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Australian Industrial Relations Commission |
S0941 Dec 922/96 M Print N3494
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1988
s.45 appeal against the approval of the implementation of an
enterprise flexibility agreement [Print M8542 and Doc M8801] by
Commissioner Palmer on 23 January 1996
Australian Federation of Air Pilots
(C No. 30540 of 1996)
s.170NA application for enterprise flexibility agreement
Skywest Aviation Pty Ltd
(C No. 35372 of 1995)
Various employees
Airline operations
DEPUTY PRESIDENT ACTON MELBOURNE, 22 JULY 1996
DEPUTY PRESIDENT
DUNCAN
COMMISSIONER MAHON
DECISION
Nature of the Appeal
This is an appeal by the Australian
Federation of Air Pilots (AFAP)
against the approval of the implementation of an enterprise
flexibility agreement, known
as the Skywest Aviation Pty Ltd Enterprise
Flexibility Agreement 1995, [Print M8542 and A Doc M8801], by Commissioner
Palmer on
23 January 1996.
Submissions
At the hearing of the appeal and in written submissions thereafter, the
AFAP submitted,
in summary, that:
1. The Commissioner erred in being satisfied with respect to
s.170NC(1)(d) of the Industrial Relations Act 1988 (the Act)
in that he failed to give adequate consideration to the
reductions in the enterprise flexibility agreement
to the
pilots' award and other relevant entitlements and protections
or to how those reductions were offset under the
enterprise
flexibility agreement.
The Commissioner concluded the flexibility changes were to
conditions of employment
and did not infringe upon general
community standards such as leave, hours of work, parental
leave, minimum pay
rates, redundancy provisions or
superannuation.
However, the enterprise flexibility agreement reduces the
following terms and conditions of employment of pilots in the
following way:
. Hours of Work - reserve duty extension.
. Redundancy - reduction to existing arrangements.
. Seniority - loss of employment right at end of company contract.
. Grievance Right - restricted to matters considered by
the employer to be non-operational.
. Bonding -
potential burden to pilot for training
costs.
. Cost of Transfer - reduction of present award from
pilot to company.
Hours of work and redundancy are issues of wider significance to all
employees and the other terms
and conditions of employment referred to
above relate to standards of employment common to pilot awards in
the
section of the aviation industry in which Skywest Aviation Pty Ltd
(the company) operates.
Further, the Commissioner
applied undue benefit to the company's
trading position as fundamental to the approval. His conclusion that
"taken as
a whole and considering the enhanced pay and job security offered
by the Agreement when balanced against the proposed reduction
in
conditions the pilots are not worse off in totality" was wrong and has
proven to be wrong as Skywest is still
in financial difficulties
and is in the process of selling the business which does not enhance job
security.
2. The Commissioner
erred in being satisfied with respect to
s.170NC(1)(h) of the Act.
The pilots covered by the enterprise flexibility
agreement should have
been given a document setting out the terms of the relevant award and the
enterprise flexibility agreement
and the impact of the differences between
the terms in the award and the enterprise flexibility agreement but they
were not
given such a document.
Further, they were not informed of the intention to apply to the Commission
to approve implementation
of the enterprise flexibility agreement and about
the consequences of approval.
3. Pursuant to s.170ND(3) of the Act, the
Commissioner should
have refused to approve implementation of the enterprise
flexibility agreement because he should
have been satisfied
that due to exceptional circumstances, being the changes to
hours of work and redundancy in the
enterprise flexibility
agreement, approval of the implementation of the enterprise
flexibility agreement was contrary
to the public interest.
4. The AFAP was excluded from the process of negotiation as
provided for in s.170RB of the
Act, notwithstanding the AFAP
clearly indicating it wished to take part in that process and
pilots also indicating to
Skywest that they wanted the AFAP
to represent them and take part in the process.
5. Leave to appeal should be granted because:
(a)The matter raises the role of registered organisations
under the Act.
(b)The matter concerns the rights
of registered
organisations to represent members in an application
under section 170NA.
