Sunstate Airlines (Qld) Pty Limited T/A QantasLink
[2023] FWCA 472
•15 FEBRUARY 2023
| [2023] FWCA 472 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Sunstate Airlines (Qld) Pty Limited T/A QantasLink
(AG2022/5407)
Sunstate Airlines Pty Ltd Flight Attendants’ Enterprise Bargaining Agreement 2023
| Airline operations | |
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 15 FEBRUARY 2023 |
Application for approval of the Sunstate Airlines Pty Ltd Flight Attendants’ Enterprise Bargaining Agreement – BOOT – enterprise agreement approved.
Introduction and background
On 20 December 2022, Sunstate Airlines (Qld) Pty Ltd (Sunstate) applied for approval of the Sunstate Airlines Pty Ltd Flight Attendants’ Enterprise Bargaining Agreement 2023 (Enterprise Agreement), which covers Flight Attendants employed by Sunstate in classifications contained in the Enterprise Agreement. Those employees are covered by the Aircraft Cabin Crew Award 2020 (Award).
Sunstate is a regional airline which operates commercial, charter and government air services to and from regional airports in Queensland and South Australia. Although Sunstate does not currently operate any international flights, it has in the past, including to Port Moresby.
The Transport Workers’ Union of Australia (TWU) and the Flight Attendants’ Association of Australia (FAA) are bargaining representatives for the Enterprise Agreement. Neither the TWU nor the FAA oppose the Fair Work Commission (Commission) approving the Enterprise Agreement, although they have made submissions in relation to a number of concerns regarding the better off overall test (BOOT).
In addition to its Form F16 and Form F17, Sunstate filed submissions dated 20 January 2023, 1 February 2023 and 10 February 2023 in support of its application for approval of the Enterprise Agreement. Sunstate has also provided the following undertakings to the Commission to address concerns raised in relation to provisions of the Enterprise Agreement relating to loss or damage to personal effects and death benefits (Undertakings):
“1. I have the authority given to me by Sunstate Airlines (Qld) Pty Limited to provide this undertaking in relation to the application before the Fair Work Commission.
2. Loss or damage to personal effects allowance(a) In relation to clause 20.7.1 of the Agreement, a Flight Attendant is entitled to claim up to $2,276 for loss or destruction of their personal baggage while on a tour of duty.
(b) In relation to clause 20.7.4 of the Agreement, the Company must provide standard traveller’s baggage and personal effects insurance up to the value of $2,012 for regional cabin crew members travelling overseas under the employer’s direction.
3. Death benefits allowance
(a) In relation to clause 20.9.1 of the Agreement, the Company will provide each Flight Attendant with accident insurance for a death benefit only of not less than $161,050 over and above any entitlement available under Workers’ Compensation legislation.
(b) In relation to clause 20.9.3 of the Agreement, the Company will reimburse a Flight Attendant up to an amount of $402.33 per annum.
5. These undertakings are provided on the basis of issues raised by the Fair Work Commission in the application before the Fair Work Commission.”
The Undertakings replicate the benefits provided for flight attendants under the Award in relation to loss or damage to personal effects and death benefits.
In addition to its Form F18, the TWU filed submissions on 25 January 2023 and 2 February 2023. In addition to its Form F18, the FAA filed submissions on 25 January 2023.
I have read and taken into account all the material filed by Sunstate, the TWU and the FAA in relation to the application for approval of the Enterprise Agreement.
BOOT
General principles
I must be satisfied that the Enterprise Agreement passes the BOOT before I can approve it.[1] Section 193(1) of the Fair Work Act 2009 (Cth) (Act) provides that an enterprise agreement passes the BOOT if the Commission is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the enterprise agreement would be better off overall if the enterprise agreement applied to the employee than if the relevant modern award applied to the employee. The “test time” is when the application for approval of the enterprise agreement is made.[2]
In Armacell Australia Pty and Others the application of the BOOT was explained by the Full Bench in the following manner:[3]
“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement.”
The BOOT is not applied as a line by line analysis. It is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees.[4] An enterprise agreement may pass the test even if some award benefits have been reduced, as long as overall, those reductions are more than offset by the benefits of the enterprise agreement.[5]
Ultimately the application of the BOOT is a matter that involves the exercise of discretion, and it involves a degree of subjectivity or value judgement.[6]
It is clear from the references to “each … employee” in section 193(1) of the Act that every employee to whom the enterprise agreement will apply, if approved, must be better off overall than if the relevant modern award applied to the employee. It is not enough that a majority or most of the employees to whom the enterprise agreement will apply, if approved, will be better off overall than if the relevant modern award applied.[7]
Section 193(7) of the Act is a facultative provision which permits the Commission to be satisfied, in particular circumstances, that all employees in a class of employees will be better off if the agreement applied to that class than if the relevant modern award applied to that class. Section 193(7) provides as follows:
“For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, the FWC is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.”
