For the purpose of building pattern lines, the standard window will continue to apply on the basis that the window is +/- 7 hours of the actual bid period divisor for the relevant category.

However, for the purpose of 28 day equivalent bid periods, any plan to exceed the maximum window of +/- 3.5 hours will be subject to agreement between the Company and the Association.”

[162] The change is supported by changes in clause 25.1.3(b) (Quota of flying available to administrative supervisory Captains) and clause 25.1.3(c) (Quota of flying available to training supervisories) of QWD and clauses 5.2(a) (Dividing total credited hours by the divisor) and clause 28.1(a) (Pilots will not be scheduled to exceed bid period divisor (or, where applicable, personal divisor) plus 5.5 hours) in the Rostering Manual.

[163] AIPA opposes the change. Clause 14 of the AWD reformulates the EBAv7 definition but to the same effect, with standard window figures of 5 and 2½, with complementary provisions within clause 52.2.

[164] In the CWD, AIPA proposes a definition as follows:

“Bid period divisor, for a 56 day bid period, means a number between 160 and 180 (except as otherwise provided for in clause 52.2.1) determined by the Company after consultation with the Association, which determines the number of pattern lines to be constructed for each category at a base or posting and is used as a reference point for various provisions in this Determination. No pilot will be planned for more than 32 days of duty (this is increased to 33 days where a pilot bids to a window of hours incorporating max).

For the purpose of translating the 56 day bid period divisor into a 28 day equivalent, the following formula will apply;

1	Planning Divisor
	Planning Divisor/56 x 28
2	Actual Divisor
	Actual Divisor/56 x 28
3	Standard Window

For the purpose of building pattern lines, the standard window will continue to apply on the basis that the maximum window is +/- 5 hours of the actual bid period divisor for the relevant category. However, for the purpose of 28 day equivalent bid periods, any plan establishment to exceed the maximum window of +/- 2.5 hours will be subject to agreement between the Company and the Association.”

[165] That provision was proposed by AIPA, as part of the CWD package and subject to a caveat in clause 7.2 - Effect of productivity changes - which states “Despite anything else in this Determination, a pilot will not be reduced to a lower category or be made redundant due to an increase in a divisor.” It was also subject to clause 52.1, which provides for computer programs agreed between Qantas and AIPA to group patterns of flying into pattern lines and allocate patterns in accordance with CASA requirements, the provisions of the workplace determination and a pilot’s expressed preferences.

[166] Qantas submitted that over the long-term, the changes it seeks will enable it to improve Qantas’ competitive position both internationally and domestically and, subject to prevailing market conditions, give LHPs the opportunity to bid for higher credited hours and increase their take-home pay. The caveats reflect the fact that in the short-term context of a LHP surplus within Qantas, any immediate usage of the increased flexibility to fix bid period divisors will be limited, consistent with the evidence of Captain Wilson.

[167] Qantas also submitted that the changes would give it greater flexibility to offset short notice variations to aircraft operational programs, enhance its ability to manage the consequences of training failures, address long term LHP unavailability and increase roster stability for LHPs. It would also allow it to more effectively respond to rapid and unanticipated changes to demand conditions caused by external factors and set appropriate parameters around the bid period divisor and “standard window” to ensure that Qantas remains competitive while continuing to properly manage the risk of LHP fatigue. Qantas rejected the proposition that QAL18 gave it unfettered discretion, submitting that the safeguards inherent in the rostering system and regulatory regime mean that Qantas’ discretion is heavily circumscribed.

[168] AIPA submitted that it was inappropriate to allow Qantas to roster pilots to any number of hours per bid period, subject only to Regulatory Flight and Duty Time Limitations, fixed on the basis that hours in excess of those prescribed are unsafe. It contended that such prescriptions are not appropriate for determining the industrial regulation of hours.

[169] AIPA further submitted that the evidence of Qantas in support of this claim is associated with savings arising from a reduced head count. It submitted that increasing the bid period divisor will concentrate flying, thereby increasing the surplus (in the event no additional flying is done) as well as avoiding the need for recruitment and/or promotion, and that the saving for Qantas is simply a function of a capacity to operate with a smaller number of pilots (leading to on-cost savings).

[170] Given the surplus, and evidence of Captain Wilson as to there being little usage of the flexibility over the course of the workplace determination, any short-term efficiency likely to be utilised by Qantas would be associated with changes in the bid period divisor in relation to specific aircraft categories. Relevantly, Captain Wilson was asked:

“MR PARRY: The ability to set higher divisors in a category - what consequence would that have for increasing the surplus?---Okay. I just need to clarify here, my interpretation of the question that I was asked about - there was a claim on the table about not increasing divisors but having the ability to go to higher divisors, right? That’s the claim. That doesn’t mean you will necessarily use that. So if you have a surplus of pilots, right, you will not increase the divisor per se, even if you have the ability to. So at the moment we can go to 175. At the moment they’re down at 160. The impact of increasing the divisor to a maximum now would be to make the surplus even bigger. So my answer to the question previously that was put to me was, there is a claim on a table to be able - when the circumstances are there, to be able to go to a higher divisor.

From your answer, if there was a surplus in a category, you wouldn’t go to the higher divisor?---No, that’s correct. No, that’s absolutely correct.

SENIOR DEPUTY PRESIDENT WATSON: So you would only use the ability to go to a higher divisor in categories and circumstances where it wouldn’t result in any increase in the surplus?---Absolutely, yes. So the ability to go to the higher divisor would be used - and sometimes you juggle it. We have had to use slightly higher divisors in some categories. For example, when some of the people who had been on leave without pay have left, that creates a short-term surplus so the way we manage that is we can increase the divisor. So basically, by increasing the divisor, each pilot will get more flying on their line. So when times are good and we’re growing - and, you know, hopefully the international business, we are able to turn it around - having that ability when there’s lots of flying, lots of growth et cetera - that higher divisor is advantageous, but we don’t increase it - - -

Is that qualification reflected in the Qantas proposed determination?---I’m not sure. I don’t know. It’s an ability to use it not so we can force more people on leave.

What you’re saying is it’s an ability to use it in certain circumstances - - -?---Yes.

- - - where it won’t have the effect of increasing the surplus?---Correct.” 153

[171] Given the concerns of pilots about job security, recognised as a legitimate concern by many Qantas witnesses the operation of the general discretion afforded to Qantas in QAL14 would exacerbate these concerns. It would do so in circumstances where, given the current LHP surplus and the approach to adjusting divisors reflected in the evidence of Captain Wilson, limited practical benefits would arise from the granting of the claim over the course of the workplace determination. In these circumstances, we think the moderate increased flexibility reflected in the CWD provides a balance which affords some additional flexibility to change the bid period divisor in relation to specific aircraft categories whilst recognising the concerns and interests of the pilot group. The workplace determination will include the AIPA compromise position reflected in the CWD, save for the 32 days of duty limitation in the definition of “bid period divisor”, which will not be included. Any further flexibility can be addressed in negotiations for a replacement agreement, having regard to the pilot surplus at the time and the practical need and benefit of additional flexibility in setting the bid period divisor in the circumstances which then exist.

[172] Qantas also seeks, in clause 34.9.1(b) of the QWD, to correct an administrative error regarding MGH at clause 26.9.1(b) of EBA7v to reflect the current MGH of 160 [80] hours. This correction is accepted by AIPA in clause 35.9 of the AWD and the CWD and will be reflected in the workplace determination.

QAL15—Qantas option to implement 28 day rosters (or option to increase to 56 day bid periods) on a fleet by fleet basis

[173] Currently, 28 day bid periods are limited to the B767 aircraft, with A330, B747 and A380 aircraft operating on a 56 day bid period. The 28 day bid period for the B767 aircraft arose from a 2005 agreement (LOA162A) 154 to move the B767 fleet to a 28 day roster. LOA162A contained different rules that would apply to operations by the B767 on a 28 day roster.

[174] In QAL15, Qantas seeks the ability to implement 28 day rosters on a fleet by fleet basis should Qantas determine that a 28 day roster period is a more efficient for a particular aircraft fleet at a point in time. The current B767 rostering rules would be applied to the fleet concerned.

[175] The AWD at clause 14 requires agreement between Qantas and AIPA for a 28 day bid period to apply to a fleet. The CWD at clause 14 allows Qantas to move between 56 and 28 day bid periods after consultation with the scheduling committee. Qantas does not oppose such consultation.

[176] Qantas submitted that 28 day bid periods are particularly suited to schedules that are regularly subject to change during the bid period due either to schedule adjustments to meet loads and market requirements or to aircraft substitutions, for example, where a planned B767 sector is re-allocated to a B738 aircraft due to reduced demand. Rostering for 28 day bid periods allows Qantas to schedule the aircraft and crew on a more up-to-date schedule, minimising disruptions to a pilot’s roster and pattern protection occasions.

[177] AIPA agrees to the principle of the claim that Qantas “should be able to transfer fleets between 56 day and 28 day roster periods with the associated change to rostering rules” in LOA162A, with some caveats, but contended that in several respects the changes made to the QWD do not reflect the claim. 155

[178] We will include within the workplace determination the Qantas proposal in respect of the Qantas option to implement 28 day rosters, subject to:

1. incorporation within the definition of bid period the requirement for consultation with the Scheduling Committee reflected in the CWD;

2. the inclusion of pattern construction requirements and pattern protection for international patterns from LOA162A extended to all fleets on 28 day rosters; and

3. inclusion of definitions of international and domestic flying, as reflected in the CWD.

QAL16—Ability to recommence a bid period due to major disruption

[179] QAL16 sought to insert a new clause to permit Qantas to recommence a bid period in response to a major schedule disruption (such as a natural disaster), provided:

(a) Qantas obtains AIPA’s agreement (which may not be unreasonably withheld) to recommence the bid period for a particular category; and

(b) the recommencement occurs on or before day 29 [15] of the bid period for a 56 [28] day roster.

[180] Qantas sought to give effect to the proposal through clause 3.1(b) of its Rostering Manual:

“The Company may, in agreement with the Association, recommence a bid period for a category or categories. The Association will not unreasonably withhold its agreement to recommence a bid period.