(c)The matter has
been approached by the Commissioner
inconsistently with the objects of the Act and the
decision of the Full Bench
in Print M7764.
(d)The matter raises concern upon application of the no
disadvantage test for employees under an award.
(e)The matter raises the issue of consultation and
explanation of the effects of an agreement under Part VIB
Division 3 of the Act.
In opposing the submissions on appeal of the AFAP, the company essentially
relied on its written
submissions to Commissioner Palmer on the approval
of the implementation of the enterprise flexibility agreement, which
submissions
were marked exhibit S1 in the appeal proceedings.
Conclusion
We will now deal with the issues raised by the AFAP on appeal.
1. S.170NC(1)(d)
S.170NC(1)(d) of the Act is in the following terms:
"170NC.(1) On an application to the Commission to approve
implementation of an agreement, the Commission must do so if,
and must not do so unless, it is satisfied that:
...
...
...
(d) the agreement does not, in relation to
their terms and conditions
of employment,
disadvantage the employees who are covered by the
agreement; ..."
The means
of determining whether or not the "no disadvantage
test" is met are dealt with in s.170NC(2) of the Act.
S.170NC(2) of
the Act is as follows:
"170NC.(2) For the purposes of paragraph (1)(d), an
agreement is taken to disadvantage
employees in relation to
their terms and conditions of employment only if:
(a) approval of implementation
of the agreement
would result in the reduction of any entitlements or
protections of those employees under:
(i) an award (as defined in subsection
(3)); or
(ii) any other
law of the Commonwealth
or of a State or Territory that the Commission
thinks relevant; and
(b) in the context of their terms and
conditions of employment considered as a whole,
the
Commission considers that the reduction is contrary
to the public interest."
S.170NC(3)
provides that:
"170NC.(3) In this section:
"award" does not include:
(a)
an order under Part VIA; or
(b) a certified agreement; or
(c) an enterprise flexibility agreement."
The "no
disadvantage test" was considered by a Full Bench of
the Commission in the Enterprise Flexibility Agreement Test
Case
May 1995 decision (the EFA Test Case decision) [Print
M0464]. The Full Bench said:
"In the course of his second reading
speech on the Industrial
Relations Reform Bill 1993 the Minister made the following
observations in relation to the operation of the no
disadvantage test:
`Two forms of agreements are provided for - certified
agreements and enterprise flexibility agreements. Both
types of agreements must not disadvantage employees in
relation to their terms and conditions of employment
considered as a whole. To gain access to these
agreements, employees' terms and conditions of employment
must be covered by an award, providing the benchmark for
the no disadvantage test.
The no disadvantage
test has been an important
innovation. Applying as it does to the overall package of
employee entitlements,
it allows for a wide range of
variations to award conditions. It also allows for
agreed reductions
if these are judged not to be against
the public interest, for example, as part of a strategy
for dealing
with a short-term business crisis and
revival. However, as the government has consistently
stressed,
the provision is intended to protect well
established and accepted standards which apply across the
community,
standards such as maternity leave, hours of
work, parental leave, minimum rates of pay, termination
change
and redundancy provisions and superannuation.'
[House of Representatives Hansard, 28 October 1993 at p.
2781]
It is clear from the terms of subsection 170NC(2) and the
extract from the Minister's second reading speech referred
to
above that an agreement may satisfy the no disadvantage test
notwithstanding that its implementation would result
in a
reduction in award entitlements and protections. It does not
operate to proscribe a reduction in award entitlements
and
protections. The key consideration is whether such a
reduction is contrary to the public interest having regard
to
the overall package of terms and conditions of employment to
apply to the employees covered by the agreement. ...
However, the no disadvantage test is intended to protect well
established and accepted community standards. An example
of
such a standard is the provision of four weeks' annual leave
with pay [October 1993 Review of Wage Fixing Principles
decision, Print K9700 at pp. 35-36]. Hence the reduction of
this standard, for example by providing for the cashing
out
of annual leave, is contrary to the public interest [The
Arrowcrest Group Pty Ltd EFA, Print L4310; The Lilianfels
Blue Mountains EFA, Print L4744].
