Qantas Airways Limited
[2011] FWA 3632
•10 JUNE 2011
[2011] FWA 3632 |
|
REASONS FOR DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Qantas Airways Limited
(AG2011/1136)
COMMISSIONER RAFFAELLI | SYDNEY, 10 JUNE 2011 |
Australian Services Union (Qantas Airways Limited) Agreement 9 - objection to approval based on unlawful term - discrimination.
[1] Qantas Airways Limited (Qantas) made application pursuant to section 185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement. The name of the agreement is the Australian Services Union (Qantas Airways Limited) Agreement 9 (AE885997)(the Agreement).
[2] The Australian Services Union (ASU) declared itself in support of the application and sought to be covered by the Agreement.
[3] I dealt with the application at a hearing in Sydney on Thursday 2 June 2011. Both Qantas and the ASU appeared. Additionally, two employees of Qantas who work at the Brisbane terminal appeared by way of a video link. They put several concerns about the Agreement although they stressed that they were not asking for the Agreement to not be approved. Rather they sought some changes or deletions of clauses.
[4] At the conclusion of the proceedings I indicated that I was satisfied that the Agreement should be approved. To the extent that the two employees from Brisbane raised matters that would cause me to not approve the Agreement I dismissed those matters.
[5] On 2 June 2011 I formally approved the Agreement ([2011] FWAA 3482 PR510177). However, I indicated at the hearing that I would provide reasons for not accepting what I term the matters or objections raised by the two employees from Brisbane. I do so now.
[6] The two employees are Ms Leonie Waterhouse and Ms Marji Edwards who are part-time employees of Qantas working at the Brisbane international terminal. Ms Waterhouse and Ms Edwards are bargaining representatives for others employed by Qantas at the terminal. Submissions from Ms Waterhouse and Ms Edwards and Qantas would seem to indicate that they represent between 111 and 20 other employees.
[7] Ms Waterhouse and Ms Edwards raised the following concerns about the proposed agreement:
First, clause 18.5.3 reads as follows:
“18.5.3 In the allocation of overtime, preference will be given to full-time employees having regard to the intention of the parties to avoid, where possible, a part-time employee working overtime.”
It was said that this provision was discriminatory. It restricted access to overtime for part-time employees. Overtime was for many employees a necessary addition to their income. Such restriction in favour of full-time employees, led to different treatment. As the overwhelming number of part-time employees, at least at the Brisbane terminal were women, clause 18.5.3 amounted to indirect discrimination on the basis of sex.
Reference was made to a past Ansett agreement where similar provisions were altered as a protection against discrimination towards part-time employees.
Second, clause 18.1.1 reads as follows:
“18.1.1 Part-time employees shall be engaged for a minimum of 20 hours per week with a minimum daily engagement of not less than 4 hours. Maximum ordinary hours to be worked by a part-time employee will be either:
(a) 30 hours per week averaged over 12 months with the proviso that no more than 76 ordinary hours may be worked in any fortnight; or
(b) 30 ordinary hours per week;”
It was said that limiting the maximum number of ordinary hours that might be worked by a part-timer was inappropriate. They also drew attention to the annual cap of 1410 hours applied by Qantas. Such restriction reflected history but was not appropriate in the modern workplace.
Additionally, I was taken to the provisions of clause 19 which applies to Qantas Information Technology Limited where part-time employees are able to be engaged for up to 38 hours per week.
Third, it was said that clause 18.5.3 referred to above, was also ambiguous. The application of a similar provision in the current agreement had been variously interpreted by Qantas’s Sydney office, the Brisbane terminal managers and also by the ASU.
Fourth, clause 14 set out comprehensive provisions about union recognition and representational rights. It was said that groups of non-unionists are not given such recognition and other benefits.
Fifth, clause 18.1.2(c) provides as follows:
“18.1.2 Despite anything else in this agreement:
. . .
(c) Shift workers shall not work more than six (6) shifts in any seven days except by agreement between the Company and the ASU, provided that the ASU shall not unreasonably withhold its agreement.”