A bid period will only be recommenced where a significant event has occurred that is likely to have a significant impact on pattern line stability and if the recommencement occurs on or before day 29 [15] of the bid period. Examples of such events are natural disasters such as a volcanic eruption, a major weather event, a major political event or significant technical issues with a fleet.

The recommenced roster will be based on available pilot standing bids unless sufficient time exists for a rebid process to occur.

Recommencing a bid period may include resetting the divisor for the recommenced period.”

[181] AIPA opposed the insertion of the new provision to recommence a bid period due to a major schedule disruption, and submitted that responses to major disruptions should continue to be addressed through the Scheduling Committee, containing representatives of AIPA and Qantas.

[182] Both parties relied on the circumstances of the grounding of A380 aircraft in November 2010 to support their respective positions. AIPA relied on the evidence of Captain Backhouse of a cooperative approach by AIPA to a request by Qantas to recommence the bid period allocation with higher divisors. 156 Qantas, on the other hand, relied on the evidence of Mr Voget that the “survival of the services during this roster, tended to be as a result of the efficiency of the rostering personal and the flexibility and goodwill of the pilot body not as a result of assistance from AIPA”.[sic]157 A Qantas proposal to recommence the bid period allocation at that time did not proceed, notwithstanding the conditional agreement of AIPA.

[183] The Qantas proposal in QAL16 would not limit the means of addressing a significant event to recommencing a bid period. Other options are available, as is evident from the experience of the A380 grounding in 2010. We are satisfied that the workplace determination should contain, as an option, a capacity for Qantas to recommence a bid period where a significant event has occurred that is likely to have a major impact on pattern line stability, subject to the safeguards included within clause 3.1(b) of its Rostering Manual, including the requirement for the agreement of AIPA (subject to it not unreasonably withholding agreement). Given the safeguards, we are satisfied that the proposal in QALl6 appropriately balances the interests of Qantas and the LHPs.

QAL18—Requirement to bid for blank lines in next roster by week 1 in current roster

[184] By QAL18, Qantas seeks to require a LHP to advise Qantas that he or she is electing to take a blank line in the following roster, rather than two weeks prior to the commencement of the next bid period as currently occurs. This will require pilots to bid for blank line rosters six weeks earlier than currently occurs (three weeks for 28 day bid periods).

[185] Qantas contends that the change will promote roster efficiency and stability by avoiding “having to set the bid period divisor before knowing exactly which LHPs will be allocated to BLs outside the norm”. 158

[186] AIPA opposed the change, submitted that Qantas has not advanced sufficient reason to change current practice, although it incorporated the change in the CWD (in the context of its proposal for shared blank lines).

[187] We are satisfied that QAL18 will bring some efficiency benefit to Qantas and enhance roster stability, with little detriment to LHPs, and should be included in the workplace determination in the terms included in clause 17.8 of the Qantas Rostering Manual.

QAL19—Pre-allocate in the next roster pattern protection hours owed from the roster period to the current period

[188] Pattern protection deals with some of the inevitable consequences of airline operations that, for a variety of reasons, a pilot will not be able to operate an aircraft as originally rostered. Patten protected time that Qantas is unable to recover is paid for. The time that is pattern protected is time that the pilot was ready and willing to work but Qantas, or external factors, determine that the pilot is unable to work. Such factors include Qantas cancelling the service; the service being delayed meaning that flight and duty time limits will be breached; route change; displacement of pilots by Qantas to allocate other pilots for training purposes; and periods of illness interrupting a rostered pattern.

[189] QAL19 seeks to extend the ability of Qantas to recover pattern protected hours by extending the time frame in which it can recover those hours to 112 days (excluding leave and time on blank lines) and to remove the limitation on the number of recovery occasions within that 112 days.

[190] Greater recovery of pattern protected hours, which have been paid for, will have productivity benefits to Qantas in the sense that it will obtain more flying from pilot resources which have been paid for.

[191] AIPA opposes QAL19 on the basis that it will extend the instability and uncertainty of when a LHP may be required to undertake unplanned work over a much extended period of time–250 days 159 if the pilot rotates between blank and pattern lines or 140 days for a permanent pattern line holder (PLH) - given neither blank lines or leave within that period is counted. AIPA did however, include some limited additional capacity for Qantas to recover pattern protected hours in the CWD, providing that “a pilot who, as a result of personal leave, generates pattern protection will be required to offset that pattern protection over a period extending to the end of the bid period or 56 days from the time of reporting fit, whichever is later, and the number of occasions will increase from 2 to 3”.

[192] QAL19 would generate productivity benefits and financial benefit to Qantas to the extent that it allows Qantas to more fully recover pattern protected hours. However, as proposed, this would be at the cost of a significant extension of uncertainty as to when pilots might be required to work, even in circumstances where originally rostered patterns were disrupted by operational decisions by Qantas. We are not satisfied that Qantas has made out a case for the additional opportunity to recover pattern protected hours of the breadth reflected in QAL19. We are satisfied however that the workplace determination should contain an additional capacity to recover pattern protected hours in circumstances where pattern protection is generated by personal leave of a pilot and there is merit in extending the opportunities to recover from the current two to three occasions. Accordingly, we will incorporate the AIPA proposal in the CWD into the workplace determination.

QAL26—No annual leave to be taken on blank line

AIPA19—MGH for BLHs and RLHs to be set at average received by PLHs (divisor plus element 1A), excluding allowances

[193] Initially, within the negotiations, Qantas’ claim was to ensure blank line holders (BLHs) were not on annual leave while allocated to a blank line, by:

(a) providing Qantas with a clear ability to reject a request for ad-hoc annual leave from a LHP scheduled to be on a blank line; and

(b) by having two separate bidding pools for the annual bulk leave allocation, one for LHPs in category on blank line rotation, and one for the rest, so that annual leave would be spread throughout the year and the rotation could take account of when leave had been allocated.

[194] During agreement negotiations, AIPA proposed the concept of “fair share allocation of blank lines” to Qantas negotiators under which a LHP would potentially be required to work a blank line once a year. Qantas adopted this AIPA proposal (and included it in QAL26) but AIPA later added a claim (AIPA19) for additional payment to ensure that BLHs receive pay comparable with PLHs’ pay for the bid period:

a) as first proposed: Element 1A - the amount received by the highest earning 25% of PLHs; or

b) in the QWD: Element 3B - a lesser payment, being the average additional flight duty payment (AFDP) in the category on a planned basis.

[195] AIPA retained EBA7v arrangements in the AWD, save that it included an additional Element 1A payment for BLHs and agreed to the Qantas provision, subject to the additional Element 3B payment, in the CWD.

[196] Captain Woods addressed the shared blank lines proposal, submitting that the shared blank line proposal would adversely impact upon 70% of pilots financially and should be rejected unless accompanied by an additional payment of the type in Element 3B. He submitted, in the alternative, that an exemption provision should apply if shared blank lines are introduced, providing all LHPs with a once only, irrevocable choice to exempt themselves from the sharing of blank lines.

[197] Qantas’ initial claim in negotiations, and the shared blank lines proposition reflected in QAL26, is directed to addressing the situation under EBA7v, whereby Qantas’ only means of managing the risk of having inadequate projected reserve coverage as a result of BLHs’ leave is to increase the number of BLHs, requiring it to draw some LHPs away from the pattern lines to take up a blank line. This in turn necessitates an increase in the divisor as there is a decrease in PLHs, resulting in an increase in crew costs, with a given level of flying being allocated to fewer PLHs at the same cost and the BLH establishment increasing, all with guaranteed pay.

[198] Mr Voget’s evidence is that productivity benefits associated with the QWD are that it:

● enables Qantas to better allocate annual leave;
● improves productivity by enabling Qantas to operate to optimal reserve coverage (i.e. better return for hours worked);
● appropriately allocates LHP coverage by reducing excess coverage during a bid period;
● gives greater roster stability to most of the LHP establishment; and
● minimises disruptions in the roster through forward planning. 160

[199] AIPA submitted that the effect of this claim on PLHs would be to require all pilots to undertake blank lines on a regular basis. During these periods pilots would be:

● at risk of earning less than PLH pay (up to 30% less than normal earnings);
● able to be allocated work (which may be a trip for 10 days or more) on short notice;
● exposed to being required to work on planned days off; and
● unable to take leave.

[200] AIPA submitted that the impact on LHPs would be heightened by a reduced pool for shared blank lines, as a result of a range of exemptions from the pooling arrangement. 161 They also submitted that shared blank lines (in the QWD proposal) will have an enormous impact on that portion of the pilot group that are currently permanent PLHs—around 70% of the pilot group in each category162 in the form of roster instability during the blank lines and a risk of reduced income for the period of the blank lines in the range of 30%.163

[201] AIPA further submitted that QAL26 would have an additional effect on pilots who are domiciled remote from their base.

[202] AIPA submitted that Qantas’ claim for shared blank lines should be rejected and, in the event the Full Bench agrees to QAL26, it should only do so in conjunction with AIPA19.

[203] AIPA19 is directed, more broadly than simply compensating current permanent PLHs who would be required to undertake shared blank lines under QAL26, “to remove the pay disparity that pilots on blank lines suffer by providing that they will be paid at about what they would have received had they been PLH”. 164 The effect of QAL26, if granted, is relied on by AIPA as strengthening the case for AIPA19.165 AIPA estimates that AIPA19 would involve a cost of around $2 million per annum.166

[204] Qantas estimates 167 that QAL26 would yield a saving of around $3 million per annum, arising mainly due to the reduction in the divisor as BLHs will not have leave on their line. As crew availability increases, the divisor drops for the same amount of flying to be done. However, Qantas notes that this benefit will only be realised when there are no surpluses (i.e. categories that are operating above MGH) and there will be systems changes required to implement this claim. Given current LHP surpluses, the benefit is unlikely to be realised in the short-term. Qantas estimates168 that inclusion of Element 1A in the MGH for BLHs and RLHs169 would cost $4.4 million per annum, with an annual cost of $0.7 million per annum in respect of the Element 3B payment. It further estimates170 that the impact of increasing the MGH to the divisor for BLHs within AIPA19 would cost in excess of $1.6 million per annum, assuming a divisor of 175 hours all year.

