C2004/5961, Transcript of Proceedings [2005] AIRCTrans 308 (8 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10317

SENIOR DEPUTY PRESIDENT LLOYD

C2004/5961

s.113 - application to vary an award

APPLICATION BY FLIGHT ATTENDANTS' ASSOCIATION OF AUSTRALIA
(C2004/5961)
Flight Attendants' (Regional Airlines and Charter Operators) Award 1999

MELBOURNE

2.38PM, 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 move on to the regional airlines.

PN4

MR ELLIOTT: Thank you, Senior Deputy President. The variations sought for the Flight Attendants and Regional Airlines Charter Operators Award 99 are twofold. They deal firstly with the inclusion of new redundancy standards as determined by the Commission in 2004 and the inclusion of safety net adjustments consistent with the 2004 safety net review decision and inclusive of the amounts awarded in decisions from 2000-2004 inclusive. In relation to the redundancy standards, Commissioner, we rely on principle 4 of the 2004 safety net review principles which allows for the test case standards to be included in awards. We ask that the Commission vary the awards to include test case standards as awarded by the Commission.

PN5

The decisions on redundancy in 2004, particularly the March 2004 decision, is regarded or is stated as being a test case decision. The matters contained n the application are consistent with section 89A2, in other words there are allowable award matters. The variations sought in the order we say mirror the determination in redundancy model clause contained in appendix A of 8 June decision. Therefore we ask that the Commission, consistent with the principles, grant the application to vary the award to include the redundancy standards.

PN6

THE SENIOR DEPUTY PRESIDENT: Again, just regard a number of departures here, some of them common to the previous case.

PN7

MR ELLIOTT: Yes.

PN8

THE SENIOR DEPUTY PRESIDENT: 17.2, this one has one week to two weeks' employment.

PN9

MR ELLIOTT: Yes, this is an existing provision in - this is a current provision in the award and we have agreed, that is the employer respondents and the FAAA, the existing provision should be maintained. There shouldn't be any alteration to the existing provision which would reduce the current entitlement. So therefore agreement has been reached to maintain this entitlement as it stands. We submit that that is consistent with the decision when it's stated at paragraph 386 that that sort of discretion should be open to the parties. It's got agreement - it's got to be consented by the parties, Senior Deputy President.

PN10

THE SENIOR DEPUTY PRESIDENT: I notice in this one at 17.6 is the same as the model clause.

PN11

MR ELLIOTT: Yes.

PN12

THE SENIOR DEPUTY PRESIDENT: In my draft the numbering goes a bit skewiff at the bottom of the page there.

PN13

MR ELLIOTT: There has been a bit of work done on that in the meantime but I think we have finally just about nailed the numbering but, yes.

PN14

THE SENIOR DEPUTY PRESIDENT: In the draft I have got, the two clauses at the bottom of that page at 17.8 and 17.8.1, I think they are departures from the test case.

PN15

MR ELLIOTT: Yes, these are airline-specific issues which deal with just some of the security and employment arrangements that exist for flight attendants and some of the mandatory steps that need to be gone through at the point of termination. All it does is just maintain that security provision in the award for the employer and the employee.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, and similarly over the next page I think 17.8.2 the terminated away from home base clause and designated days off clause.

PN17

MR ELLIOTT: Yes.

PN18

THE SENIOR DEPUTY PRESIDENT: They are, I take it, currently in the awards?

PN19

MR ELLIOTT: Currently in the award and again related to the peculiarities of flight attendant work and the rostering issues and locations of bases. I might just add, I think all the respondents in this award have a number of bases around the country, so we are dealing with flight attendants in this award, especially, that could be located in different locations at any time.

PN20

THE SENIOR DEPUTY PRESIDENT: Now come over to 18 and definitions. These involve a departure from the test case model clause and on my chambers examination of the award, they are not in the current award.

PN21

MR ELLIOTT: Senior Deputy President, this change is, if you like, pulling together existing - sorry, provisions that are in the model clause and locating them at this point under the definition of redundancy. For example, the ordinary - in subparagraph (a) the reference to the ordinary and customary turnover of labour is a current R1.2.

PN22

THE SENIOR DEPUTY PRESIDENT: Sorry, which clause are you referring to?

PN23

MR ELLIOTT: 18.1.2 paragraph A.

PN24

THE SENIOR DEPUTY PRESIDENT: They might have different numbering to me. I have got - - -

PN25

MR ELLIOTT: Yes, we might get - - -

PN26

THE SENIOR DEPUTY PRESIDENT: Right, now I have got you, yes, I see. Yes.

