Qantas Airways Limited

[2013] FWCA 8454

[2013] FWCA 8454

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Qantas Airways Limited
(AG2013/2822)

AUSTRALIAN SERVICES UNION (QANTAS AIRWAYS LIMITED) AGREEMENT 10

Airline operations
COMMISSIONER JOHNS	MELBOURNE, 1 NOVEMBER 2013

Application for approval of the Australian Services Union (Qantas Airways Limited) Agreement 10.

[1] The following decision is an edited version of the decision issued on transcript on 30 October 2010 approving a single-enterprise agreement known as the Australian Services Union (Qantas Airways Limited) Agreement 10 (EBA10).

[2] On 11 September 2013 an application was made for approval of EBA10. The application was made pursuant to s.185 of the Fair Work Act 2009 (FWAct) by Qantas Airways Limited (Applicant). The agreement is a single enterprise agreement.

[3] EBA10 was lodged within 14 days after it was made.

[4] The application was listed for Hearing on 30 October 2013. Appearing for the Applicant was Ms H. Fairhall of Ashurst. Appearing for the Australian Services Union (ASU) was Mr J. Cooney and representing themselves were Ms L. Waterhouse and Ms M. Edwards, employees of the Applicant.

Submissions on discriminatory term

[5] The Commission must approve an agreement if the requirements set out in section 186 and 187 of the FW Act are met. Relevantly in the present matter, under section 186(4) of the FW Act, the Commission “must be satisfied that the agreement does not include any unlawful terms.” An unlawful term includes a “discriminatory term” as defined in sections 194 and 195 of the FW Act. In answer to question 2.13 in the Applicant’s Form F17 filed in this matter the Applicant asserted that EBA 10 does not contain a discriminatory term.

[6] On 20 September 2013, the Fair Work Commission (Commission) received correspondence from two employees of the Applicant (Employee Objectors) asserting that that EBA10 contained a discriminatory term. 1 Their concern was, in particular, with respect to the application of the part time clause limiting hours of work on employees at the Brisbane Domestic and International terminals. In their correspondence the Employee Objectors submit that the relevant clauses have “triggered indirect discrimination.” They say that indirect discrimination is “based on sex, and possibly race and family responsibilities.” In the proceedings before the Commission they added to the list of potential prohibited attributes age and marital status. From what was said during the proceeding the Commission takes it from their submissions that they do not substantially press the issue of race before the Commission. They do not assert direct discrimination. The Commission agrees with them in that regard.

[7] The Commission accepts that indirect discrimination falls within the scope of sections 194 and 195 of the FW Act. Consequently, if EBA10 contains a term which indirectly “discriminates against an employee to be covered by the agreement because of, or for reasons including, the employee’s sex, ... family or carer’s responsibilities, age or marital status” EBA10 cannot be approved.

[8] On 8 October 2013, the Commission received submissions from the ASU 2 and the Applicant.3 In both submissions, the relevant clauses of EBA10 are identified as follows:

“18 Part Time Employment – Airline Officers Only:

18.1 Ordinary Hours of Work

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;

18.1.2 Despite anything else in this agreement:

(a) by agreement between the employer and the employee, and the ASU, an employee may be engaged to work less than 20 hours per week,

(b) a part-time employee will not be rostered to work in excess of 30 hours per week except by agreement between the parties, and

(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.

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 reason, which would contravene the freedom of association provisions of Section 346 (a) of the Fair Work Act as amended from time to time.

……………

18.5 Overtime

18.5.1 Where a part-time employee is required to work additional hours on a day and the number of hours worked in total does not exceed 7.6 hours, all hours will be paid at single time, provided that any hours in excess of 7.6 hours shall be paid at the normal overtime rate.

18.5.2(a) All time worked in excess of 7.6 hours per day, 10 days per fortnight, 1560 hours in the first year following the date of the coming into force of this provision, or 1410 ordinary hours in any successive year, shall be overtime and paid at overtime rates specified in this EBA 10. This shall not include hours worked on secondment to a full time position.

(b) Provided that where a part-time employee's hours of work are designated in accordance to subclause 18.1.1 (b) hereof, overtime will be paid for any hours worked in excess of 30 per week.

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.”

[9] The Applicant and the ASU both submit that EBA10 does not contain any terms which explicitly or implicitly discriminate against a person because of any prohibited attribute. They submit that there is “no direct or indirect discrimination”. They say EBA10 does allow for part time employees to work in excess of 30 hours per week as those hours would be paid as overtime.

[10] Both the Applicant and the ASU noted in their submissions that the relevant clauses were also subject of discrimination claims by the Employee Objectors with respect to Australian Services Union (Qantas Airways Limited) Agreement 9 (EBA9). EBA9 was approved by Commissioner Raffaelli on 2 June 2011. 4 In separate Reasons for Decision issued on 10 June 20115 the Commissioner usefully set out the elements of indirect discrimination in respect of the circumstances before him, namely:

“1. Qantas must impose a condition, requirement or practice;

2. The impugned condition, requirement or practice has, or is likely to have, the effect of disadvantaging women;

3. The condition, requirement or practice is not reasonable in the circumstances.” 6

[11] Based on the evidence before him, being that women made up the majority of the employees to be covered by EBA9, and that the number of overtime hours completed by part time employees was significantly higher than full time employees, the Commissioner was not satisfied that EBA9 had the effect of disadvantaging women.

