National Union of Workers v Qantas Airways Limited
[2010] FWA 4991
•23 JULY 2010
[2010] FWA 4991
The attached document replaces the document previously issued with the above code on 23 July 2010. Please note that the correct case number (C2009/282) now replaces the previous incorrect case number (C2009/283) in the preamble of the decision.
B. Brown
For Commissioner Raffaelli
10 August 2010
[2010] FWA 4991 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
National Union of Workers
v
Qantas Airways Limited
(C2009/282)
Airline operations | |
COMMISSIONER RAFFAELLI | SYDNEY, 23 JULY 2010 |
Jurisdiction dispute arising under Agreement - operation of No Extra Claims clause.
[1] The National Union of Workers (the Union) is in dispute with Qantas Airways Limited (Qantas) over the company’s decision to alter the method of allocating overtime at the Qantas Mascot Freight terminal.
[2] For many years up to the end of 2009, overtime was allocated by Mr Geoff Brown, a storeperson and member of the Union. When he was not working, the allocation was performed by other storepersons. That system reflected site agreements between the Union and local Qantas management which had been made in 2001 and again in 2004. I will refer to the 2004 agreement as the 2004 site agreement (Exhibit NUW 7).
[3] Qantas, in about November 2009 instituted different arrangements for the allocation of overtime. These arrangements did not accord with the 2004 site agreement.
[4] The Union seeks a determination that Qantas must continue to adhere to the 2004 site agreement.
[5] The Union and Qantas participated in unsuccessful conciliation. The matter is now sought, by the Union, to be dealt with by arbitration. Given that, Qantas now seeks to raise a jurisdictional objection to Fair Work Australia (the Tribunal) dealing with the matter.
[6] It is not in dispute that the terms and conditions of employment of relevant employees are regulated by the Qantas Airways Limited (National Union of Workers) Enterprise Agreement 8 (AC316746) (the Certified Agreement) which is a transitional agreement under the Fair Work Act 2009 (the Act). By virtue of schedule 19, clause 1 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, disputes arising under a transitional agreement are dealt with under the Workplace Relations Act 1996 (the Former Act). Under the Former Act, sections 709-712 regulate the power of the Australian Industrial Relations Commission and now Fair Work Australia to resolve disputes.
[7] Section 709(1) of the Former Act provides:
“709 Application
(1) A person may apply to the Commission to have a dispute resolution process conducted by the Commission under this Division in relation to a matter or matters in dispute if:
(a) the dispute is one that, under the terms of a workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; and
(b) any steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have been taken.”
and section 710(1) of the Former Act provides:
“710 Grounds on which Commission must refuse application
The Commission must refuse to conduct a dispute resolution process under this Division in relation to a matter in dispute if:
(a) the dispute is not one that, under the terms of the workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; or
(b) any of the steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have not been taken; or
(c) the matter is the subject of proceedings or has already been settled as a result of proceedings, whether before a court or another body, under a law of the Commonwealth or of a State or Territory relating to the prevention of discrimination or to equal opportunity.”
[8] Clause 12, “Dispute Resolution Procedures” of the Certified Agreement provides:
“12.1 In the event of a dispute arising in the workplace about matters arising under this Agreement the procedure to resolve the matter will be as follows : . .”
[9] It was put by Qantas that there is no term in the Certified Agreement that deals with the allocation of overtime, or makes any reference to the 2004 site agreement. Given that the Union characterises the dispute as one arising under the 2004 site agreement and not under the Certified Agreement, this Tribunal is unable to deal with the dispute.
[10] The Union put that the 2004 site agreement operated when the Certified Agreement was made. While clause 7 of the Certified Agreement made reference to other agreements or awards, which were rescinded by the Certified Agreement, the 2004 site agreement was not one of these.
[11] It also referred to the classification structure under the Certified Agreement. At Appendix A, Storeperson - Level 5, is given responsibilities which include “allocates manpower and equipment”.
[12] The Union also referred to the provisions of clause 10 of the Certified Agreement. It reads:
“It is a term of this Agreement that extra claims will not be pursued. Further, all matters in relation to the employment of the employees covered by this Agreement are resolved.”
[13] The Union’s argument reduces to the simple proposition that the 2004 site agreement operated and Qantas’s recent actions is the pursuit of an extra claim, that being the allocation of overtime in a manner different than currently provided.