PN27

MR ELLIOTT: The paragraph I am referring to, Senior Deputy President, says "due to the ordinary and customary turnover of labour". That's on the end of -in the model clause, R.1.2. It's the last part of the sentence in the model clause, word for word.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR ELLIOTT: Paragraph B which refers to - and I quote:

PN30

Transmission occurs in subclause 18.7 applies -

PN31

is bound in the model clause at R.7, R7, under the heading:

PN32

Transmission of Business

PN33

And paragraph C, and I quote:

PN34

The employer obtains an offer of acceptable alternative employment for the employee -

PN35

is found in the model clause at R5 under the heading:

PN36

Alternative Employment

The approach that's been taken by one of the employers particularly - respondent employers to this award - is that hey prefer to see for convenience sake those exemptions, if you like, collected in under the definition. So it's our submission that it does not actually alter the model clause but just reorders it in a way which just suits the employers that are bound by this award. So it's our submission that there is no change to the standard required by the test case decisions.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, okay. Yes, I find it a bit tricky because if you take 18.1.2.C the alternative employment.

PN38

MR ELLIOTT: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT: The words of the model clause I think it's trying to replicate is R.5.1.

PN40

MR ELLIOTT: Mm mm.

PN41

THE SENIOR DEPUTY PRESIDENT: Which talks about the concerned employer in that particular redundancy case may make application to the Commission to have the general severance pay description varied. Now this clause on my reading is going beyond that a bit and really saying that I don't come to the Commission in a particular case, it's just if you get the alternative employment offer then exclusion applies.

PN42

MR ELLIOTT: The safeguard, we say, in relation to your point, Senior Deputy President, is at 18.5 of the draft order and that provides for either party if you like to make application to come to the Commission if there is a dispute. Sorry, it's a reference to the use of dispute settlement procedure in the event that there is a dispute in relation to acceptable alternative employment. We thought that that was a way of managing it which may be more appropriate given that the principal respondent to this award, I think it would be fair to say, that the - well, not Qantas directly but the companies that are within the Qantas group - and therefore we felt that this is an approach that left the options for parties to use the dispute settlement procedure in the event that there may be a difficulty in relation to acceptable alternative employment and from that point of view we don't regard it as being - we haven't regarded it as being a departure from the model clause.

PN43

Once again, I would add if you have got concerns about that, Senior Deputy President, then I am sure we could amend C to be more consistent with the test case standard if it would make you feel more comfortable about the variation.

PN44

THE SENIOR DEPUTY PRESIDENT: I think I prefer that to be done. It goes a bit further than reflecting what it is in the decision. It does take a small amount away from the Full Bench model clause. I understand the parties had quite a reasonable sort of objective in doing it but I think it is just safer to bring it back to the model clause. If they want to improve the process, they can get it through an agreement.

PN45

MR ELLIOTT: I will indicate to you immediately that we will request that the respondent employers confirm directly to your office the acceptance of any variation.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes. It seemed to me too that 18.1.1 is certainly not in the definitions clause of the test case standard.

PN47

MR ELLIOTT: 18.1.1, the definition to acceptable alternative employment.

PN48

THE SENIOR DEPUTY PRESIDENT: Yes.

PN49

MR ELLIOTT: Okay. Again this has been drafted to deal - there has been a twofold approach taken with the variations and the first is to draft in relation to the concerns raised by the Qantas group of companies and how they would seek to manage acceptable alternative employment and the other respondent to the award is Hazelton Airlines or as it's more commonly known ..... Now, which is a single employer operation if you like. 18.1.1 has been drafted to take into account Qantas's operations and is designed to apply specifically - it seeks to give some guidelines to discussions that may occur at any point in relation to acceptable alternative employment and some definition to that. So in other words it's - well, the thought behind it has been just to give the parties a head start rather than having to try and overcome the hurdle first up about what is acceptable alternative employment. It sets up a guideline of what may be acceptable and gives the parties something to sit down and discuss.

PN50

So in that sense, it's our submission that all this would do is just add to what the bench, we believe, intended by discussions occurring over acceptable alternative employment. Once again, if the Commission's not comfortable in advancing that far so quickly, then I am sure the parties to the order won't object to a reversion back to something - - -

PN51

THE SENIOR DEPUTY PRESIDENT: I think that would be preferable, yes. Similarly I think 18.10 superannuation benefits, that is not in the model clause but I understand that is in the award.

PN52

MR ELLIOTT: Yes, this is a case of paragraph 386 probably happening in reverse for us. I'll be quite frank with you and say that it was the union's preferred position that this be deleted but the employers were insisting that it be retained and in the interests of having the variation go on consent, on a consent basis we have agreed to retaining this method; notwithstanding the fact that it's never been used anywhere in the industry.

PN53

THE SENIOR DEPUTY PRESIDENT: Right, thank you.

PN54

MR ELLIOTT: Thank you.

PN55

THE SENIOR DEPUTY PRESIDENT: Now, do you want to say anything about the ..... on the rates of pay.

PN56

MR TRINDALE: Look, briefly, your Honour, one was an issue which I think may have been rectified in the last draft and that was echoing one of the points your Honour made. In relation to clause 18.8, we notice that there was a bullet point that had not been included about probationary flight attendants. That was an omission that is, as I understand it, an omission that we are all happy to rectify and to make a place for the test case standard. It may have already been done so by your Honour's associate in the draft that your Honour has.