[12] The Commission notes the very same provisions contested as a part of the approval process relating to EBA9 are now in dispute in respect of EBA10.

[13] Based on company records obtained on 20 September 2013, the Applicant provided the following statistics. Of the employees covered by EBA10:

● 4,139 are women, that is 66% of all employees;
● 2,318 are full time employees, 55% of full time employees are women; and
● 1,821 are part time employees, 88% of all part-time employees are women.

[14] On 9, 7 10,8 13,9 1710 and 3011 October 2013 further submissions were received by the Commission from the Employee Objectors. In summary these submissions stated that the same part time clauses have been included in like agreements at least since 1999. In particular the Employee Objectors noted the 1999 ASU/Ansett EBA. They then referred the Commission to concerns raised during the certification process of that agreement by Commissioner Whelan (as her Honour then was) relating to discrimination and assert that she only agreed to certification if the part time issues were addressed. The Employee Objectors submit that the part time conditions should have been automatically changed at Qantas after the matters were raised during the certification of the ASU/Ansett EBA.

[15] The Commission is not persuaded that what occurred in those separate proceedings in relation to a separate employer and a differently constituted group of employees is necessarily relevant in relation to the matter now before the Commission.

[16] The Employee Objectors also confirmed that the Employee Objectors are not arguing that the clauses are directly discriminatory. Rather, they say that the application of the clauses are discriminatory towards the identified group of employees with the relevant attributes.

[17] On 15 October 2013, the ASU filed submissions in response to matters raised by the Employee Objectors. 12 The ASU rejected the assertion by the Employee Objectors that the ASU recognised the clauses triggered indirect discrimination. The ASU submitted that the emphasis from the Employee Objectors was discrimination based on a classification of employment, namely part time employees. It is suggested that it is not gender that the Employee Objectors are objecting to, rather, category of employment. The ASU submits ‘category of employment’ is not one of the attributes forming the basis of a discriminatory claim under the FW Act. To the extent that the discrimination cannot be attached to a category of employment, the ASU is correct in that submission.

[18] On 15 October 2013, the Applicant wrote to the Commission advising it did not intend to file any further submissions except to note, amongst other things, that the views expressed by the two Employee Objectors concerned are theirs alone and cannot be regarded as representative concerns of any other employees. 13

[19] On 17 October 2013, the Employee Objectors filed their final response. 14 They noted that at the commencement of negotiations for EBA10 they gathered over 100 signatures in support of changing the part time provisions from Brisbane airport alone. They stated that only 39.7% of the workforce voted on EBA10 and questioned whether even one part time female employee voted on EBA10.

[20] On 30 October 2013, the Employee Objectors filed further correspondence attaching correspondence from the ASU to Ansett Australia dated 6 December 1999 in which the ASU wrote that they were concerned about the discriminatory impact of the part-time clauses. 15 The Commission is not satisfied of the relevance of that material.

Consideration of the discrimination issue

[21] The Commission has considered all that has been put in the proceedings. The Commission notes the submissions that have been made.

[22] While there is no requirement that any individual member of the Commission must follow the decisions of another member in a like matter, those decisions should, in my view, be considered highly persuasive. In the EBA9 decision Commissioner Raffaelli concluded that,

“It cannot be said that by giving preference to full-timers in access to overtime that this disadvantages women generally, because there are more women full-timers than women part-timers under [EBA9] and more women full-timers than men full-timers.”

He went on:

“There is ... no statutory basis for me to refuse to approve [EBA9] 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.”

[23] Those conclusions by Commissioner Raffaelli are equally applicable today to the application before the Commission in this matter.

[24] The Commission accepts that the Employee Objectors feel aggrieved by these clauses and the way in which they say they operate in practice. The Commission accepts they feel they have been treated unfairly. However, the Employee Objectors must be able to establish that each of the elements of indirect discrimination are made out in order for the Commission to find that EBA10 contains a discriminatory term. Comparisons between full-timers and part-timers (absent that having a differential impact on women when compared to men for example) do not establish a ground to find that the term is discriminatory under section 195 of the FW Act.

[25] In the present matter the Employee Objectors articulate the indirect discrimination as follows. They say that the condition, requirement or practice complained about is that, in order to receive preference in the allocation of overtime under clause 18.5.3, the employees must be full time. They also pointed to the condition that defines part time employees as those who work less than 30 hours.

[26] The second element of indirect discrimination requires the Employee Objectors to establish that the impugned condition, requirement or practice has, or is likely to have, the effect of disadvantaging, in the first example women when compared with men. Having heard from the Employee Objectors, the Commission is not satisfied that discrimination as between men and women occurs by reason of the operation of clause 18.5.3.

[27] The substantive basis upon which the employee objectors advanced the form of discrimination as between men and women was to invite the Commission to have regard to the terms which apply to Qantas employees “below the wing”, that is, a different class of employees not covered by EBA 10. This is not relevant.

