National Jet Operations Services Pty Ltd T/A National Jet Systems

[2023] FWC 2432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

National Jet Operations Services Pty Ltd T/A National Jet Systems

(AG2023/2471)

NATIONAL JET OPERATIONS SERVICES PTY LTD CABIN CREW ENTERPRISE AGREEMENT 2023

Airline operations
COMMISSIONER WILSON	MELBOURNE, 21 SEPTEMBER 2023

Application for approval of the National Jet Operations Services Pty Ltd Cabin Crew Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the National Jet Operations Services Pty Ltd Cabin Crew Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by National Jet Operations Services Pty Ltd (National Jet or the Applicant). The Agreement is a single enterprise agreement.

Following preliminary consideration of the Agreement in the usual course, my Chambers sent correspondence to the parties named in the initiating application setting out the concerns I held in relation to the Agreement in respect of the agreement signatories, pre-approval requirements, mandatory terms, the National Employment Standards (NES), and the Better Off Overall Test (BOOT).

National Jet provided an initial response to the matters set out in the correspondence and provided a further response including a set of draft undertaking in compliance with the filing directions.

The Transport Workers' Union of Australia (TWU) and the Flight Attendants' Association of Australia (FAAA) are bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them, although as set out in this decision, they each raise concerns in relation to the Agreement being approved without undertakings.

The application has been determined by me on the papers, with me being of the view that the Agreement may be approved subject to receipt of certain amended or additional undertakings.

SCOPE OF THIS DECISION

This decision deals not only with the matters raised by the TWU and FAAA but also with the statutory requirements for approval of an enterprise agreement within the Act’s Part 2 – 4, Enterprise Agreements.

BACKGROUND

As part of its consideration process, the Fair Work Commission (the Commission) wrote to National Jet expressing 16 matters of concern, inviting either the provision of submissions that would persuade the Commission the expressed concern does not require further consideration, or the provision of an undertaking that would ensure the concern is removed. The matters identified to National Jet as concerns were these:

“ …
FORM
1.   Form F18: The TWUis named as a bargaining representative on the Form F16 for the above referenced matter but to date the Commission has not received a Form F18. Should the union seek to be covered by the Agreement they are invited to provide a Form F18 to that effect and by no later than 4.00PM AEST Wednesday 2 August 2023. If an F18 is not received by that date the Commissioner will presume the union does not seek to be covered and will not remind the union of the matter again.
2.   Agreement signatories: The Union signatories do not provide for their authority to sign. This may raise inconsistency with regulations 2.06A and s. 185 (2) of the Act. The Commissioner invites a revised signature page to be provided.
PRE-APPROVAL
3.   NERR coverage: The coverage in the NERR is listed as ‘employees that are employed by National Jet Systems Pty Limited and covered by the National Jet Operations Services Pty Ltd Airline Services Cabin Crew Enterprise Agreement 2017.’ The current agreement contains classifications of Cabin Crew Airline Services Years 1-5, whereas in the new agreement the classifications are structured as B717 operations Cabin Crew Member, A220 operations Cabin Crew Member, and A220 Cabin Crew Supervisor. Given the difference in classifications, it may be unclear whether employees were aware that they were to be covered at the time of receiving the NERR.
MANDATORY TERMS
4.   Flexibility term: The Flexibility Term in clause 1.11 of the Agreement does not appear to comply with each of the requirements of the Act. The Commission cannot accept an undertaking to address concerns about the flexibility term. Instead, if the Agreement is approved, the model flexibility term will apply as a term of the Agreement. You are not required to take any action in this regard but if you have any objection, please advise the Commission.
5.   Consultation term: The consultation term at clause 1.8 of the Agreement does not appear to comply with each of the requirements of section 205 of the Act. The Commission cannot accept an undertaking to address concerns about the consultation term. Instead, if the Agreement is approved, the model consultation term will apply as a term of the Agreement. You are not required to take any action in this regard but if you have any objection, please advise the Commission.
NES
The following term(s) have been raised as contrary to the National Employment Standards (NES):
6.   Casual conversion: Clause 3.7.2 of the Agreement indicates that ‘where a permanent vacancy exists’ a casual cabin crew member shall be provided with an opportunity to convert to that permanent employment. Whereas s.66B and s.66F of the Act provides entitlement to convert where the casual has been employed for 12 months and have in the last 6 months worked a regular pattern of hours. This clause may therefore be more restrictive than the NES where employees may also be required to work beyond the timeframes specified in s.66B. However, it is noted in s.66C that an offer is not required where there are reasonable grounds not to make the offer, and the non-existence of a permanent vacancy may be considered reasonable grounds.
7.   Parental leave: Clause 6.5.4 of the Agreement appears to be more restrictive than what’s provided for under s.70 of the Act.
8.   Public holiday: Clause 6.7.1 of the Agreement indicates that an employee may be required to work a public holiday, however, does not specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable, or the refusal is reasonable. This may raise inconsistency with s.114(3) of the Act.
9.   Termination: Clause 9.2.6 of the Agreement provides that where the employee wishes to terminate the employment, the notice given must be 1 week during the first six months of service and 4 weeks after the first six months of service. These requirements appear to be restrictive when compared with s.117(3) of the Act.
10. Withholding of NES entitlements: Clause 9.2.10 of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination equal to the shortfall in notice. Clause 29.1 (d) of the Award limits this amount to no more than 1 week’s wages. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.
11. Redundancy: Clause 9.3.3.1.1 of the Agreement provides that where an employee finds acceptable alternative employment, the company will not be obliged to pay severance pay. However, this provision is not subject to an application under s.120 of the Act.
12. Compassionate leave: Clause 6.3 of the Agreement does not appear to provide compassionate leave for stillbirth / miscarriage consistent with s.104(1)(b) and (c) of the Act.
BOOT
The following issue(s) have been identified in relation to whether employees will be better off overall under the Agreement:
13. Annualised salaries: Schedule 1 – Rates of Pay of the Agreement provides for an annualised wage arrangement. It appears there is no information regarding what the review period will be, whether parties cancel or if it will be recorded in writing. We note that the Award does not provide for annualised wage arrangements. We note that the Schedule, does outline a pay rate increase from 1 July 2024 and 2025 at 3% for the three classifications provided for in the Agreement. However, based on the limited information in the Agreement regarding the review arrangements, it may not be frequent enough to ensure employees under annualised wage arrangements are better off, in particular ‘Cabin Crew Member – B717 Operations’. A reconciliation clause must indicate the frequency of a reconciliation as well as the specific amount employees will receive above the Award.
14. Rates of pay equal to the Award: B717 cabin crew members appear to be paid $25.67 per hour when their annual salary is converted to an hourly rate. Whilst the pay rate comparison demonstrates that this rate is 0.02% above the Award, this may be due to rounding and in effect, employees would appear to be paid equal to the Award. Where this occurs, employees are not paid above the Award, and therefore this rate may not be high enough to compensate for the issues raised below, and for a less beneficial leave loading of 11.667% as per clause 6.1.11. It may be unclear whether they may be considered better off overall, where a reconciliation clause cannot be relied upon as noted above.
15. Part-time safeguards: The Agreement appears to be silent on the part-time safeguards as contained in clause 10 of the Award. Question 6 of the Form F17A states that 8/46 employees currently engaged are part-time employees, therefore it may be reasonably foreseeable that this issue may affect some of the workforce the Agreement will apply to.
16. Domestic flying specific entitlements: The Agreement does not appear to provide for replacement of uniforms by the employer as a result of fair wear and tear, higher duties for work in a higher classification for a temporary period, and ground transport allowance, as contained in Schedule A of the Award for employees engaged in domestic flying. Rates of pay may not be high enough to compensate for these silent entitlements for employees engaged as Cabin crew member – B717. However, whether these deficiencies are to be considered BOOT issues are dependent on the reasonably foreseeability of their occurrence across the scheme of a year.
…”.[1]

After the matter was programmed for hearing and each party had provided written submissions on the above matters consent was given by each for the matter to be determined by me on the papers and without the need for a hearing. Accordingly, this decision has been determined by me having regard to the written materials of each party.

