Qantas Airways Limited T/A Qantas
[2023] FWCA 2536
•14 AUGUST 2023
| [2023] FWCA 2536 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement
Qantas Airways Limited T/A Qantas
(AG2023/1744)
AUSTRALIAN SERVICES UNION (QANTAS AIRWAYS LIMITED) AGREEMENT 11
| Airline operations | |
| COMMISSIONER P RYAN | SYDNEY, 14 AUGUST 2023 |
Application for variation of the Australian Services Union (Qantas Airways Limited) Agreement 11
Introduction
On 5 June 2023, Qantas Airways Limited (Applicant) made an application for approval of a variation of the Australian Services Union (Qantas Airways Limited) Agreement 11 (Agreement) pursuant to s.210 of the Fair Work Act 2009 (FW Act). The variation was made on 30 May 2023.[1]
The matter was allocated to my chambers on 19 July 2023. I conducted a conference with the parties in this matter and a related matter[2] on 21 July 2023.
Following the conference, this matter proceeded in an administrative manner with the parties providing written responses to issues and concerns identified by the Commission.
Background
The Agreement covers the Applicant as well as the following Qantas entities: Q Catering Limited, Q.H Tours Limited and Qantas Information Technology (Qantas Entities).
As a result of a share sale, Q Catering Limited is no longer a related or associated entity of the Applicant or any of the Qantas Entities and was renamed Dnata Catering Australia Subsidiary 1 Pty Ltd (Dnata Catering). Apart from employees in senior professional roles who will be transitioned into Qantas’ Management Professional Framework, the employees of the Qantas Entities are now covered by Australian Services Union (Qantas Airways Limited) Agreement 12 which was approved on 12 May 2023.[3]
The variation, inter alia, removes the Applicant and the Qantas Entities from the coverage of the Agreement and renames the Agreement as the dnata Catering Australia (Subsidiary 1 Pty Ltd) & ASU Enterprise Agreement 11. The signed variation to the Agreement is attached to this decision as Annexure A.
Section 212 Undertakings
Dnata Catering has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Sections 211 and 212
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.
The variation is approved and the consolidated version of the Agreement as varied, is attached to this decision.
Operative Date
In the application, the Applicant, the Qantas Entities, and Dnata Catering (Employers) sought an operative date of 1 July 2023, a request which was repeated during the conference on 21 July 2023. However, an operative date of 1 July 2023 would result in the variation operating retrospectively.
The Employers cited the decision in Seven Network (Operations) Limited[4] in support of a submission that a variation to an enterprise agreement may operate retrospectively, taking into account all of the circumstances.
The Employers submitted the following circumstances support a retrospective operative date:
(i)The proposed varied Agreement does not contain any changes to rates of pay that impact current employees of Dnata Catering (with the salary increases outlined in Schedule 3 of the varied Agreement already being paid to employees given the operation of s.206 of the FW Act);
(ii)The increases to disability and meal allowances outlined in Schedule 4 do not impact current employees of Dnata Catering. In any event, the amounts are increasing so retrospective effect is a beneficial outcome;
(iii)An operative date of 1 July 2023 will otherwise assist with the administrative transition of Qantas employees (who will cease to be covered by the Agreement when it is varied) into the Management Professional Framework.
The Australian Services Union did not oppose a retrospective operative date.
As noted above, the Respondent cited the decision Seven Network (Operations) Limited in support of a retrospective operative date. In Seven Network (Operations) Limited, Commissioner Lee stated:
I agree with the sentiment expressed in Catalina Country Club that in most circumstances, orders and decisions of this Commission operate from the date of decision. However, in certain circumstances the Commission may be satisfied, as a matter of discretion, that it is appropriate that the operation of a decision, in this case to vary an agreement, operate prospectively or retrospectively. Any decision in this regard should take into account all the circumstances of the case.[5]
Adopting that approach and having regard to the submissions of the parties and the three matters relied on by the Employers, I am not satisfied that the circumstances of this case warrant a retrospective operative date. As to the first and second matter, whether the variation operates prospectively or retrospectively, it will have no impact upon the employees concerned. As to the third matter, it goes no further than seeking administrative convenience for the Applicant and the Qantas Entities.
Accordingly, I am not satisfied that the variation should operate retrospectively.
In accordance with s.216 of the FW Act, the variation operates from 14 August 2023.
COMMISSIONER
[1] See s.209 of the FW Act.
[2] Application by Dnata Catering Australia Subsidiary 1 Pty Ltd (AG2023/1745).
[3] [2023] FWCA 1370.
[4] [2020] FWCA 2387 at [18]-[19].
[5] Ibid at [18].
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