Section 193(7) was explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:
“818. Although the better off overall test requires FWA to be satisfied that each award covered employee and each prospective award covered employee will be better off overall, it is intended that FWA will generally be able to apply the better off overall test to classes of employees. In the context of the approval of enterprise agreements, the better off overall test does not require FWA to enquire into each employee’s individual circumstances.”
The selection of a class for the purpose of s 193(7) of the Act will only be of utility if the enterprise agreement affects the members of the class in the same way such that there is likely to be a common BOOT outcome.[8]
It is also important to recognise that the BOOT is hypothetical, because it requires an assessment of whether each employee, and each “prospective award covered employee”, would be better off overall if the enterprise agreement applied to him or her than if the relevant award did.[9]
I will now apply these principles to the items raised by the Commission in correspondence with Sunstate, as well as the detriments identified by the TWU and FAA, in relation to the question of whether the Enterprise Agreement passes the BOOT.
Item 1 – Rates of pay and travelling allowance
Sunstate identified what it contends are benefits under the Enterprise Agreement compared to the Award in attachment A to its Form F17, including the higher rates of pay under the Enterprise Agreement compared to the Award. This is demonstrated by the following table:
| Modern Award Classification | Agreement Classification | Modern Award Rate | Agreement Rate | Percentage Difference |
| Cabin Crew Member | Probation | $24.28 | $25.01 | 3.00% |
| Cabin Crew Member | Year 1 | $24.28 | $25.01 | 3.00% |
| Cabin Crew Member | Year 2 | $24.28 | $25.32 | 4.27% |
| Cabin Crew Member | Year 3 | $24.28 | $26.56 | 9.37% |
| Cabin Crew Member | Year 4 | $24.28 | $27.17 | 11.89% |
| Cabin Crew Member | Year 5 | $24.28 | $27.82 | 14.57% |
| Cabin Crew Member | Year 6 | $24.28 | $28.49 | 17.32% |
| Cabin Crew Member | Year 7 | $24.28 | $29.19 | 20.20% |
| Cabin Crew Member | Year 8 | $24.28 | $29.90 | 23.16% |
In addition, Sunstate points to the fact that there is an entitlement under clause 20.2.1 of the Enterprise Agreement for employees to receive a Daily Travelling Allowance (DTA) of $5.40 per hour calculated from the time an employee signs on at their home base to the time they sign off at their home base for each tour of duty. The DTA is not an entitlement for which provision is made in the Award.
Using the lowest duty hours for a full time Flight Attendant employed by Sunstate in the 2019 calendar year (being the year that most closely represents an average operational year given it was not impacted by Covid-19 disruptions), Sunstate submits that a Flight Attendant would earn between 21% and 41% more under the Agreement compared to the Award.
| Base salary (clause 18.1 of the Agreement) | DTA total per annum (clause 20.2 of the Agreement) | Total salary per annum (DTA + base) | Compared to Award rate ($47,975.20) | |
| Probation | $49,414.46 | $8,553.60 | $57,968.06 | 21% |
| Year 1 | $49,414.46 | $8,553.60 | $57,968.06 | 21% |
| Year 2 | $50,026.92 | $8,553.60 | $58,580.52 | 22% |
| Year 3 | $52,474.01 | $8,553.60 | $61,027.61 | 27% |
| Year 4 | $53,681.01 | $8,553.60 | $62,234.61 | 30% |
| Year 5 | $54,967.66 | $8,553.60 | $63,521.26 | 32% |
| Year 6 | $56,287.84 | $8,553.60 | $64,841.44 | 35% |
| Year 7 | $57,670.91 | $8,553.60 | $66,224.51 | 38% |
| Year 8 | $59,089.56 | $8,553.60 | $67,643.16 | 41% |
Sunstate also submits that the DTA rate is likely to increase over the life of the Enterprise Agreement, as clause 20.2.2 of the Enterprise Agreement provides that the DTA rate will be adjusted in line with any percentage increase to the meal and travelling allowances in the relevant Australian Taxation Office ruling.
The FAA contends that Sunstate’s methodology and calculations pertaining to the 21% to 41% buffer on earnings under the Agreement are flawed and inaccurate. This is because, so the FAA contends, the DTA is paid instead of other allowances provided for in the Award, including the following:
(a)The Enterprise Agreement does not provide for the payment of a separate telephone allowance. Clause B.1.10 of the Award provides that where an employer requires a regional cabin crew member to have a telephone or paging service, the employer must reimburse the employee the cost of the installation or transfer for one telephone or pager at any one base and 50% of the rental charge of that telephone or pager.
(b)The Enterprise Agreement does not provide for the payment of a separate layover allowance. Clause B.1.7 of the Award provides that a regional cabin crew member on a layover must be paid a layover allowance of $23.77 per layover.
(c)Clause 20.5 of the Enterprise Agreement provides as follows in relation to accommodation and meals on a layover:
“20.5 Accommodation and meals on a layover
20.5.1 The Company must reimburse the Flight Attendant for the cost of appropriate accommodation and meals when the Flight Attendant is on a layover.