National Jet Initial Submissions

On 2 August 2023, National Jet responded to the Commission’s concerns. A summary of the responses is set out below:

Issue	Topic	Response
1	Form F18	No response required
2	Agreement signatories	Providing a revised Agreement that includes signatory pages from the FAAA and the TWU
3	NERR coverage	Submissions on new classification structures
4	Flexibility term	Advising it had no concerns to the model flexibility term applying as a term of the Agreement
5	Consultation term	Submission that Clause 1.8 complies with s.205 of the Act so the model consultation term need not be applied
6	Casual conversion	Submissions that an undertaking is not necessary
7	Parental leave	Submissions that an undertaking is not necessary
8	Public holiday	Submissions that an undertaking is not necessary
9	Termination	Submissions that an undertaking is not necessary
10	Withholding of NES entitlements	Submissions that an undertaking is not necessary however offers an undertaking if the submissions are not accepted by me
11	Redundancy	Submissions that an undertaking is not necessary
12	Compassionate leave	Submissions that an undertaking is not necessary
13	Annualised salaries	Submissions that an undertaking is not necessary
14	Rates of pay equal to the Award	BOOT analysis provided
15	Part-time safeguards	Submissions that an undertaking is not necessary
16	Domestic flying specific entitlements	BOOT analysis provided

As a result of the National Jet Initial Submissions Items 2, 3 and 4 are resolved, with the amended Agreement signed in accordance with Regulation 2.06A of the Fair Work Regulations 2009 and s.185(2) of the Act, and me being satisfied with the Applicant’s submissions on the new classification structures and the model flexibility term to apply as a term of the Agreement. The remaining items, 5 – 16 and the TWU additional concern, require consideration.

TWU Form F18

On 2 August 2023, the TWU filed its Form F18 - Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement). The Form F18 in response to Question 5 provides that the TWU supports approval of the Agreement by the Commission “subject to any required undertakings”. The Form F18 also advises at Question 6 that the TWU disagrees with one or more statements in the employer’s declaration relating to the Agreement.

The TWU’s position on each of the Commission’s concerns about which it was also concerned is set out below:

Item 4: Agrees the model flexibility term should apply as a term of the Agreement
Item 5: Agrees the model consultation term should apply as a term of the Agreement and Clauses 1.8.1 – 1.8.2 of the Agreement should be preserved regarding the establishment of the Cabin Crew Consultative Group

Items 6 – 12: Submits that a specific undertaking is required to be provided by National Jet on the NES inconsistency matters.

The TWU also raises several other matters which it seeks to be remedied by specific undertakings:

the less beneficial requirements for giving notice and evidence to support taking personal leave in Clause 6.2 of the Agreement are inconsistent with the NES provisions; and

the less beneficial entitlements pertaining to parental leave in Clause 6.5 of the Agreement (in addition to Item 7 of the Commission’s concerns) are inconsistent with the NES.

The TWU agrees with the Commission’s concerns expressed in Items 13 – 14 regarding lack of review arrangements for the Agreement’s annualised salaries and the hourly rates of pay for B717 Cabin Crew Members appearing to equate to the Award’s minimum hourly rate for Cabin Crew Members under Clause 14.2. It also notes that many of the allowances in the Agreement are contingent on particular circumstances being met with it being unclear if the allowances in the Agreement would make B717 Cabin Crew Members better off overall (Items 13 and 14).

The TWU also submits that a BOOT assessment should take into account other less beneficial terms of the Agreement compared to the Award:

Clause 6.1.11: the less beneficial annual leave loading (Item 14)
Clause 3.5: it is unclear if the safeguards for part-time employees in Clause 10 of the Award will apply (Item 15)

Clause 3.7: does not include that casual employees are entitled to minimum payment of 4 hours’ work (Item 15)

There are no provisions for the replacement of uniforms by the Applicant as a result of fair wear and tear, there are no provision for payment of higher duties and there are no provisions for the ground transport allowance (Item 16).

The TWU does not agree with several of the matters in the Form F17A declaration submitted by National Jet:

Clause 4.3.5: National Jet submit that substitute days off to be normally assigned within 3 months of accrual is likely to be more beneficial than being assigned in the next roster period as per Schedule A.4.5 of the Award. The TWU submits that this will depend on the individual circumstances of the employee
Clause 4.12: National Jet submit that the more beneficial entitlements if an employee is called in to work on a rostered or substitute day off will not be conferred anyway if 48 hours’ notice is given to the employee

Clause 5.6.7: The TWU submits that the Agreement’s overtime provisions appear to exclude that employees can take time off in lieu of overtime payments pursuant to Clause 18.4 of the Award

Schedule 1 Clause 3.1: The TWU submit that Cabin Crew Trainers would receive a higher training allowance under the Award

Clause 7.10.4: the Agreement provides for payment in relation to loss or damage to an employee’s personal effects capped at $1615.00. The TWU submits that if there are regional staff who are covered by the Agreement or are reasonably foreseeable employees covered by the Agreement, the Award entitlements are more beneficial

Clause 9.4: permits the Applicant to deduct an amount for any outstanding property not returned to NJOS post-termination from an employee’s pay. The TWU submits that such deductions cannot be made from NES entitlements and may not be enforceable due to s.326 of the Act

Clauses 5.8.1 – 5.8.2: allows the Applicant to deduct or withhold amounts of overpayments from pay or allowances due to the employee, including it appears from NES entitlements that would be owed to the employee upon termination. Even with approval from the employee in accordance with s.324 of the Act, the TWU submits that these provisions may be unenforceable due to s.326 of the Act.

Clauses 6.1.1 – 6.1.13: the TWU submits that Clause 19.9 of the Award provides greater protections against employees being recalled to work whilst on annual leave. The Agreement’s annual leave provisions also appear to exclude the provisions in Clause 19.11 of the Award in relation to where an employee may take annual leave in advance of the entitlement accruing and most of the conditions for directing an employee or where an employee may request to take annual leave if they have excessive leave accrued in Clause 20 of the Award.

The filing of the Form F18 remedies Item 1 of the Commission’s concerns.

FAAA Form F18

The Form F18 advises the FAAA supports approval of the Agreement and does not identify that it disagrees with statements made in the Form F17A. It does not express a view on whether the Agreement passes the better off overall test.

