C2004/6243, Transcript of Proceedings [2005] AIRCTrans 306 (8 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10313

SENIOR DEPUTY PRESIDENT LLOYD

C2004/6243

s.113 - application to vary an award

APPLICATION BY FLIGHT ATTENDANTS' ASSOCIATION OF AUSTRALIA
(C2004/6243)
National Jet Systems Pty Limited Airline Division Flight Attendants' Award 1999

MELBOURNE

2.11PM, TUESDAY, 25 JANUARY 2005

Continued from 19/11/2004

PN1

MR J ELLIOTT: I appear on behalf of the Flight Attendants Association of Australia.

PN2

MR D TRINDALE: I am a solicitor and I seek leave to appear pursuant to leave previously granted for Hazelton Air Services Pty Ltd in matter number C2004/5961 only.

PN3

THE SENIOR DEPUTY PRESIDENT: Now, we will move on to the National Jet systems matter.

PN4

MR ELLIOTT: Thank you, Senior Deputy President. This award, the FAAA are seeking two substantive types of changes to the award. The first one relating to the inclusion of the redundancy standards as determined by the Commission in 2004 in two Full Bench decisions which are now regarded as test case decisions or - sorry, regarded at the time also as test case decisions; and variations to include safety net adjustments pursuant to the safety net review decision of 2004. Those adjustments include increases granted by the decisions from 2000-2004 inclusive. To deal with the redundancy case - test case standards matters first, I submit that the redundancy - the principles - sorry, the statement of principles in the 2004 safety net review decision allows for awards to be varied to incorporate test standards determined by the Commission. As I mentioned this is a test case standard that was set by the Commission in March and June of last year. But the safety net review decision principles at 4 says, under the heading:

PN5

Test case standards: Test case involving allowable award matters established and or revised by the Commission may be incorporated in an award.

PN6

We say firstly in relation to - secondly in relation to principle 4 that the variations sought are allowable award matters as determined under section 89A2 and therefore comply with that principle. The variations sought, as I have mentioned, are those set by the redundancy decisions handed down by this Commission on 26 March 04 in print PR03 2004 and 8 June 2004 in print PR06 2004. The March decision was used as a test case and therefore established test case standards. The variations sought in the draft order mirror the termination change and redundancy model clause contained in appendix 8A of the 8 June decision, a supplementary decision. Senior Deputy President, I will now turn to the variations we are seeking for safety net adjustments.

PN7

THE SENIOR DEPUTY PRESIDENT: Just before you go on, it appears to have some departures from the test case model 4. The first one is actually the first clause, clause 16.1 in the draft order that I have.

PN8

MR ELLIOTT: Yes.

PN9

THE SENIOR DEPUTY PRESIDENT: Which departs quiet considerably from the test case provision in both the introductory words and the periods and dates supplied in them.

PN10

MR ELLIOTT: Can I point out firstly, Senior Deputy President, that the - I am not sure - there has been a number of documents floating around. Your draft order, can I enquire as to whether or not in relation to the period which is the first one, during the first six months of service or probationary period, it may stipulate one week. That was in fact a typographical error and confirming I have a - - -

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, and how I come - raise the matter about order 15, we will come to that later on. I take you to clause 16.1.4.

PN12

MR ELLIOTT: 16.1.4? Yes, Senior Deputy President.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. Now again, that is a departure from the model clause which is set out at model clause N.1.5.

PN14

MR ELLIOTT: This is an existing - I am just trying to find the clause reference for you, an existing award clause provision. It's existing clause 16.4, Senior Deputy President, although it is I notice in a number of other clause references but they don't alter the intent of the clause, the current clause, the intent of the current clause.

PN15

THE SENIOR DEPUTY PRESIDENT: The interesting aspect of this, though, is that I accept about what is in the award at the moment but you will notice the model clause applies to a number of other designated or categories of employees, apprentices, specific task employees, trainees and casuals. Does National Jet System have those types of employees?

PN16

MR ELLIOTT: They don't engage casuals.

PN17

THE DEPUTY PRESIDENT: Don't they?

PN18

MR ELLIOTT: We are currently in a negotiation which is looking the possible use of casuals up the track and in the event that that occurs, we would certainly have the appropriate changes made to this clause but at this point in time - and they never have to the best of my knowledge, ever engaged casuals. Their only types of engagement are part-time employees and full time employees.

PN19

THE SENIOR DEPUTY PRESIDENT: No apprentices or specific task people?

PN20

MR ELLIOTT: No, no, Senior Deputy President. It's not apprenticeship and training is provided by the company for each new flight attendant engaged at the commencement of their employment as a flight attendant.

PN21

THE SENIOR DEPUTY PRESIDENT: It is interesting in the award, if you go to types of employment at clause 15.1.1.

PN22

MR ELLIOTT: That was 15 point?

PN23

THE SENIOR DEPUTY PRESIDENT: Point one, point one. Category C there is casual flight attendants and then 15.4 is a ..... about casual employment.

PN24

MR ELLIOTT: The award - - -

PN25

THE SENIOR DEPUTY PRESIDENT: It just seems a bit odd that the award, although you say it may not be used, the award provides for that type of employment for the redundancy clause not covered.

PN26

MR ELLIOTT: I think I can indicate to you that it's a concern that it does include the casual employees. I am sure the employer won't object and certainly the FAAA submits that we would be quite happy to amend the draft order to include casual employees. I am sure it would only take a phone call to them to confirm that.

PN27

THE SENIOR DEPUTY PRESIDENT: I think that might be preferable and also it might be worthwhile enquiring in the way that modern enterprises work about specific task employees; that is another category covered. Now, at 16.1.7 that is obviously a variation to what is in the model clause but I anticipate that clause is bound in the current agreement; is that right?

