitted reliance on Jajoo was misplaced, as it was decided under very different legislative provisions (s 170LW of the Workplace Relations Act 1996 (Cth)) to the current statutory scheme under the Fair Work Act. In developing these submissions by reference to extracts from Jajoo and the more recent decision of the Full Bench in Construction, Forestry, Mining and Energy Union v Broadspectrum Australia Pty Ltd [2017] FWCFB 269 (‘Broadspectrum’), Ms McKenzie put that it is relevant that the DSP in this Agreement is different to the DSP under consideration in the earlier Full Bench decisions. In EBA 9’s DSP, the emphasis is on the ‘parties’ to the dispute, meaning the Association and Qantas. By reference to cl 6.1.1, the parties must first make an attempt to resolve the dispute. The emphasis on ‘parties’ is exemplified by the next section in cl 6.1.1:

A flight attendant who is a party to the dispute may appoint a representative for the purposes of the procedure in this clause.

[37] Ms McKenzie observed that no meeting ever occurred between Qantas and Mr Staniforth when he was a flight attendant in relation to the issues he described in his F10. A failure to comply with the steps in a DSP is an obvious jurisdictional impediment to the dispute being able to be determined by the Commission; see: National Tertiary Education Union v Charles Sturt University PR963494 [2005] AIRC 860 (‘Charles Sturt University’).

For the FAAA

[38] Mr Haywood put no submissions either supporting or opposing Qantas’ objections to Mr Staniforth’s dispute application.

For Mr Staniforth

[39] Mr Worthy submitted the Commission does have jurisdiction to deal with the dispute for reasons that include the following:

(a) the dispute arises over application of a provision of Flight Attendants’ Association of Australia – Short Haul Division (Qantas Airways Limited) Enterprise Agreement 9 (EBA9);

(b) the applicant commenced the requisite steps in the dispute settlement procedure under EBA9 on 29 August 2017 whilst an employee of the respondent, prior to the applicant’s employment ceasing on 17 September 2017, and therefore does not have standing to notify a dispute to Commission and pursue all of the steps for resolution under the dispute settlement procedure of EBA9;

(c) the evidence filed by the applicant will satisfy the Commission that the dispute is within the scope of EBA9 Part A clause 6 and, as parties to EBA9, the applicant and the respondent have agreed to confer power on the Commission to determine the matter;

(d) the respondent’s ongoing mischaracterisation of this dispute – that it concerns the remuneration arrangements between the applicant and the FAAA – is seriously concerning. This dispute plainly involves remuneration the respondent paid directly to the applicant on various dates without the applicant’s agreement which will be established by the evidence brought before the Commission in determining this matter.

[40] In oral submissions, Mr Worthy submitted that it was irrelevant that Mr Staniforth’s letters or emails were sent in his capacity as the National Secretary. He was always a flight attendant employed by Qantas at the relevant time.

[41] In respect to EBA 9’s DSP and the requirement for the parties to meet, Mr Worthy noted Mr Staniforth sent 7 emails to Qantas before his voluntary redundancy and one after, plus a phone call requesting a meeting to discuss a rostering problem he had identified which was a pay dispute. Qantas made various excuses and as time passed, he was no longer an employee of Qantas or an official of the Association. In that case, Mr Staniforth had been communicating with Mr Stephenson and Ms Helen Gray, who were not responding and had refused a meeting. He had no other option, but to lodge his dispute with the Commission. Mr Worthy relied particularly on the DSP’s words ‘Provided the dispute settlement process is being followed’, to demonstrate that it was obvious Mr Staniforth was following the process, but Qantas refused to. Accordingly, Mr Staniforth has standing to bring his dispute to the Commission.

[42] Mr Worthy referred to the authorities which state that a former employee is entitled to bring a dispute to the Commission provided the dispute was first raised while the employee was employed; see: Jajoo. On 27 August 2017, Mr Staniforth notified a matter between himself as a Qantas employee and his employer Qantas and not between himself and the Association. Mr Worthy accepted that Qantas was partially settling the dispute as requested by Mr Staniforth. However, the processes were stalled and frustrated by Qantas’ incorrect interpretation of what the dispute was about.

[43] In reply, Ms McKenzie submitted that to the extent that Mr Worthy may have sought to rely on EBA9 cl 6.2, the bar on jurisdictional objections relates to matters traditionally brought to the Commission for determination. Here, Qantas’ objections relate to the Commission’s jurisdiction to deal with matters not permitted by the statute or the Agreement. (I note that a term of an agreement cannot, as a matter of law, cloak the Commission with jurisdiction, where it otherwise does not exist).

CONSIDERATION

[44] Stripped to its core, this matter arises from an extraordinary and bizarre scenario. For my own part, I have not been able to find any historic precedent for the proposition Mr Staniforth has advanced throughout these proceedings. From time to time, there are disputes in which employees, either through the error or inadvertence of the employer, are overpaid and the employer seeks recovery of the overpaid amounts. In this case, however, the employee insists he has been overpaid and wishes to repay the overpaid amounts; whereas the employer claims that he has not been overpaid and refuses to accept any monies from him. A stranger industrial proposition I have not yet encountered.