20.5.2 The provisions of this clause 20.5 do not apply when the Company elects to provide the appropriate accommodation and meals free of charge. If the Company and Flight Attendant agree, the Company may only provide the appropriate accommodation and pay the Flight Attendant DTA in accordance with 20.2 in lieu of providing a meal.
20.5.3 Where appropriate accommodation was not available or provided on the layover in accordance with 20.5.2, a Flight Attendant will be paid a hard-lying allowance of $100.32 per layover.
20.5.4 If the Company and the Flight Attendant agree, a Flight Attendant may arrange and pay for their own accommodation and meals, and the Company will pay an allowance of $50.00 and be deemed to have discharged the obligations in this clause 20.5.
20.5.5 To the extent possible, a list of approved places of accommodation and arrangements for meals shall be compiled on the basis of mutual consultation between the parties.
20.5.6 A party proposing a change to the existing accommodation and/or meal arrangements shall notify the other party of the proposal. If agreement cannot be reached, the provisions of clause 12 shall apply and in such circumstances the existing arrangement shall continue while the dispute procedure is being followed.”
The Award provides as follows in relation to accommodation and meals on a layover:
“B.1.6 Accommodation and meals on a layover
(a) General entitlement
(i) The employer must reimburse the regional cabin crew member for the cost of appropriate accommodation and meals when the regional cabin crew member is on a layover.(ii) The provisions of clause B.1.6 do not apply when the employer elects to provide the appropriate accommodation and meals free of charge. If the employer and regional cabin crew member agree, the employer may only provide the appropriate accommodation and pay the regional cabin crew member the applicable allowances in clause B.1.9 instead of providing meals.
(iii) Where appropriate accommodation was not available or provided on the layover in accordance with clause B.1.6(a)(i) , a regional cabin crew member will be paid a disability allowance of $100.32 per night.
(iv) If the employer and the regional cabin crew member agree, a regional cabin crew member may arrange and pay for their own accommodation and meals, and the employer will pay an allowance of $144.91 and be deemed to have discharged the obligations in clause B.1.6.
…B.1.9 Meal periods and allowances
Where a regional cabin crew member commences a tour of duty from a layover port, which involves duty in excess of 30 minutes in a meal period, as specified below, they must be provided with a meal or paid the appropriate meal allowance.
Meal period Time period Allowance $ Breakfast 0630 to 0800 hours 23.65 Lunch 1200 to 1330 hours 27.26 Dinner 1800 to 2000 hours 61.56
In relation to the telephone allowance provided for in clause B.1.10 of the Award, Sunstate submits that it provides all crew members with a paid data-enabled company phone, with the result that employees covered by the Agreement would not be entitled to the allowance provided for in clause B.1.10 of the Award. I accept Sunstate’s submission on this point. As a result, the fact that the Agreement does not contain a provision equivalent to clause B.1.10 of the Award is not a detriment for the purpose of assessing whether the Enterprise Agreement passes the BOOT.
In relation to the layover allowance and meals and accommodation on a layover, Sunstate submits that these allowances are only payable where an employee is on a layover, which is a period of more than 9 consecutive hours free of duty between duty periods at a port rather than a home base, in any 24 hours standing alone, measured from the time of commencement of duty. Sunstate submits that, in contrast, the DTA is payable for each hour of duty calculated from sign on at home base to sign off at home base, with the result that an employee is entitled to receive the DTA under the Enterprise Agreement for all duties including day trips.
Sunstate also submits that it provides accommodation on a layover. In relation to meals on a layover, Sunstate submits that it generally provides breakfast free of charge and the DTA otherwise compensates a Flight Attendant for any lunch and/or dinner to which they would be entitled under clause B.1.6(ii) and B.1.9 of the Award.
It is submitted by Sunstate that due to the nature of its flying activities, employees perform, on average, two to six layovers per 28-day roster period. Some employees arrange their roster (through bidding) to avoid layovers completely. Sunstate submits that even when a Flight Attendant performs a layover in a roster period, they will still be significantly better off under the Enterprise Agreement than the Award by virtue of the DTA being paid as opposed to a layover allowance and meal allowance under the Award. By way of example, if a Flight Attendant works a duty with a layover that has a midday sign on at their home base and a midday sign off at their home base, the Flight Attendant would be entitled to the following:
-Enterprise Agreement: 24 hours x DTA ($5.40) = $129.60
-Award: Layover allowance ($23.77) plus dinner ($61.56) plus breakfast ($23.65) = $108.98
In my assessment, for the reasons explained by Sunstate in its submissions, the payment of higher wages and a DTA under the Enterprise Agreement is a significant benefit over and above the entitlement under the Award to wages, a layover allowance and meal allowances on a layover.
Item 2 – overtime and duty hours
The Agreement provides (at clause 18.6) for the payment of overtime, at the ‘single rate’, where a Flight Attendant works in excess of 144 duty hours in a 28-day roster period. Sunstate submits that this is more beneficial than the Award because overtime is not an entitlement that is provided for regional Flight Attendants in Schedule B of the Award.