National Jet Further Submissions

On 16 August 2023, National Jet provided further submissions in response to the matters raised by the Commission as well as the matters raised by both unions.

National Jet’s primary position is that Clause 1.5.1 of the Agreement operates to remedy any deficiencies regarding entitlements otherwise provided under the NES therefore individual undertakings are not required. It does however propose undertakings on the NES matters if their primary position is not accepted by me.

National Jet’s position is that applying a global assessment, employees are better off overall under the Agreement.

In response to the additional matter raised by the TWU in its Form F18, National Jet does not agree that an undertaking is required for Clause 6.2 of the Agreement concerning notice requirements as the requirements in the clause are consistent with the NES.

UNDERTAKINGS

Undertakings may be accepted by the Commission on the basis articulated in s.190 should the Commission hold a concern about whether the requirements of ss.186 – 187 have been met. Section 190 provides:

“190 FWC may approve an enterprise agreement with undertakings
Application of this section
(1) This section applies if:
(a) an application for the approval of an enterprise agreement has been made under subsection 182(4) or section 185; and
(b) the FWC has a concern that the agreement does not meet the requirements set out in sections 186 and 187.

Approval of agreement with undertakings
(2) The FWC may approve the agreement under section 186 if the FWC is satisfied that an undertaking accepted by the FWC under subsection (3) of this section meets the concern.
Undertakings
(3) The FWC may only accept a written undertaking from one or more employers covered by the agreement if the FWC is satisfied that the effect of accepting the undertaking is not likely to:
(a) cause financial detriment to any employee covered by the agreement; or
(b) result in substantial changes to the agreement.

FWC must seek views of bargaining representatives
(4) The FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement.
Signature requirements
(5) The undertaking must meet any requirements relating to the signing of undertakings that are prescribed by the regulations.”

Consideration of the identified concerns shows that with one exception each is capable of resolution through an undertaking whether in the form put forward by National Jet or an alternative form; if that is, the respective submissions do not resolve the concern. No party submitted that the contrary was the case. The exception is the matter of the consultation term which is dealt with in greater detail below.

The draft undertakings proposed by National Jet filed 16 August 2023 have the following content:
Item 6 – Clause 3.7.2 of the Agreement will operate subject to the National Employment Standards in that a casual employee will be made an offer to convert to permanent employment following a period of 12 months service and during at least the last 6 months of that period, has worked a regular pattern on an ongoing basis, unless such an offer is not required by section 66C of the Fair Work Act 2009 (Cth) (“the Act”)
Item 7 – Clause 6.5.4 of the Agreement will not operate in a manner that is inconsistent with section 70 of the Act
Item 8 – Clause 6.8.1 of the Agreement will not operate in a manner that is inconsistent with section 114(3) of the Act
Item 9 – Clause 9.2.6 of the Agreement will not operate in a manner that is inconsistent with section 117(3) of the Act
Item 10 – Clause 9.2.10 of the Agreement, will be read as if it stated: If the employee does not give the Company the required period of notice in clause 9.2.6, then the Company may deduct from wages due to the employee under the Agreement an amount that is no more than one week’s wages for the employee, provided that:
i. the employee is at least 18 years old;
ii. the Company has not agreed to a shorter period of notice than that required under clause 9.2.6; and
iii. the deduction is not unreasonable in the circumstances;
Item 11 – Clause 9.3.3.1.1 will be read as if it stated: If NJOS find for the Cabin Crew Member acceptable alternative employment, NJOS will not be obliged to pay severance pay under the Agreement, but will be obliged to pay an amount of redundancy pay under s.119 of the Act, subject to NJOS making an application to the Fair Work Commission under s.120 of the Act and

Item 12 – Clause 6.3 of the Agreement will operate subject to the National Employment Standards in that an employee remains entitled to compassionate leave in accordance with section 104(1)(b) and (c) of the Act.

CONSIDERATION

As set out above, this decision deals with the matters raised by the TWU and FAAA and also with the statutory requirements for approval of an enterprise agreement.

The submissions of each party addressing the 16 matters raised by the Commission as well as the additional matter raised by the TWU is set out below:

FORM - Item 1 – TWU Form F18

The TWU filed its Form F18 on 2 August 2023. This matter is resolved.

FORM - Item 2 – Agreement signatories

A revised Agreement has been filed with updated signatory pages. This matter is resolved.

PRE-APPROVAL - Item 3 – NERR coverage

The coverage in the Notice of Employee Representational Rights (NERR) is listed as ‘employees that are employed by National Jet Systems Pty Limited and covered by the National Jet Operations Services Pty Ltd Airline Services Cabin Crew Enterprise Agreement 2017’. The current Agreement contains classifications of Cabin Crew Airline Services Years 1 – 5, whereas in the new Agreement the classifications are structured as B717 Operations Cabin Crew Member, A220 Operations Cabin Crew Member, and A220 Cabin Crew Supervisor.

Given the differences in classifications, I sought further information from the Applicant on whether employees were aware that they were to be covered by the Agreement at the time they received the NERR. National Jet submits that during bargaining the parties agreed to introduce a new classification structure to facilitate the introduction and operation of a new aircraft type, the Airbus A220. It further says that the new Agreement covers the same cohort of employees as the current agreement, therefore employees were aware the new Agreement was to cover them. It further argues that employees well understand that different entitlements apply depending on the aircraft an employee is performing work on.

I am satisfied based on the submissions of the Applicant, and noting there is no objection from either union, that the coverage of the proposed Agreement was clear to employees at the time they received the NERR. This matter is resolved.

MANDATORY TERMS - Item 4 – Flexibility Term

The flexibility term in Clause 1.11 of the Agreement does not comply with each of the requirements of the Act. All parties accept the model flexibility term will apply as a term of the Agreement. This matter is resolved.

MANDATORY TERMS - Item 5 – Consultation Term

I raised a concern that the consultation term at Clause 1.8 of the Agreement does not appear to comply with each of the requirements of s.205 of the Act. As such, I advised parties that the model consultation term will apply as a term of the Agreement unless any party has an objection.

The particular concern held by me is that the Agreement does not on its face appear to require National Jet to consult about a change to employees’ regular roster or ordinary hours of work. In this regard, s.205 provides:

“205 Enterprise agreements to include a consultation term etc.

Consultation term must be included in an enterprise agreement

(1) An enterprise agreement must include a term (a consultation term) that:
(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about:

(i) a major workplace change that is likely to have a significant effect on the employees; or
(ii) a change to their regular roster or ordinary hours of work; and

(b) allows for the representation of those employees for the purposes of that consultation.

(1A) For a change to the employees’ regular roster or ordinary hours of work, the term must require the employer:
(a) to provide information to the employees about the change; and
(b) to invite the employees to give their views about the impact of the change
(including any impact in relation to their family or caring responsibilities); and

(c) to consider any views given by the employees about the impact of the change.”