[205] We are satisfied that QAL26 appropriately addresses an inefficiency confronting Qantas associated with BLHs leave under EBA7v and will, over time, yield significant cost savings for Qantas. Against that, however, the shared blank line proposal will create costs, both financial and other, to current permanent PLHs who constitute a majority of LHPs. In our view, a balanced outcome will be achieved by giving effect to QAL26, but with the benefit of the additional Element 3B payment limited to current permanent PLHs, which is the group of pilots who will be adversely affected by the requirement to undertake (limited) blank lines as a result of the sharing of blank lines which underpins QAL26.

[206] We are not persuaded that the general AIPA claim for the Element 3B payment or the increase in base hours a BLH earns is justified against the matters within s.275 of the Act. As a general claim, AIPA seeks additional payment for BLHs without additional work.

[207] We will include the QAL26 provisions in the workplace determination, subject to the inclusion of an additional provision prescribing payment at the level of the Element 3B payment in the CWD to current permanent PLHs. The additional payment is directed to compensating the loss of income and the greater uncertainty associated with the requirement under shared blank lines and the working of blank lines by those LHPs who are required to undertake blank lines under QAL26, which they would not otherwise have been required to undertake.

QAL28—Streamline and reorder simulator support and standby procedures

QAL36—Re-order open time priorities for BLHs to have higher priority than PLHs

[208] EBA7v contains a series of tables that set out the process for allocating duties that are not rostered. There are three tables—for the allocation of flying in open time (allocating and closure), standby and simulator support duties. The tables reflect 10 or more different priorities for each allocation.

[209] Claims QAL28 and QAL36 seek to change Qantas’ ability to allocate “open time” (work that has not been allocated to any LHP’s roster), simulator support and standby duties. In particular, the efficiencies Qantas seeks in allocating open time duties includes:

● better recovery of pattern protection; and

● the allocation of duties to short/low line LHPs (i.e. below MGH).

[210] Qantas seeks to modernise its roster scheduling allocations and rationalise the relevant prescription It seeks to make improvements to the appropriate allocation of work to ensure that work that is paid for has a productivity return before allocating other work to LHPs. In other words, it seeks to recover pattern protection and allocate work to BLHs to reach MGH before of allocating additional hours to a PLH. Qantas seeks to allocate the relevant work on “best fit” principles, which it contends will benefit LHPs through fewer disruptions and greater roster certainty. It provides for a fairer allocation system where all LHPs will be given an opportunity to work closer to their optimal capacity and give Qantas greater discretion to allocate patterns to underutilised LHPs.

[211] AIPA proposed to change the current arrangements in the AWD. It goes some way to addressing Qantas’ issues in the CWD, providing for efficiencies identified by Qantas by:

● increasing the priorities of pilots who have been pattern protected and pilots on short or low lines;

● increasing priority of BLHs; and

● maintaining priority tables to promote transparency and certainty.

[212] AIPA submitted that the current tables are reasonably extensive, have been developed over time and provide a fair system for the distribution of work that places first priority on recovery of pattern protection and ensuring all pilots work at least to MGH, while maintaining the absolute priority of ensuring that Qantas can crew all operations. It submitted that during bargaining, Qantas sought to move to a “best fit” proposal that essentially removes all the priorities for allocation and allocates at the discretion of Qantas. AIPA submitted that “best fit” interferes with the seniority system in place, removes transparency or reference to seniority and would permit Qantas’ “discretion to allocate the most lucrative or desirable flights without reference to any fair system for the allocation of work”. 171

[213] AIPA submitted that priorities used for the allocation of standby duties, simulator support duties and the allocation of open time duties in the CWD now provide additional efficiencies and accommodate all changes sought by Qantas both in evidence and discussions. 172

[214] The changes proposed in QAL28 and QAL36 are directed to reducing inefficiencies in the allocation of work and are estimated to provide an annual cost saving to Qantas in the order of $1.5 million. 173 The changes reflected in the CWD also provide significant efficiencies to Qantas in the allocation of work. No estimate of the benefit of the measures within the CWD has been made.

[215] We are satisfied that some change to the current provisions is justified in light of the productivity gains and efficiencies accruing to Qantas, in circumstances where the measures are directed to allowing Qantas to allocate work to more effectively utilise work paid for. However, we are not satisfied that the need for the comprehensive changes in QAL28 and QAL36 to provide “best fit” discretion to Qantas to allocate the relevant work has been substantiated on the evidence. The present provisions were modified in EBA7v to provide “More efficient processes for allocating open time, standby and simulator supports to support the increase in MGH to 160 hours”. 174 In our view, the further significant modification reflected in the CWD provides appropriate further efficiencies and properly balances the interests of Qantas and LHPs.

QAL37—Implement the facility for extra patterns allocated for a pilot’s route check to be a partial offset for pattern protection for any patterns dropped

[216] If a pilot is displaced from a pattern so that he or she can undertake a route check, the pattern containing the route check can only be used to offset the pattern protection generated by the dropped pattern if the route check pattern falls totally within the timing of the dropped pattern. This is because the pattern protection generated is “date-limited”. If the pattern containing the route check only partially coincides with the timing of the dropped pattern, then the pattern containing the route check cannot be used as a partial or total offset, and the route check pattern must be allocated as additional hours.

[217] QAL37 seeks to reduce unproductive costs by giving Qantas the ability to use the credited hours associated with the route check to offset, on an hour by hour basis, any pattern protection generated by a pilot’s removal from their original pattern. Qantas submitted that whilst it is preferable to conduct route checks according to a LHP’s roster, this is not always possible for two reasons: firstly, the availability of the crew complement and suitably qualified route check personnel and secondly it may not be efficient to roster a route check pilot due to cost or utilisation. Qantas submitted that QAL37 will, in effect, reduce excessive and unproductive costs by ensuring that the business does not incur the cost of a route check in addition to a pattern protection expense without being afforded a reasonable opportunity to offset one against the other.

[218] AIPA submitted that QAL37 would remove the incentive for Qantas to roster route checks into normal patterns of flying. By removing the financial incentive on Qantas to plan route checks in line with a pilots’ planned flying, roster instability for pilots will increase.

[219] We accept that the current arrangements restrict the ability of Qantas to recover pattern protected hours from credited hours associated with a later route check when circumstances prevent the conduct of route checks according to a LHP’s roster. We also accept that the later conduct of route checks will increase disruption to a pilot’s roster. However, there is insufficient evidence as to the extent of the problem, the cost to Qantas and the impact on the stability of LHP rosters. The saving attributed by Qantas to QAL37 is shown, unidentified, as part of the savings arising from six Qantas claims in relation to pattern protection. 175 We are not persuaded on the evidence before us to grant the claim in QAL37.

QAL38—Implement the facility for a BLH called off standby for a trip that overlaps into the subsequent bid period for the over-projection to offset low line pattern protection

[220] A BLH in a current bid period may be called from standby to operate a pattern that overlaps into the next roster period after the date that the BLH has received a published roster advising him or her that they have been allocated a pattern line with low hours. In this situation, the credited hours accruing from that pattern may cause over-projection in the following bid period (that is, increase the LHP’s projected credited hours over the bid period (or personal) divisor plus five credited hours). The LHP will receive an additional payment of one hour for each credited hour that is over the bid period divisor plus five credited hours at the time the over-projection occurs. Further, Qantas cannot use the over-projected hours in the next bid period to recover any short hours in that bid period.

[221] The basis advanced by Qantas for QAL38 is that currently it cannot use the overlapping pattern to offset short/low line pattern protection. As a consequence, Qantas has been subjected to “unnecessary and unproductive duplication of costs (that is the payment of the pay protected sum for the short/low line as well as the additional payment . . .)” 176 for the overlap.

[222] AIPA does not object to the concept within QAL38 but contends that clause 44.11 of the Qantas Rostering Manual extends beyond the claim in QAL38, in that it travels beyond offsetting low line protection to include short line projection and extends beyond BLHs to encompass PLHs.

[223] We will include a provision in the workplace determination reflecting the Qantas Rostering Manual, modified as necessary to reflect the intention to prevent a BLH, who has a carry-in from an assigned stand-by, accruing additional hours in the second bid period while still being protected as a short PLH.

QAL59—Insert a provision that if a pilot is removed from a pattern for training duties the value of the training duties may be used as a partial offset for any pattern protection resulting on an hour for hour basis

[224] The central purpose of QAL59 is that if a LHP is removed from a pattern for training duties (whether it is due to the availability of a simulator or non-availability of a Training Captain), Qantas is able to use the credited hours of any training duty (including passive credits), on an hour by hour basis to offset any pattern protection generated by the LHP’s removal from a pattern they are not qualified to fly. The effect of the change is to vary the type of pattern protection arising from the displacement of the LHP from a pattern to carry out an assigned training session. Qantas submitted that QAL59 is supported by significant productivity and other benefits arising from the efficient allocation of training sessions coupled with the ability for Qantas to better recover pattern protected hours arising from the displacement.

[225] AIPA submitted that the proposed change would seem to be in conflict with clause 35 of the QWD and the rationale of passive and active credits. It submitted that by using what would normally be passive credits to offset pattern protection, Qantas would have the capacity to convert these credits to active credits, thereby reducing the number of productive hours a pilot can perform. In other words, the claim will reduce the productivity of pilots. AIPA further submitted that, as pilots are paid for their active hours plus passive hours on top, QAL59 will directly reduce the remuneration of pilots.

[226] The evidence in relation to this claim established neither the extent to which Qantas would benefit from the proposed change or the impact upon pilots’ remuneration. The evidence of Mr Curran as to the impact on pilots was that QAL59 would affect a “pilot’s capacity to meet planned arrangements or even when they will be home and be able to lead some type of normal life”. 177 There is an insufficient basis for us to assess the effect of QAL59 on the competing interests and, in that circumstance, we are not persuaded to give effect to QAL59 in the workplace determination.