Clauses 22.1 and 22.2 of the Enterprise Agreement provide as follows:
“22.1 Duty hours
22.1.1 A Flight Attendant will not be rostered in excess of 144 duty hours in a nominated 28-day period except in the following circumstances:
(a) As a result of attending or conducting initial training;
(b) By mutual agreement between the Flight Attendant and the Company; or
(c) To complete a rostered duty in circumstances where at the commencement of such duty it was not planned that the Flight Attendant would exceed 144 duty hours in the 28-day period.
22.1.2 Where a Flight Attendant works in excess of 144 duty hours, the overtime payment in clause 18.6 will be payable.
22.2 Daily duty hours
22.2.1 A Flight Attendant must not be rostered for a tour of duty in excess of eleven hours.
22.2.2 A tour of duty already commenced under 22.2.1 may be extended to twelve hours.”
Under the Award, a regional Flight Attendant must not be rostered to fly in excess of:
(a)30 hours in a 7-day period;
(b)90 hours in a fortnight where it will exceed 90 hours of duty of any nature, including reserve time at the airport, tour of duty, deadhead transportation, administrative duties and all forms of ground training; and
(c)8 hours’ flight time for any one tour of duty.
Sunstate submits that due to the nature of its operations and pattern of flying, as well as other rostering requirements such as minimum rest periods and mandatory designated days off, its Flight Attendants are not rostered:
(a)to fly more than 30 hours in a 7-day period;
(b)to fly when completion of the flight would result in the Flight Attendant exceeding 90 duty hours in a fortnight; or
(c)more than eight hours’ flying time in any one tour of duty or 30 hours flying time in a 7-day period.
Sunstate submits that occasionally a Flight Attendant will fly more than 30 hours in a 7-day period due to extensions caused by flight delays that are beyond Sunstate’s control or as a result of shift swaps agreed between Flight Attendants or their pattern of bidding. In the period from June to December 2022, there were five instances of Flight Attendants exceeding 30 flying hours in a 7-day period, but in all save for one instance (where a Flight Attendant flew 33.06 hours) the Flight Attendants worked less than 31 flying hours in 7 days.
The FAA submits that it does not have the data to properly understand how regularly crew are required to work more than 144 hours in a 28-day roster period.
The TWU submits that the limitations in the Award on working time for Flight Attendants are important from a fatigue management and safety point of view. The TWU contends that Sunstate should give undertakings to match these restrictions in the Award.
I am satisfied that the provision of the Enterprise Agreement which entitles employees to the payment of overtime, at the ‘single rate’, where a Flight Attendant works in excess of 144 duty hours in a 28-day roster period, is more beneficial than the Award because overtime is not an entitlement that is provided for regional Flight Attendants in Schedule B of the Award. I will give this provision some weight when making my overall assessment as to whether employees are better off overall under the Enterprise Agreement compared to the Award.
I am satisfied that the Enterprise Agreement is detrimental when compared to the Award insofar as the Enterprise Agreement does not limit the number of hours a regional Flight Attendant may be rostered to fly in particular periods of time. I will accord this matter weight when making my overall assessment as to whether employees are better off overall under the Enterprise Agreement compared to the Award.
Item 4 – Meal breaks[10]
Clause B.2.7 of the Award provides:
“B.2.7 Meal breaks
(a) A regional cabin crew member must not be required to be on duty for a period in excess of 5 hours without a 30 minute break free of all duty for a meal.
(b) The turnaround time for this break must be not less than 50 minutes.
(c) Meal breaks must be scheduled at a port with adequate eating facilities.
(d) Where a meal break cannot be taken the regional cabin crew member must be paid an allowance of $10.16 per missed break.”
Clause 22.6 of the Enterprise Agreement provides:
“22.6 Meal breaks
22.6.1 Where practicable, a Flight Attendant shall not be required to be on duty for a period in excess of 5 hours without a 30 minute break free of all duty for a meal. Meal breaks shall be scheduled at a port with adequate eating facilities.
22.6.2 Subject to clause 22.6.3, a Flight Attendant will not be rostered to be on duty for a period in excess of eight hours without a 30 minute break free of all duty for a meal. Meal breaks shall be scheduled at a port with adequate eating facilities.
22.6.3 The parties may agree to waive the requirement for a meal break on rostered duties over eight hours where operational requirements prevent a meal break being rostered. In such circumstances, the Flight Attendants will be provided with a meal and may be provided with a break of less than 30 minutes.
22.6.4 Where a meal break which has been rostered in accordance with 22.6.2 is infringed due to delays or any disruption to services, a Flight Attendant may be asked to forego the break or accept a shorter break in order to maintain the schedule or avoid or minimise delay to any of the Company's services. Where a Flight Attendant agrees to forego the 30 minute meal break they will receive a payment of $18.
22.6.5 Where a Flight Attendant is required to work for more than 5 hours without a break, the Flight Attendant shall be provided a refreshment.”