[45] Of course, it cannot be ignored that Mr Staniforth has been removed from his position as Secretary of the FAAA for alleged reasons directly related to the matters under consideration in this dispute; namely, Mr Staniforth’s salary and an allegation that he had been ‘double dipping’ in respect to his release from flying duties to attend to Association business. Mr Staniforth had also initiated Federal Court proceedings about these matters (now discontinued). In addition, Mr Staniforth had filed an unfair dismissal application listed for hearing before me on 1 May 2018. That matter has now been settled and also discontinued.

[46] Irrespective of whether Mr Staniforth, as a former employee, has standing to bring a s 739 dispute application under the Act; see: Jajoo and Broadspectrum, the dispute must still be one comprehended by the provisions of the Agreement’s DSP, including any limitations in that respect. The DSP in cl 6 of EBA 9 only applies to a dispute ‘arising over any matter/s contained in this Agreement, or in relation to the National Employment Standards’. As I am able to determine this jurisdictional matter on the strongest ground advanced by Qantas; namely, that the dispute does not arise over any provision in EBA 9, it is unnecessary for me to make detailed findings on the other three grounds advanced by Qantas; noting that Mr Staniforth conceded Ground 1. I shall now explain my reasons.

Principles and authorities

[47] The jurisdiction of the Commission to deal with disputes, pursuant to DSPs in enterprise agreements, is set out in ss 738 and 739 which read:

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note:          This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note:          The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

[48] In Construction, Forestry, Mining and Energy Union v Thiess[2016] FWC 5089, Deputy President Asbury set out the general principles to be applied by the Commission under its jurisdiction in s 739 of the Act. At paras 7-8, Her Honour said:

[7] The Commission’s powers to deal with disputes derive, in the case of an enterprise agreement, from the terms of the disputes resolution procedure contained in the enterprise agreement. As summarised in the decision of a Full Bench of the Commission in CFMEU v North Goonyella Coal Mines Pty Ltd the Commission may deal with a dispute only on application of a party to the dispute (s.739(6)); is prohibited from exercising any powers limited by the dispute resolution procedure (s.739(3)); may arbitrate only if the agreed dispute resolution procedure permits it to do so (s.739(4)); and must not make a decision that is inconsistent with the Act, the enterprise agreement and any other applicable fair work instrument (s.739(5)).

[8] To the extent that the Act and the terms of a dispute settlement procedure in an enterprise agreement authorise the Commission to make decisions as to the legal rights and liabilities of the parties to an agreement, it authorises the Commission to exercise a power of private arbitration. It is well established that, depending on the terms of a dispute settlement procedure in an enterprise agreement, a former employee can continue to have a dispute dealt with, consistent with the terms of the particular dispute settlement procedure, provided that the employee has initiated the dispute before the termination of his or her employment.

[49] In Charles Sturt University, the Full Bench of the AIRC (as the Commission was then styled), albeit under a different statutory regime, relevantly observed as follows at para 10-11:

[10] The jurisdiction of the Commission, as a creature of statute, is limited to the jurisdiction conferred on it by the Parliament. The Parliament has authorised the Commission to accept appointment as a private arbitrator for the resolution of disputes over the application of certified agreements (s.170LW). When the Commission acts as private arbitrator under the dispute settlement procedure in a certified agreement it does so pursuant s.89(a) and an approval given pursuant to s.170LW of the Act. In its capacity as private arbitrator, the jurisdiction of the Commission is limited to disputes over the application of the agreement – a limitation arising from the terms of s.170LW. However, the jurisdiction and power of the Commission as private arbitrator under a dispute settlement procedure is also subject to any limitations in the agreement conferring power on the Commission.

[11] The emphasised words in clause 58.5 are unambiguous and constitute just such a limitation: they represent a condition precedent that must be satisfied before a dispute under clause 58.1, clause 58.2 or clause 58.3 can be referred to the Commission pursuant to clause 58.5. The Commission is obliged to give effect to that condition as part of the agreement of the parties. 

[50] With this in mind I now turn to this dispute lodged by Mr Staniforth against Qantas. The first step is to properly characterise the nature of the dispute. In Schweppes v United Voice 218 IR 251, Jones C (as she then was), said at para [15]:

there is no question that FWA must be satisfied, before exercising its powers under s. 739 of the Act, that it has jurisdiction to do so. This will require being satisfied that the alleged dispute can be characterised as falling within the relevant terms of an Agreement . It may also require FWA being satisfied that the clause of the Agreement is a permitted matter within the meaning of the Act. (References omitted).