QAL60—Insert provision that credited hours associated with additional patterns for route checks are not subject to pattern protection

[227] QAL60 seeks to confer on Qantas the authority to assign simulator support to a pilot for operational reasons in situations where assignment would infringe a limitation in relation to minimum base turnaround time, over-projection, or re-designated duty free days.

[228] Qantas submitted that, at present, its ability to ensure the timely completion of LHPs mandatory training can be heavily restricted by the priorities governing the allocation of simulator support duties. LHPs can refuse duties where over-projection will result, notwithstanding that this may result in a delay to other LHP’s recency, cyclic or endorsement programmes.

[229] Qantas submitted that the proposed amendments will better enable it to ensure its timely compliance with training and recency regulations, giving it flexibility to make assignments in situations where operational requirements necessitate the allocation of simulator support duties, notwithstanding such an allocation would contravene the normal Rostering Manual limitations. Qantas submitted that current restrictions in EBA7v regarding over-projection mean that, at times, when it runs short of a LHP in a particular category the operation of the aircraft schedule, roster efficiency and roster stability may be affected. It submitted that the proposed changes will improve productivity by increasing the ease with which LHPs are able to remain compliant with training and recency requirements, thereby keeping LHPs on their allocated patterns.

[230] AIPA submitted that the claim seeks to extend many of the extreme measures permitted under the “riot clause” 178 to the crewing of simulator sessions for the assessment of other pilots. It submitted that QAL60 would have the effect of permitting Qantas to assign a pilot simulator support duties:

● on rostered days off;

● on days when the pilot would not be permitted to work due to previous duties; and

● on days when the pilot would not be permitted to fly because he/she has exceeded CASA regulatory cumulative limits.

[231] AIPA submitted that QAL60 would remove the incentive to allocate such duties to pilots with less than target hours for the bid period, and instead would lead to the allocation of such duties to pilots at Qantas’ discretion. It submitted that PLHs assigned duties as a result of this claim will have their rosters destabilised and the potential of disrupting their days off.

[232] The submissions and evidence on this issue are limited, to the effect that the change proposed will provide flexibility and productivity and/or efficiency benefits to Qantas but at the expense of roster stability and the potential disruption of days off for LHPs. There is no evidence as to the extent of the problem identified by Qantas, nor the extent of efficiency benefits to Qantas or disruption to pilots which would result from the change sought. We are unable to make an informed assessment of the likely practical effect of QAL60, if implemented, and cannot be satisfied that a balancing of the competing interests favours the inclusion of the Qantas proposal within the workplace determination.

QAL43—Remove requirement for Qantas to need to make attempts to contact five pilots

[233] Currently, the step immediately prior to “riot clausing” in allocating open flying time involves an obligation on Qantas to attempt to call at least five pilots and offer them the duty, to ensure that duties are crewed by suitable pilots who are willing to undertake the duty before disrupting a pilot’s roster by assigning the duty.

[234] QAL43 seeks to remove this requirement upon Qantas. AIPA is concerned that QAL43 removes the contact procedure on the basis of simplifying administration without regard for the disruption caused to the pilot who is assigned the duties, through a requirement to work over and above normally allocated duties or disruption of the pilot’s normal roster. AIPA includes at clause 115.2 of the AWD and the CWD a requirement for SMS contact reflecting an option in EBA7v. 179

[235] In our view there is merit in retaining a provision which obliges Qantas to take steps to seek out pilots willing to undertake the additional duties before assigning such duties. We are not persuaded as to a mandatory SMS requirement without further information as to its operation. In the circumstances, the workplace determination will contain the obligation on Qantas to make genuine attempts to contact at least five PLHs to offer the standby duty. 180

QAL46—Amend clause 27.9.3 regarding 26 hours (deadheading - “drafting error”)

[236] It is agreed that clause 27.9.3 in the EBA7v reflects an error and that it should be corrected in the workplace determination. We concur. The relevant provision, with the Rostering Manual, will be in the following form, subject to our decision in QAL40 in relation to the class of travel for duty travel:

“A pilot who is scheduled to solely deadhead in a tour of duty will not be scheduled for duty beyond 24 hours unless:

the duty is limited to two (2) sectors; and

the pilot is provided with first class travel.

In this case the pilot may be scheduled for duty to a maximum of 26 hours.”

QAL47—Senior Check Captain (i.e. Training Captain) rules

[237] QAL47 entails a range of variations to Senior Check Captain rules directed to update terminology and processes which create operational inefficiencies, increase Qantas’ costs and cause uncertainty to Check Pilots in relation to allocation of line duties.

[238] AIPA argued that some changes proposed by Qantas were not raised in negotiations 181 and were not, therefore, matters in issue. We are satisfied that the identified claims were raised in the Qantas claims document of September 2011182 and were matters in issue.

[239] AIPA accepts a limited range of changes within the AWD and a substantial portion of changes, in full, in part and/or conditionally, within the CWD. The conditionality is reflected, for example, in the CWD acceptance of the pre-allocation of flying time to training captains and the extension of fixed roster holders to BLHs on the basis that BLHs pay attract a general, additional (Element 3B) payment—a claim we have rejected in part. AIPA’s opposed QAL47 on the basis that Qantas’ evidence had not substantiated the claims and the claims impacted adversely on the interests of Training Captains.

[240] The evidence before us was general in nature and did not establish the extent to which the present arrangements inhibit the efficiency of Qantas’ operations, although the estimated cost savings to Qantas 183 of $71,000 per annum suggested the impact was limited. Nor did the evidence detail the impact on Training Captains.

[241] We are not persuaded that Qantas has made out a general case for the changes reflected in QAL47, although we are prepared to include in the workplace determination:

● changes to terminology and wording to reflect current organisational structure and regulatory language;

● pre-allocation for non-PLHs and pre-allocation of right-hand seat flying on the basis that it will reduce training delays, provide greater roster stability and reduce costs to Qantas, with minimal disruption to seniority; 184

● the provision for relocation of allocation of flying to Administrative S/Os;

● seniority for A330 pilots;

● inclusion of reference to the Training and Checking Manual, in addition to existing descriptors for Training Captains;

● extension of tenure of training captains beyond two years at the discretion of the Head of Training Captains;

●removal of the requirement that ground training blocks be continuous;

●clarification that 56 days notice of resignation must be given by Check Pilots;

●reduction in notice to the Training Captain who will rotate the line from 12 to eight weeks;

●clarification of long service leave entitlement in accordance with clause 25.2.9 of the QWD;

●removal of differential treatment of duties on the B767; and

●alignment of pattern protection for Training Captains with a line pilot during the period of their flying block.

QAL49—Bid period for B767 Category A/B pilots to run over 56 days

[242] Qantas, through clause 25.2.10(a) of the QWD seeks to allow Qantas to provide the Check Pilots with either a 28 day or 56 day roster. This will allow Check Pilots for each aircraft type to be rostered in a bid period that reflects the bid period for their aircraft type.

[243] The proposition is not opposed by AIPA, 185 save for additional words proposed in the CWD, at clause 25.2.11(b), to make it clear that all entitlements currently provided for in each 56 day bid period must be pro-rated over consecutive 28 day bid periods. We will include QAL49 in the workplace determination, subject to the additional words proposed by AIPA.

QAL50—Implement the facility to allocate training even if over-projection occurs

[244] Captains and F/Os are required to have a route check once in every 15 months, in which a supervisory Check Captain observes a standard take-off and landing during the pilot’s usual rostered pattern. Qantas is unable to arrange such checks in some circumstances due to the non-availability of the pilot or supervisory Check Captain or the efficiency of the check (e.g. on a long range pattern). QAL50 seeks to allow Qantas to allocate training to a pilot, notwithstanding the consequent occurrence of any over-projection. It seeks to prevent pilots from refusing to accept the duty on which their training is planned, on the basis that to accept the duty would result in over-projection.

[245] Qantas submitted that QAL50 will minimise the occurrence of situations where LHPs have to be removed from their allocated patterns and pattern protected because they have not completed their route checks in time, in circumstances of over-projection, and that LHPs will benefit from fewer disruptions to their rosters and a higher certainty of regulatory compliance.

[246] AIPA submitted that where Qantas has planned insufficient resources to complete the route check on a pilot’s rostered flying, the current provisions provide an incentive to Qantas to create as little disruption to a pilot’s roster as possible. AIPA does not accept that it is reasonable to force additional work on to a pilot for purposes of ensuring a pilot receives a route check (especially in circumstances where route checks may be conducted over an extended period of 15 months). It submitted that, through QAL50, Qantas would remove the incentive for it to manage the planning and conduct of training efficiently and place that burden onto the pilots. AIPA submitted that there is an extended timeframe (15 months) that a pilot can complete a route check which means that Qantas has, as part of normal planning, ample time to be able to organise it.

[247] There is no indication of the extent to which the current arrangements impact upon Qantas and the capacity to avoid cost through the planning of training. We are not persuaded that the burden of a failure to plan route checks, over a 15 month time horizon, should be shifted from Qantas to the pilots. We are not persuaded that we should alter the current arrangements.

QAL51—Long term absence recency

[248] To maintain recency, a pilot is required to have completed a take-off and landing in the preceding 35 days. Where a pilot has not maintained recency, he or she is required to undertake recency training (such as a flight simulator or line training) to ensure proficiency before the pilot is cleared back to the line. If a LHP takes a leave of absence for a period longer than 35 days (e.g. for sickness, annual leave or long service leave), Qantas is required to train the LHP before he or she can undertake further flying duties. The longer the absence, the more training that is required. Through QAL51 Qantas seeks to pre-allocate the mandatory recency training following a LHP’s long term absence.

[249] AIPA submitted that QAL51 limits pilots’ bidding rights and will result in a reduction in pattern protection and could potentially exacerbate surpluses. The claim was opposed in the AWD but was included in the CWD. We are satisfied that in circumstances where the long term absence of LHP due to leave arrangements necessitates recency training before a pilot is cleared back to the line, a provision to allow Qantas to pre-allocate necessary recency training has merit and should be included in the workplace determination.