In my view, the different meal break provisions in the Enterprise Agreement compared to the Award do not give rise to any material detriment; they are broadly neutral. While the Enterprise Agreement provides for a higher payment for missed breaks and requires the provision of a ‘refreshment’ when an employee is required to work more than five hours without a break, the Award contains an express ‘turnaround time’ for the meal break and does not permit the exceptions and limitations on meal breaks provided for in the Enterprise Agreement.
Item 5 – Working designated day off
Clause 22.7.4 and 22.8 of the Enterprise Agreement provide:
“22.7.4 Where a tour of duty, rostered to terminate before 2200 hours on the day preceding a single designated day off, is extended by delays so that it terminates after 2200 hours, the Flight Attendant must be regarded as having worked on a designated day off and shall be entitled to:
(a) a substitute designated day off within the current roster period or the next roster period as agreed between the Company and the Flight Attendant; and
(b) an allowance of $250 for each day.”“22.8 Working on a designated day off
A Flight Attendant will not be required to work on a designated day off. In unforeseen circumstances, the Company may request a Flight Attendant to work on a designated day off. A Flight Attendant may voluntarily agree to work on a designated day off and will be entitled to a payment of $250 for working on their designated day off. No substitute day off will be given under this Agreement.”
Clauses B.2.8 and B.2.9 of the Award provide:
“B.2.8 Days off
(a) A regional cabin crew member’s days off may only be altered by agreement between the employer and the regional cabin crew member.
(b) Where a regional cabin crew member is on temporary assignment away from home base the regional cabin crew member may elect to defer designated days off and in such an event they must, upon return to home base, receive the deferred designated days off.
(c) A regional cabin crew member must not be rostered for a tour of duty terminating after 2200 hours on the day preceding a designated day off and must not be rostered to commence duty prior to 0600 hours on the day following the designated day off.
(d) Where a tour of duty, rostered to terminate before 2200 hours on the day preceding a designated day off, is extended by delays so that it terminates after 2200 hours, the regional cabin crew member must be regarded as having worked on a designated day off and the provisions of clause B.2.9 will apply.B.2.9 Working on a designated day off
(a) A regional cabin crew member will not be required to work on a designated day off. In unforeseen circumstances an employer may request a regional cabin crew member to work on a designated day off. A regional cabin crew member may agree to work on a designated day off and will be entitled to:
(i) a substitute designated day off date within the current roster period or the next roster period as agreed between the employer and the regional cabin crew member; and(ii) an allowance of $128.70 for each day.
(b) Substitute designated days off will not accumulate beyond the roster period after the one in which the substitution occurs.”
The principal difference between these provisions is that where a Flight Attendant agrees to work on a day off they are entitled under the Enterprise Agreement to a payment of $250 plus the DTA (for each hour worked) but do not get a substitute day off, whereas under the Award the entitlement is to payment of $128.70 plus a substituted day off. Although individual opinions may differ about this, my assessment is that the Award is marginally more beneficial compared to the Enterprise Agreement on this point, in light of the entitlement to payment (of $128.70) plus an additional day off. I will give this matter a small amount of weight when I make my overall assessment required by the BOOT.
Item 6 – Rest periods
Clause B.3 of the Award provides:
“B.3 Rest periods
B.3.1 A tour of duty or period of reserve time at home must be preceded by a rest period on the ground of at least:
(a) 9 consecutive hours including the hours between 2200 hours and 0600 hours local time; or
(b) 10 consecutive hours.
B.3.2 Despite the provisions of clause B.3.1, when an aircraft is scheduled to arrive at such a time that the regional cabin crew member would be free of duty not later than 2200 hours local time and the aircraft is delayed beyond that time, the 9 hour rest period prescribed may be commenced up to 2300 hours local time, provided the succeeding tour of duty does not exceed 6 hours.
B.3.3 Where a regional cabin crew member is rostered to fly 8 hours or less and that rostered flying has been extended under clause B.2.4(d) up to 9 hours the regional cabin crew member must receive a rest period on the ground of not less than:
(a) 9 consecutive hours which must include the hours between 2200 hours and 0600 hours local time, plus one additional hour for each 15 minutes or part thereof by which the regional cabin crew member’s tour of duty time exceeds 11 hours; or
(b) 10 consecutive hours plus one additional hour for each 15 minutes or part thereof by which the regional cabin crew member’s tour of duty time exceeds 11 hours.
B.3.4 Where a regional cabin crew member is rostered for a tour of duty of 11 hours or less and that rostered duty has been extended under clause B.2.4(b) up to 12 hours, the regional cabin crew member must receive a rest period on the ground of not less than:
(a) 9 consecutive hours which must include the hours between 2200 hours and 0600 hours local time, plus one additional hour for each 15 minutes or part thereof by which the regional cabin crew member’s flight time exceeds 8 hours; or
(b) 10 consecutive hours plus one additional hour for each 15 minutes or part thereof by which the regional cabin crew member’s flight time exceeds 8 hours.