National Jet disagrees that Clause 1.8 of the Agreement does not comply with each of the requirements of s.205 of the Act. The Clause in full provides:

“1.8     CONSULTATIVE MECHANISM AND PROCEDURES
Consultative Mechanism
1.8.1    A Cabin Crew Consultative Group (CCCG) has been established in conjunction with the Unions as one of the mechanisms for consultation on the application of the Agreement or other matters as agreed between the parties which may include matters relating to major change.
1.8.2    The CCCG aims and objectives and governance are as per an agreed Charter.
Consultation on major change
NJOS to notify
1.8.3    Where NJOS has made a definite decision to introduce major changes in production, program, organisation, structure, technology or proposes to introduce a change to ordinary hours of work or the manner in which hours are rostered that are likely to have significant effects on employees, NJOS must notify the employees who may be affected by the proposed changes and their Unions or representatives if any.
1.8.4    It is noted that the Cabin Crew are rostered to work on each day of the year with variable monthly or 28 day Rosters compiled and distributed prior to each Roster Period under terms as detailed in this agreement.
1.8.5    Significant effects include termination of employment, major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this Agreement makes provision for alteration of any of these matters such an alteration is deemed not to have significant effect.
NJOS to discuss change
1.8.6    NJOS must discuss with the employees affected and their nominated Unions or representatives, if any, the introduction of the changes referred to in clause 1.8.3.
1.8.7    The effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their Unions or representatives in relation to the changes.
1.8.8    The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 1.8.3.
1.8.9    For the purposes of such discussion, NJOS must provide in writing to the employees concerned and their Unions or representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

National Jet submits that in accordance with s.205(1), Clause 1.8.3 requires it to consult the employees to whom the Agreement applies about a major workplace change that is likely to have a significant effect on the employees or a change to their ordinary hours of work, and both Clauses 1.8.3 and 1.8.6 of the Agreement allow for the representation of those employees for the purposes of consultation. Clause 1.8.4 clarifies that Cabin Crew are rostered to work on each day of the year, so in a practical sense it argues there can be no change made by the employer to the employee’s roster.

National Jet further submits that addressing s.205(1A) of the Act, Clause 1.8.9 requires the employer to provide information to employees about the changes (which would include changes to ordinary hours of work), Clauses 1.8.6, 1.8.7 and 1.8.8 when read together have the effect of inviting employees to give their views about the impact of the change, and Clause 1.8.7 requires the employer to consider any views provided by the employees and/or their representatives in relation to the change (which would include the impact of the change).

The TWU submits that the model consultation term should apply as a term of the Agreement, however Clauses 1.8.1 – 1.8.2 of the Agreement should be preserved regarding the establishment of the Cabin Crew Consultative Group which is an addition to the minimum requirements for a compliant consultation term. The TWU does not agree that Clauses 1.8.1 – 1.8.2 pertaining to the Cabin Crew Consultative Group will have to be displaced if the model consultation term is to apply as a term of the Agreement. The TWU seeks the Commission’s decision state that Clauses 1.8.3 – 1.8.9 are replaced by the model consultation term.

Further, the issue it says with Clause 1.8 is that sub-clause 1.8.3 provides that consultation will occur where National Jet proposes to introduce a change to ordinary hours of work or the manner in which hours are rostered that are likely to have significant effects on employees. Section 205(1A) of the Act requires the consultation term for a change to the employees’ regular roster or ordinary hours of work, but it is not restricted to where this is likely to have significant effects on employees.

In responding to National Jet’s submission that refers to “a change to their ordinary hours of work”, reference to s.205(1)(a)(ii) of the Act states “a change to their regular roster or ordinary hours of work” the FAAA submits that both apply and changes to employees regular roster will occur when the current monthly rosters be replaced with 28 day rosters as currently adopted by QANTAS Mainline. They further say that the limitation with the model term is that it does not require notification to the union of the changes and does not include a regular consultation mechanism such as the Cabin Crew Consultative Group.

Both the TWU and FAAA seek to have the clauses of the Agreement dealing with the establishment of the Cabin Crew Consultative Group preserved or the model consultation term be varied. Similarly to the TWU, the FAAA seeks the model term replace Clauses 1.8.3 – 1.8.9 of the Agreement and Clauses 1.8.1 and 1.8.2 be retained.

The Commission cannot accept an undertaking to address concerns about the consultation term, with s.190 providing that an undertaking may be accepted if it meets a concern held by the Commission under either ss.186 or 187. Neither of those sections deal with the requirements of s.205. As stated by the Full Court in Teekay Shipping (Australia) Pty Ltd v Auld:

“The evident legislative intent in s 205(2) is that, if enterprise agreement fails to include a consultation term in accordance with the definition in s 205(1) and (1A), the persons bound by that agreement must consult in accordance with the [Model Consultation Term] and not follow the insufficient process, if any, that the agreement contained apart from the MCT.”[2]

The concern I hold with Clause 1.8 of the Agreement is that the Clause does not explicitly provide for changes to the employees’ “regular roster” (compare Clause 1.8.3 with s.205(1)(a)(ii)) and does not require National Jet in the course of consultation “to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities) (compare Clauses 1.8.6 – 1.8.9 with s.205(1A)(b)).

While National Jet submit that “Clause 1.8.4 clarifies that Cabin Crew are rostered to work on each day of the year, so practically there can be no change made by NJOS to the employee’s roster” such is merely to say that an employee may be rostered on any day of the year, not that they are. It would be inconceivable that any given employee would be rostered to work 365 days a year. The Explanatory Memorandum that led to the provisions of s.205(1A) plainly posits the section as only being triggered where the change relates to ‘regular’ rosters or ordinary working hours:

“44. ‘Regular roster’ in new paragraph 145A(1)(a) is not defined. It is intended that the requirement to consult under new section 145A will not be triggered by a proposed change where an employee has irregular, sporadic or unpredictable working hours. Rather, regardless of whether an employee is permanent or casual, where that employee has an understanding of, and reliance on the fact that, their working arrangements are regular and systematic, any change that would have an impact upon those arrangements will trigger the consultation requirement in accordance with the terms of the modern award. The employer will be required to inform employees about the proposed change to their regular roster or ordinary hours of work and invite employees to give their views on the impact of the proposed change (particularly any impact upon the employees’ family and caring responsibilities), and consider those views.”[3]

Whether any given employee has “an understanding of, and reliance on the fact that, their working arrangements are regular and systematic” will be a question of fact in their own unique circumstances whether or not the Agreement prescribes as it does that they may be “rostered to work on each day of the year”. While there may be a managerial objective of “variable monthly or 28 day Rosters compiled and distributed prior to each Roster Period” one should not be so bold as to suggest that what actually occurs in the field is never a regular roster.

As a result, I am not satisfied that the requirements of s.205 have been met. It follows that the s.205(2) is activated which means that upon approval the model consultation term will be taken to be a term of the Agreement.

NES - Item 6 – Casual Conversion

Clause 3.7.2 of the Agreement indicates that ‘where a permanent vacancy exists’ a casual cabin crew member shall be provided with an opportunity to convert to that permanent employment. Whereas s.66B and s.66F of the Act provides entitlement to convert where the casual has been employed for 12 months and have in the last 6 months worked a regular pattern of hours. The concern I hold is that the clause in the Agreement may be more restrictive than the NES where employees may also be required to work beyond the timeframes specified in s.66B of the Act. I however note in s.66C that an offer is not required where there are reasonable grounds not to make the offer, and the nonexistence of a permanent vacancy may be considered reasonable grounds.