QAL52—Clause 37 (EBA7v) to be amended to provide for procedures to allow all training duties to be pre-allocated to a pilot prior to a pattern line build

[250] Qantas is limited in its ability to pre-allocate regulatory and compulsory training to enable a LHP to continue to hold a licence and to operate an aircraft. As a consequence, it is possible for a LHP to use their seniority to bid for flights at times when the LHP is aware, or ought to be aware, of the requirement to participate in training. This results in the pattern published to the LHP’s line to be dropped and the hours dropped become pattern protected hours.

[251] QAL52 seeks to permit Qantas to pre-allocate flying and non-flying duties for LHPs, that is, before the LHP has an opportunity to bid for a pattern, where such training is required for line training or checking duties.

[252] Qantas submitted that QAL52 will reduce inefficiencies in the utilisation of pilots, simulators and instructors by allowing Qantas to plan with increased efficiency the pairing of LHPs who have a requirement for simulator (cyclic) training within the roster period, resulting in an annual cost saving in excess of $1.6 million p.a. 186 It submitted that the process of pre-allocation currently works well in the short-haul operation.

[253] AIPA opposed QAL52, submitting that it will restrict pilots’ ability to be awarded rosters in line with seniority and bidding preferences. It submitted that QAL52 will increase pattern protection due to an increase in short lines and low lines and lead to increased difficulties in constructing rosters, with flow-on effects to pilots not pre-allocated training duties in the bid period. It submitted that on average each bid period will involve some training.

[254] AIPA contended that rosters are constructed with patterns of flying first and foremost and when all flying is allocated and training duties considered, Qantas has the ability to use any day not assigned to flying duties to schedule training (excluding minimum base turnaround time). Captain Beavan’s evidence 187 was that QAL52 would have a significant adverse impact on the roster bidding rights of senior pilots and make it more difficult to construct a roster.

[255] In his evidence, 188 Mr Voget referenced QAL52 to the practice in the short-haul pilot’s agreement, indicating an expectation that the pre-allocation of training would work well on B767 categories. He acknowledged, however, that “it may not be in Qantas’ best interests to apply this to long haul flying as indicated by Captain Beavan, but should be available to Qantas so that it has the ability to efficiently manage its training resources and LHP establishment.”189

[256] We are not persuaded that Qantas has made out its case for QAL52 in the general form advanced. Qantas has justified the claim by reference to B767 aircraft but has not done so as to the long haul fleet generally. It is unclear how the cost saving estimated by Qantas 190 is calculated, having regard to the evidence of Mr Voget that it may not be in Qantas’ best interests to apply this to long haul flying. QAL52 gives precedence to the allocation of training, with consequent effects on pilot bidding for preferred flying patterns. Given the impact on the interests of LHPs in terms of their current bidding rights, we are not persuaded to include QAL52 in the workplace determination.

QAL53—Amend 17.2 - any days in excess of 18 duty free days may be allocated during the period the training pilot is on ground training duties

[257] Where a LHP is away from their base for a period to perform ground training duties (simulators), the LHP will not count any days where they are not required to perform duties while overseas as Designated Duty Free Days (DDFD). Qantas proposes, through clause 25.2.15(a) of the QWD, to be able to count as DDFDs any duty free days (in excess of 18 days) that a pilot has while training away from their base. The change only impacts those senior training pilots in relation to the five extra duty free days that they receive over and above the 18 days that other LHPs receive. The change sought by Qantas seeks to align the DDFD for LHPs away from base for training with LHPs on localised lines.

[258] AIPA opposed QAL53, submitting that the change is inconsistent with the definition of DDFD in each of the proposed workplace determinations as “a designated calendar day commencing at midnight local time at the pilot’s base [or posting] during which the pilot is not performing functions allocated by the Company or is not under the control or direction of the Company and is not required to be available for contact or to advise the Company of his or her whereabouts.”

[259] AIPA submitted that the Qantas reliance on the alignment of LHPs away from base for training with LHPs on localised lines is flawed. This is because a pilot on a localised line is effectively at their “base”, as it has been “localised” to a remote location for a fixed period of time and there are additional benefits attached to a localised line, including home transport and the ability for family to accompany the pilot at the localised line “base” that would not be available to a check pilot under QAL53. AIPA submitted that rather than alter only DDFD arrangements through QAL53, a Training Captain who is to be allocated ground duties remote from his other base could be allocated a localised line at that location, with the associated additional benefits.

[260] We are not persuaded that QAL53 should be included in the workplace determination. Whilst it would achieve some savings for Qantas, this would come at the expense of pilots’ ability to reasonably conduct activities associated with a day off such as family and domestic activities. The alignment with localised line arrangements arising from QAL53 is partial and does not support the Qantas claim.

QAL55—Remove the requirement for 30 self sectors per annum

[261] Currently, EBA7v requires that Check Pilots be allocated a minimum of 30 sectors per annum. Qantas submitted that this requirement creates inflexibility in rostering and that it is now obsolete as Check Pilots fly half a line (where they previously only flew a third of the bid period on the line) and do half a line in the simulator. Qantas contends that half a line flying is considered by Qantas to be a sufficient amount of flying from a standards perspective as, in practice, this equates to 24 to 30 sectors of flying over six bid periods which is well in excess of CASA requirements (approximately 12 sectors (take-off and landings per six bid periods) of flying every six bid periods).

[262] Qantas seeks to remove this requirement in clauses 25.1.14 (relating to Check Pilots Category A or B) and 25.3.3 (relating to Check Pilots Category D) of the QWD, which provide that the quantum and frequency of self-sector flying will be determined by Qantas (in accordance with the requirements of the Training and Checking Manual).

[263] AIPA opposed the claim, submitting that:

● Qantas has adduced no evidence to support this claim in respect of any benefit to Qantas productivity or the public interest.

● The evidence of AIPA, on the other hand, clearly indicates the negative effect this claim would have on the personal standards (specifically fine motor skills) of training pilots which is clearly not in the public interest.

[264] AIPA submitted a modified variation as part of the CWD.

[265] The Qantas case and evidence was advanced essentially on the basis that the current arrangement provides for an entitlement to self-sector flying in excess of that required by the Training and Checking Manual, as approved by CASA and thereby creates an unnecessary inflexibility which prevents Qantas from achieving maximum efficiency in its rostering. There was no specific evidence as to the impact of the change, either on rostering efficiency or flying standards. The evidence led by AIPA 191 from a Training Captain Category B on the B744 was that, with annual leave, he averaged 28 sectors per six bid periods, making the maintenance of legal requirements for recency and currency a constant struggle and placing additional strain on maintaining the fine motor skills required to operate the aircraft. On balance, we are not satisfied that Qantas has made out a case for the change proposed in QAL55.

QAL56—Update 17.2.20 to capture correct training language

[266] This claim is largely agreed. We will include the proposal in QAL56, subject to maintaining existing descriptors for Training Captains, consistent with our decision in QAL47 above.

QAL57—Confirm that there is no limit on the amount of home study a pilot is required to do for regulatory purposes (with no pay)

[267] Qantas characterises the amendments proposed in QAL57 as clarifying the requirements for training and when Qantas will pay for training, so that when LHPs are required to complete training relating to regulatory matters to maintain their licence, such as in relation to new material put out by CASA, this will be completed in the LHPs own time and will not be paid by Qantas.

[268] AIPA submitted that the claim does not clarify but in fact changes the position reached in previous agreements and opposed QAL57. It submitted that EBA7v 192 provided, in addition to MDCs for training that “the Company may schedule up to four hours of unpaid home based study programs . . . in each calendar year to a maximum of four programs”. It submitted that Qantas, as the holder of the Air Operator Certificate, is required by CASA to provide training to their pilots. The effect of this claim is to shift the responsibility and cost from Qantas to the pilot for CASA mandated courses. It submitted that the EBA7v provision represented a concession by AIPA as to an amount of unpaid home based study which could be undertaken.

[269] It is not clear on the evidence that clause 27.15.8(d) of EBA7v excluded study that a pilot is required to undertake for regulatory reasons. We are not satisfied that the additional clause proposed by Qantas clause 35(e) of its Rostering Manual should be included in the workplace determination.

QAL58—Insert provision that a Captain must not give away a sector of flying if it would cause them to run out of recency

[270] The “Pilot in Command” of an aircraft is responsible for deciding which LHP (Captain or F/O) will perform the take-off and/or landing of a flight. Qantas contends that occasionally, a Captain will give away a sector of flying prior to taking leave, even though it will result in more than 35 days elapsing before they have another opportunity to carry out another take-off and landing, the effect of which is that they will not be “recent” when they return from their planned absence, and therefore will not be qualified to operate their planned pattern. This creates an obligation on Qantas to either pay an additional 5.5 hours pay for simulator duty (plus incur the considerable associated costs of running the simulator session) or roster them for a pattern with a Training Captain to carry out a take-off and landing under supervision (which may require the LHP to be displaced from their original pattern and they will become “pattern protected”).

[271] Qantas seeks to address this situation through clause 26.10.6 - Captain Recency, of the QWD:

“Without limiting the authority of the Pilot in Command under the Civil Aviation Regulations, where, during a pattern, a Captain’s recency is likely to expire should he or she not complete a take-off or landing, he or she shall complete the take-off or landing to prevent expiration.”

[272] AIPA opposes QAL58, submitting that CAR224 provides that the Captain has final authority as to the disposition of the aircraft. Therefore, the Captain is responsible for deciding which pilot will perform a take-off and landing during a flight. It contends that QAL58 will prevent the Captain from allocating the take-off and landing to another pilot if the effect of that allocation would result in the Captain’s recency expiring.

[273] There is no evidence as to the practical extent of the problem raised by Qantas and the circumstances in which Captains have given away a sector of flying prior to taking leave. There is no adequate evidentiary basis to justify QAL58, given the potential conflict raised between the proposed clause 26.10.6 and the primacy which must be given to CAR224, notwithstanding the introductory words in the proposed clause 26.10.6. We are not satisfied that QAL58 should be included in the workplace determination.

QAL61—Ability to assign simulator support duties where over-projection would result

[274] QAL61 seeks to confer on Qantas the authority to assign simulator support to a pilot for operational reasons in situations where assignment would infringe a limitation in relation to minimum base turnaround time, over-projection, or designated duty free days.