[28] As noted earlier in this decision, the Employee Objectors did not press discrimination based on race.

[29] The Employee Objectors did however press discrimination on the basis of family or carer responsibilities. The proper comparator to that class of employees is employees who do not have family or carer responsibilities. The Employee Objectors say that the majority of part time employees have family or carer responsibilities. However, the employee objectors were not able to point to the disadvantage experienced by those employees when compared with employees who do not have those responsibilities by reason of the operation of the relevant clauses complained about.

[30] The next attribute relied upon by the Employee Objectors is that of age. They say in relation to their personal circumstances that they are more than 55 years of age and that the operation of the relevant clauses in EBA 10 restricts their ability to earn more income, and this has an effect on their superannuation. The Applicant has submitted material detailing the amount of overtime performed by each of the Employee Objectors. It is not apparent from that material that there has been any restriction on the ability of the Employee Objectors to access overtime.

[31] The next attribute advanced by the Employee Objectors is that of marital status, and in particular, the attribute of someone being single against someone who is not. The Commission is not satisfied that the marital status attribute, or how the term is discriminatory in respect of that attribute, has been sufficiently advanced through the submissions.

[32] In all the circumstances therefore the Commission is not satisfied that the second necessary element of indirect discrimination is made out. For that reason it is not necessary for the Commission to have regard to the third element, which would otherwise have been that the condition, requirement or practice is not reasonable in all the circumstances.

Access period

[33] On 3 October 2013 the Commission requested further information from the Applicant in respect of whether all employees were given at least 7 days access to EBA10 and accompanying documents. The concern was that it was unclear when employees who did not have access to their company email account were posted EBA10 and associated documents.

[34] The Applicant confirmed that EBA10 and associated documents were sent by express post to those employees on 20 August 2013. The access period commenced at 9 am on 24 August 2013 and finished immediately before the opening of the electronic ballot at 9 am on 31 August 2013. The Commission is satisfied that all employees had access to EBA10 and associated documents for the duration of the access period. The Commission also notes that in the approval of EBA 10 there was an employee participation rate of 39.7% and, of those who participated, 97% voted to approve EBA 10.

Typographical amendments

[35] The Applicant has sought amendments to EBA10 to correct typographical errors. The amendments sought were detailed in correspondence to the Commission 16 and the marked up pages of EBA 10 filed in the Commission on 30 October 2013. The amendments sought are as follows:

A. In Schedule 3.2 of EBA10, ‘Shiftworkers’ table, the second heading which reads “with 20th day ‘grossed up’” is incorrect and should read “Without 20th Day ‘Grossed Up’”

B. In Schedule 4.1(b) of EBA10, Airline Officer Expense Related Allowances, clause 4.1(b)(i) deals with transport allowances.

Both 4.1(b)(i)(b) and 4.1(b)(i)(c) contain duplicated references to increases operating from the first full pay period “on or after 1 July 2013” based on “movements in CPI Private Monitoring Index from the March 2012 to March 2013 Quarters”. It is intended that these be indexed to increase each year. Accordingly, clause (b) should refer to “1 July 2014”/“March 2013-March 2014”, and clause (c) should refer to “1 July 2015”/“March 2014-March 2015”

C. In Schedule 4.2(b) of EBA10, QFIT Expense Related Allowances, clause 4.2(b)(i) deals with meal allowances.

Both 4.2(b)(i)(B) and 4.2(b)(i)(C) contain duplicated references to increases operating from the first full pay period “on or after 1 July 2013” based on “movements in CPI Meals out/Takeaway Index from the March 2012 to March 2013 Quarters”. It is intended that these be indexed to increase each year. Accordingly, clause (B) should refer to “1 July 2014”/“March 2013-March 2014 Quarters”, and clause (C) should refer to “1 July 2015”/“March 2014-March 2015 Quarters”.

[36] Pursuant to s.586 of the FW Act, the Commission is satisfied the amendments should be made.

Conclusions

[37] Having regard to all that has been put before the Commission, the Commission is satisfied that each of the requirements of sections 186, 187 and 188 of the FW Act as are relevant to this application have been met.

[38] The Australian Services Union, being a bargaining representative for EBA10, has given notice under s 183 of the FW Act that it wants EBA10 to cover it. In accordance with s 201(2), the Commission notes that EBA10 covers this organisation.

[39] EBA10 is approved and, in accordance with s.54, will operate from 6 November 2013. The nominal expiry date of EBA10 is 30 June 2016.

COMMISSIONER

 1   Exhibit WE1

 2   Exhibit ASU1

 3   Exhibit Q1

 4   [2011] FWAA 3482

 5   [2011] FWA 3632

 6   Ibid at para [42]

 7   Exhibit WE2

 8   Exhibit WE3

 9   Exhibit WE4

 10   Exhibit WE5

 11   Exhibit WE6

 12   Exhibit ASU2

 13   Exhibit Q2

 14   Exhibit WE5

 15   Exhibit WE6

 16   Exhibit Q3

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