B.3.5 Where a regional cabin crew member has commenced a tour of duty of 11 hours or less under clause B.2.4(a) or a tour of duty of 8 hours’ flight time or less under clause B.2.4(c) and the duty exceeds 12 hours or the flight time exceeds 9 hours the regional cabin crew member must have, at the completion of the tour of duty, a rest period of at least 24 consecutive hours.
B.3.6 Where a regional cabin crew member has completed 2 consecutive tours of duty, the aggregate of which exceeds 8 hours’ flight time or 11 hours’ duty time, and the intervening rest period is less than:
(a) 12 consecutive hours including the hours between 2200 hours and 0600 hours local time; or
(b) 24 consecutive hours, if not including the hours between 2200 hours and 0600 hours local time,
the regional cabin crew member must have a rest period on the ground of at least 12 consecutive hours including the hours between 2200 hours and 0600 hours local time or 24 consecutive hours, prior to commencing a further tour of duty.
B.3.7 Despite the provisions of clause B.3.6 , when an aircraft is scheduled to arrive at such a time that the regional cabin crew member would be free of duty not later than 2200 hours local time and the aircraft is delayed beyond that time, the 12 hour rest period prescribed in clause B.3.6 may be commenced up to 2300 hours provided that the succeeding tour of duty does not exceed 6 hours.
B.3.8 A regional cabin crew member must not commence a flight and an operator must not roster a regional cabin crew member for a flight unless during the 7 day period terminating coincident with the termination of the flight, the regional cabin crew member has been relieved from all duty associated with their employment for at least one continuous period including the hours between 2200 hours and 0600 hours on 2 consecutive nights.
Clause 23 of the Enterprise Agreement provides:
“23 REST PERIODS
23.1 A tour of duty commencing at Home base, or a period of reserve time at Home base, must be preceded by a rest period on the ground of at least:
23.1.1 12 consecutive hours; or
23.1.2 11 consecutive hours, by agreement between the Flight Attendant and the Company. Where the rest period is reduced to 11 hours, the Flight Attendant will be entitled to one hour's pay at double time.
23.2 For the purposes of a trip swap between two Flight Attendants, the Flight Attendant and the Company may agree to reduce the rest period in clause 23.1.1 to 11 hours and 30 minutes which will be further reduced by the Company to 11 hours in a delay or disruption to service. Where this occurs, the Flight Attendant will not be entitled to the payment in clause 23.1.2.
23.3 A tour of duty commencing away from Home base must be preceded by a rest period on the ground of at least:23.3.1 Nine consecutive hours embracing the hours between 2200 hours and 0600 hours local time; or
23.3.2 ten consecutive hours.
23.4 Despite the provisions of 23.3, when an aircraft is delayed, the nine hour rest period prescribed may be commenced up to 2300 hours local time, provided the succeeding tour of duty does not exceed six hours.
23.5 Where a Flight Attendant is rostered for a tour of duty of eleven hours or less and that rostered duty has been extended under 22.2.2 up to twelve hours, the Flight Attendant must receive a rest period on the ground of not less than:23.5.1 nine consecutive hours which must include the hours between 2200 hours and 0600 hours local time, plus one additional hour for each fifteen minutes or part thereof by which the Flight Attendant’s tour of duty exceeded eleven hours; or
23.5.2 ten consecutive hours plus one additional hour for each fifteen minutes or part thereof by which the Flight Attendant's tour of duty exceeded eleven hours.
23.6 Where a Flight Attendant has commenced a tour of duty of eleven hours or less under 22.2.2 and the duty exceeds twelve hours the Flight Attendant must have, at the completion of the tour of duty, a rest period of at least 24 consecutive hours.
23.7 Subject to clause 23.8, where a Flight Attendant has completed three consecutive tours of duty, the aggregate of which is eleven hours duty time, and the intervening rest period between any of the periods of duty does not embrace:23.7.1 twelve consecutive hours embracing the hours between 2200 hours and 0600 hours local time; or
23.7.2 24 consecutive hours, if not embracing the hours between 2200 hours and 0600 hours local time; then the Flight Attendant must have a rest period on the ground of at least twelve consecutive hours embracing the hours between 2200 hours and 0600 hours local time or 24 consecutive hours, before commencing a further tour of duty.
23.7.3 Subject to clause 23.8, where a Flight Attendant is rostered for three consecutive tours of duty under clause 23.7 the third tour of duty must not exceed seven hours.
23.8 Clause 23.7 does not apply where a Flight Attendant has been provided with a Home base rest period in accordance with clause 23.1 or 23.2 between any of the tours of duty.
23.9 Despite the provisions of 23.7, when an aircraft is scheduled to arrive at such a time that the Flight Attendant would be free of duty not later than 2200 hours local time and the aircraft is delayed beyond that time, the twelve hour rest period prescribed in 23.7 may be commenced up to 2300 hours provided that the succeeding tour of duty does not exceed six hours.”