[275] Qantas submitted that QAL61 will better enable it to ensure its timely compliance with training and recency regulations through changes in clauses 5.3, 5.4, 62.1, 63 and 75.8 of the Rostering Manual. It submitted that these provisions will give Qantas flexibility for operational reasons to make assignments in situations where operational requirements necessitate the allocation of simulator support duties, notwithstanding such an allocation would contravene the normal Rostering Manual limitations. It submitted that current restrictions in EBA7v regarding over-projection mean that at times, Qantas runs short of a LHP in a particular category which in turn may affect the operation of the aircraft schedule, roster efficiency and roster stability.

[276] Qantas contended that the proposed changes will make it easier for both Qantas and LHPs to ensure LHPs remain compliant with training and recency requirements. It would also help to avoid pattern disruptions.

[277] AIPA submitted that QAL61 would have the effect of permitting Qantas to assign pilots simulator support duties:

● on rostered days off;

● on days when the pilot would not be permitted to work due to previous duties; and

● days when the pilot would not be permitted to fly because he/she had exceeded CASA regulatory cumulative limits.

[278] AIPA submitted that the claim seeks to extend many of the extreme measures permitted under the “riot clause” to the crewing of a simulator session for the assessment of other pilots. The riot clause allows pilots to be forced to do additional flying in contravention of all but regulatory limitations. AIPA submitted that the riot clause is an extreme measure to be used only as a last resort to crew a revenue service, not to conduct training, checking or perform other ground duties. AIPA submitted that the extension of the riot clause to conduct training is unwarranted and should be rejected.

[279] We are not satisfied that Qantas has justified the change within QAL61 to prevail over established agreed arrangements on the basis that to do so makes it easier for Qantas and LHPs to ensure LHPs remain compliant with training and recency requirements, at the cost of the planning by pilots of their personal lives and the stability and certainty of a pilot’s roster.

QAL62—Ability to transfer A330 and B767 to and from a modified version of LOA156A at Qantas’ discretion (addressed by QAL15 and QAL20)

[280] This claim was not pressed by Qantas. 193

AIPA20—Pattern protection on carers’ lines

[281] AIPA20 was advanced by AIPA to clarify the intent of LOA162A, which established 28 day rosters for the B767. Unlike other pilots on 28 day rosters, pilots on carer’s lines who operate on 28 day rosters are not entitled to calendar day pattern protection. AIPA20 would permit pattern protection to be available to a pilot on a carer’s line.

[282] The evidence of Mr Voget 194 was that Qantas opposed AIPA20 on the basis that “Qantas should have the ability to meet operational needs or there should be a prescribed time period after the pattern protection occasion is advised in which a LHP is required to exercise his or her selection”.

[283] This evidence led AIPA to modify AIPA20 in the CWD by adding a prescribed time period to meet the concern expressed by Mr Voget. The proviso in clause 123.9, associated with calendar day pattern protection was that it “[a]pplies to carers provided that a carer may nominate, prior to the commencement of a bid period, that they do not wish to be subject to calendar day pattern protection”. The proviso appears to have addressed the concerns raised by Qantas. 195

[284] AIPA20, in the form reflected in the CWD will be included in the workplace determination to clarify the entitlement to calendar day pattern protection, subject to the limitation added in the CWD.

7.4.3 Slip Times, Flight and Duty Time

QAL20—Introduction of CAO48E on a fleet by fleet basis with appropriate adjustments to scheduling rules/clause 21 of the Rostering Manual - slip, flight and duty time limitation table

[285] QAL20 encompasses a number of other claims by both Qantas and AIPA as follows:

● QAL30 Amend 27.13.8 (London Slips) to confirm provision does not apply where pilot deadheads to London to then commence a duty and clause 27.13.3 applies in those circumstances

● QAL31 Clarify 34 hour planned minimum rest rule for North American ports is not applicable in terms of down-line disruption COA/27.13.6 limits apply

● QAL32 Delete clause 27.2.4 and make consequential amendments to clause 27.8.6 (delete aircraft type) and clause 27.8.1 (redraft as a general clause allowing Qantas and AIPA to agree to flights that otherwise fall outside the 27.8 provisions)

● QAL42 Schedule variations agreement, include A330 in sectors that currently provide a variation for B767, B744 and A380 (e.g. SYD/MEL)

● QAL45 Insert into agreed variations provision New York slips can be scheduled to one night at Qantas discretion

● AIPA3 AFDP

● AIPA21 Insert humanising rules into workplace determination

● AIPA25 Introduce standard for adequate rest facilities

[286] To maintain its AOC, Qantas and its LHPs must comply with the CA Act, CARs and CAOs. CAOs are made and administered by CASA.

[287] Patterns are built to a set of rules, which ensures compliance with the CAOs and any industrial provisions contained in EBA7v. AIPA must also approve patterns that contain a sector that exceeds a 14 hours tour of duty (clauses 27.2.4 and 27.8.1 of EBA7v).

[288] The flight and duty time limitations set out in EBA7v are underpinned by CAO48. In some circumstances, EBA7v imposes greater limitations and reduced flexibility for Qantas than CAO48, such as minimum time free of duty when on a pattern between tours of duty and the maximum duty period that can be planned.

[289] An airline may operate a fleet to either CAO48 (including any concession or exemption issued under CAO48 by CASA) or, if approved by CASA, to CAO48E, but may not use a hybrid of the two. Qantas’ domestic competitors (including Virgin Australia and Tiger Airlines) and other business units (such as Jetstar) operate within the CAO48E framework. The CAO48E is also used by Qantas SHPs.

[290] Qantas seeks to generally introduce the CAO48E framework for LHPs to provide administrative efficiencies for Qantas as there will be one regulatory framework across all mainline fleets.

[291] Through QAL20, Qantas seeks to introduce clause 21 of its Rostering Manual—a slip, flight and duty time limitations table 196 within the limits imposed by CAO48E. Qantas submitted that the changes to the scheduling arrangements will allow Qantas to more efficiently construct roster builds at the planning stage, which will provide cost savings to Qantas and increase the time a LHP has off duty at his or her home base and remove the requirement to obtain approval from AIPA for patterns that contain a sector or sectors of more than a tour of duty exceeding 14 hours (flight times between 12.25 and 12.5 hours), a type of flying which is central to Qantas’ international operations.

[292] Qantas submitted that the specific issues raised by QAL30, QAL31, QAL32, QAL42 and QAL45 are effectively addressed if QAL20 is accepted. 197

[293] AIPA submitted that QAL20 will fundamentally alter core elements of the regulation of pilot employment, in circumstances where Qantas bears the onus of showing why a change to long standing practice that has assisted in the safe operation of an airline should be changed and has absolutely failed to do so. It submitted that in evidence, Qantas could identify just two changes that it proposed to make during the life of this workplace determination as a result of the change sought. It was submitted that one is agreed to by AIPA under the current system and the other has not been previously sought.

[294] AIPA broadly accepted Qantas’ summation of the CASA regulation but submitted that flight and duty time limits for Qantas pilots have developed, by way of industrial regulation, alongside CASA regulation, with CAO48 being only a part of a more complex matrix of regulation which should not be lightly disturbed. It submitted that Qantas pilots, through AIPA, has consulted and entered into agreements with Qantas over many decades which enabled Qantas to obtain various concessions from CASA to operate flights to numerous international destinations.

[295] AIPA identified the changes sought by Qantas through QAL20 as:

(a) Crew compliments within individual tours of duty; the QWD reduces required crew compliments for certain duties.

(b) Rest periods (slip times); the QWD reduces required rest periods for certain duties.

(c) Changed practice in the event of disruptions; The QWD contains no prescription for use in the event of disruptions. The CAO would apply.

(d) The removal of the requirement to have discussions around new, long range operations; the QWD provides that Qantas needs to reach agreement with AIPA only in relation to planned duties longer than 18 hours. Qantas has never operated any planned duty longer than 18 hours. At present the obligation arises for duties in excess of 14 hours. The obligation to reach agreement has led to specific provisions for those duties as to:

(i) Crew complements;
(ii) Rest periods;
(iii) Practice in the event of disruptions;
(iv) Crew rest facilities;
(v) AFDP;
(vi) Pre and post duty rest times; and
(vii) Home transport.

(e) Cumulative limits for pilots over seven days, 14 days, 28 days and 12 months; the QWD increases cumulative limits for pilots.

[296] AIPA further submitted that QAL20 also removes a number of provisions that have been negotiated over time and take into account specific considerations about geographic locations where rest is taken.

[297] Through the CWD, AIPA advanced a compromise position by providing a generic set of flight time limitations with further ability to modify rest periods through the use of the FRMS. AIPA contended that the CWD makes significant changes to the current system by:

● Introducing tables 198 that cover all planned duties less than 18 hours duty time;

● Within the tables, permitting a range of operations including Sydney - Perth and return and Sydney - Manila and return duties to be planned for two pilots;

● Within the tables, covering all current operations and those identified by Qantas for future plans;

● Changing the underpinning system to CAO48E;

● Removing the requirement for AIPA agreement duty time in excess of 14 hours;

● Making consequential changes to other parts of Chapter 6 of Part 9 of the CWD;

● Setting out clear, generic rules for slip times avoiding the need for negotiation over new destinations.

[298] Considering QAL20 at its broadest level, there is no real objection to reflecting flight and duty times within the workplace determination. 199 However, there is marked disagreement as to the content of the tables, and associated provisions, and the extent to which they depart from current arrangements.

[299] The changes arising from QAL20 are comprehensive and far reaching. We are not satisfied that Qantas has substantiated the merit of each of the changes arising from QAL20, nor the extent of the change proposed by it. Many changes within QAL20 are advanced without significant evidence supporting the immediate practical requirement for the changes or their impact on the interests of pilots. The changes are advanced without any evidence as to the potential impact on fatigue. QAL20, as a whole, extends beyond what is required to accommodate changed flight arrangements in the immediate contemplation of Qantas. 200 We note that Qantas suggests that no cost benefit from QAL20 would be expected to be realised during the operation of the workplace determination, even over the duration proposed by it.201 We are not persuaded to give effect to QAL20 in the workplace determination.