Where the implementation of an agreement would result in a
reduction in employee
entitlements or protections the
Commission must determine whether, in the context of the
terms and conditions
of the employees concerned when
considered as a whole, the reduction would be contrary to the
public interest. We
agree with the submission put by ACCI in
this regard, that is the Commission should adopt a global
approach rather
than a line by line approach in making a
public interest determination under section 170NC(2)(b). In
practice this
involves a consideration of the overall package
of terms and conditions of employment to apply to the
employees
covered by the agreement. The reductions in
employee entitlements and protections need to be balanced
against
the benefits provided in the agreement. Such benefits
may include a wage increase or an improvement in conditions.
The
approach of balancing the reductions and benefits in an
agreement is consistent with the following extract from the
Minister's second reading speech on the Industrial Relations
Reform Bill 1993:
`In the bargaining process employees want and deserve
the security of knowing they cannot be worse off -
worse
off in totality. The security of knowing that the
conditions they currently enjoy are not to be
traded off
without something being offered in return. It may not
always be a pay rise, it may be extra
training, more
flexible rosters or just greater job security; it will be
something nevertheless.' [House
of Representatives
Hansard, 28 October 1993 at p. 2778]
Given the need to balance a range of factors
the
determination of whether or not the no disadvantage test has
been met in a particular case will largely be a matter
for
the impression and judgment of the Commission member at first
instance.
Even if the overall package of terms
and conditions of
employment would result in a net reduction of protections or
entitlements, the Commission may nevertheless
determine that
such a reduction was not contrary to the public interest. For
example, such a conclusion may be reached
where the
reductions are necessary as part of strategy for dealing with
a short term business crisis and revival." [pp.
43-46]
In his decision resulting in the approval of the
implementation of the enterprise flexibility agreement,
the
Commissioner said in regard to the "no disadvantage test":
"I have carefully considered all that has been said
by the
AFAP in relation to the no disadvantage test which is the
second objection raised by the Federation to the approval
of
the Agreement and have reached the following conclusions:
. The flexibility changes are to the conditions
of
employment and do not infringe upon general community
standards such as leave, hours of work, parental
leave,
minimum pay rates, redundancy provisions or
superannuation.
. The reductions that
do occur, and there is no argument
that there are a number, have been agreed by the majority
of pilots as part
of the strategy for dealing with a
short term business crisis and hopeful revival.
. That taken as a whole
and considering the enhanced pay
and job security offered by the Agreement when balanced
against the proposed
reduction in conditions the pilots
are not worse off in totality.
. The reductions in conditions do not
affect the
relevant CAOs.
Accordingly, having balanced all the factors, my judgment
is that the "no disadvantage
test" has been met and that in
this respect the approval of the Agreement does not offend
the public interest." [Print
M8542 at pp. 19-20]
We are not persuaded the Commissioner erred in being
satisfied with respect to s.170NC(1)(d)
of the Act.
There was evidence before the Commissioner of the relevant
reductions in entitlements and protections
involved in the
enterprise flexibility agreement. The Commissioner's decision
clearly indicates he recognised there
were such reductions
for the employees covered by the enterprise flexibility
agreement. We do not consider the
reductions in pilots'
entitlements and protections involve reductions in community
standards, as referred to in the
EFA Test Case decision,
under their award or any other relevant law.
Further, his decision shows in effect that in
the context of
their terms and conditions of employment considered as a
whole, he did not consider the reductions
to be contrary to
the public interest. We think such a conclusion was
reasonably open to the Commissioner on
the material before
him.
2. S.170NC(1)(h)
S.170NC(1)(h) of the Act is as follows:
"170NC.(1) On an application
to the Commission to approve
implementation of an agreement, the Commission must do so if,
and must not do so unless, it
is satisfied that:
.
.
.
.
.