In some respects, the rest break provisions in the Enterprise Agreement are more beneficial to employees than the Award. For example, the Enterprise Agreement provides that Flight Attendants are entitled to 12 consecutive hours or 11 consecutive hours by agreement with one hour’s pay at double time. The Award entitlement is to 9 consecutive hours including the hours between 2200 and 0600 or 10 consecutive hours. There is no double time payment provision in the Award rest break provisions. On the other hand, there is no equivalent of Award clause B.3.8 in the Enterprise Agreement, the entitlement in clause 23.5.2 of the Enterprise Agreement applies only to a rostered tour of duty of 11 hours as compared with a rostered shift of eight hours or more under clause B.3.4(b) of the Award, and clause 23.7 of the Enterprise Agreement refers to three consecutive tours rather than two tours of duty under clause B.3.6 of the Award. In my assessment, the Award provisions concerning rest breaks are, on balance, slightly more beneficial to employees than the Enterprise Agreement provisions, principally because they afford employees more protections in terms of rest breaks. I will attribute some weight to this detriment when I make my overall assessment as to whether the Enterprise Agreement passes the BOOT.
Item 7 – Temporary transfer
Both the Enterprise Agreement and the Award permit the temporary transfer of a Flight Attendant from their home base to another base. The Enterprise Agreement permits such transfers for a minimum period of six days and a maximum period of 180 days. The Award permits such transfers for a minimum period of seven days and a maximum period of 31 days. Temporary transfers under the Enterprise Agreement only occur on a voluntary basis. When such transfers take place, the Enterprise Agreement contains a number of express provisions in clause 38 which confer benefits on the Flight Attendant who volunteers to undertake the transfer. Many of these benefits are not provided for under the Award. Having regard to these benefits, I am satisfied that the temporary transfer provisions of the Enterprise Agreement are, on balance, beneficial to employees compared to the Award. I will give this matter weight in assessing the BOOT.
Item 8 – Dispute resolution procedure
Clause 12.4 of the Enterprise Agreement confers on either party to a dispute about a matter arising under the Enterprise Agreement or in relation to the National Employment Standards the right to have the matter arbitrated by the Commission. Under the Award dispute resolution procedure, arbitration can only take place with the consent of both parties. In my view, this difference is beneficial to employees because it provides them with a just, quick and cheap means of having disputes determined.
Clause 12.9 of the Enterprise Agreement provides that the Commission must not issue interim orders, status quo orders or interim determinations. There is no such restriction in the Award dispute resolution procedure. However, no such orders or determinations could be made under the Award dispute resolution procedure unless both parties consented to the Commission making such an order or determination. On balance, I consider that clause 12.9 of the Enterprise Agreement is neutral in my assessment of the BOOT.
Clause 12.8 of the Enterprise Agreement provides:
“12.8 Where relevant, and circumstances warrant, the Tribunal can consider previous decisions of the Australian Industrial Relations Commission, Fair Work Australia and the Tribunal. The Tribunal must approach matters regarding management decisions in accordance with the general principles set out in the XPT case [(1984) 295 CAR 188].”
There is no equivalent provision in the Award.
The obligation imposed by clause 12.8 of the Enterprise Agreement for the Commission to “approach matters regarding management decisions in accordance with the general principles set out in the XPT case” does not give rise to any material detriment to employees. The principle stated in the XPT Case was as follows:[11]
“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.”
This principle is one which should be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer.[12] However, the principle does not apply to every decision made by an employer.[13]
The principle stated in the XPT case applies to arbitral decisions made by the Commission in relation to a question of managerial prerogative, whether the arbitration takes place under a provision such as clause 12 in the Enterprise Agreement or consent arbitration under the Award.
For the reasons given above, I am of the view that the dispute resolution procedure in the Enterprise Agreement is advantageous to employees compared to the Award provision. It is a benefit which weighs, to a small extent, in favour of the Enterprise Agreement passing the BOOT.
Leaving during redundancy notice period
Clause 16.5 of the Enterprise Agreement provides that if an employee is given notice of termination in circumstances of redundancy, the employee may terminate their employment during the notice period, in which case they will be entitled to receive the severance payments and benefits in accordance with clause 16 (as if they had remained in employment with Sunstate until the expiry of the notice period), but will not be entitled to payment in lieu of notice. The TWU contends that this is less beneficial than clauses 30.2(b) and (c) of the Award which only state that the employee is not entitled to be paid for “any part of the period of notice remaining after the employee ceased to be employed”.
I disagree with the contention that clause 16.5 of the Enterprise Agreement is less beneficial to employees than clauses 30.2(b) and (c) of the Award. Both instruments permit an employee to terminate their employment during a notice period in circumstances of redundancy. Both instruments provide that in these circumstances the employee retains their right to severance payments and benefits. In addition, the effect of both instruments is that the employee is not entitled to be paid for any part of the period of notice remaining after the employee ceases to be employed. The Enterprise Agreement, at clause 16.5, uses the expression “not be entitled to any payment in lieu of notice” to indicate, in my view, that it is the balance of the notice period, after the employee ceases employment, which does not have to be the subject of any payment in lieu of notice. The Enterprise Agreement does not state or suggest that an employee who leaves part way through their notice period is not entitled to be paid for the part of the notice period they have worked. Other provisions of the Enterprise Agreement impose an obligation on Sunstate to pay an employee for the time worked, whether during a notice period or otherwise. Accordingly, I consider this issue to be neutral in my consideration of the BOOT.