It was said that it was inappropriate that the ASU could provide such a veto in respect of part-time employees (clause 18 is concerned with part-time employment). This is to be contrasted with clause 41.5.1, which applies to shift workers more generally, and which reads as follows:
“41.5.1 Shifts per day and week
A shift worker must not work more than six shifts in any consecutive seven-day period, unless the Company and the employee or majority of employees concerned and where employees are members of the union an officer of the relevant Union agree.”
Apart from some ambiguity given the interplay between clause 18 and clause 41, clause 41 highlights the discrimination against non-unionists apparent in clause 18.1.2(c).
Finally, it was said that they were afforded little opportunity to discuss what was the Qantas/ASU agreement.
[8] In response, Ms Bernasconi, solicitor representing Qantas put that concerns about alleged ambiguities (which she did not conceded existed) in the proposed agreement were not grounds for Fair Work Australia deciding not to approve the agreement.
[9] In respect of the difference afforded to part-timers engaged at Qantas Information and Technology Limited this was not a matter of discrimination. In fact, although part-timers at the Brisbane terminal (and generally elsewhere) have ordinary hours of between 20 and 30 per week, it is common practice for part-timers to work additional hours up to 38 hours per week.
[10] It was put that clause 14 is a familiar provision in agreements. It reflects the role of unions recognized in the Act itself. Ms Bernasconi pointed to a range of provisions in the Agreement (clause 7 Anti-Discrimination, clause 11 Consultation Mechanisms and clause 15 Dispute Settlement Procedure) which provide for the rights of employees not members of a union.
[11] As to clause 18.1.2(c), reference was made to clause 18.1.3 which provides as follows:
“18.1.3 The ASU must not refuse to make an agreement under 18.1.2(a), (b) and (c) above for any reason, or for reasons that include any provisions of Section 346(a) of the Fair Work Act as amended from time to time.
[12] This ensures that the ASU in providing its consent or otherwise must act in the best interest of employees whether union members or not.
[13] Ms Bernasconi also stressed that Qantas had met its good faith bargaining obligations in its dealings with Ms Waterhouse and Ms Edwards, and those whom they represented. Indeed, out of these discussions some changes to the final agreement were made as well as other changes which will be effected in practice at the workplace.
[14] In meeting the allegation as to discrimination and the focus in that regard on clause 18.5.3, Ms Bernasconi referred to section 194(a) of the Act which provides that a term of an enterprise agreement is an unlawful term if it is a discriminatory term. Then section 195(1) provides a meaning if “discriminatory term”. It reads as follows:
“195 Meaning of discriminatory term
Discriminatory term
(1) A term of an enterprise agreement is a discriminatory termto the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”
[15] It was said that while the Workplace Relations Act 1996 provided for agreements not to be made if terms might be discriminatory, the present Act requires the tribunal to form a view that a provision is discriminatory. More than assertion is required. Thus, section 186(4) provides as follows:
“186 When FWA must approve an enterprise agreement—general requirements
Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement does not include any unlawful terms . . . ”
[16] Ms Bernasconi put that there is nothing on the face of clause 18.5.3 that could be said to be discriminatory in terms of sex or family responsibilities. There is certainly no case of direct discrimination.
[17] Ms Bernasconi referred to the decision of Hodkinson v The Commonwealth ([2011] FMCA 171) as persuasive in not applying concepts of indirect discrimination in the absence of specific provisions in that regard in the Act.
[18] In any case, even if indirect discrimination was considered the objectors have provided no basis for their assertion. A decision involving the Flight Attendants’ Association of Australia - Short Haul Division (Qantas Airways Limited) Enterprise Agreement 7 Consolidated (PR972225) was referred to. The approach taken in that decision in determining whether indirect discrimination has occurred should be followed here.
[19] It is clear that the Agreement covers just over 7200 employees of which 4806 (or 67% of the total) are women. Among full-time employees 2660 or 53% of the total are women. Among the part-time group 80% are women. They total 2100 female part time workers
[20] It cannot be said that by giving preference to full-timers in the access to overtime that this disadvantages women generally, because there are more women full-timers than women part-timers under the Agreement and more women full-timers than men full-timers.