[14] Qantas’s response is that firstly, the absence of the 2004 site agreement from the list of other awards and agreements in clause 7 of the Certified Agreement is not surprising, as the 2004 site agreement is not a statutory instrument like all the other instruments referred to in clause 7.
[15] Even if the 2004 site agreement reflects an agreement between the parties (although, Qantas disputed such status, noting the document, while signed, refers to itself as a draft) it cannot be said to have anything to do with the Certified Agreement. It cannot be said that a dispute over the 2004 site agreement is a dispute arising under the Certified Agreement.
[16] As to the assertion that overtime allocation is a task of Storeperson - Level 5, this is contrary to the evidence of Mr Frank Ridolfo, the manager of the Sydney Freight Terminal (Exhibit QF1). At paragraph 32 of his statement, Mr Ridolfo said that the allocation of manpower and equipment refers to allocation on the day. It has never been interpreted to mean allocation on days prior, such as overtime shifts.
[17] Further, Qantas put that Mr Brown, the chief allocator under the previous system, has never been a Storeperson - Level 5.
[18] As to reliance on clause 10 “No Extra Claims” in the Certified Agreement, Qantas put that changes to the overtime allocation did not constitute the pursuit of extra claims. It referred to several decisions of the Australian Industrial Relations Commission (AIRC), including that of Senior Deputy President O’Callaghan in Electrolux Home Products Pty Ltd and Automotive Food, Metals, Engineering, Printing and Kindred Industries Union (PR945299)(“Electrolux”) where at paragraph 52 he said:
“. . . It would be illogical to interpret these provisions such that they prohibited any change during the life of the agreement, where those changes are consistent with the specific entitlements and nominated conditions of employment and relate to management practices associated with the administration of these entitlements or conditions.”
[19] Here, Qantas’s changes to overtime allocation have not altered any entitlement to overtime under the Certified Agreement. Rather, they merely relate to changes to the administration of the entitlements. As such, there is no extra claim and there can be no dispute over its application.
Determination
[20] I commence by indicating that I am satisfied that the 2004 site agreement was an agreement reached between the Union and local Qantas management. Although the word “DRAFT” appears, the fact that it has been signed, establishes that it was a final agreed arrangement. The existence of an earlier 2001 site agreement reinforces the status of the 2004 site agreement.
[21] Qantas, by its actions, is seeking to move away from what it previously agreed. It may have good reasons for doing so or not. It may have consulted adequately with the Union or not. These are all questions that may be relevant to any determination I might make. But before doing so, the issue of jurisdiction must be determined.
[22] The 2004 site agreement is not referred to in the Certified Agreement. The fact that the 2004 site agreement is not a replaced instrument under clause 7 of the Certified Agreement is not relevant. Qantas is correct that clause 7 only lists statutory instruments. There is no basis for holding, that unless an instrument is excluded in clause 7, then it must somehow form part of the Certified Agreement or have some working relationship with the Certified Agreement. I reject that argument.
[23] In my view, there is nothing in the Certified Agreement which refers to the 2004 site agreement. Any dispute over the 2004 site agreement cannot be said to be “a dispute arising in the workplace about matters arising under this Agreement” (clause 12.1) and I so find.
[24] I do not consider that the functions and tasks of Storeperson - Level 5 which include “allocates manpower and equipment” is referable to the allocation of overtime. The evidence is that Qantas has never viewed the term “allocates manpower and equipment” as going to allocation of overtime. There is no evidence to the contrary. The principal overtime allocator (named in the 2004 site agreement) is not a Storeperson - Level 5
[25] To base a dispute on the operation of Storeperson - Level 5 definitions and their suggested extension to the quite specific overtime allocation would amount to dealing with the matter on an artificial basis. I do not propose to do so.
[26] As to basing jurisdiction on the application or operation of clause 10 “No Extra Claims”, one needs to focus on whether or not Qantas is pursuing an extra claim. If it is, then there could be said to be a dispute over the application of the clause given the Union’s opposition to such. (It may also be that if Qantas’s new arrangements amount to a new claim, it may be susceptible to prosecution).
