Qantas Airways Limited; QF Cabin Crew Australia Pty Limited
[2014] FWC 3964
•13 JUNE 2014
[2014] FWC 3964 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Qantas Airways Limited; QF Cabin Crew Australia Pty Limited
(AG2013/5960)
Airline operations | |
COMMISSIONER JOHNS | MELBOURNE, 13 JUNE 2014 |
Application for approval of the Flight Attendants' Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (EBA9).
Introduction
[1] On 13 June 2013 the Commission approved the Flight Attendants’ Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2012 (EBA9) (Agreement).
[2] On 20 May 2014, Mr Jason Smith, a person who represented himself in the proceedings in opposition to the approval of the Agreement, requested that further reasons for the decision (that had been issued in transcript on 13 June 2013) be published. These are those further reasons.
[3] Application for approval of the Agreement was made on 9 April 2013 by Qantas Airways Limited and QF Cabin Crew Australia Pty Limited (Applicants) pursuant to s.185 of the Act.
[4] Although there were two applicants they were taken as one employer pursuant to section 168A(4) of the Fair Work Act 2009 (Act). Therefore the agreement is a single enterprise agreement.
[5] The Agreement was lodged within 14 days after it was made.
[6] At the time of lodgement of the Agreement the Commission was advised that the number of employees to be covered by the Agreement is 3401. In the ballot approving the Agreement:
● 2684 employees (78.9%) cast a valid vote; and
● 2267 voted to approve the Agreement (i.e. 84.4 % of those who cast a valid vote and 66.6% of all employees to be covered by the Agreement).
[7] The application for approval of the Agreement was supported by the Flight Attendants Association of Australia (FAAA), but opposed (at the hearing) by the Transport Workers Union (TWU). Both unions are bargaining representatives for the purposes of the Act.
[8] The Application was also opposed by at least one of the six non-union bargaining representatives employed by QF Cabin Crew Australia Pty Limited (QFCCA), Mr Jason Smith.
[9] Further, the Commission received at least 28 emails from people purporting to be employees of QF Cabin Crew Australia Pty Limited who also communicated their opposition to the approval of the Agreement. It is common ground that QF Cabin Crew Australia Pty Limited employs Qantas Flight Attendants who work on the Qantas A380 aircraft.
[10] On 9 May 2013 the Commission issued directions that,
“interested parties, including employees that will be covered by the proposed agreement, ... file ... and serve ... submissions regarding the approval of the ... Agreement, including whether the group of employees covered by the ... Agreement was ‘fairly chosen’.”
[11] Submissions were received from six flight attendants employed by QFCCA, including Mr Smith (Opposition to Approval Submissions).
[12] On 31 May 2013 and 10 June 2013 the FAA filed submissions in reply to the Opposition to Approval Submissions.
[13] On 7 June 2013 the Applicants filed submissions in reply to the Opposition to Approval Submissions.
[14] The Agreement approval hearing occurred on 13 June 2013.
[15] At the hearing:
● the Applicants were represented Mr Steven Amendola; and
● the TWU was represented by Mr Bill Baarini;
● the FAAA was represented by Mr Jim Nolan; and
● Mr Smith represented himself.
[16] Taking into account the complexity of the matter the Commission was satisfied that it would enable the matter to be dealt with more efficiently to grant permission for the Applicants and the FAAA to be represented by a lawyer.
Decision
[17] At the conclusion of the hearing the Commission approved the Agreement. A decision was issued that day [PR537825].
[18] In deciding the matter the Commissioner said:
On 8 April 2013 Qantas Airways Limited and QF Cabin Crew Australia Limited made an application for approval of the Flight Attendants Association of Australia – International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Ltd Workplace Agreement 2012. I will herein now refer to it as the agreement. The application was made pursuant to section 185 of the Fair Work Act 2009.