[21] Ms Bernasconi challenged the view that part-timers had a yearly cap. Rather, the hours of part-timers are assessed and if the cap is reached a process of conversion to full-time employment is triggered.
[22] Finally, Qantas stressed that apart from the incidence of overtime, part-timers at Brisbane terminal as elsewhere enjoy the benefits of ample opportunities to extend and increase their hours beyond their rostered periods. Such supplementation of rostered hours exceeds overtime worked by full-timers. Further statistics demonstrate (Exhibit QF1) that in fact more overtime (not just additional hours at ordinary time) was worked by part-timers than by full-timers at Brisbane. This clearly tells against any suggested discrimination against part-timers and those that are women.
[23] Ms White, who represented the ASU, supported the submissions of Qantas. She also pointed to the fact that the ASU represented most of the employees at the Brisbane terminal.
[24] As to the references to a previous Ansett agreement, Ms White pointed to the fact that at Ansett at the time, full-timers were largely men while the part-timers were overwhelmingly women. That circumstance which needed to be addressed, is not one faced in the current proceedings.
Conclusion
[25] In approaching the process of approval of an enterprise agreement Fair Work Australia approaches its task with particular attention to Division 4 of Part 2 - 4 of the Act.
[26] Subdivision A of Division 4 is concerned with certain pre-approval steps. There is nothing before me that suggests that the requirements and steps provided in that subdivision have not been met.
[27] In May 2010, in response to a dispute notified by Ms Waterhouse and Ms Edwards, I convened a conference in Brisbane. This was attended also by representatives of Qantas and the ASU. Ms Waterhouse and Ms Edwards were concerned as to certain agreement provisions affecting part-time employees at the Brisbane terminal. The matter was not resolved. However, I indicated that with the forthcoming certified agreement negotiations, Ms Waterhouse and Ms Edwards might be able to raise matters of concern.
[28] It seems that Qantas has met with Ms Waterhouse and Ms Edwards, as representatives of other employees. It has also met with the ASU. It was not the case put by the two representatives that Qantas has failed to negotiate with them. Indeed exhibit QF1 reveals that negotiations between Ms Waterhouse and Ms Edwards and Qantas resulted in some changes to part-time and overtime arrangements. Their complaint that in the end they were faced with an ASU/Qantas agreement is not material to any challenges to good faith bargaining or any other prescription in the Act.
[29] I am satisfied that not only have the pre-approval steps been met but so have the broader bargaining and representation provisions found in Part 2 - 4.
[30] Subdivision B of Division 4 of Part 2 - 4 deals with a range of specific requirements that Fair Work Australia needs to be satisfied about. That subdivision contains section 186(4) which provides “that the agreement does not include any unlawful terms”. I will return to that issue later.
[31] However, apart from the issue of unlawful terms there is nothing in the rest of Subdivision B or indeed in Part 2 - 4 as a whole that enables Fair Work Australia to not approve an agreement because provisions are said to be ambiguous. True it is that one could expect that a proposed agreement is written with some clarity. A document full of confusion and inconsistencies might be said to bring into question the validity of any voting process. But here there was no evidence presented that pointed to the employee voters being confused. At its highest, Ms Waterhouse and Ms Edwards point to some instances of possible different treatment among employees in varying circumstances. I am not satisfied that any ambiguity exists. There is no basis for Fair Work Australia to refuse to approve the Agreement for that reason.
[32] There is also no statutory basis for me to refuse to approve the Agreement because provisions limiting part-time hours are said to be old-fashioned or because different part-time minimum hours apply to Qantas Information and Technology Limited employees.
[33] Clause 14 of the Agreement recognizes the rights of workplace representatives and delegates and facilitates their role. However, of itself it does not prejudice the rights or roles of non-unionists and their representatives. I accept the point made by Ms Bernasconi that clause 7, 11 and 15 (at the least) afford non-unionists the necessary protection and opportunities in dealings with their employer.