[51] In Maritime Union of Australia v Australian Plant Services PR908236 [2001] AIRC 898, Senior Deputy President Lacy said at para 57:

An important limitation on the Commission’s powers under s 170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement “to settle disputes over the application of the agreement” and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order determine whether the matter is a dispute over the application of the agreement. And, importantly, the character of the dispute is distinguishable from the orders that may be made in settlement of the dispute.

[52] In Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd[2016] FWC 2959, Saunders C helpfully set out the relevant legal principles to be applied when considering the terms of a DSP in an enterprise agreement. I respectfully adopt the Commissioner’s approach, which I set out below:

[6] The test under s.739 of the FW Act is whether the dispute settlement procedure in the enterprise agreement “requires or allows” the Commission to deal with the dispute. It is therefore necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it.

[7] The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[8] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction. Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.

[9] It is also important to note that the character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute. However, the relief sought may cast light on the true nature of the dispute in some cases.

[10] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant in such circumstances will depend on the limitation in s.739(5) of the FW Act and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the Enterprise Agreement to which the dispute relates.’ (Footnotes omitted)

[53] In Mr Staniforth’s F10 application, he described this dispute as being:

…about ordinary time mis-administrated by the respondent in the applicant’s rosters from 22 August 2016 (start of Roster Bid Period 3115) to 29 August 2017 (part way through Roster Bid Period 3181) resulting in:

(a) ordinary time earnings incorrectly calculated and paid; and

(b) corresponding allowances, leave accruals, superannuation incorrectly calculated and paid.

[54] In disassembling his repetitive and rather confusing submissions, it would seem Mr Staniforth now says his dispute concerns an Individual Facilitative Agreement under EBA 9, Part A cl 9 and by inferential reference to cl 78 – Bank of Days. A number of observations can be made about this contention.

[55] Firstly, there is a plain and obvious distinction between the applicant’s F10 and his claim about the Individual Facilitative Agreement and cl 78. Neither of these two Agreement references are mentioned in Mr Staniforth’s answer to the question of what his dispute is about, although I accept he lists a number of clauses at Q 1.4 as being clauses to which the dispute relates; including cl 78, but curiously not cl 9 of Part A.

[56] Secondly, at no time in the initial email exchanges between Mr Staniforth and Mr Stephenson, including at the point Mr Staniforth says he initiated his dispute, is there a mention of the Individual Facilitative Agreement; indeed the chronology of events does not establish such an agreement was ever in place.

[57] Thirdly, Qantas submits that Mr Staniforth’s dispute, in truth, concerns a private agreement between itself and the FAAA which sits outside the terms of EBA 9. As this private agreement is not referenced, or even mentioned anywhere in the Agreement, the dispute cannot be about a matter arising under the Agreement and is therefore beyond the Commission’s jurisdiction. There is much force to this proposition. Neither cl 78 or Part A cl 9 refers to the private agreement. Indeed, it is clear that the private agreement can be subject to change, by agreement between the FAAA and Qantas, without disturbing or effecting cl 78 at all.

[58] Fourthly, it is obvious from the relief sought in Mr Staniforth’s originating application, that he seeks to repay an alleged overpayment. However, there is nothing in EBA 9 which could justify any conclusion that there has been a misapplication of a provision in that Agreement. The only likely basis for consideration of such a claim for relief arises from an instrument that is separate and distinct to EBA 9.

[59] Fifthly, at various points in Mr Staniforth’s submissions, he alleges Qantas is in breach of the Agreement. Obviously, if this is Mr Staniforth’s claim, it is not one capable of determination by the Commission, and can only be resolved by application to a court of competent jurisdiction.

[60] Having found that the dispute is not about a matter arising under the Agreement as required by EBA 9’s DSP clause, it is irrelevant that Mr Staniforth was not an employee of Qantas at the time he lodged this dispute (5 October 2017). That said, from my assessment of the terms of the DSP, there may be some doubt as to the standing of Mr Staniforth to bring a dispute to the Commission, having regard for the factual matrix underpinning this case. In any event, I need to take this matter no further as I have upheld Qantas’ objection that the dispute is not about a matter arising under EBA 9.

[61] In my view, having regard for the largely uncontested evidence in the proceeding, the changing features of the dispute; the remedies he seeks; and the true nature of Mr Staniforth’s grievance, the correct characterisation of this dispute is a direct challenge to a private agreement between the FAAA and Qantas, as it was applied to him. As this agreement sits outside of, and beyond the scope of EBA 9, the Commission has no jurisdiction to determine this dispute.

[62] The dispute application is dismissed for want of jurisdiction. I order accordingly.

DEPUTY PRESIDENT

Appearances:

Mr C Worthy for the applicant.

Ms H McKenzie with Ms Srdanovic and Mr Ryan (Ashurst for the respondent).

Mr P Hayward (Haywards Solicitors for the Association’s National Division).

Hearing details:

2018.

Sydney.

March 1.

Printed by authority of the Commonwealth Government Printer

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Annexure A