PN57

THE SENIOR DEPUTY PRESIDENT: Yes, it's in here in handwriting.

PN58

MR TRINDALE: The only other one was - and it's not one that I have discussed with my friend, but echoing your Honour's thoughts in relation to the previous application. I have just noticed that clause 18.3.3 is the continuity of service provision which, echoing your Honour's thoughts, may similarly sit outside the test case standard on the basis that it does not provide for the small employer exemption for continuous service. 18.3.3 says:

PN59

Continuity of service shall be calculated in the manner prescribed by clause 17.7.

PN60

And clause 17.7, if you look at the draft, there are actually two 17.7s but it's the second one that says:

PN61

In determining continuous service in the absence -

PN62

and goes through what is the standard for continuous service but it does not contain the small employer exemption and that is, within the test case it provides that continuous service for small employers does not count service prior to the date of the test case decision.

PN63

THE SENIOR DEPUTY PRESIDENT: Yes, that's right.

PN64

MR TRINDALE: Obviously, that does not have any - I don't believe it has any practical application to anyone, however, given your Honour's earlier comments about ensuring that the award reflects the test case standard in the previous ones, it may be applicable to have that put in.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes.

PN66

MR TRINDALE: We don't have anything else in relation to the requirements, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Tindale. I think we need just to clarify where we are going on this order before we move onto the wages part of it. There are a number of alterations that you are proposing to make. What we are accepting, I think, Mr Elliot is that those departures which are reflected in the current award provision, they will be acceptable and in accordance with that former decision to which I referred. But where there are other departures, and they seem to come predominantly in the redundancy part of the clauses, that is 18.1.1, 18.1.2C and 18.5 and I think we are agreed probationary employees are in although it is in handwriting on my current draft; they are in at 18.8. There is the one that was drawn to our attention at 18.3.4, continuity of service. I think they are the main changes.

PN68

MR ELLIOTT: Yes.

PN69

THE SENIOR DEPUTY PRESIDENT: I will attend to those with the respondents, yes. Now onto the wages matter.

PN70

MR ELLIOTT: It's the same submission, Senior Deputy President. I can run through it or if you just accept the previous submission I am happy to leave it at that.

PN71

THE SENIOR DEPUTY PRESIDENT: That is fine.

PN72

MR ELLIOTT: Thank you. If the Commission pleases.

PN73

THE SENIOR DEPUTY PRESIDENT: Just one query on that. I think you said in relation to the letter tendered by National Jet Systems that matters on an insurance were removed.

PN74

MR ELLIOTT: Yes.

PN75

THE SENIOR DEPUTY PRESIDENT: But the clause in here at 21.8.1, that does not involve insurance does it? Lost baggage.

PN76

MR ELLIOTT: I will double-check that for you now; 21.8.1?

PN77

THE SENIOR DEPUTY PRESIDENT: Yes.

PN78

MR ELLIOTT: It's a death benefit provision.

PN79

THE SENIOR DEPUTY PRESIDENT: I am sorry, it's your clause 11 in your draft.

PN80

MR ELLIOTT: Yes.

PN81

THE SENIOR DEPUTY PRESIDENT: Using just - - -

PN82

MR ELLIOTT: I am just looking in the award. Sorry, I am just looking at the wrong award. Apologies for the delay. No, it's a baggage and clothing matter and it's an amount that can be claimed on loss or destruction. It's not an insured amount, it's a fixed amount.

PN83

THE SENIOR DEPUTY PRESIDENT: Okay. This is an application pursuant to section 113 of the Workplace Relations Act by the FAAA to vary the Flight Attendants Regional Airlines and Charter Operators Award 1999 to incorporate safety net adjustments provided for by the safety net review wages decisions from 2000 to May 2004 and the test case provisions arising from redundancy cases in prints PR 03 2004 and PR 06 2004. The Commission is satisfied the draft order submitted by the applicant gives effect to the provisions set out in the various safety net review wage decisions. The applicant has undertaken to make a number of minor amendments to the draft order so that it reflects the model clause set out in the redundancy case decisions. Also the application contains a number of clauses which depart from the model clause but which are currently contained in the award.

PN84

The Commission is satisfied that these clauses be included in the variation do not result in any change of the level of entitlements in the award. The Commission is also satisfied that the parties to the award agree to the alteration that is proposed. The Commission therefore is of the opinion that the application is consistent with the two redundancy decisions and in the circumstances, particularly the consent of the parties, it is a matter that should be regarded as coming from principle 2B. It follows that reference to the precedent under principle 10 is unnecessary in this case. Accordingly, the award will be varied in accordance with the application as adjusted and the order will come into effect from the first pay period on or after 25 January 2005 and will remain in force for a period of 12 months.

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