PN28

MR ELLIOTT: Yes, it is. It's an existing award condition and it's one that you can see is specific to the industry.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30

MR ELLIOTT: The nature of the industry is obviously that flight attendants would be flying around the country if they're flying domestically and so therefore it's been drafted to accommodate the fact that you might have a flight attendant whose based in Perth, for example but overnighting in Cairns or Darwin or some other location and it deals with that employment relationship where you are not coming to the same workplace each day. Indeed they might be spending lengthy periods or considerable periods of time in another base, away from their home base.

PN31

THE SENIOR DEPUTY PRESIDENT: Right. Just another, again, a comparison with the model clause. You have included at 17.3.2 a severance scale for employees of a small employer.

PN32

MR ELLIOTT: Yes.

PN33

THE SENIOR DEPUTY PRESIDENT: But in the model clause in redundancy which is clause 17 in the definitions, 17.1, there is a small employer definition which does not appear - normally it comes in there just around about - normally before transmission definitions.

PN34

MR ELLIOTT: Yes. The logic - this is a single employer respondent award and the feeling - and if it needs to go in, let me say from the outset we don't object to including it - but the logic behind the drafting was that, given it's only one employer, if they were to reduce to that size - well I guess the argument would be there needs to be a definition of that size. So we would accept that it should be also varied to include the definition of small employer.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, how many employees do they have? The have more than 15, don't they?

PN36

MR ELLIOTT: At the moment in terms of flight attendants it's about 160.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR ELLIOTT: But there is a much bigger staff than just flight attendants obviously. There's engineers and pilots and all sorts of other people so, yes, quite a large employment.

PN39

THE SENIOR DEPUTY PRESIDENT: I think the definition therefore is probably the neatest solution I think.

PN40

MR ELLIOTT: Yes, I accept that an again I think I can say safely that National Jet won't object to that inclusion.

PN41

THE SENIOR DEPUTY PRESIDENT: You will need to give us some evidence in that.

PN42

MR ELLIOTT: Yes, for both the proposed variations?

PN43

THE SENIOR DEPUTY PRESIDENT: Yes. And that I think the small employer line will necessitate, I am thinking, a change specifically in .3.4 and again in the model clause, it is clause R.3.4, there is an additional sentence quite clearly you have got in this draft which, again, addresses the small employer situation.

PN44

MR ELLIOTT: Yes, Senior Deputy President, we will include that as well. That reference, if I can just double-check that, was of the draft - of the model clause R.3.4?

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, R.3.4, yes.

PN46

MR ELLIOTT: Yes.

PN47

THE SENIOR DEPUTY PRESIDENT: I think that is all I have got on the redundancy matter.

PN48

MR ELLIOTT: Thank you.

PN49

THE SENIOR DEPUTY PRESIDENT: What I would do, I will make a decision today that the award will be varied subject to you confirming that the company agrees to the changes that we have discussed need to be made to the draft today.

PN50

MR ELLIOTT: Yes, I undertake to get them to confirm directly to your office, Senior Deputy President.

PN51

THE SENIOR DEPUTY PRESIDENT: Now in the interest of time I suppose you will be telling me similar things on the safety net adjustment?

PN52

MR ELLIOTT: Yes.

PN53

THE SENIOR DEPUTY PRESIDENT: Except this letter from National Jet Systems referred to order 15; what's that?

PN54

MR ELLIOTT: In the order at point 15 we had included an adjustment to an insurance component.

PN55

THE SENIOR DEPUTY PRESIDENT: Right.

PN56

MR ELLIOTT: It's an amount that flight attendants are insured for by the employer for loos of baggage. The argument that's been run by a number of employers and we've accepted now is that that's not in fact an allowance and therefore does not fall within the guidelines. So we removed that from the order.

PN57

THE SENIOR DEPUTY PRESIDENT: Okay, thank you.

EXHIBIT #E1 LETTER FROM NATIONAL JET SYSTEMS

PN58

THE SENIOR DEPUTY PRESIDENT: So nothing else you wanted on that one?

PN59

MR ELLIOTT: No, just the same issues in my submission in relation to operative dates and so on.

PN60

THE SENIOR DEPUTY PRESIDENT: Right. I will give you my ruling now, if you like. This is an application pursuant to section 113 of the Act by the FAAA for an order to vary the terms of the National Jet Systems Pty Ltd Airline Division Flight Attendants Award 1999 to incorporate the safety net adjustments provided for by the safety net review wages decisions from 2000 to May 2004 and the test case provisions arising from the redundancy cases in prints PR03 2004 and PR06 2004. A number of departures from the model redundancy test case clause were discussed. It is the view of the Commission that the departures do not result in any change of the level of entitlements in the award and that the parties agree that the departure is appropriate and should continue.

PN61

It is therefore the Commission's opinion that the application is consistent with the two redundancy decisions and in the circumstances, conditional upon the consent of the employer party, it is a matter that should be regarded as coming within principle 2B. It follows that a reference to the precedent under principle 10 is unnecessary in this case. The applicant will advise my chambers of the formal agreement of the employer party to the departures from the model clause. The Commission is also satisfied that the draft order submitted by the applicant gives effect to the provisions set out in supplementary review wage decisions. Accordingly, the award will be varied in accordance with the draft application subject to minor amendments. The order will come into effect from the first pay period on or after 25 January - I beg your pardon, 24 January 2000 - no sorry, 25 January 2005 and remain in force for a period of 12 months.

<ADJOURNED INDEFINITELY [2.38PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #E1 LETTER FROM NATIONAL JET SYSTEMS PN57