The application is supported by the Flight Attendants Association of Australia. The application is opposed by the Transport Workers Union. I accept that both unions are bargaining representatives for the purposes of the Act. Although there are two employers making the application they are to be taken as one employer pursuant to section 168A(4) of the Act. Therefore the agreement is a single enterprise agreement. The agreement was lodged within 14 days after it was made.
Having regard to the submissions filed in the proceedings and the submissions made today and having regard to the authorities and in particular the decision of Lawler VP in Stadium Australia Operations Pty Ltd Trading As ANZ Stadium [2010] FWAA 3758, I am satisfied that each of the requirements of section 186 including without limitation subsections 186(3) and (3A), section 187 and 188 of the Act, as are relevant to the application for approval, have been met.
The agreement is approved. In accordance with section 54 of the Act the agreement will operate from 20 June 2013. The nominal expiry date of the agreement is 17 June 2016.
Pursuant to section 201(3) of the Fair Work Act I note that the agreement will cover the Flight Attendants Association of Australia and the Transport Workers Union. 1
The Application
[19] In support of their application the Applicants filed a Form F16 Application for Approval of Enterprise Agreement and a Form F17 Employer’s Declaration in Support of Application for Approval of Enterprise Agreement.
[20] The FAAA filed a Form F18 Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement in which the FAAA indicated that it:
a) supported approval of the Agreement;
b) agreed with the Applicants’ Form F17;
c) wanted to be covered by the Agreement.
[21] The TWU also filed a Form F18 Declaration of Employee Organisation in relation to an Application for Approval of Enterprise Agreement in which the TWU indicated that it:
a) supported approval of the Agreement;
b) agreed with the Applicants’ Form F17;
c) wanted to be covered by the Agreement.
[22] However, at the hearing of the matter the TWU sought to amend its Form F18 by withdrawing its support for the approval of the Agreement. 2
[23] The approval of the Agreement was also opposed by Mr Smith.
[24] Having regard to the declarations made by the Applicants, the FAAA and the TWU it was common ground that most of the statutory requirements for approval had been met by the Applicants, in particular the requirements about:
a) the nominal expiry date (s.186(5));
b) the Agreement having been genuinely approved (s.186(2), s.188, s.180(2), s.180(3), s.180(5), s.181);
c) the interaction with the National Employment Standards (s.186(2)(c));
d) unlawful terms (s.186(4));
e) the Better Off Overall Test (s.193).
The only issue which remained in dispute between the parties was whether the group of employees covered by the Agreement was fairly chosen (s.186(3)). The Applicants and the FAAA say the group was fairly chosen. Both the TWU and Mr Smith say it was not.
The FW Act
[25] Sections 186(3) and 186(3A) of the FW Act provide as follows:
Requirement that the group of employees covered by the agreement is fairly chosen
(3) The FWC must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employee are is covered by the agreement, the FWC must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally organisationally distinct.
[26] The Explanatory Memorandum to be Fair Work Bill 2008 provides the following guidance concerning the objective of the “fairly chosen” test:
It is intended that in assessing whether the group of employees covered by the agreement is fairly chosen, [FWC] might have regard to matters such as:
- The way in which the employer has chosen to organise its enterprise ....
This sub clause allows an agreement to cover a group of employees that is constituted in a fair and appropriate way (e.g. all the electrician is employed by the employer or employers).
Relevant authorities
[27] In deciding to approve the Agreement last year the Commissioner referred to his reliance upon the decision of Lawler VP in Stadium Australia Operations Pty Ltd Trading as ANZ Stadium. In that decision his Honour undertook a detailed consideration of s186(3) and s.186(3A) of the FW Act.
[28] The proposed agreement before his Honour cover two sets of casual employees of different sizes, who fell into two broad categories as follows:
● food and beverage employees (75% of employees to be covered by the agreement); and
● customer service employees (25% of employees to be covered by the agreement).
