Qantas Airways Limited
[2014] FWCFB 4587
•17 JULY 2014
[2014] FWCFB 4587 |
FAIR WORK COMMISSION |
DECISION |
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 6, Item 4 - Application to make a modern award to replace an enterprise instrument.
(EM2013/155)
Flight Attendants (Domestic Airlines) Award 1999
VICE PRESIDENT WATSON | MELBOURNE, 17 JULY 2014 |
Flight Attendants Domestic Airlines Award 1999 - whether a modern enterprise award should be made - history as an industry award for full service airlines - significant change in aviation industry - coverage of other employers by modern award - no disadvantage to employees - despite consent, case not made out - application dismissed - Fair Work (Transitional Provisions and Consequential Amendments Act 2009 Schedule 6 sub-items 4(5), 9(3), Fair Work Act 2009s.193.
Introduction
[1] Qantas Airways Limited has made an application under item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) for the Fair Work Commission to make a modern enterprise award to replace the Flight Attendants (Domestic Airlines) Award 1999 (Domestic Flight Attendants Award).
[2] At the hearing of this matter Ms T Firth of counsel and Ms J. Oldmeadow appeared with permission for Qantas Airways Limited. Mr J Hart appeared for the Flight Attendants Association of Australia (FAAA).
The Legislative Task
[3] The role of the Commission in an application to make a modern enterprise award is governed by sub-item 4(5) of Schedule 6 to the Transitional Act which provides:
(5) In deciding whether or not to make a modern enterprise award, and in determining the content of that award, the FWC must take into account the following:
(a) the circumstances that led to the making of the enterprise instrument rather than an instrument of more general application;
(b) whether there is a modern award (other than the miscellaneous modern award) that would, but for the enterprise instrument, cover the persons who are covered by the instrument, or whether such a modern award is likely to be made in the Part 10A award modernisation process;
(c) the content, or likely content, of the modern award referred to in paragraph (b) (taking account of any variations of the modern award that are likely to be made in the Part 10A award modernisation process);
(d) the terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument;
(e) the extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment;
(f) the likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons;
(g) the views of the persons covered by the enterprise instrument;
(h) any other matter prescribed by the regulations.
[4] It is also necessary to consider the modern awards objective: Item 6 of Schedule 6 of the Transitional Act. This is a legislative requirement for the Commission to recognise that modern enterprise awards may provide terms and conditions tailored to reflect employment arrangements that have been developed in relation to the relevant enterprises. We turn to consider these factors in relation to the circumstances of this case.
The Circumstances that led to the making of the enterprise instrument rather than an instrument of more general application: Item 4 (5)(a)
[5] Qantas became the operator of domestic airline operations in 1992 when it purchased the operations of Australian Airlines (formerly TAA) from the Australian Government. Flight attendants employed by TAA were engaged under predecessor awards to the Domestic Flight Attendants Award since at least 1981. The award applied to the two Australian domestic airline operators, TAA and Ansett. Since 2001, when Ansett was placed into the hands of administrators and ceased flying operations, the Domestic Flight Attendants Award has only applied to the domestic operations of Qantas, even though other domestic carriers have since entered the market.
[6] The introduction of three operating low cost carriers into the domestic flying market and others that have ceased to operate, and the demise of the only other full service domestic airline at the time, Ansett are the most significant developments since the predecessor of the Domestic Flight Attendants Award was first made.
Whether there is a modern award that would, but for the enterprise instrument, cover the persons who are covered by the instrument: Item 4 (5) (b)
[7] The Aircraft Cabin Crew Award 2010 (the modern award) would cover Qantas flight attendants if the Domestic Flight Attendants Award is terminated.
The content, or likely content, of the modern award referred to in paragraph (b): Item 4 (5) (c)
[8] The Domestic Airlines Award contains limitations on duty hours and rules in relation to rostering which are not contained in the modern award. Wage rates under the two awards are not the same. The base rate for a flight attendant is higher under the modern award. The rate for a purser in the Domestic Flight Attendants Award does not vary depending on the aircraft concerned. Under the modern award it does. The rate in the Domestic Flight Attendants Award is higher than a cabin crew supervisor in a narrow bodied aircraft in the modern award but lower than the rate for a cabin crew manager on a wide bodied aircraft.
[9] Generally the other terms of the Domestic Flight Attendants Award are more generous to employees than under the modern award. Such differences exist with respect to allowances, overtime, hours of work, rostered days off, rest periods, flight duty period limitations, variations to rostered hours of work, notice of termination of employment, annual leave loading, personal leave and compassionate leave.