National Jet submit that an undertaking is not required. It submits that the non-existence of a permanent vacancy would be reasonable grounds not to make the offer. Clause 3.7.2 of the Agreement is otherwise more beneficial than the NES (ss.66B and 66F) since it is not dependent upon the employee having been employed for any period before being given an opportunity to convert to permanent employment. Further, National Jet does not employ any causal employees and does not intend to employ casual employees in the future.

The TWU submits that a specific undertaking is required. The TWU disagrees that Clause 3.7.2 will always be more beneficial than the NES by virtue that it is not dependent on an employee being employed for a certain period. It will be less beneficial if an employee is not provided an opportunity to convert within the timeframes required by the NES on the basis that no permanent vacancy exists. Further it submits that a BOOT assessment should take into account that Clause 3.7 is less beneficial when compared to the Award as it does not include that casual employees are entitled to minimum payment of 4 hours’ work as per Clause 11.2 of the Award.

The FAAA in its original log of claims sought the casual conversion process under the NES be copied into Clause 3.7 of the Agreement however it was not agreed to by National Jet. It submits that such a process should be incorporated or copied into Clause 3.7.

National Jet offer an undertaking if I am not satisfied that Clause 1.5.1 of the Agreement remedies any deficiencies regarding entitlements otherwise provided under the NES. The TWU and FAAA agrees with the draft undertaking provided by National Jet.

I accept the draft undertaking provided by National Jet as resolving this concern. This matter is resolved.

NES - Item 7 – Parental Leave

Clause 6.5.4 of the Agreement is more restrictive than provided for under Division 5 of the National Employment Standards, with Subdivision B commencing at s.70. The Clause provides that “A Cabin Crew Member is not entitled to take parental leave at the same time as the Cabin Crew Member’s spouse, except for up to three weeks after the birth or adoption.”

The Clause prevents employees from taking parental leave concurrently with their spouse, which is not within the NES. National Jet submit that Clause 1.5.1 of the Agreement operates to remedy any deficiencies regarding entitlements otherwise provided under the NES.

The TWU submits that there are further less beneficial entitlements pertaining to parental leave in Clause 6.5 which are inconsistent with the NES, and they say should be addressed by specific undertakings. The TWU raise the requirements that employees commence their parental leave 6 weeks before the expected date of birth and that they must make a request to return to work part-time at least 12 weeks prior to the date their due to return to work.

The FAAA’s brief submission on this matter agrees and supports the Commission’s position.

National Jet offer an undertaking if I am not satisfied that Clause 1.5.1 of the Agreement remedies any deficiencies regarding entitlements otherwise provided under the NES. National Jet’s proposed undertaking is “Clause 6.5.4 of the Agreement will not operate in a manner that is inconsistent with section 70 of the Act”. The TWU and FAAA agrees with the draft undertaking provided by National Jet.

I do not see a need to directly address the TWU’s concerns in an amended undertaking, as the matters raised do not show a direct inconsistency between the terms of the Agreement and the NES.

I do not accept the draft undertaking provided by National Jet as resolving the Commission’s concerns as the proposal does not directly address the inconsistency between the face of the Agreement and the NES. Employees are entitled to having their provisions of their enterprise agreement reflect their actual entitlements and not to purport to present a provision which is incorrect. To not ensure accuracy on these matters is to potentially mislead those covered by the Agreement.

Enterprise agreements by definition apply within enterprises and are used by those covered by them, such as the employees covered by this Agreement, to understand their rights and obligations. As far as is reasonably possible employees covered by an agreement or their advisers should not have to research legislation in order to understand the outer limits of those rights and obligations. It is generally insufficient for a party to suggest the concern is resolved simply as a matter of law because the NES cannot be excluded when the agreement deals specifically with the same subject, implying the agreement is the sole source of entitlement or obligation or to provide an undertaking with a simple incantation that the NES will apply to the extent of any inconsistency, especially when no documented statement is given about the right or obligation which prevails.

In order to resolve the matter I will accept an undertaking in either of the following or not dissimilar terms:

Alternative 1: “The provisions of clause 6.5.4 will have no effect and will not be relied upon by National Jet Operations Services Pty Ltd.”; or

Alternative 2: “The provision in clause 6.5.4 that a Cabin Crew Member is not entitled to take parental leave at the same time as the Cabin Crew’s spouse will have no effect and will not be relied upon by National Jet Operations Services Pty Ltd.”

NES - Item 8 – Public Holiday

Clause 6.8.1 of the Agreement indicates that an employee may be required to work on a public holiday, however does not specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable, or the refusal is reasonable. I raised this as potentially being inconsistency with s.114(3) of the Act.

National Jet submit that when the clause is read in conjunction with Clause 1.5.1 the provision is not inconsistent with s.114(3) as employees may still refuse to work on a public holiday in accordance with the NES.

The TWU submit that the matter should be addressed by way of a specific undertaking.

The FAAA’s brief submission on this matter agrees and supports the Commission’s position.

QANTAS Group has a separate process in place for requesting employees to work on a public holiday which is applied by National Jet.

National Jet offer an undertaking if I am not satisfied that the Clause is not inconsistent with s.114(3) of the Act. The TWU and FAAA agrees with the draft undertaking provided by National Jet.

Clause 6.8 stipulates two things: payment for working on a public holiday is included within the Agreement’s annual salaries, and there is no substitute day due to an employee who does not work on a public holiday. Neither provision infringes the judgement in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd which held with reference to ss.114 – 116 that employees were entitled to be absent from employment for a day or part day that is a public holiday and to be paid for that day of absence.[4]

Accordingly, I accept the draft undertaking provided by National Jet as resolving this concern. This matter is resolved.

NES - Item 9 – Termination

Clause 9.2.6 of the Agreement provides that where the employee wishes to terminate the employment, the notice given must be 1 week during the first six months of service and 4 weeks after the first six months of service. I hold a concern that these requirements appear to be restrictive when compared to s.117(3) of the Act.

National Jet submit that an undertaking is not necessary as s.117(3) of the Act provides for the requirement by an employer to provide notice of termination or payment in lieu. The Act does not otherwise specify any minimum period of notice required to be given by an employee.

The TWU submits that notice of termination by an employee is provided for in Clause 29.1 of the applicable Award and mirrors the notice of termination in s.117 of the NES save for that the employee doesn’t have to give additional notice based on the age of the employee. The TWU therefore submits that Clause 9.2.6 notice requirements appear to be restrictive compared to the Award and as such remains a BOOT concern.

The FAAA submits that the Act and the NES is silent about employees giving notice rather it is covered by the Award which prescribes the same notice period as s.117(3) of the Act.

I accept the submissions and an undertaking on the subject is not necessary. This matter is resolved.

NES - Item 10 – Withholding of NES entitlements

Clause 9.2.10 of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination equal to the shortfall in notice. Clause 29.1(d) of the Award limits this amount to no more than 1 week’s wages. I raised a concern that this may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

National Jet submit that Clause 1.5.1 of the Agreement operates to remedy any deficiencies regarding entitlements otherwise provided under the NES and that therefore an undertaking is not required. If this is not accepted, they offer an undertaking addressing the matter.