[29] The proposed agreement before his honour produced conditions of employment and did not provide for a pay increase for customer service employees. His Honour concluded that “it is certainly the case that a customer service employee who worked all or almost all the ordinary hours between 7 am and midnight Monday to Friday would suffer an actual four in take-home pay when compared to existing pay levels”. 3
[30] However a majority of employees voted for the agreement. It was further concluded that the agreement was likely approved because food and beverage employees received material wage increases under the proposed agreement and, being the majority of employees to be covered by the agreement, voted in favour of it. In effect this was “a case of the tyranny of the majority over the minority”. 4
[31] Notwithstanding this apparent unfairness his Honour noted that,
“the fact that the customer service staff had not received a wage increase for six years and that many or most customer service staff will see the actual income fall under the agreement does not, in and of itself, provide a basis for refusing approval of the agreement”. 5
[32] His honour then addressed s.186(3) and s.186(3A) of the FW Act.
[33] His Honour noted that the provisions must be construed in the context of the statute as a whole including ss.237 and 238 which deal with majority support determinations and scope orders (both sections dealing with groups of employees to be “fairly chosen”). His Honour observed that the seeking of scope order under s.238 is a “real remedy for a subgroup of employees ... who perceive themselves to be unfairly disadvantaged by a proposed agreement...” 6
[34] His Honour stated,
“On the plain words of that provision, the requirement in s.186(3) is concerned with the fairness of the choice of a group of employees to be covered by an agreement rather than the fairness of the content of the agreement.” 7
“The mere fact that one subgroup of the group of employees covered by an agreement is smaller in number, even much smaller, and another sub group cannot, of itself, lead to a conclusion that the overall group was chosen unfairly: it would be possible to identify such subgroups in relation to almost every enterprise agreement.” 8
“I can see no warrant in the language of s.186(3), when construed in context, utilising that requirement to determine that the group of employees covered by an agreement was not fairly chosen merely because at the conclusion of bargaining one subgroup of employees has fared relatively worse than another subgroup of employees when compared to the actual terms and conditions of employment of both subgroups that obtained before the agreement was made. 9
[35] His Honour then observed that the group of employees covered by the agreement were all operational staff, all employed on a casual basis, worked at a like venue, and as such “the group chosen was a rational choice.” 10
[36] In the present matter the Commission decided to follow the reasoning of Lawler VP in ANZ Stadium. Therefore, the question before the Commission was whether, in deciding whether the group of employees to be covered by the agreement was fairly chosen, taking into account whether the group is geographically, operationally or organisationally distinct, the Applicant's choice was rational.
[37] The Commission also notes that, like in ANZ Stadium, at no time during the course of the negotiation of the Agreement was an application made for a scope order.
The submissions
[38] In the present matter the Applicants described at the group of employees to be covered by the agreement as flight attendants engaged on long haul operations in their international division. 11 Further the Applicants asserted that the employees,
“perform the same work for related bodies corporate. They wear the same uniforms. There are other common arrangements. Although there are some differences in the terms and conditions provided to the two groups of employees, this does not suggest that the group of employees covered by the proposed agreement was not fairly chosen.” 12
[39] The submissions of the FAAA added nothing of substance to the submissions filed by the Applicants.
[40] The TWU submitted that the Commission should have regard to the decision in Cimeco Pty Ltd v CFMEU, AWU, AMWU and CEPU 13. In particular the Commission was referred to the statements of the Full Bench that,
It is not appropriate to seek to exhaustively identify what might be the other relevant common considerations. They will vary from case to case will need to be demonstrated to the satisfaction of the tribunal. The word “fairly” suggests the selection of the group was not arbitrary or discriminatory. 14
The assessment of whether the group of employees covered by the agreement was fairly chosen will turn on the facts and circumstances in each case.” 15
[41] The Commission adopts the statements of the Full Bench in Cimeco.
