AFAP Qantas Pilot Council Legal Briefing
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As the AFAP is currently involved in a range of legal matters that either directly affect or potentially impact Qantas members, we thought it timely to provide you with another short legal update.
Network Aviation Intractable Bargaining Dispute
At the start of October, a Full Bench of the Fair Work Commission conducted the hearings for the Network Aviation (Network) intractable bargaining dispute determination.
For background, over 2023 and early 2024 AFAP members at Network took protected industrial action (PIA) in the form of stop-works in pursuit of their claims for a new enterprise agreement. While in principle agreements were reached at certain points over the negotiation, these agreements did not sufficiently close the gap with other airlines for the majority of Network pilots to vote in support of them.
Specifically, the AFAP endorsed two of the four versions of the proposed agreements (we recommended yes to document 2 and 3) that were put to vote. The PIA clearly did achieve improvements in documents 2 and then again for document 3 however it was not sufficient to translate to a yes vote.
The intervention of Qantas IR on the eve of the 2nd vote to advise pilots regardless of the outcome the company would withhold the record results bonus was an unnecessarily provocative act that undoubtedly contributed to the slim “No” vote.
With PIA continuing after the fourth “No” vote, Network/Qantas management applied for an intractable bargaining order. This order was subsequently granted and led directly to the intractable bargaining dispute determination.
The intractable bargaining laws in Australia are quite new and provide expanded access for bargaining representatives to seek an arbitrated outcome (in other words an agreement that is decided by the Fair Work Commission rather than a vote of employees). How the new laws will operate in practice is difficult to judge given there is little case law in this area.
Agreed Terms
One of the key issues for resolution in the Full Bench decision is the consequence of parties reaching in principle agreement and whether this is “locked in” if a negotiation goes to arbitration.
In the Network case, the FWC decided that the agreed position between the parties, was as set out in the 22 December Proposed Agreement, with the exception of 11 terms that were not agreed. These unagreed areas will be the only items to be arbitrated on by the FWC and are:
The above items had previously been agreed in principle by the AFAP and Qantas prior to votes 2 and 3. However after vote 3, these items were “unagreed” following correspondence from the AFAP in which further claims were raised.
While the other clauses in the agreement will be as per the previous in principle agreement on 22 December, this has the advantage of narrowing the matters that require a FWC ruling. Further given the significance of the unagreed 11 matters for the pilot group, it still puts in play the opportunity to address the critical concerns of the pilot group as part of the arbitration.
The impact of reaching in principle agreement and its bearing on what the ultimate arbitrated outcome is on the 11 items will be a key element that is reviewed following the Full Bench decision. Whether this changes our approach to bargaining more broadly and our willingness to reach in principle agreements can only be determined once the decision is issued.
For the moment as the AFAP bargains across the Qantas Group including at Short Haul and Long Haul our approach remains to seek a negotiated outcome in which we reach an in principle agreement which reflects our members position. Ultimately, our aim is to endorse a document that we believe would be supported by our members, and this means agreeing to a document that reflects our members views through surveys and direct feedback.
AFAP Approach to Arbitration
With any arbitrated outcome there is always a risk with placing the outcome in the hands of a third party. The AFAP preference is always a negotiated outcome which is approved only when voted up by pilots. In other words, we prefer pilots having control of their own terms and conditions.
However, after Network/Qantas were granted an Intractable Bargaining Order (and as a result the PIA was halted) we were left with no alternative than to commit to the best outcome we could through arbitration.
The AFAP engaged external legal counsel and provided multiple witness statements and material in support of what we proposed would be a fair arbitrated outcome. This included detailed comparison data, personal statements from affected Network pilots and expert witness testimony from a fatigue scientist from UNSW. AFAP witnesses were cross-examined before a Full Bench of the Fair Work Commission over early October and a decision has been reserved.
While the outcome is still unknown, a few things cannot be denied. The first is that the unity and resolve of the Network pilots over a sustained period has been remarkable. The second is that the work of the AFAP Network pilot reps to try and find a solution was tireless and they have the upmost respect from the AFAP and the industry in standing up to Qantas. The third is that the AFAP has put its full resources (internal and external) into arguing for the best possible outcome.
We are hopeful that a decision will be delivered by early 2025 so that the Network pilots who have not had a salary increase since 2019 can receive a well-earned improvement in terms and conditions.
From there the decision will be reviewed by the AFAP and used to inform our bargaining strategy in other operations. However, it is important to note that the outcome in Network’s matter will not necessarily set a precedent for other negotiations as each case will be decided on its own facts.
Any member who would like copies of the transcript, our witness statements or submissions should contact Chris Aikens via
chris@afap.org.au or Simon Lutton via
simon@afap.org.au.
Corporate Air Charter Case
The AFAP recently successfully ran an underpayment matter in the South Australian Employment Court. The case, Australian Federation of Air Pilots v Corporate Air Charter Pty Ltd [2023] SAEC 63 is available
here.
This case addresses fundamental industrial relations principles that have been overlooked in the aviation industry.
In particular, the case gives important recognition to the 38-hour week in the Air Pilots Award 2020 (the Award), which entitles pilots to overtime at their normal hourly rate (single time) for each hour they work beyond 38 hours.
The case establishes that employers cannot roster excessive standby without this being recognised and accounted for when determining a pilot’s salary.
Many employers have long operated under the false assumption that standby or reserve time is unpaid or unrecognised under the Award. This case run by the AFAP establishes that standby is work and it needs to be recognised as such.
Among other things, the findings in this case may have implications for enterprise agreements when the Fair Work Commission applies the Better Off Overall Test (BOOT).
The case is now subject to Appeal before a Full Court of the Federal Court where the AFAP will maintain that the principles established by the South Australian Employment Court should be upheld.