The TWU submit that the undertaking offered by National Jet is required to address that deductions cannot be made from NES entitlements (which it says is not necessarily clarified by the NES precedence clause) and can only be restricted to 1 week’s wages as prescribed by the Award. The TWU agree with the draft undertaking offered by National Jet.

The FAAA agrees that the undertaking offered by National Jet is required to address this matter.

The parties agree to the terms of the draft undertaking for the withholding of NES entitlements. This matter is resolved.

NES - Item 11 – Redundancy

Clause 9.3.3.1.1 of the Agreement provides that whether an employee finds acceptable alternative employment, the company will not be obliged to pay severance pay however the provision is not subject to an application under s.120 of the Act.

National Jet submit that when the Clause is read in conjunction with Clause 1.5.1 that it does not remove the requirement for the employer to apply to the Commission to determine the amount of redundancy pay under s.120 of the Act. Accordingly, they say that an undertaking is not required.

The FAAA’s brief submission on this matter agrees and supports the Commission’s position.

National Jet offer an undertaking if I am not satisfied that Clause 1.5.1 of the Agreement remedies any deficiencies regarding entitlements otherwise provided under the NES. The TWU and FAAA agrees with the draft undertaking provided by National Jet.

I accept the draft undertaking provided by National Jet as resolving this concern. This matter is resolved.

NES - Item 12 – Compassionate leave

Clause 6.3 of the Agreement does not provide compassionate leave for stillbirth/miscarriage consistent with s.104(1)(b) and (c) of the Act.

National Jet submit that Clause 1.5.1 operates to remedy any deficiencies regarding entitlements otherwise provided under the NES such that employees can access two days of compassionate leave for each occasion when a child is still born or where the employee, or the employee’s spouse or de facto partner, has a miscarriage consistent with s.104(1)(b)(c) of the Act.

The TWU submits that this matter should be addressed by a specific undertaking.

The FAAA’s brief submission on this matter agrees and supports the Commission’s position.

National Jet offer an undertaking if I am not satisfied that Clause 1.5.1 of the Agreement remedies any deficiencies regarding entitlements otherwise provided under the NES. The TWU and FAAA agrees with the draft undertaking provided by National Jet.

National Jet’s proposed undertaking is in stark terms and does not make explicit the entitlement of employees to compassionate leave in the event of a still-birth or miscarriage, stating only that:

“Clause 6.3 of the Agreement will operate subject to the National Employment Standards in that an employee remains entitled to compassionate leave in accordance with section 104(1)(b) and (c) of the Act”.

These are important rights that should not be masked behind a mere numeric reference to two sections of the Act. The Agreement’s Clause 3.3 entitled “Compassionate Leave” would likely be seen by a grieving employee as purporting to be a comprehensive statement of rights. In that regard the proposed undertaking is inadequate. I am though prepared to accept the following as resolving the Commission’s concerns if it were given as an undertaking:

“Clause 6.3 (Compassionate Leave) of the Agreement will operate subject to the National Employment Standards in that an employee remains entitled to compassionate leave in accordance with section 104(1)(b) and (c) of the Act which respectively provide for leave in the case of a still-birth or miscarriage.”

BOOT - Item 13 – Annualised salaries

Agreement Schedule 1 – Rates of Pay provide for “per annum base salary for Cabin Crew” which National Jet submit “are a salary, not an annualised wage arrangement”.

The Commission’s concern as originally expressed was that the salaries were taken to be an annualised wage arrangement with no provision for a review period or cancellation arrangements. A concern was also expressed about whether the BOOT would be passed in respect of an employee working on B717 aircraft.

National Jet submissions reinforce that the rates of pay in Schedule 1 are a salary, not an annualised wage arrangement and are paid either bi-monthly or fortnightly (from commencement of a 28-day roster period). It submits that an undertaking is not required in relation to this matter and provided modelling for employees working on B717 aircraft. That modelling shows an employee working on B717 aircraft and in receipt of the allowances provided for within the Agreement would be greater than 15% better off.

The TWU submit that it agrees there is a lack of review arrangements for the Agreement’s annualised salaries and the hourly rates of pay for B717 Cabin Crew Members appearing to equate to the Award’s minimum hourly rate for Cabin Crew Members. It also raises that many of the allowances in the Agreement are contingent on particular circumstances being met, and it is unclear if the broadly applicable daily travel allowance of $5.02 per hour plus the fixed miscellaneous expense and grooming and uniform allowances of $3,609.78 and $2172.59 do result in B717 Cabin Crew Members being better off overall compared to being paid the all-inclusive flying allowance of $16.40 in Schedule A.1.7 of the Award over the course of the year or over a 28-day or calendar month roster period. It notes that it would appear to depend on the amount of block hours worked by the Cabin Crew Member.

The FAAA agrees with National Jet that the rates of pay in Schedule 1 are not an annualised wage arrangement but a salary. It however submits that a reconciliation clause is required to ensure the annual rate of pay does not fall below the Award. It says that as a minimum a reconciliation should be completed when the Commission releases its National Wage Case each year and if the current rate in Schedule 1 of the Agreement is required to be increased that it occurs in the first pay period after 1 July.

In its further submissions, the TWU agrees with the FAAA that a reconciliation clause by way of an undertaking is required to ensure that the rate of pay for B717 Cabin Crew Members do not fall below the base rate of pay in the Award.

The Agreement provides annual salaries from the seven days after approval of the Agreement by the Commission as well as two further dates, of 1 July 2024 and 1 July 2025. The nominal expiry date of the Agreement is 30 June 2026. There is a need when assessing the BOOT for the Commission to take account of all that is known at that time with the BOOT analysis not being confined to provisions of an agreement that are applicable only at its inception.[5] However, the Commission’s assessment is at the point of time the agreement is considered for approval and there is no requirement that an agreement be assessed against Award provisions which are not known at the test time.

I accept National Jet’s submissions on this subject as resolving this concern.

BOOT - Item 14 – Rates of pay equal to the Award

B717 Cabin Crew Members appear to be paid $25.67 per hour when their annual salary is converted to an hourly rate. Whilst this rate of pay demonstrated that this rate is 0.02% above the Award, this may be due to rounding and in effect, employees appear to be paid equal to the Award. I raised a concern that this rate of pay may not be high enough to ensure employees are better off overall, particularly with the lack of a sufficient reconciliation clause as noted in Item 13.

National Jet submit that in addition to a base salary that is 0.02% above the Award, a B717 Cabin Crew Member is also entitled to fixed allowances in Schedule 1 of miscellaneous expense reimbursement, grooming and uniform and a purser allowance in addition to a daily travelling allowance of $5.02 per duty hour. It submits that these allowances offset the less beneficial leave loading in the Agreement.

The TWU submit that in considering whether employees are better off overall under the Agreement, the assessment should take into account the less beneficial annual leave loading. In its further submissions, the TWU agrees with the FAAA that a reconciliation clause by way of an undertaking is required to ensure that the rate of pay for B717 Cabin Crew Members do not fall below the base rate of pay in the Award.

