C2006/2212, Transcript of Proceedings [2006] AIRCTrans 774 (30 May 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15045-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2006/2212

FLIGHT ATTENDANTS’ ASSOCIATION OF AUSTRALIA
AND
REGIONAL EXPRESS HOLDINGS LIMITED
s.170LW - Application for settlement of dispute (certification of agreement)
(C2006/2212)

MELBOURNE

10.12AM, TUESDAY, 16 MAY 2006

Continued from 24/3/2006
EXTRACT OF TRANSCRIPT OF PROCEEDINGS

---

<EXTRACT OF TRANSCRIPT OF PROCEEDINGS [11.04AM]

---

PN1

THE SENIOR DEPUTY PRESIDENT: The Flight Attendants' Association of Australia seeks to invoke the jurisdiction of the Commission under the old Act, as I will call it, to settle what it contends is a dispute over the application of the Regional Express Flight Attendants' Agreement 2005. In written submissions filed pursuant to a direction of the Commission, it characterises the dispute as, and I am reading from clauses 6 and 7. Clause 6:

PN2

The matter in dispute is whether the year 1 classification under clause 18.1 should be applied to the relevant employees from November 2005 to February 2006.

PN3

Seven:

PN4

The matter in dispute is in respect of the correct application of clause 18.1 of the agreement to the relevant employees, clearly giving rise to a dispute over the application of the agreement.

PN5

The issue arises because several employees were engaged by the employer as flight attendants in around August 2005 and they were engaged on a three month probationary period. At that time the Regional Express Flight Attendants' Enterprise Agreement 2002 was in force. The 2005 agreement came into operation on 27 October 2005 at which time the 2002 agreement ceased to be in operation. Under the 2002 agreement the classification and wage rates clause provided for a rate for people on probation, then rates for people in years 1 through to year 6.

PN6

The classification structure in the 2005 agreement provides for a trainee level rate, trainee level 1 rate for people engaged between zero and three months. A trainee level 2 rate for people engaged between three and six months. A year 1 rate for people engaged between six and 12 months and thereafter rates for people in years 2 through to year 10. The employees in question commenced their employment as probationary employees whilst the 2002 agreement was in force.

PN7

The 2005 agreement displaced the operation of the 2002 agreement during the currency of their probationary period. The union contends that when they ended their probationary period, the employees should have been classified as year 1 employees as would have been the case under the 2002 agreement. The company has classified them as trainees level 2 (three to six months) under the provision of the 2005 agreement.

PN8

The issue seems to be whether they should be paid at the trainee 2 rate, trainee level 2 rate which they are being paid at, for the second three month period of their employment or rather, as the union contends, the year 1 rate for those three months. The union contends that assurances were made by the company that people in the position these employees find themselves, would be paid at the year 1 rate after their probationary period concluded.

PN9

Further, it contends that there is in existence a collateral agreement between the parties that no employee would be disadvantaged by the making of the new agreement and it further contends that by paying these people at the trainee level 2 rate for that short period of time, these people are disadvantaged in that they should be being paid at the year 1 rate. The company does not accept the assertions of the union insofar as the alleged undertaking or the operation of any so called collateral no disadvantage agreement.

PN10

In its submissions today the company, represented by Mr Trindade, a solicitor, referred me to a decision of a Full Bench of the Commission in relation to the Ansett Airlines of Australia, sorry the Ansett Australia Union Collective Bargaining Agreement 1999. That's a decision of a Full Bench on appeal from a decision of Vice President Ross and it's reported in print S1467. It was handed down on 2 December 1999.

PN11

In that matter Ansett had introduced the Boeing 747-400 aircraft during the currency of the agreement in question and there was no rate of pay fixed in that agreement for a Boeing 747-400. I think the rate was fixed for a Boeing 747-300. Vice President Ross held that the Commission had no jurisdiction to establish rates of pay for a Boeing 747-400 aircraft which was in effect what the union was seeking. At paragraph of the Full Bench decision, part of the Vice President's reasons were discussed and I read from paragraph 4 as follows:

PN12

Vice President Ross concluded that the Commission did not have jurisdiction to establish rates of the B747-400 and the essence of his reasoning is set out in the following paragraphs of his decision.

PN13

The Full Bench then dealt with clause 10 of the agreement relevant to that question and then read from clause 26 of his Honour's reasons for decision where he said:

PN14

In my view the dispute currently before the Commission is not a dispute arising from the agreement.

PN15

27:

PN16

The agreement neither sets a rate of pay for B747-400 pilots nor prescribes a process for the arbitration of a rate of pay for a new classification.

PN17

And I end the quote there. The situation in this case seems to me to be analogous with that that was dealt with in the Ansett matter. It seems to me that the union puts its case on two perhaps alternative bases. The first is that there is no specific rate of pay for people who were engaged on probation during the life of the 2002 agreement and came off probation after that agreement had ceased to operate and the 2005 agreement had come into operation. In that case the reasoning in the Ansett decision seems to me to apply in that what the union is in effect seeking is for the creation of a new rate of pay for people in the position of the employees in question.

PN18

The second basis upon which the union seems to argue its case is that the employees should be paid at the year 1 rate because of the alleged undertakings and collateral agreement to which I have earlier referred. If that is the case the dispute is not a dispute about the operation, sorry a dispute arise, a dispute over the application of the agreement. Rather it is a dispute about the application of so called undertakings and a collateral agreement.

PN19

Mr Trindade puts it and Mr Elliott can point to no error in the way in which Mr Trindade puts it that on its face the 2005 agreement is clear and the employees in question on the face of that agreement should be paid at the trainee level 2 rate and Mr Elliott seeks to base his argument on matters not specifically dealt with in the 2005 agreement. Accordingly it seems to me that the dispute currently before the Commission is not a dispute over the application of the agreement and the Commission lacks the jurisdiction to deal with it. The application is dismissed. You can adjourn the Commission now.

<END OF EXTRACT [11.13AM]