1
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Qantas Airways Limited
(AG2013/2822)
AUSTRALIAN SERVICES UNION (QANTAS AIRWAYS LIMITED)
AGREEMENT 10
Airline operations
COMMISSIONER JOHNS MELBOURNE, 1 NOVEMBER 2013
Application for approval of the Australian Services Union (Qantas Airways Limited)
Agreement 10.
[1] The following decision is an edited version of the decision issued on transcript on 30
October 2010 approving a single-enterprise agreement known as the Australian Services
Union (Qantas Airways Limited) Agreement 10 (EBA10).
[2] On 11 September 2013 an application was made for approval of EBA10. The
application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act) by Qantas
Airways Limited (Applicant). The agreement is a single enterprise agreement.
[3] EBA10 was lodged within 14 days after it was made.
[4] The application was listed for Hearing on 30 October 2013. Appearing for the
Applicant was Ms H. Fairhall of Ashurst. Appearing for the Australian Services Union (ASU)
was Mr J. Cooney and representing themselves were Ms L. Waterhouse and Ms M. Edwards,
employees of the Applicant.
Submissions on discriminatory term
[5] The Commission must approve an agreement if the requirements set out in section 186
and 187 of the FW Act are met. Relevantly in the present matter, under section 186(4) of the
FW Act, the Commission “must be satisfied that the agreement does not include any unlawful
terms.” An unlawful term includes a “discriminatory term” as defined in sections 194 and 195
of the FW Act. In answer to question 2.13 in the Applicant’s Form F17 filed in this matter the
Applicant asserted that EBA 10 does not contain a discriminatory term.
[6] On 20 September 2013, the Fair Work Commission (Commission) received
correspondence from two employees of the Applicant (Employee Objectors) asserting that
that EBA10 contained a discriminatory term.1 Their concern was, in particular, with respect to
[2013] FWCA 8454
DECISION
E AUSTRALIA FairWork Commission
[2013] FWCA 8454
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the application of the part time clause limiting hours of work on employees at the Brisbane
Domestic and International terminals. In their correspondence the Employee Objectors submit
that the relevant clauses have “triggered indirect discrimination.” They say that indirect
discrimination is “based on sex, and possibly race and family responsibilities.” In the
proceedings before the Commission they added to the list of potential prohibited attributes
age and marital status. From what was said during the proceeding the Commission takes it
from their submissions that they do not substantially press the issue of race before the
Commission. They do not assert direct discrimination. The Commission agrees with them in
that regard.
[7] The Commission accepts that indirect discrimination falls within the scope of sections
194 and 195 of the FW Act. Consequently, if EBA10 contains a term which indirectly
“discriminates against an employee to be covered by the agreement because of, or for reasons
including, the employee’s sex, ... family or carer’s responsibilities, age or marital status”
EBA10 cannot be approved.
[8] On 8 October 2013, the Commission received submissions from the ASU2 and the
Applicant.3 In both submissions, the relevant clauses of EBA10 are identified as follows:
“18 Part Time Employment – Airline Officers Only:
18.1 Ordinary Hours of Work
18.1.1. Part-time employees shall be engaged for a minimum of 20 hours per
week with a minimum daily engagement of not less than 4 hours.
Maximum ordinary hours to be worked by a part-time employee will
be either:
(a) 30 hours per week averaged over 12 months with the proviso that no
more than 76 ordinary hours may be worked in any fortnight; or
(b) 30 ordinary hours per week;
18.1.2 Despite anything else in this agreement:
(a) by agreement between the employer and the employee, and the ASU,
an employee may be engaged to work less than 20 hours per week,
(b) a part-time employee will not be rostered to work in excess of 30
hours per week except by agreement between the parties, and
(c) Shift workers shall not work more than six (6) shifts in any seven days
except by agreement between the Company and the ASU, provided
that the ASU shall not unreasonably withhold its agreement.
18.1.3 The ASU must not refuse to make an agreement under 18.1.2 (a), (b)
and (c) above for any reason, or for reasons that include any reason,
which would contravene the freedom of association provisions of
Section 346 (a) of the Fair Work Act as amended from time to time.