The FAAA submits that the application of the annual leave loading under the Award and the Agreement produces the same result.

I accept National Jet’s submissions on this subject. Accordingly, this concern is resolved.

BOOT - Item 15 – Part-time safeguards

The Agreement is silent on part-time safeguards as contained in Clause 10 of the Award.

National Jet respond to this matter submitting that while the Agreement does not contain equivalent terms to Clauses 10.3, 10.4 and 10.5 of the Award, the Agreement does contain a number of safeguards in respect of part-time employees. Clause 3.5 of the Agreement is prescriptive to the benefit of employees as to the rostering arrangements for part-time employees including that:

Planned duty hours are 65 hours per month rostered to a maximum of 12 days per month (for 50% part-time) and 98 hours per month rostered to a maximum of 16 days per month (for 75% part-time)
Part-time employees receive a roster build that includes the rostered days off specified in Clause 3.5.6 and a combination of duty days

Blank days shall be preceded and followed by duty free periods totalling a minimum of 10 hours in any combination, except where a consecutive blank day and RDO are allocated

All work performed on a blank day will be paid at single time extra pay rates.

The TWU submit that it is unclear if the safeguards for part-time employees in Clause 10 of the Award will apply, particularly with respect to being rostered for a minimum of 4 hours on any shift and being paid overtime for hours worked in excess of the mutually agreed regular pattern of work and such should be considered in determining whether employees are better off overall.

The FAAA submits that Clause 3.5 of the Agreement does not provide permanent part-time employees a regular pattern of work and rostering employees for a minimum of 4 hours. They say QANTAS Mainline Domestic have seniority in bidding where part-time employees can bid for certain days in a roster period and these may be assigned based on seniority.

I accept National Jet’s submissions as meaning that part-time employees will be better off overall because of the provisions of the Agreement. The requirement that part-time employees will have the planned duty hours as set out above are important protections for the employees; while they operate differently to the Award’s prescriptions they may be regarded as no less effective in giving a part-time employee certainty about their hours of work.

As a result, I consider this concern to be resolved.

BOOT - Item 16 – Domestic flying specific entitlements

The Agreement does not appear to provide for replacement of uniforms by the employer as a result of fair wear and tear, higher duties for work in a higher classification for a temporary period, and ground transport allowance, as contained in Schedule A of the Award for employees engaged in domestic flying. The concern was expressed to National Jet that the rate of pay in the Agreement may not be high enough to compensate for these silent entitlements for employees engaged as Cabin Crew Member – B717. I note that whether these deficiencies are BOOT issues is dependent on the reasonable foreseeability of their occurrence across the scheme of a year.

National Jet submit that a Cabin Crew Member will be better off overall working under the Agreement even when considering the provision of replacement uniforms as a result of fair wear and tear and ground transport allowance in the Award. Higher duties for work in a higher classification are provided for with the purser allowance. This is in addition to the Cabin Crew Trainer Allowances and Senior (and Assistant) Base Cabin Crew Allowances outlined in Schedule 1.

The TWU notes National Jet’s submission that the higher duties allowance provided in the Award is instead provided for in the Agreement’s purser allowance in addition to the Cabin Crew Trainer Allowance and Base Cabin Crew Allowance. It does however raise that the Cabin Crew Trainer Allowance is lower than provided in the Award. Further it submits that there are no provisions for the replacement of uniforms as a result of fair wear and tear, and there are no provisions for the ground transport allowance which must be paid in certain circumstances under the Award and not just may be granted by the Applicant. It says each should be considered in assessing whether employees are better off overall.

The FAAA agrees that Clause 7.4 of the Agreement is silent about uniforms being replaced by the employer subject to fair wear and tear. Further, it makes a submission on higher duties being found in 2 parts of the Agreement and ground transport allowance being found in 3 parts of the Agreement.

The issues raised both in the Commission’s initial concern, as well as the submissions from the TWU and FAAA are each likely to have relatively minor monetary effect and I consider that such impact as they do have is answered cogently by National Jet’s BOOT submissions, which include the spreadsheet it provided relating to B717 crew. That material shows employees will receive not only the annual salaries specified by the Agreement but allowances as well. In relation to uniforms, while the Award provides the employer must provide uniforms if they are required with the employer responsible for replacement at the point of fair wear and tear (Clause A.1.2) the Agreement provides for a grooming and uniform allowance which increases according to service as well as being increased over the life of the Agreement. I am satisfied that once the effect of all allowances is taken into account employees are demonstrably better off overall under the Agreement even though it does not provide for replacement of uniforms by the employer as a result of fair wear and tear, higher duties for work in a higher classification for a temporary period, and ground transport allowance, as contained in Schedule A of the Award for employees engaged in domestic flying.

I am satisfied that that this concern is also resolved.

Additional matter raised by TWU - Clause 6.2 of the Agreement

The TWU submits that the Agreement is inconsistent with the NES in the way it requires notification of personal leave absence, since it requires notification within a specified time from and appears to limit the circumstances in which a statutory declaration evidencing absences may be given. So far as is relevant, Clause 6.2 which deals with Personal Leave, provides:

“6.2.5 Notice and Evidence Requirements
In accordance with the National Employment Standards (NES) incorporated in the Fair Work Act, Cabin Crew who request an absence from work to access Personal / Carer’s / Compassionate Leave must provide NJOS both notice and evidence of the absence.
6.2.6 Notice:
6.2.6.1.1 must be provided to NJOS Operations Control Centre as soon as possible and where practicable no later 2 hours prior to their rostered duty commencement time; and
6.2.6.1.2 must include the expected duration of the absence and the expected date of return to duty; and
6.2.6.1.3 if expected date of return to duty changes, Cabin Crew must notify NJOS Operations as soon as practicable.

6.2.7 Evidence:
6.2.7.1 Cabin Crew who have given notice of an absence must provide supporting documentation (excluding provisions of clause 6.2.7.3) that the leave is taken for a reason specified in clause 6.2.1. The supporting documentation must be provided at the first available opportunity or as requested by NJOS.
6.2.7.2 Cabin Crew absence from work that does not comply with the Notice and Evidence Requirements herein will be regarded as an unauthorised absence and will not carry an entitlement to payment.
6.2.7.3 Cabin Crew shall provide medical certificates when an absence is for personal illness or injury on the following basis:

6.2.7.3.1 A certificate from a registered health practitioner shall accompany an application for personal illness or injury or such leave shall not carry any entitlement to pay. However,
6.2.7.3.2 NJOS shall grant personal leave under Clause 6.2.1.1 with pay to Cabin Crew without a medical certificate for up to four single days in each twelve (12) month period based on service anniversary provided that the absence is not immediately preceding or the day immediately after any form of annual leave or long service leave or Rostered Day Off:

6.2.8 Notwithstanding the provisions contained in Clause 6.2.7.3, each day of absence for personal illness or injury taken the day immediately before and or the day immediately after a period of annual leave or long service leave shall be accompanied by a certificate of a qualified medical practitioner, or such absence shall not carry any entitlement to pay.
6.2.9 Where it is not reasonably practical for Cabin Crew to obtain a certificate of a qualified medical practitioner, a Statutory Declaration will be acceptable provided that:
6.2.9.1 The absence is for a single day illness or injury;
6.2.9.2 The absence is not immediately preceding or the day immediately after any form of annual leave or long service leave or Rostered Day Off; and
6.2.9.3 A Statutory Declaration is not used on more than three (3) occasions in any calendar year.”