.
.
(h) before the application
for approval was
made, reasonable steps were taken:
(i) to inform the employees who
are
covered by the agreement about the terms of the
agreement; and
(ii) to explain to those employees the
effect of those terms; and
(iii) in particular,
to explain to
those employees the procedures referred to in
paragraph (e); and
(iv) to inform those employees of the
intention to apply to the Commission to approve
implementation of the agreement, and about the
consequences of approval;"
S.170NC(1)(e)
provides:
"170NC.(1) On an application to the Commission to approve
implementation of an agreement, the Commission
must do so if,
and must not do so unless, it is satisfied that:
.
.
.
.
(e) the agreement
includes procedures for preventing and
settling disputes between the persons bound by the agreement
about matters arising
under the agreement;"
We do not think the Commissioner erred in being satisfied
with respect to s.170NC(1)(h) of
the Act. We think the
requirements in s.170NC(1)(h) of the Act were met with
respect to the enterprise flexibility
agreement relevant to
this matter having regard to the material before the
Commissioner particularly exhibit
S1, as it was marked in the
appeal proceedings.
Whilst the EFA Test Case decision suggested employees covered
by
an enterprise flexibility agreement should be provided
with a document comparing the enterprise flexibility
agreement with the provisions of the relevant award, such a
suggestion was illustrative only of how the requirements
of
the Act regarding enterprise flexibility agreements might be
met. The requirements in s.170NC(1)(h)(i), (ii) and (iii)
of
the Act can otherwise be appropriately met.
With respect to the AFAP's submission concerning the position
adopted
by a Full Bench of the Commission in Australia Meat
Holdings Pty Limited [Print M7764], we note the Full Bench's
decision
in that case turned on the facts particular to the
case. Those facts are different to those relevant to this
matter.
3. S.170ND(3)
S.170ND(3) of the Act is as follows:
"(3) Despite section 170NC, the Commission may refuse to
approve implementation of an agreement if satisfied that,
because of exceptional circumstances, approving
implementation of the agreement would be contrary to the
public interest."
In the EFA Test Case decision, the
Full Bench said:
"The Commission will adopt a cautious approach to the use of
its power under subsection 170ND(3)
having regard to the
clear legislative intent that such a power only be exercised
in exceptional circumstances. However,
in our view it is
neither appropriate or practical to define what would
constitute exceptional circumstances.
The determination of
this issue will depend on the circumstances of particular
cases." [Print M0464 at p. 43]
We are not persuaded the Commissioner should have refused to
approve implementation of the enterprise flexibility
agreement pursuant to s.170ND(3) of the Act because of the
changes to hours of work and redundancy in the enterprise
flexibility agreement.
As already indicated, we do not consider the reductions in
pilots' entitlements and
protections in the enterprise
flexibility agreement relevant to this matter involve
reductions in "community
standards" under their award or any
other relevant law. And, we do not think they otherwise
constitute exceptional
circumstances warranting refusal of
the approval of the implementation of the enterprise
flexibility agreement
in the public interest.
Further, we are not persuaded of the existence of any other
exceptional circumstances warranting
refusal of the approval
of the implementation of the enterprise flexibility agreement
relevant to this matter in the public
interest.
4. Ss.170RB and 170ND(5), (6), (7), (8) and (9)
Ss.170RB of the Act is as follows:
"170RB.(1) This
section applies for the purposes of
negotiations, between an employer that is a constitutional
corporation and
employees of the employer, for the making of
an agreement under Division 3.
(2) An officer or employee ("the
official") of an
organisation of employees is entitled to represent an
employee if:
(a) the employee
is a member of the organisation; and
(b) the organisation is entitled to represent
the employee's
industrial interests; and
(c) the official is duly authorised under the
organisation's rules,
or by its committee of
management, to represent those interests; and
(d) the employee has
informed the employer that
he or she wishes to be represented by the official
for the purposes of the
negotiations.
(3) An employer must not refuse or fail to negotiate with
a person who is entitled under subsection
(2) to represent an
employee."