Interestingly, in early October Qantas applied to intervene in the Appeal of this case. Pleasingly, Qantas was unsuccessful, and the Federal Court agreed with the AFAP and rejected the intervention by Qantas. A copy of this decision is available
here.
Express Freighters Australia
The situation at Express Freighters Australia (EFA) is a sadly familiar one when it comes to the aggressive approach of Qantas IR coming out of the pandemic.
In 2019 EFA had a very substandard non-union agreement which was being re-negotiated before the onset of the Covid pandemic. Negotiations for a replacement agreement at EFA, like at other Qantas entities, effectively stopped during the pandemic.
When negotiations resumed Qantas IR fully exploited the situation. Rates for many EFA pilots had fallen below the Award minimum salary rate and the company unilaterally put out an agreement which only marginally improved terms and conditions above the Award. This agreement was rejected by the pilot body. The company then made a couple of very minor improvements and threatened that back-pay would be removed if the subsequent agreement was not voted up. Because of the delays in bargaining over Covid the backpay had accrued to significant levels for most pilots and the risk of losing the backpay was too much for the majority of EFA pilots to risk. This subsequent agreement was voted up.
Then this year, after higher than usual increases to the Award rates, we were again faced with a situation that many pilots at EFA were receiving a salary less than the minimum Award rate. The AFAP wrote to the company to alert them to this issue in June, just before the Award rises on 1 July 2024. The AFAP also requested the immediate commencement of bargaining despite the nominal expiry date for the agreement being 31 December 2024.
Despite repeated requests to top up the salaries to the Award level and commence bargaining Network/Qantas has maintained a position that it is not required to either top up the salaries to the Award or commence bargaining before 1 January 2025.
The AFAP has commenced the dispute procedure in relation to the salaries, asserting that under s206 of the Fair Work Act that EFA must top up the salaries to the Award and commenced the application process under s229 for a Bargaining Order under s230 of the Fair Work Act.
We expect the s206 dispute matter and the s229 application for a bargaining order to be listed in the Fair Work Commission before the end of the year.
At the same time, the AFAP has surveyed members on how they wish to approach bargaining once it begins. The outcome of the survey is that over 80% of members wish to explore terminating the current agreement and commencing an application for a PIA ballot as soon as legally possible after 1 January 2025.
In the meantime, AFAP membership at EFA has surged.
The AFAP EFA pilot reps have also been meeting regularly with the AIPA and TWU pilot reps and all parties have requested joint bargaining meetings.
Qantas Long Haul - TAFB Dispute
As advised in previous updates, the AFAP has been progressing a dispute regarding the proper application of the allowances payable when training away from home base on behalf of members who elected to be paid under Option 2B when training away from home base or more than 200km from their residence.
Option 1 is where Qantas provide all transport, accommodation, DTA and Travel requirements. Option 2 is where Qantas provide an amount of money for accommodation and DTA but provide travel. Option 2B is where Qantas provide an amount of money and the pilot takes responsibility for all accommodation and transport costs. The enterprise agreement also requires that:
“The Company will pay a pilot's DTA and any accommodation and transport allowance (where applicable) for the anticipated total duration of the training, in advance, on the pay date immediately preceding the commencement of the training.”
The primary issue in dispute is what amounts are payable when a pilots training is disrupted.
To date attempts to settle the matter, including via conciliation before the Fair Work Commission, have been unsuccessful.
Currently directions have been finalised for an arbitration hearing before Commissioner Sloan of the Fair Work Commission in early 2025.
Qantas Short-Haul Reserve Call-In
The final legal issue is just a matter to note.
Recently the AFAP was contacted by a Short Haul member enquiring what limits apply when being called off reserve. The member had commenced a reserve duty at 5:00am and was subsequently contacted and required to perform a duty finishing well after midnight in Darwin. Under the Qantas FRMS, no additional limitations beyond the standard flight duty limitations apply when called off reserve and time on reserve does not count in determining the allowable FDP.
Further, a pilot who is contacted while on reserve can be directed to commence a duty even if it is more than 2 hours after the completion of the reserve duty.
This can be contrasted at operations such as Jetstar where a duty period is limited to a total of 16 hours inclusive of any time spent on reserve prior to being called out. Similar limitations apply at Virgin Australia.
Equally both Jetstar and Virgin limit the commencement of duty from reserve to a maximum of 2 hours after the end of the reserve period. In the case of Virgin, this can only occur if the reserve period is 10 hours or less.
Most Qantas Short Haul pilots will remember that coming out of Covid and under a project code-named “Operation Winton”, Qantas pushed through a variation to the Short Haul Agreement. Amongst other things this variation removed rostering rules to be replaced with total reliance on the FRMS. This variation was also voted on under the threat of not providing the replacement aircraft for the B737 (being the A320 family).
That the Qantas FRMS allows for such a duty after an extended period on reserve is an example of why additional rostering protections or work rules should be included in an agreement and not to purely rely on an FRMS which simply requires CASA approval.
We hope you find the above legal update informative. It is a snapshot of some of the matters being progressed by your AFAP and its experienced industrial and legal team.
As always, for any enquiries regarding matters at Qantas please contact any of your QPC pilot representatives (
qpc@afap.org.au) or the AFAP legal and industrial team of Senior Legal/ Industrial Officer Pat Larkins (
patrick@afap.org.au), Senior Industrial Officer Chris Aikens (
chris@afap.org.au), or Executive Director Simon Lutton (
simon@afap.org.au).
Regards,
AFAP Qantas Group Industrial/Legal Team
Simon Lutton – Executive Director
Jared Marks – In House Counsel
Andrew Molnar – In House Counsel
Patrick Larkins – Senior Legal/ Industrial Officer
Deanna Cain – Senior Legal/ Industrial Officer
Chris Aikens – Senior Industrial Officer