[34] I am not satisfied that I should not approve the Agreement because of clause 14.
[35] As to the alleged ASU veto under section 18.1.2, the answer is found at clause 18.1.3 (see [11] above) and additionally employees aggrieved (or their representatives) are able to utilise the disputes procedure under clause 15.
[36] There is no basis to not approve the Agreement because of clause 18.1.2.
[37] I now turn to the question of whether clause 18.5.3 is unlawful because it is discriminatory.
[38] The statutory considerations are found at sections 186(4), 194(a) and 195(1) of the Act. They provide as follows:
“186 When FWA must approve an enterprise agreement—general requirements
. . .
Requirement that there be no unlawful terms
(4) FWA must be satisfied that the agreement does not include any unlawful terms (see Subdivision D of this Division).
. . . ”
“194 Meaning of unlawful term
A term of an enterprise agreement is an unlawful term if it is:
(a) a discriminatory term; or
. . . ”
And
“195 Meaning of discriminatory term
Discriminatory term
(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
. . . ”
[39] The position of Ms Waterhouse and Ms Edwards is that clause 18.5.3 is unlawful because it is a discriminatory term in that it provides that overtime is to be offered to full-time employees in preference to part-time employees. Given that part-time employees are mainly women the provision:
“. . . discriminates against an employee covered by the agreement because of, or for reasons including the employee’s . . . sex . . . ”
(Section 195(1))
[40] It was not the case of Ms Waterhouse or Ms Edwards that the offending provision is directly discriminatory. I agree.
[41] Although Qantas urges an approach that is confined to direct discrimination, I propose to also consider whether clause 18.5.3 is unlawful because the term amounts to indirect discrimination.
[42] An approach to determining indirect discrimination that has been followed in this tribunal (including in the matter referred to involving the flight attendants agreement in PR972225 referred to in [18] is to assess the existence of three elements. Tailored to the present situations these are:
- Qantas must impose a condition, requirement or practice;
- the impugned condition, requirement or practice has, or is likely to have, the effect of disadvantaging in women;
- the condition, requirement or practice is not reasonable in the circumstances.
[43] As to element 1, the condition imposed is that by clause 18.5.3 preference is given to full-time employees in the allocation of overtime.
[44] The second element requires an analysis of whether the clause disadvantages women. I have before me uncontested submissions from Qantas that women make up the majority of the 7200 employees covered by the Agreement. They also make up the majority among full-time employees with 53% of full-timers being female. Further, there are more full-time women (2660) covered by the Agreement than part-time women (2100) covered by the Agreement.
[45] I also rely on the material in Exhibit QF1 which revealed that over the 9 month period to March 2011, the number of overtime hours worked at the Brisbane terminal by full-time employees was 3562 hours in total while part-timers worked 4539 hours. Those figures are only referable to hours that attracted overtime penalty payments (in large measure in excess of an average of 38 hours per week or 7.6 hours per day). They did not include hours worked by part-timers as additional hours (often by shift extension) to their rostered hours, but not more than 38 hours per week or 7.6 hours per day.
[46] On all the evidence I consider that it can not be said that clause 18.5.3 has the effect of disadvantaging women.
[47] I find that the second element of the indirect discrimination test is not made out. It is therefore not necessary to deal with the third consideration.
[48] I find that clause 18.5.3 is neither directly nor indirectly discriminatory. Consequently, there is no basis for not approving the Agreement as it does not contain an unlawful term.
[49] I confirm my decision given on transcript on 2 June 2011.
COMMISSIONER
Appearances:
R. Bernasconi, solicitor with J. McKenzie for Qantas Airways Limited.
L. White and J. Justo for the Australian Services Union.
L. Waterhouse and M. Edwards bargaining representatives (in Brisbane via video).
Hearing details:
2011
Sydney:
June 2
Printed by authority of the Commonwealth Government Printer
<Price code C, PR510360>