Ss.170ND(5)-(9) of the Act provide that:
"(5) Despite section 170NC, the Commission
must refuse
to approve implementation of an agreement if satisfied that:
(a) the employer has, in or
in connection with
negotiating the agreement, contravened section 170RA,
170RB, 320 or 334; or
(b) the employer has caused a person or body to
engage, in or in connection with negotiations for the
agreement, in conduct that, if the employer had
engaged in it, would be a contravention by the
employer of section 170RA, 170RB, 320 or 334; or
(c) a person or body has, on behalf of the
employer:
(i) so engaged in such conduct; or
(ii) caused another person
or body so to
engage in such conduct.
(6) Subsection (5) does not apply if the Commission is
satisfied
that the contravention or conduct, and its effects,
have been fully remedied.
(7) Despite section 170NC, the Commission
may refuse to
approve implementation of an agreement, or may adjourn an
application to approve such implementation,
if satisfied that
the employer:
(a) did not, before or as soon as practicable
after the
time when negotiations for the agreement
began, notify each organisation that was at that time
an eligible
union about the negotiations; or
(b) did not give each such organisation a
reasonable opportunity
to take part in the
negotiations and to agree, before the application for
approval was made, to
be bound by the agreement.
(8) Subsection (7) does not apply in relation to an
organisation if the employer
could not reasonably be expected
to have known at, or within a reasonable period after the
time when negotiations
for the agreement began, that the
organisation was an eligible union at that time.
(9) In deciding what action
(if any) to take under
subsection (7), the Commission must consider:
(a) whether it thinks the
failure was
intentional; and
(b) any other relevant circumstances."
At the relevant time,
the AFAP was an eligible union.
Of relevance with respect to ss.170RB and 170ND(7) of the
Act, the EFA Test Case decision
says:
"There are clear distinctions between the operation and
purpose of section 170RB and subsection 170ND(7).
An employee may, pursuant to section 170RB, be represented by
a duly authorised officer or employee of any union to
which
he or she belongs which is entitled to represent his or her
industrial interests. It is not necessary for the union
to be
an eligible union in that it need not be party to an award
that binds the employer as contemplated by the definition
of
an eligible union in section 170LB. Further, the
representation of an employee under section 170RB does
not of
itself provide a union with a right to be bound by an EFA
under section 170NP. By contrast, as we have
noted,
subsection 170ND(7) is dependent on the relevant organisation
being an eligible union.
A further point
of distinction between these two provisions
arises from the provisions of subsection 170ND(5) whereby
conduct by an
employer in breach of section 170RB places as
obligation on the Commission to refuse to approve
implementation
of an EFA unless it is satisfied that the
contravention and its effects have been fully remedied [see
subsection
170ND(6)]. By comparison the failure to notify an
eligible union about the negotiations for an EFA or to give
it a
reasonable opportunity to take part in the negotiations
does not have the same statutory consequences.
If an employer
acts contrary to obligations implicit in
subsection 170ND(7) the Commission may refuse to approve the
implementation
of the EFA. If an employer contravenes
section 170RB then, pursuant to subsection 170ND(5) the
Commission
must refuse to approve the implementation of the
agreement subject only to subsection 170ND(6).
These distinctions lead
us to the view that section 170RB and
subsection 170ND(7) are directed at different, unrelated,
objectives.
Section
170RB provides individual employees with the option
of being represented by their union(s). In effect it is a
right
to have the relevant union officer or employee act as
statutory bargaining agent of the employee." [Print M0464 at
p.
35]
In his decision resulting in the approval of the
implementation of the enterprise flexibility agreement,
the
Commissioner begins by pointing out he is dealing with an
application pursuant to s.170NA(2) of the Act.