I did not consider it necessary to raise this issue for response by Sunstate.
Deduction where full notice not given
Clause 17.4 of the Enterprise Agreement provides that when an employee does not give their full period of notice of termination, Sunstate can deduct an amount equal to their unworked period of notice. The TWU submits that Sunstate cannot make deductions from an employee’s entitlements under the national employment standards, and the provision is less beneficial than clause 29.1(d) of the Award which provides that an employer can only deduct a maximum of one week from the employee’s wages.
The national employment standards impose an obligation on an employer to provide an employee with a minimum amount of notice or a payment in lieu of notice: s 117 of the Act. The national employment standards do not address the circumstance of an employee failing to provide a particular period of notice. Accordingly, I reject the contention that Sunstate is seeking to make deductions from an employee’s entitlements under the national employment standards.
I accept the TWU submission that clause 17.4 of the Enterprise Agreement is less beneficial than clause 29.1(d) of the Award in that the Enterprise Agreement permits Sunstate to deduct an amount equal to the employee’s unworked period of notice, whereas the Award limits the deduction to one week’s wages and requires any such deduction not to be unreasonable in the circumstances (clause 29.1(f) of the Award). I will give this detriment appropriate weight when I make the overall assessment required by the BOOT.
I did not consider it necessary to raise this issue for response by Sunstate.
BOOT conclusion
I am comfortably satisfied that each award covered employee, and each prospective award covered employee, for the Enterprise Agreement would be better off overall if the Enterprise Agreement applied to the employee than if the Award applied to the employee. I have made this overall assessment having regard to the matters raised by the TWU and the FAA in their Form F18s and their submissions filed in the Commission. I am satisfied that the detriments identified by the TWU and the FAA are more than compensated for by the benefits provided for in the Enterprise Agreement compared to the Award, particularly the higher wage rates in the Enterprise Agreement and the DTA payable under clause 20.2 of the Enterprise Agreement (but not the Award) “from sign on at home base to sign off at home base for each tour/s of duty”.
Undertakings
In accordance with s 190(3) of the Act, I may only accept the Undertakings if I am satisfied that the effect of accepting the Undertakings is not likely to:
(a)cause financial detriment to any employee covered by the Enterprise Agreement; or
(b)result in substantial changes to the Enterprise Agreement.
The Undertakings have been provided to address various issues identified by the Commission and the unions. The purpose of the Undertakings is to provide additional protection and/or benefits to employees. I am satisfied that accepting the Undertakings would not be likely to cause financial detriment to any employee covered by the Enterprise Agreement. I am also satisfied that the effect of accepting the Undertakings would not be likely to result in substantial changes to the Enterprise Agreement.
In accordance with section 190(2) of the Act, I am satisfied that the Undertakings will meet the concerns I have identified above in relation to whether the Enterprise Agreement meets the requirements set out in sections 186 and 187 of the Act.
Pursuant to subsection 190 of the Act, I accept the Undertakings.
A copy of the Undertakings is attached in Annexure A to this decision.
Satisfaction of other requirements
Subject to the Undertakings, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.
The Enterprise Agreement is approved and, in accordance with s 54 of the Act, will operate from 22 February 2023. The nominal expiry date of the Enterprise Agreement is 31 December 2025.
The TWU and the FAA have each given notice to the Commission that they want the Enterprise Agreement to cover their organisation. In accordance with s 201(2) of the Act, I note that the Enterprise Agreement covers the TWU and the FAA.
DEPUTY PRESIDENT
Annexure A
[1] s.186(2)(d) of the Act
[2] s.193(6) of the Act
[3] [2010] FWAFB 9985 at [41]
[4] SDA v Beechworth Bakery Employee Co Pty Ltd[2017] FWCFB 1664 at [12]
[5] Re Australia Western Railroad Pty Ltd T/A ARG – A QR Company [2011] FWAA 8555 at [8]; NTEIU v University of New South Wales[2011] FWAFB 5163 at [47]
[6] TWU v Jarman Ace Pty Ltd[2014] FWCFB 7097 at [28]
[7] Loaded Rates Agreements [2018] FWCFB 3610 at [100]
[8] Loaded Rates Agreements [2018] FWCFB 3610 at [115(2)]
[9] SDA v Aldi Foods Pty Ltd [2016] FCAFC 161 at [33] per Jessup J, who was in the minority but no issue was taken by the majority with this part of Jessup J’s reasons.
[10] Item 3 has been resolved by the undertakings given by Sunstate
[11] (1984) 295 CAR 188 at 191
[12] Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU [2015] FWCFB 1889 at [27]
[13] Ibid
Printed by authority of the Commonwealth Government Printer
<AE519186 PR750627>
0
5
0