[300] We are, however, persuaded that we should include in the workplace determination changes to slip times, flight and duty time to the extent reflected within the CWD, to provide benefits to Qantas, accommodate current operations and provide some scope for future operations contemplated by Qantas over the life of the workplace determination. Those changes provide a basis for further negotiations for a replacement agreement, which can consider the impact of any FRMS approved by CASA which is operating or pending at the time. To the extent that the CWD changes which we have accepted incorporate some aspects of the humanising rules, the claim in AIPA21 is disposed of.

[301] An issue also arose in relation to AFDP provisions. AIPA submitted that it does not seek any additional entitlements or increased benefits to pilots through AIPA3. Rather, it contends, the table it proposed in clause 34.1 of the CWD/AWD only seeks to rewrite the current provisions into a simple, single table. This contention was rejected by Qantas. The QWD replicates the AFDP provisions in the Base Agreement. The workplace determination will contain the AFDP provisions in the form of the QWD.

[302] We are not persuaded to otherwise amend the slip times, flight and duty time provisions in the CWD.

AIPA25—Introduce standard for adequate rest facilities

[303] AIPA25 seeks to specify what constitutes “adequate rest facilities” in the workplace determination and impose a requirement for AIPA approval of “other” rest facilities for use on aircraft flown by LHPs. AIPA contends that its claim is directed to ensuring:

1. pilots on duty have sleeping/rest quarters capable of achieving adequate rest; and

2. the facilities meet the standard of rest prescribed by the International Federation of Air Line Pilots Associations, Boeing and the Australian Air Line Pilots Association. 202

[304] Rest facilities are addressed in EBA7v in clause 27.8.7, which states “Aviation Regulatory Authority requirements with respect to adequate rest facilities on board the aircraft will apply in all relevant situations.” Individual Letters of Agreement between Qantas and AIPA have prescribed appropriate crew rest requirements. These requirements may differ slightly due to the type of aircraft and the cabin configurations.

[305] AIPA25 is addressed in the AWD by way of clause 69.7 and Appendix L. Appendix L is not included in the CWD with minimum standards of rest facilities specified in the flight time limitations table but as a note to the tables in clause 69.1. AIPA submitted that the CWD does not impose any additional cost or burden on Qantas, with all current crew rest facilities specifically identified as being compliant with the standard.

[306] Qantas opposed this claim. It submitted that it is unnecessary to include prescriptive rest facility rules in the workplace determination because CASA intends to regulate crew rest facilities under the proposed new CAO48 and CAAP 48-1(0). 203

[307] Whilst Qantas accepts that the clause will only apply to new aircraft types introduced into the Qantas fleet, as the existing aircraft types are “deemed” to be adequate, 204 it submitted that compliance with AIPA’s proposed specifications for crew rest facilities would be difficult and costly, requiring it to engage with aircraft manufacturers in respect of the design of crew rest facilities and, where this is not possible, Qantas would be required to modify the aircraft at great expense.205 Qantas submitted that it would be required to install the same type of crew rest facility in all new aircraft, which is set at a standard higher than the “class 1” facility in the new CAO48.

[308] Qantas accepted that adequate crew rest during flight operations is important. 206 We accept that well rested crew is essential for the safety of the passengers and the crew. The issue is how crew rest facilities should be dealt with in the workplace determination. AIPA’s evidence is that a defined and agreed standard is absolutely necessary for in-flight rest facilities.207 Neither the AWD nor the CWD provisions in respect of rest facilities are agreed. The evidence of Mr Wolny that CASA intends to regulate crew rest facilities under the proposed new CAO48 and CAAP 48-1(0) was unchallenged. AIPA’s evidence is that it is engaged in discussions with CASA on the proposed new CAO48 and with Qantas on what constitutes acceptable crew rest.208 Any practical effect of the AWD or the CWD would only arise in relation to crew rest facilities on future aircraft, given the deemed acceptance with the CWD that all current crew rest facilities meet the AIPA25 standard. In all of those circumstances, we are not persuaded that AIPA25 should be reflected in the workplace determination, leaving the crew rest facilities subject to Aviation Regulatory Authority requirements and existing Letters of Agreement between Qantas and AIPA at this time. The issue can be revisited by the parties in future negotiations, informed by any new CASA requirements applied in relation to crew rest facilities.

QAL29—Reset Qantas’ maximum for fleets on a 28 day roster to the greater of the pilot’s actual line build value or divisor plus MDC

[309] Pilots on 28 day rosters (currently only those on B767 aircraft) may only be rostered duties up to the bid period divisor plus 2.5 hours in any bid period. For pilots on 56 day rosters (currently all other fleets), the limit is the bid period divisor plus five.

[310] In the event of later allocation of flying (due to disruptions, open time etc.) in excess of this maximum, pilots receive an additional payment for all flying allocated over the bid period divisor plus 2.5 on 28 day rosters and plus five for pilots on 56 day rosters.

[311] Qantas submitted that applying clause 27.15.1(a) of EBA7v and existing practice, the maximum to which Qantas can project a pilot on a 28 day roster is the bid period divisor (or, where applicable, the pilot’s actual line build value or “personal divisor”) plus 2.5 hours. As MDC is 5.5 hours, Qantas in most cases is constrained from scheduling a LHP to perform duties additional to those allocated to an LHP’s roster during the initial roster build. QAL29 seeks to change clause 27.15.1(a) of EBA7v (in clause 28.1 of the Rostering Manual) to increase the projection limit of five hours to 5.5 hours to achieve consistency with developments in current scheduling practice, namely, the increase of MDC to 5.5 hours. Qantas submitted that the proposed changes under QAL29 also enable Qantas to allocate work to LHPs to MDC under 28 day rosters if the changes sought under QAL15 are effected and Qantas is empowered to implement 28 day rosters on a fleet by fleet basis.

[312] AIPA submitted that this would create an ability to roster pilots on 28 day rosters for an additional three hours per bid period, and other pilots for an additional 30 minutes per bid period. It would mean that all pilots rostered to the bid period divisor or below and all pilots with a personal divisor could be allocated an additional days’ duty at MDC in each bid period (that is six days per year on a 56 day roster and 13 days on a 28 day roster), with a discriminatory impact on pilots operating on 28 day rosters. AIPA submitted that the claim would also have the effect of reducing pilots’ income in the event they are allocated work in excess of the roster maximum and reduce the number of pilots required to perform the same amount of duties, thereby exacerbating the surplus and leading to roster instabilities.

[313] There was limited evidence in respect of this Qantas claim. Captain Beavan’s evidence was that Qantas has available other mechanisms to allocate the relevant work—allocation to BLHs, offer to PLHs and the riot clause 209—and that QAL29 would remove a level of roster stability and therefore diminish the quality of life of a pilot.210 Mr Wagener accepted Captain Beavan’s description of the last few steps of open time flying allocation as largely accurate, although broad and ignoring the complexities associated with each step of open time flying allocation.211 Mr Wagener contended that QAL29 is designed to assist the process of allocating work to LHPs on 28 day rosters by adopting a common sense approach to increase projection limits from five to 5.5 hours which would align with current minimum daily credit and reduce the amount of flying required to be allocated through the open time process.

[314] We are not persuaded on the evidence that the change sought in QAL29 should be made on the basis of making the allocation of open time flying easier, given the potential additional disruption to pilots and alternative allocation processes available.

7.4.4 Pay and Classification Issues

QAL22—New terms and conditions for new entrants

[315] QAL22 is directed to contain long term wages growth by setting pay rates for “new pilots” as follows:

(a) for all S/Os, and for F/Os and Captains on wide body aircraft, 80% of the equivalent B767 hourly rate;

(b) for F/Os and Captains on double-deck aircraft, 90.4% of the equivalent B767 hourly rate;

(c) no entitlement to STACR;

(d) access to AFDP in more limited circumstances; and

(e) In all other respects, the terms and conditions for new pilots will be the same as for existing LHPs.

[316] The claim is advanced on the basis that Qantas’ current pay rates represent an area of comparative disadvantage. 212 Qantas submitted that where equal productivity between Qantas and Virgin Australia pilots is assumed, Qantas’ new entrant pay rates are 7-28% higher than Virgin Australia’s rates. Qantas submitted that its proposed new entrant pay rates apply strictly to pilots recruited by Qantas following the commencement of the workplace determination. The Virgin Australia “new pilot” rates apply to both new recruits and every current S/O and F/O on promotion. Qantas submitted that dual pay rates for the same pilot body is occurring at Cathay Pacific and Virgin Australia and has occurred in respect of Qantas SHP and ground staff.

[317] AIPA opposed QAL22 on the basis that:

(a) It is inequitable and creates a significant divide between current pilots and new entrant pilots;

(b) It is unfair to target wages and conditions of employees who are not yet known and not able to bargain;

(c) Qantas has not provided a significant basis for why the change is merited, or why the rates proposed for new entrants are appropriate; and

(d) It is unnecessary at this time, and could properly be left for future bargaining.

[318] AIPA submitted that the effective difference in remuneration proposed is enormous, relying on the evidence of F/O Susz 213 that new entrants would earn the following amounts less than current pilots:

	A380	B747	A330	B767
Captain	36%	31%	30%	20%
F/O	36%	31%	30%	20%
S/O	30–54%	28–49%	22–40%	20–31%

[319] There was considerable dispute between the parties in relation to both the difference between current LHP remuneration and that proposed for new entrants, and remuneration proposed for new entrants and the remuneration of Virgin Australia pilots. It is not necessary for us to resolve that dispute in order to determine the claim in QAL22.

[320] It is unlikely that there will be recruitment in the current environment. 214 Whilst Qantas would obtain a financial benefit after recruiting new LHPs, the extent of which will reflect the extent of recruitment, no benefit is likely over the course of the workplace determination, either of the duration suggested by Qantas or that determined by the Full Bench. In that circumstance, we find that QAL22 would most likely have no effect or, alternatively, an extremely marginal effect on Qantas’ costs, its competitive position or on LHPs over the period of operation of the workplace determination. In those circumstances, it is our view that a proposal of such significant controversy and effect is better addressed by Qantas and AIPA in negotiations for a replacement agreement.