He then
indicates that on 25 August 1995 the parties to the matter
participated in a conference in the Commission
and at the
conclusion of that conference the matter was formally called
and he made a statement in which he said:
"There are concerns raised by the industrial organisations
concerning not only the content to an extent of
the
enterprise flexibility agreement as it is presented to the
Commission, but in more particularity concerns regarding
the
processes that have been followed to bring the application to
its current stage. Without delving into the detail
of those
on the record this morning I have conferred with the parties
and have formed a view that there is a need
for further
discussion between them. I think we have agreed on a process.
The process is that where necessary, and that
is where the
matters cannot be easily resolved here today, or by some
limited communication in the short term, that
the unions that
have concerns with the matter should raise those concerns
with some degree of particularity with the
company as soon as
is possible.
If then following the receipt of correspondence and
preliminary discussions
there is a view that further
consultation is required, that consultation should be entered
into quickly, it being
my view that the common objective of
all of the parties ought to be to get a framework to support
the company's operational
and commercial activities in place
as soon as is possible. I would ask to be kept informed of
any difficulties that
the parties have. The matter will be
returned to the Commission's list quickly on application,
hopefully that will
be to deal with an application that has
the support of the parties. I did detect in the conversations
that we had that
there was some concern, by at least some of
the unions, that the arrangements that had been negotiated
needed to be
brought to the Commission as an enterprise
flexibility agreement." [Print M8542 at p. 2]
He says in his decision
that at that stage he discussed with
the parties as to how the matter might proceed and the AFAP
indicated that "as
soon as practical" the AFAP would raise
their concerns with the company. His decision goes on to say
that the matter
was the subject of further proceedings in the
Commission on 21 November 1995 in which he indicated he had
received
correspondence from each of the employee
organisations, other than the AFAP, conceding their consent
to the
application. With respect to the AFAP, his decision
advises that, as the solicitor for the company put it, it was
basically
agreed between the company and the AFAP that they
would agree to disagree.
Towards the conclusion of his decision the
Commissioner says:
"As to the role of the AFAP in the negotiations and in
these proceedings (the third issue raised
by the Federation)
the following is germane.
. Since 1989 (the pilots strike) relationships between
the
company, the pilots and the Federation have been
strained.
. The AFAP has had to face competition from
the ASU and
in-company staff associations in respect to coverage and
representation.
. The majority
of pilots (by all accounts) do not belong
to the AFAP.
. When the company first initiated discussions regarding
change Federation representatives were involved along
with others.
. Representation has been difficult
since 1992. A series
of events has seen the Pilots Council dissolved; the ASU
has acted as agent on behalf of
individual pilots and
indicates it will seek representational rights itself. A
Skywest Pilots Association has
formed and split into two
separate entities and certain key representatives have
resigned from their posts,
all of which has made it
difficult for the company to communicate with all of its
pilots through one organisation.
. Section 118A proceedings are pending regarding the
coverage of pilots at Skywest.
. In these
proceedings there has been early discussions
with pilots who were apparently perceived by the company
to be representatives
of the AFAP.
. Captain Broad in his evidence has said he attended
meetings as an individual and not as a
representative of
the AFAP, yet he admits to frequent contact with the
Federation about the progress of negotiations.
. The company said it invited constructive comments on
the proposed agreement from all unions including the
AFAP
and adversely compares the performance of the AFAP with
the other unions. It asserts that the AFAP denied
itself
the opportunity to be part of the negotiations at least
since December 1994 and that fundamental
differences
prevented the Federation being party to the agreement
even though the majority of pilots (who
the company says
are in a position to understand the problems currently
faced) have voted to accept the proposal.
Taking all of the above into account, I have
concluded that the company before or at least as soon
as
practical after the time when negotiation began did
notify and advise the AFAP about the negotiations
and did
give them the opportunity to take part in the
negotiations and proceedings and to agree to
be bound by
the Agreement.
Additionally, on 25 August ... I reiterated what was
an agreed position
that unions with concerns should raise
those concerns with the company `with some degree of
particularity'.
...
Some consideration has been given to directing the
AFAP and the company to confer further but I accept
the
submissions of Mr Graham Smith, Solicitor for the
company, that the differences which lie between
them are
fundamental in nature and unlikely to settle and decided
against this course of action.