In contrast to these provisions the NES provides that an employee progressing on personal leave must give their employer notice “as soon as practicable (which may be a time after the leave has started)” (s.107(2)) and must, if required by their employer evidence their absence by giving the “employer evidence that would satisfy a reasonable person” (s.107(3)).

National Jet does not agree that an undertaking is required for Clause 6.2 of the Agreement concerning notice requirements as the requirements in the Clause are consistent with the NES. The TWU presses that Clause 6.2 is inconsistent with the NES as in the NES there is no requirement that notice must be provided where practicable 2 hours before and no restrictions on when statutory declarations can be provided as supporting evidence.

The FAAA does not make a submission on this matter.

The terms of the Agreement in respect of the giving of notice to National Jet by an employee advancing on personal leave are not inconsistent with the NES. In this regard, the obligation on employees is to provide notice “as soon as possible and where practicable no later 2 hours prior to their rostered duty commencement time” (Clause 6.2.6; underlining added). Plainly the requirement to provide the notice “as soon as possible” is not dissimilar to “as soon as practicable” even if it is conditioned with the expectation that “where practicable [it be] no later [than] 2 hours prior”.

The Agreement’s provision in respect of evidencing the leave though are not consistent with the NES and neither can they be considered ancillary or supplementary. This is because the NES is quite specific and in different terms to the Agreement: it is sufficient for the notice to be in evidence of a kind “that would satisfy a reasonable person”. The provisions are also unable to be considered as ancillary of incidental to the NES (s.55(4)) as terms “that are ancillary or incidental to, or that supplement, the NES must not be detrimental to an employee in any respect when compared to the NES”.[6]

In order for the Agreement to be approved it will be necessary for National Jet to provide an undertaking to the Commission in the following or similar terms:

“Irrespective of the provisions of clause 6.2.7, 6.2.8 and 6.2.9 in all cases it will be sufficient for an employee seeking payment of paid Personal/Carer’s Leave to provide evidence that would satisfy a reasonable person that the leave taken is for paid Personal/Carer’s Leave”.

CONCLUSION

The concerns held by me are referred to above. If the undertakings referred to above are amended as required by me and formally given then subject to seeking the views of the bargaining representatives on the undertakings my disposition is to approve the Agreement, being satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. At the time of approval the model flexibility term and model consultation term will be taken to be terms of the Agreement and the final undertakings published as terms of the Agreement.

For the purposes of clarity:

Upon approval the model flexibility term will be taken to be a term of the Agreement AND
Upon approval the model consultation term will be taken to be a term of the Agreement AND

The following undertakings or alternatives in not dissimilar terms are required to be formally provided by National Jet:

Relating to Item 6 – Casual Conversion:

“Clause 3.7.2 of the Agreement will operate subject to the National Employment Standards in that a casual employee will be made an offer to convert to permanent employment following a period of 12 months service and during at least the last 6 months of that period, has worked a regular pattern on an ongoing basis, unless such an offer is not required by section 66C of the Fair Work Act 2009 (Cth) (“the Act”).”

Relating to Item 7 Parental Leave – either of the following alternatives or another in not dissimilar terms:

Alternative 1: “The provisions of clause 6.5.4 will have no effect and will not be relied upon by National Jet Operations Services Pty Ltd.”; or
Alternative 2: “The provision in clause 6.5.4 that a Cabin Crew Member is not entitled to take parental leave at the same time as the Cabin Crew’s spouse will have no effect and will not be relied upon by National Jet Operations Services Pty Ltd.”

Relating to Item 8 – Public Holidays:
“Clause 6.8.1 of the Agreement will not operate in a manner that is inconsistent with section 114(3) of the Act.”

Relating to Item 10 – Withholding of NES entitlements:
“Clause 9.2.10 of the Agreement, will be read as if it stated: If the employee does not give the Company the required period of notice in clause 9.2.6, then the Company may deduct from wages due to the employee under the Agreement an amount that is no more than one week’s wages for the employee, provided that:

i. the employee is at least 18 years old;
ii. the Company has not agreed to a shorter period of notice than that required under clause 9.2.6; and
iii. the deduction is not unreasonable in the circumstances.”

Relating to Item 11 – Redundancy:
“Clause 9.3.3.1.1 will be read as if it stated: If NJOS find for the Cabin Crew Member acceptable alternative employment, NJOS will not be obliged to pay severance pay under the Agreement, but will be obliged to pay an amount of redundancy pay under s.119 of the Act, subject to NJOS making an application to the Fair Work Commission under s.120 of the Act.”

Relating to Item 12 – Compassionate Leave:
“Clause 6.3 (Compassionate Leave) of the Agreement will operate subject to the National Employment Standards in that an employee remains entitled to compassionate leave in accordance with section 104(1)(b) and (c) of the Act which respectively provide for leave in the case of a still-birth or miscarriage.”

Relating to evidence for paid Personal/Carer’s Leave:

“Irrespective of the provisions of clause 6.2.7, 6.2.8 and 6.2.9 in all cases it will be sufficient for an employee seeking payment of paid Personal/Carer’s Leave to provide evidence that would satisfy a reasonable person that the leave taken is for paid Personal/Carer’s Leave.”

In order to finalise the application, and consistent with the foregoing:

National Jet is directed to either provide undertakings in the form proposed above, or to express its views on them, by no later than 4 PM Tuesday 26 September 2023; and

The TWU, FAAA and any other bargaining representative are directed to express such views as they may hold about the proposed undertakings, or any views expressed by National Jet about them, by no later than 4 PM Thursday 28 September 2023.
Should any party seek to be heard on the form of the undertakings (within the confines of the determination made by me in this decision), such will be at 10 AM Monday 2 October 2023.

COMMISSIONER

Final written submissions:

National Jet 4 September 2023

TWU 28 August 2023

FAAA 28 August 2023

[1] Item 8 erroneously references Clause 6.7.1 of the Agreement. This should however reference Clause 6.8.1 of the Agreement.

[2] [2020] FCAFC 206, [79]; per Rares and Logan JJ, with Wigney J expressing the view that “once the model consultation term is taken to be part of the Enterprise Agreement, it effectively supplanted or displaced the otherwise deficient or defective clause or clauses that purported to provide for consultation.” [145].

[3] Explanatory Memorandum to the Fair Work Amendment Bill 2013.

[4] [2023] FCAFC 51, [30].

[5] Australian Nursing and Midwifery Federation v Domain Aged Care (QLD) Pty Ltd T/A Opal Aged Care[2019] FWCFB 1716, [27].

[6] Maritime Union of Australia v FBIS International Protective Services (Aust) Pty Ltd[2014] FWCFB 6737, [23]; this finding was not disturbed in the judgement of the Full Federal Court in FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90.

Printed by authority of the Commonwealth Government Printer

< PR766428>

[2023] FWC 2432

21 SEPTEMBER 2023