……………
18.5 Overtime
18.5.1 Where a part-time employee is required to work additional hours on a
day and the number of hours worked in total does not exceed 7.6
[2013] FWCA 8454
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hours, all hours will be paid at single time, provided that any hours in
excess of 7.6 hours shall be paid at the normal overtime rate.
18.5.2(a) All time worked in excess of 7.6 hours per day, 10 days per fortnight,
1560 hours in the first year following the date of the coming into force
of this provision, or 1410 ordinary hours in any successive year, shall
be overtime and paid at overtime rates specified in this EBA 10. This
shall not include hours worked on secondment to a full time position.
(b) Provided that where a part-time employee's hours of work are
designated in accordance to subclause 18.1.1 (b) hereof, overtime will
be paid for any hours worked in excess of 30 per week.
18.5.3 In the allocation of overtime, preference will be given to full time
employees having regard to the intention of the parties to avoid, where
possible, a part-time employee working overtime.”
[9] The Applicant and the ASU both submit that EBA10 does not contain any terms which
explicitly or implicitly discriminate against a person because of any prohibited attribute. They
submit that there is “no direct or indirect discrimination”. They say EBA10 does allow for
part time employees to work in excess of 30 hours per week as those hours would be paid as
overtime.
[10] Both the Applicant and the ASU noted in their submissions that the relevant clauses
were also subject of discrimination claims by the Employee Objectors with respect to
Australian Services Union (Qantas Airways Limited) Agreement 9 (EBA9). EBA9 was
approved by Commissioner Raffaelli on 2 June 2011.4 In separate Reasons for Decision
issued on 10 June 20115 the Commissioner usefully set out the elements of indirect
discrimination in respect of the circumstances before him, namely:
“1. Qantas must impose a condition, requirement or practice;
2. The impugned condition, requirement or practice has, or is likely to have, the
effect of disadvantaging women;
3. The condition, requirement or practice is not reasonable in the
circumstances.”6
[11] Based on the evidence before him, being that women made up the majority of the
employees to be covered by EBA9, and that the number of overtime hours completed by part
time employees was significantly higher than full time employees, the Commissioner was not
satisfied that EBA9 had the effect of disadvantaging women.
[12] The Commission notes the very same provisions contested as a part of the approval
process relating to EBA9 are now in dispute in respect of EBA10.
[13] Based on company records obtained on 20 September 2013, the Applicant provided
the following statistics. Of the employees covered by EBA10:
4,139 are women, that is 66% of all employees;
2,318 are full time employees, 55% of full time employees are women; and
1,821 are part time employees, 88% of all part-time employees are women.
[2013] FWCA 8454
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[14] On 9,7 10,8 13,9 1710 and 3011 October 2013 further submissions were received by the
Commission from the Employee Objectors. In summary these submissions stated that the
same part time clauses have been included in like agreements at least since 1999. In
particular the Employee Objectors noted the 1999 ASU/Ansett EBA. They then referred the
Commission to concerns raised during the certification process of that agreement by
Commissioner Whelan (as her Honour then was) relating to discrimination and assert that she
only agreed to certification if the part time issues were addressed. The Employee Objectors
submit that the part time conditions should have been automatically changed at Qantas after
the matters were raised during the certification of the ASU/Ansett EBA.
[15] The Commission is not persuaded that what occurred in those separate proceedings in
relation to a separate employer and a differently constituted group of employees is necessarily
relevant in relation to the matter now before the Commission.
[16] The Employee Objectors also confirmed that the Employee Objectors are not arguing
that the clauses are directly discriminatory. Rather, they say that the application of the clauses
are discriminatory towards the identified group of employees with the relevant attributes.
[17] On 15 October 2013, the ASU filed submissions in response to matters raised by the
Employee Objectors.12 The ASU rejected the assertion by the Employee Objectors that the
ASU recognised the clauses triggered indirect discrimination. The ASU submitted that the
emphasis from the Employee Objectors was discrimination based on a classification of
employment, namely part time employees. It is suggested that it is not gender that the
Employee Objectors are objecting to, rather, category of employment. The ASU submits
‘category of employment’ is not one of the attributes forming the basis of a discriminatory
claim under the FW Act. To the extent that the discrimination cannot be attached to a category
of employment, the ASU is correct in that submission.