[27] Qantas referred to several decisions. In the “Electrolux” decision Senior Deputy President O’Callaghan said at [52]:
“Certified Agreements commonly contain no extra claims commitments. I have applied an approach consistent with that adopted by the Federal Court in Australia Industry Group v AFMEPKIU 2003 FCAFC 183 (Emwest) such that I consider that the no extra claim provision of the 2003 Agreement has application to Electrolux, the unions and the employees covered by that agreement and, as such, excludes either party from pursuing claims for entitlements outside of those covered by the 2003 Agreement. It would be illogical to interpret these provisions such that they prohibited any change during the life of the agreement, where those changes are consistent with the specific entitlements and nominated conditions of employment and relate to management practices associated with the administration of these entitlements or conditions.”
[28] In another matter involving CSL Limited and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others (PR953322), Senior Deputy President Lloyd said in that decision:
“[10] The no extra claims clause characterises the 2004 agreement as full settlement of "all enterprise bargaining claims". The closure of a shift that affects two employees is not in the nature of an enterprise bargaining claim. The alteration of shift arrangements is a change the employer is entitled to make and is not precluded by the agreement. It is a common feature of many businesses that shift arrangements are subject to frequent change with minimal notice. The effect of the CPSU submission would be to preclude almost every act by the employer that was of some benefit to it. Such an outcome would be fanciful and untenable.
[11] In Melbourne Fire and Emergency Services Board and United Firefighters' Union of Australia [PR950883], Commissioner Simmonds found that the refusal of an employer to maintain a pre-existing arrangement is not an extra claim (PN13). The purpose of a no extra claims clause is to restrict a party to the agreement from seeking to vary a clause in the agreement or to add a new clause. The clause is not intended to restrict the capacity of a party to take action in accordance with the agreement's terms. The agreement does not preclude the respondent from closing the shifts.”
[29] In the decision involving the Metropolitan Fire and Emergency Services Board and United Firefighters’ Union of Australia (PR950883) which was referred to by Senior Deputy President Lloyd above, Commissioner Simmonds said:
“[26] The interpretation advanced by the UFU would effectively mean that only agreed change could occur, for in the absence of agreement the Commission would be constrained by the no extra claims provision in clause 49. Clearly, if the intention of the parties was to restrict change to agreed items in that way, then that would be an easy matter to specify, as the parties did with respect to HR policies.
[27] Taking account of the context of the Agreement as a whole, unless the proposed change contemplates variation to a specific entitlement or obligation or goes to a matter outside the scope of the agreement, then it does not amount to an extra claim for the purpose of clause 49. Of course, such change would need to be proposed in accordance with the requirements of clause 11, which calls up the operation of clause 9.”
[30] Significantly, a Full Bench had cause to review the decision of Commissioner Simmonds. In dismissing the appeal (PR956379) that Full Bench said:
“[9] In the decision subject to appeal Commissioner Simmonds dealt with what constituted and “extra claim” in the following terms:
“… unless the proposed change contemplates variation to a specific entitlement or obligation or goes to a matter outside the scope of the agreement, then it does not amount to an extra claim for the purpose of clause 49. Of course, such change would need to be proposed in accordance with the requirements of clause 11, which calls up the operation of clause 9.
[10] The Commissioner then applied this approach to the matters in dispute. In respect of the following matters he determined that the proposal in question did not amount to a change to a specific entitlement or obligation, nor was it a matter that goes beyond the scope of the agreement:
• OSG (see paragraph 32);
• No. 2 Station (see paragraph 40);
• Skills Maintenance (see paragraph 46);
• Community Safety Log (see paragraph 54); and
• Fire Safety Inspection Course (see paragraph 61).
[11] On the basis of that determination the Commissioner concluded that these disputes were not “extra claims” within the meaning of clause 49 of the Agreement. He then proceeded to deal with each of these disputes on the merits.”
[31] That the Full Bench approved of the Commissioner’s approach is clear from the rest of the decision where they proceeded to analyse his findings along the lines envisaged by [10] above.
[32] It seems that the proper approach is to examine whether the change or claims by a party to an agreement represents a change to an entitlement under an agreement or the pursuit of a matter that is outside the scope of an agreement.