The difficulties that lie in the path of
discussions/negotiations between the company and the AFAP
are recognised for all the reasons cited above. However,
in the circumstances I have had to reach the view that
the company has complied with its statutory obligations
in respect to the objections raised and I can not accept
that those objections should act as a barrier to the
approval of this application." [Print M8542 at pp. 20-21]
It is apparent from s.170RB(1) and (2) of the Act that an
officer or employee (the official) of an organisation
of
employees is entitled to represent an employee for the
purposes of negotiations for the making of an enterprise
flexibility agreement if certain conditions are met,
including if the employee has informed their employer that
he
or she wishes to be represented by the official for the
purposes of the negotiations. And, s.170RB(3) of
the Act
requires an employer to negotiate with a person who is
entitled to represent an employee pursuant to s.170RB(2)
of
the Act.
With respect to the enterprise flexibility agreement relevant
to this matter, it is not clear whether
an employee or
employees of the company did inform the company that they
wished to be represented by an officer
or employee of the
AFAP for the purposes of the negotiations for the making of
the enterprise flexibility agreement.
Nonetheless, as already indicated, s.170ND(5) of the Act
which requires the Commission to refuse to approve
the
implementation of an enterprise flexibility agreement if
satisfied an employer or the employer's representative
has
breached s.170RB of the Act, does not apply if the Commission
is satisfied that the contravention and its effects
have been
fully remedied [see s.170ND(6)].
We think that with the initiatives instituted by the
Commission
in the proceedings in the Commission on 25 August
1995 and the results of them any contravention and the
effects
of such contravention by the company of s.170RB of
the Act were fully remedied.
We also point out that the
Commission's power under
s.170ND(7) of the Act to refuse or adjourn an application to
approve implementation of an
enterprise flexibility agreement
is discretionary.
We are not persuaded the Commissioner should have refused or
adjourned
the application to approve implementation of the
enterprise flexibility agreement relevant to this matter
pursuant
to s.170ND(7) of the Act. We say that having regard
to the circumstances before the Commissioner. Those
circumstances
are outlined in his decision as set out above
and we think they are relevant considerations for the
purposes
of s.170ND(7) of the Act.
At the commencement of the appeal proceedings, the AFAP sought
to present further evidence pursuant
to s.45(6) of the Act,
having regard to a letter dated 26 April 1996 which was forwarded
to the Commission from Mr Peter Gardiner,
Chairman Administrative
Committee of the Skywest Pilots' Association, stating that the
Administrative Committee had withdrawn
its support for the
enterprise flexibility agreement due, amongst other things, to
the reluctance of the company to meet
the commitments it made
when the enterprise flexibility agreement was initially proposed.
The company opposed the admission
of further evidence. The Full
Bench was not persuaded it should admit such further evidence in
the appeal. We remind the parties
of the provisions of s.170NN of
the Act.
Having regard to the reasoning set out in our conclusion in
this matter, we are
not of the opinion that the matters raised by
the appeal, including those raised by the AFAP pursuant to
s.45(1)(g) of the
Act, are of such importance that in the public
interest leave to appeal should be granted.
Leave to appeal is, therefore,
refused.
BY THE COMMISSION:
DEPUTY PRESIDENT
Conditions of employment - enterprise flexibility agreement - s.170NA
Industrial Relations Act 1988 - appeal - various employees, airline
operations - whether agreement disadvantaged employees - principles to be
considered
for 'no disadvantage' test - community standards - whether
reasonable steps taken to inform employees about terms of agreement
-
whether approval contrary to public interest - effect of exclusion of
registered organisation from negotiation notwithstanding
its own desire and
that of its members to be involved - interaction between s.170RB and
s.170ND(7) - any contravention of s.170RB
and its effects were fully remedied
by company under s.170ND(6) - matters raised on appeal not of such implortance
that in public
interest leave should be granted - leave to appeal refused.
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