[42] The TWU also submitted that, while all the employees to be covered by the agreement,
“might be flight attendants in a generic sense ... the work they do on the planes [they work on and] the destinations they go to explain why different parts of the agreement applied to the different groups of flight attendants]. 16
[43] While the TWU and the Opposition to Approval Submissions pointed to differences in the nature of the work performed by each group of long haul flight attendants, there were no submissions suggesting that this meant that the long haul flight attendants who work on the A380 are “geographically, operationally or organisationally distinct”.
[44] The TWU pointed to the different practice of Jetstar of having different agreements for separate groups of flight attendants. 17 However, it seems hardly relevant what another employer chooses to do when it comes to determining whether, in the present matter, the Applicants have fairly chosen the group of employees to be covered by the Agreement.
[45] Mr Smith made a number of submissions questioning the quality of the representation that employees of QF Cabin Crew Australia Pty Ltd received from the FAAA. However genuine and valid those complaints were they do not go to the question of whether, for the purposes of the present Agreement, the employees were fairly chosen. In any case it is to be noted that, at least from December 2011, all employees of QF Cabin Crew Australia Pty Ltd were on notice that they can appoint themselves as a bargaining representatives.
[46] The Commission asked Mr Smith whether he had any submissions to make about the content of the Agreement that might be relevant having regard to what his Honour said in ANZ Stadium. Mr Smith respondent,
“Well, having all along explained that at the very initial stage, this is not about questioning the content of the agreement, rather the unfairness in the voting process, which means we are not able to express our concerns regarding notices, there are a number of concerns in the content of the agreement...” 18
[47] Mr Smith then spoke about issues contained in the initial log of claims that were not achieved in bargaining 19 (the relevance of which was not apparent), however, he also referred to some differences in terms and conditions as between the two different groups of long haul flight attendants.20
[48] When specifically asked whether it was his submissions that the Agreement contained any unlawful terms or discriminatory terms (as that phrase is understood under the FW Act) Mr Smith said it was not. 21
Conclusions
[49] On the face of the submissions made by the Applicants, a decision to have one enterprise agreement covering all long haul flight attendants was rational. They are an operationally distinct group. The only real distinction between the employees of each of the applicants is the type of aircraft they work on (this likely impacts on the nature of their work). As stated above is common ground that QF Cabin Crew Australia Pty Ltd employees flight attendants who work on the Qantas A380 aircraft.
[50] However, none of the submissions about unfairness in the choice of employees to be covered by the Agreement disputed the operationally distinct nature of the group of employees to be covered by the Agreement. The substantive nature of the objection related to the ‘unfairness’ that the votes of one group of long haul flight attendants (who do not fly on the A380) “swamped” the votes of another group of long haul flight attendants (who do fly on the A380).
[51] While the fact of the swamping may have occurred and will lead to different conditions for the group of long haul flight attendants who fly on the A380 that does not mean that the group of employees chosen to be covered by the Agreement was not fairly chosen. In fact it is a rational decision to have all long haul flight attendants covered by one Agreement. The Commission is satisfied that the group to be covered by the Agreement was fairly chosen.
COMMISSIONER
Appearances:
Mr Steven Amendola for the Applicants
Mr Bill Baarini for the TWU
Mr Jim Nolan for the FAAA
Mr Smith represented himself.
Hearing details:
2013
Melbourne:
June, 13
1 Transcript PN500-503.
2 Transcript PN203.
3 [2010] FWAA 3758, [7].
4 [2010] FWAA 3758, [8].
5 [2010] FWAA 3758, [11].
6 [2010] FWAA 3758, [35].
7 [2010] FWAA 3758, [28].
8 [2010] FWAA 3758, [30].
9 [2010] FWAA 3758, [31].
10 [2010] FWAA 3758, [34].
11 Applicants’ submissions [15].
12 Applicants’ submissions, [17(b)].
13 [2012] FWAFB 2206.
14 [2012] FWAFB 2206, [21].
15 [2012] FWAFB 2206, [46].
16 PN324.
17 PN340.
18 PN389.
19 PN393-408.
20 PN419-429.
21 PN435.
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