[33] In the matter at hand, the Certified Agreement is silent on how overtime work is allocated. It does however provide for overtime. Clause 29 “Overtime” provides as follows:
“29. OVERTIME
29.1 Requirement to work reasonable overtime
29.1.1 Subject to clause 29.1.2 the Company may require an employee to work reasonable overtime at overtime rates.
29.1.2 An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:
29.1.2(a) any risk to employee health and safety;
29.1.2(b) the employee’s personal circumstances including any family responsibilities;
29.1.2(c) the needs of the workplace or enterprise;
29.1.2(d) the notice (if any) given by the Company of the overtime and by the employee of his or her intention to refuse it; and
29.1.2(e) any other relevant matter.
29.2 Payment for working overtime
29.2.1 Day work: Subject to 27.10 and 29.6, all time worked outside agreed ordinary hours must be paid for at the rate of time and a half for the first two hours and double time after that.
29.2.2 Shift work: All time worked outside ordinary hours must be paid for at the rate of double tie unless:
29.2.1(a) the time is worked by arrangement between the employees themselves; or
29.2.2(b) the time is worked for the purpose of effecting the customary rotation of shifts; or
29.2.2(c) the time is worked because a relief worker does not come on duty at the proper time and the relief worker did not give the Company at least eight hours notice of his or her intended absence from work;
29.2.2(d) the employee works make up time in accordance with 27.10 or takes time in lieu in accordance with 29.6.
29.2.3 Provided that when not less than eight hours’ notice has been given to the Company by the relief person that he or she will be absent from work and the employee who should be relieved is not relieved, the unrelieved employee must be paid at the rate of double time until relieved.
29.3 Each day’s overtime stands alone
In computing overtime, each day’s work stands alone.
29.4 Recall to duty
29.4.1 If an employee is recalled to work overtime (whether notified before or after leaving The Company’s premises) the employee must be paid a minimum of four hours at the appropriate rate for each recall.
29.4.2 If the employee works for more than four hours, the employee must be paid for the period actually worked.
29.4.3 This clause does not apply if the overtime is continuous (subject to a meal break) with the completion or commencement of ordinary time.
29.5 Stand-by
29.5.1 If an employee is required by the Company to be on stand-by for work after ordinary hours, the employee must be paid standing-by time at ordinary rates from the time the employee is told he or she is on stand-by until released.
29.5.2 This clause does not apply to an employee who by custom is regularly required to hold himself or herself in readiness for a call back.
29.6 Time in lieu of payment for overtime
29.6.1 Despite 29.1 an employee may choose, with the consent of the Company, to take time off instead of payment for the overtime at a time or times agreed with the Company. The agreement must be in writing. The employee must take the time off within four weeks of working the overtime.
29.6.2 If an employee takes time off instead of payment for overtime them the amount of time off is to be equivalent to the pay the employee would have otherwise received for working the overtime.
29.6.3 If requested by an employee the Company must within one week of receiving the request pay the employee for any overtime worked. The overtime must be paid at overtime rates.”
[34] Clearly, clause 29 provides for a number of obligations or entitlements relating to overtime. The Qantas arrangement for the allocation of overtime does not change any obligation or entitlement under the Certified Agreement.
[35] Nor can the Qantas change be characterized as going to a matter outside the scope of the Certified Agreement. It is about overtime and overtime is comprehensively provided for in the Certified Agreement. A proper characterization is that it is about the administration of overtime.
[36] Consequently, I find that the actions of Qantas do not amount to the pursuit of an extra claim.
[37] In reaching this conclusion, I have considered the second sentence of clause 10. In my view the approach which I have referred to (and I have adopted) concerning “No Extra Claims” is just as applicable to such “all matters in relation to the employment...are resolved”.
[38] Given that, I find the disagreement between the Union and Qantas over the changes to the overtime allocation process is not about clause 10 “No Extra Claims”.
[39] Given all my findings, the Tribunal does not have jurisdiction to resolve the dispute pursuant to Division 5 of Part 13 of the former Act because any resolution can only be about matters arising under the Certified Agreement and no such matter(s) apply.
[40] The application is dismissed for want of jurisdiction.
COMMISSIONER
Appearances:
A. Joseph of counsel with M. Cartwright and S. Mueller for the National Union of Workers.
R. Bernasconi solicitor with P. Smith and R. Bridge for Qantas Airways Limited.
Hearing details:
Sydney
2009
December 11.
2010
June 21.
Printed by authority of the Commonwealth Government Printer
<Price code C, AC316746 PR999002>
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