[18] On 15 October 2013, the Applicant wrote to the Commission advising it did not intend
to file any further submissions except to note, amongst other things, that the views expressed
by the two Employee Objectors concerned are theirs alone and cannot be regarded as
representative concerns of any other employees.13
[19] On 17 October 2013, the Employee Objectors filed their final response.14 They noted
that at the commencement of negotiations for EBA10 they gathered over 100 signatures in
support of changing the part time provisions from Brisbane airport alone. They stated that
only 39.7% of the workforce voted on EBA10 and questioned whether even one part time
female employee voted on EBA10.
[20] On 30 October 2013, the Employee Objectors filed further correspondence attaching
correspondence from the ASU to Ansett Australia dated 6 December 1999 in which the ASU
wrote that they were concerned about the discriminatory impact of the part-time clauses.15
The Commission is not satisfied of the relevance of that material.
Consideration of the discrimination issue
[21] The Commission has considered all that has been put in the proceedings. The
Commission notes the submissions that have been made.
[2013] FWCA 8454
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[22] While there is no requirement that any individual member of the Commission must
follow the decisions of another member in a like matter, those decisions should, in my view,
be considered highly persuasive. In the EBA9 decision Commissioner Raffaelli concluded
that,
“It cannot be said that by giving preference to full-timers in access to overtime that
this disadvantages women generally, because there are more women full-timers than
women part-timers under [EBA9] and more women full-timers than men full-timers.”
He went on:
“There is ... no statutory basis for me to refuse to approve [EBA9] because provisions
limiting part-time hours are said to be old-fashioned or because different part-time
minimum hours apply to Qantas Information and Technology Limited employees.”
[23] Those conclusions by Commissioner Raffaelli are equally applicable today to the
application before the Commission in this matter.
[24] The Commission accepts that the Employee Objectors feel aggrieved by these clauses
and the way in which they say they operate in practice. The Commission accepts they feel
they have been treated unfairly. However, the Employee Objectors must be able to establish
that each of the elements of indirect discrimination are made out in order for the Commission
to find that EBA10 contains a discriminatory term. Comparisons between full-timers and
part-timers (absent that having a differential impact on women when compared to men for
example) do not establish a ground to find that the term is discriminatory under section 195 of
the FW Act.
[25] In the present matter the Employee Objectors articulate the indirect discrimination as
follows. They say that the condition, requirement or practice complained about is that, in
order to receive preference in the allocation of overtime under clause 18.5.3, the employees
must be full time. They also pointed to the condition that defines part time employees as those
who work less than 30 hours.
[26] The second element of indirect discrimination requires the Employee Objectors to
establish that the impugned condition, requirement or practice has, or is likely to have, the
effect of disadvantaging, in the first example women when compared with men. Having heard
from the Employee Objectors, the Commission is not satisfied that discrimination as between
men and women occurs by reason of the operation of clause 18.5.3.
[27] The substantive basis upon which the employee objectors advanced the form of
discrimination as between men and women was to invite the Commission to have regard to
the terms which apply to Qantas employees “below the wing”, that is, a different class of
employees not covered by EBA 10. This is not relevant.
[28] As noted earlier in this decision, the Employee Objectors did not press discrimination
based on race.
[29] The Employee Objectors did however press discrimination on the basis of family or
carer responsibilities. The proper comparator to that class of employees is employees who do
not have family or carer responsibilities. The Employee Objectors say that the majority of part
[2013] FWCA 8454
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time employees have family or carer responsibilities. However, the employee objectors were
not able to point to the disadvantage experienced by those employees when compared with
employees who do not have those responsibilities by reason of the operation of the relevant
clauses complained about.
[30] The next attribute relied upon by the Employee Objectors is that of age. They say in
relation to their personal circumstances that they are more than 55 years of age and that the
operation of the relevant clauses in EBA 10 restricts their ability to earn more income, and
this has an effect on their superannuation. The Applicant has submitted material detailing the
amount of overtime performed by each of the Employee Objectors. It is not apparent from
that material that there has been any restriction on the ability of the Employee Objectors to
access overtime.