[10] The terms of the modern award were formulated during the 2008-9 award modernisation process. Qantas made submissions to the Australian Industrial relations Commission during that process.
The terms and conditions of employment applying in the industry in which the persons covered by the enterprise instrument operate, and the extent to which those terms and conditions are reflected in the instrument: Item 4 (5)(d)
[11] The modern award covers cabin crew employed by all other domestic airlines including competitors providing scheduled public transport services (such as Virgin, Jetstar, REX and Tiger), the general aviation sector and third party cabin crew providers (including a Qantas subsidiary, Qantas Domestic Cabin Crew Pty Ltd which employs all domestic cabin crew recruited since 2008). The two Qantas entities employ cabin crew under two separate enterprise agreements. Other operators employ cabin crew under enterprise agreements.
The extent to which the enterprise instrument provides enterprise-specific terms and conditions of employment: Item 4 (5)(e)
[12] The more generous terms and conditions of employment in the Domestic Flight Attendants Award can be described as enterprise specific in the sense that they now only apply to part of a single enterprise. They only apply to cabin crew however, although not all cabin crew engaged on Qantas aircraft. Their origin from an industry award also colours their nature. It might be said that those terms are more accurately described as pertaining to traditional domestic airline operations while a duopoly comprising TAA and Ansett existed and have continued in a confined way while various changes have occurred in the industry. To the extent that they are now confined to the operations of Qantas, that situation is a product of that history.
The likely impact on the persons covered by the enterprise instrument, and the persons covered by the modern award referred to in paragraph (b), of a decision to make, or not make, the modern enterprise award, including any impact on the ongoing viability or competitiveness of any enterprise carried on by those persons: Item 4 (5)(f)
[13] As Qantas employees are covered by an enterprise agreement, there would be no immediate impact on Qantas employees if the Domestic Flight Attendants Award was terminated. There have been 8 enterprise agreements made between Qantas and its cabin crew or their representative since 1992. The terms and conditions of employment in the enterprise agreement are well in excess of those in the Domestic Flight Attendants Award. Under the provisions of the Fair Work Act 2009 the enterprise agreement continues unless terminated or replaced. On approval of any replacement agreement, the modern award would be the reference point for the Better Off Overall Test if the Domestic Flight Attendants Award is terminated. Qantas did not contend that the ongoing application, or the termination, of the Domestic Flight Attendants Award would have any impact on its ongoing viability or competitiveness.
The views of the persons covered by the enterprise instrument: Item 4 (5)(g)
[14] Both Qantas and the FAAA support the making of a modern award to replace the Domestic Flight Attendants Award. It can be assumed that to the extent employees are aware of the issue they are of a similar view.
Any other matter prescribed by the regulations: Item 4 (5) (h)
[15] There are no matters prescribed.
The Modern Awards Objective
[16] The making of a modern enterprise award broadly reflecting the current terms of the Domestic Flight Attendants Award would be consistent with the modern awards objective.
Should a Modern enterprise Award be made?
[17] We consider this question based on all of the circumstances described above. It is relevant to note that the Domestic Flight Attendants Award had its genesis as an industry award and its current application to the one surviving full service airline is a product of that history.
[18] It is also noteworthy that other operators who have entered the market have not been covered by similar instruments and are now covered by the modern award. An alternative Qantas company is the employment vehicle for domestic cabin crew engaged since 2008. Viewed in the light of these facts, the Domestic Flight Attendants Award operates more as an instrument maintaining historical terms and conditions for a group of employees which is reducing in number and does not include all cabin crew employed on Qantas aircraft and which applied in totally different circumstances than that which pertains today.
[19] Although the making of a modern enterprise award is agreed between Qantas and the FAAA we do not consider that the circumstances warrant its continuation. The termination of the Domestic Flight Attendants Award will not lead to any detrimental effects for employees. They have the protection of a more generous enterprise agreement and a modern award that applies to the remainder of the industry including other cabin crew in the enterprise.
Conclusions
[20] As we have found that a case has not been made out for the making of a modern enterprise award to replace the Domestic Flight Attendants Award it is unnecessary that we consider the actual terms and conditions of the draft award in greater detail. We dismiss the application in this matter. Pursuant to Item 9 (3) of Schedule 6 6ot the Transitional Act, the Domestic Flight Attendants Award is terminated.
VICE PRESIDENT
Appearances:
Ms. T Firth of counsel and Ms J Oldmeadow for Australia for Qantas Airways Group
Mr. J Playford for the Flight Attendants Association of Australia
Hearing details:
2014
Melbourne
8 July
Printed by authority of the Commonwealth Government Printer
<Price code C, PR552922>
0
0
0