[31] The next attribute advanced by the Employee Objectors is that of marital status, and in
particular, the attribute of someone being single against someone who is not. The
Commission is not satisfied that the marital status attribute, or how the term is discriminatory
in respect of that attribute, has been sufficiently advanced through the submissions.
[32] In all the circumstances therefore the Commission is not satisfied that the second
necessary element of indirect discrimination is made out. For that reason it is not necessary
for the Commission to have regard to the third element, which would otherwise have been
that the condition, requirement or practice is not reasonable in all the circumstances.
Access period
[33] On 3 October 2013 the Commission requested further information from the Applicant
in respect of whether all employees were given at least 7 days access to EBA10 and
accompanying documents. The concern was that it was unclear when employees who did not
have access to their company email account were posted EBA10 and associated documents.
[34] The Applicant confirmed that EBA10 and associated documents were sent by express
post to those employees on 20 August 2013. The access period commenced at 9 am on 24
August 2013 and finished immediately before the opening of the electronic ballot at 9 am on
31 August 2013. The Commission is satisfied that all employees had access to EBA10 and
associated documents for the duration of the access period. The Commission also notes that in
the approval of EBA 10 there was an employee participation rate of 39.7% and, of those who
participated, 97% voted to approve EBA 10.
Typographical amendments
[35] The Applicant has sought amendments to EBA10 to correct typographical errors. The
amendments sought were detailed in correspondence to the Commission16 and the marked up
pages of EBA 10 filed in the Commission on 30 October 2013. The amendments sought are
as follows:
A. In Schedule 3.2 of EBA10, ‘Shiftworkers’ table, the second heading which
reads “with 20th day ‘grossed up’” is incorrect and should read “Without 20th
Day ‘Grossed Up’”
[2013] FWCA 8454
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B. In Schedule 4.1(b) of EBA10, Airline Officer Expense Related Allowances,
clause 4.1(b)(i) deals with transport allowances.
Both 4.1(b)(i)(b) and 4.1(b)(i)(c) contain duplicated references to increases
operating from the first full pay period “on or after 1 July 2013” based on
“movements in CPI Private Monitoring Index from the March 2012 to March
2013 Quarters”. It is intended that these be indexed to increase each year.
Accordingly, clause (b) should refer to “1 July 2014”/“March 2013-March
2014”, and clause (c) should refer to “1 July 2015”/“March 2014-March 2015”
C. In Schedule 4.2(b) of EBA10, QFIT Expense Related Allowances, clause
4.2(b)(i) deals with meal allowances.
Both 4.2(b)(i)(B) and 4.2(b)(i)(C) contain duplicated references to increases
operating from the first full pay period “on or after 1 July 2013” based on
“movements in CPI Meals out/Takeaway Index from the March 2012 to March
2013 Quarters”. It is intended that these be indexed to increase each year.
Accordingly, clause (B) should refer to “1 July 2014”/“March 2013-March
2014 Quarters”, and clause (C) should refer to “1 July 2015”/“March 2014-
March 2015 Quarters”.
[36] Pursuant to s.586 of the FW Act, the Commission is satisfied the amendments should
be made.
Conclusions
[37] Having regard to all that has been put before the Commission, the Commission is
satisfied that each of the requirements of sections 186, 187 and 188 of the FW Act as are
relevant to this application have been met.
[38] The Australian Services Union, being a bargaining representative for EBA10, has
given notice under s 183 of the FW Act that it wants EBA10 to cover it. In accordance with s
201(2), the Commission notes that EBA10 covers this organisation.
[39] EBA10 is approved and, in accordance with s.54, will operate from 6 November 2013.
The nominal expiry date of EBA10 is 30 June 2016.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
Price code O, AE405031 PR543844
1 Exhibit WE1
[2013] FWCA 8454
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2 Exhibit ASU1
3 Exhibit Q1
4 [2011] FWAA 3482
5 [2011] FWA 3632
6 Ibid at para [42]
7 Exhibit WE2
8 Exhibit WE3
9 Exhibit WE4
10 Exhibit WE5
11 Exhibit WE6
12 Exhibit ASU2
13 Exhibit Q2
14 Exhibit WE5
15 Exhibit WE6
16 Exhibit Q3