AIPA8(B) in the AWD—Introduce payload bands

[321] AIPA8(B) sought to introduce pay scales that apply to all aircraft by reference to aircraft capacity. The claim was not pressed in the CWD. The AWD claim was not supported by significant evidence or submissions. We are not persuaded to introduce pay scales based on aircraft payload capability into the workplace determination.

AIPA13—Pay increase, backpay and flattening 12 year scale

[322] In the AWD, AIPA sought increases of 3% or CPI, whichever is greater, compounded annually. The CWD dropped the reference to CPI and limited the pay increases to 3%. The QWD also contains increases of 3%.

[323] The crucial differences between the workplace determinations filed by the parties is the effective date of the increases, the payment of “backpay” and an AIPA proposal to flatten the 12 year pay scales.

(a) Wage and allowance increases

[324] Qantas and AIPA in the CWD propose annual increases in wages and allowances 215 in the workplace determination at the level of 3% per annum. We are satisfied that increases of 3% per annum are appropriate having regard to the level of wage and price movements generally and wage increases provided to other Qantas employees under other agreements and workplace determinations,216 and are within the broad range of wage increases within the broader industry.

(b) Backpay

[325] Qantas opposes backpay, seeking that a 3% wage increase apply effective from the date on which the workplace determination operates, with a further 3% increase upon each anniversary of that date during the nominal life of the workplace determination.

[326] In the AWD, AIPA proposes that the annual wage increases apply from 1 January 2011 with pay increases on the last pay period of 2011 and then annually on last pay period each year until workplace determination is terminated or replaced. In the CWD, it proposes that the increases apply effective from 1 January 2011 with pay increases on 1 January 2012, 2013, 2014 and 2015, with a backpay period from 1 January 2011 to the workplace determination date. The backpay is contained in clause 32.3.3 of the CWD.

[327] Qantas submitted that the Fair Work Commission should not impose retrospective wage increases for two main reasons:

● there is no power for the Fair Work Commission to make an order of back payment of wages; and

● there are no circumstances justifying the imposition of retrospective wage increases.

[328] We deal first with the jurisdictional issues raised by Qantas.

[329] We do not accept the proposition advanced by Qantas 217 that there is no power for the Fair Work Commission to include in a workplace determination a provision requiring the payment of a wage rate from a time earlier than the date on which the workplace determination operates. Under s.276(1) of the Act, there is an express provision stating that the workplace determination commences operation from the date it is made. However, this does not preclude the inclusion within a workplace determination of a requirement to give effect to a wage increase from an earlier date, which has legal effect once a workplace determination comes into operation. In this sense, s.276(1) is no different in effect than s.54(1) of the Act which specifies the date from which an enterprise agreement operates from.

[330] It can be noted, both in respect of power and merit, that the Fair Work Commission, in making workplace determinations, has either awarded a retrospective wage increase 218 or “front loaded” the first increase,219 to compensate employees for the delay since their last wage increase. In one case, The Australian Licenced Aircraft Engineers Association v Qantas Airways Limited,220 the Full Bench included, in the workplace determination operating from the first pay period on or after 23 January 2012, wage increases commencing from 1 January 2011 and from the first pay period on or after 1 January 2012,221 reflecting a position agreed between Qantas and the union in that case and found by the Full Bench to be appropriate for adoption in the workplace determination.222

[331] Turning to the merit of the proposals advanced, we can readily dispose of the proposal reflected in the AWD to provide for wage increases to operate annually, infinitum, until the workplace determination is terminated or replaced. Such a proposal would reduce the incentive for the pilots to bargain for a replacement agreement and potentially determine wage increases well into the future in unknown circumstances. We see no merit in that proposition. Nor do we see any merit in the proposition within clause 32.3.3 of the CWD the pay increases be applied in respect of pilots are no longer employed under the workplace determination.

[332] AIPA submitted that the payment of backpay is consistent with past practice and sees no reason why it should not occur in these circumstances. AIPA submitted that in EBA7v, the parties have agreed to the operative date of a replacement agreement and therefore the first subsequent wage increase is payable from 1 January 2011. The parties also agreed that pay rises in EBA7v were to be back paid to 1 January 2007. It submitted that all pay rises negotiated during previous rounds of collective bargaining have included the payment of backpay. AIPA submitted that without backpay, the LHPs covered by the workplace determination would receive no increase at all for a period of at least two years, an outcome which it described as an unfair and disproportionate outcome for LHPs.

[333] AIPA noted that two earlier workplace determinations, arising out of the October 2011 223 terminating industrial action in relation to proposed enterprise agreements at Qantas, have provided for wage increases to apply from dates earlier than the date on which the relevant workplace determinations commenced:

● Licenced Aircraft Engineers: wage increases applying from 1 January 2011 in a workplace determination which commenced operation on 23 January 2012; 224 and

● Ground handling operations: wage increases applying from 1 July 2011 in a workplace determination which commenced operation on 8 August 2012. 225

[334] AIPA submitted that a failure to provide for an increase in rates of pay from 1 January 2011 would punish the LHPs and provide a bonus for Qantas. It submitted that LHPs, through AIPA, pursued legitimate claims in the course of the bargaining process and that the delay in the resolution of the dispute occasioned by the arbitration was brought about by Qantas’ decision to close down the airline, cause damage to the Australian economy and prevent further negotiations between the parties. It submitted that LHPs are in no way responsible and should not be disadvantaged as a result.

[335] Qantas submitted that there are no circumstances justifying the imposition of retrospective wage increases. Qantas conceded that traditionally the enterprise agreements negotiated with Qantas for LHPs have included backpay. 226 However, it submitted that AIPA’s reliance on that practice is misplaced because there was no agreement reached “this time around” and arbitrating backpay would detract from the incentive to bargain as it would send the message that backpay is effectively a “given”. It submitted that arbitration of backpay would be particularly inappropriate in current circumstances, where Qantas will not benefit from any efficiency and productivity measures it achieves until the workplace determination is operating.

[336] Qantas submitted that the cost of the AIPA backpay claim would be prohibitive. Each LHP would receive a lump sum payment equal to 3% of their earnings for the period 1 January 2011 to 18 December 2011 and 6.1% of their earnings from 19 December 2011 to 18 December 2012. Qantas submitted that this would have an immediate one-off cost impact on Qantas of $39.5 million for two years of backpay.

[337] Qantas estimated that by the end of its nominal term, the AWD would result in an increased annual cost of LHP wages of $504.3 million compared to Qantas’ proposed $461.5 million, or a 15.9% increase by 2014 (assuming a greater CPI based increase was not applied). It estimated that the cost of the CWD would be similar. It submitted that there should not be any “front loading” of wages to take account of the period of time since LHPs last had a wage increase.

[338] Several aspects of EBA7v provide relevant background to the merit of the competing positions:

● It provided the last wage increase paid to LHPs at Qantas was 3%, effective from 1 July 2010; 227

● It came into effect in May 2009;

● It had a nominal expiry date of 31 December 2010; 228 and

● It provided for renegotiation in the following terms:

“Renegotiation of Agreement

The parties agree to commence negotiations on a new collective enterprise agreement no later than six months prior to the expiry date of this Agreement (or such lesser period as agreed between the parties) and are committed to complete negotiations on the new agreement prior to the expiry date. The Company will continue to apply the terms of this Agreement to all flight crew members covered by it until the new agreement takes effect at law. The operative date of the new agreement will be 1 January 2011.” 229

[339] The determination of the timing of wage increases, including operation of increases from a time earlier than the date on which a workplace determination operates and/or frontloading of increases, requires the consideration and balancing of the particular circumstances of a matter, having regard to the s.275 considerations. Relevant considerations in the current circumstances include:

● Past practice in respect of backpay in agreements between Qantas and AIPA;

● The expectation of the parties that an agreement replacing EBA7v would operate from 1 January 2011;

● The fact that LHPs last received a wage increase on 1 July 2010; 230

● The adverse impact on LHPs of their wages continuing at the 1 July 2010 level for a period well in excess of two years;

● The cost to Qantas of a lump sum backpay obligation for which there is no past benefit to Qantas in respect of efficiency measures contained in the workplace determination;

● The saving by Qantas of the wage increases it could have reasonably expected to have incurred under a new agreement;

● A range of authorities in which the Fair Work Commission or its predecessors have either awarded a retrospective wage increase or “front loaded” the first increase; 231

● The inclusion of wage increases applying more than a year before the operation of the workplace determinations applying to Qantas and both of the other groups of employees subject to the October 2011 Full Bench order terminating industrial action; and

● Any contribution by the parties to the delay in achieving a new agreement/workplace determination. In this regard, we have already found that there is no basis for adverse findings as to bargaining conduct relevant in the context of s.275 of the Act. The protracted period of negotiations, like the extensive period over which the workplace determination proceedings have occurred, reflected the nature, extent and complexity of the matters in issue, rather than a fault on the part of one or other of the parties.

[340] We think that an appropriate balance is achieved through including in the workplace determination, three wage increases:

1. From the first pay period on or after 1 January 2012: 4.5%;

2. From the first pay period on or after 1 January 2013: 3.0%; and

3. From the first pay period on or after 1 January 2014: 3.0%.

(c) Flattening of 12 year pay scales

[341] There are currently 136 pay scales in EBA7v based on a scale of one to 12 years and this is referenced to years of service as a pilot, rather than in a rank, employed under the Agreement. AIPA13 in the AWD would result in all Captain and F/O scales from years one to 11 being deleted such that only the year 12 level remains. The claim was not pressed in the CWD.

[342] AIPA submitted that the graded scales for F/O and Captains are largely irrelevant and inappropriate. It submitted that the cost to Qantas of flattening the scales for Captains and F/O is negligible because all Captains and the vast majority of F/Os are currently at the year 12 level. AIPA submitted that flattening the scales for Captains and F/Os would streamline the pay tables and simplify payroll processes.

[343] Qantas opposed AIPA13, as reflected in the AWD. It submitted that:

● The existing pay structure based on years of service has a long history, and it is recognised that pilots progress through the pay structure as they accumulate service with Qantas.

● The fact that the existing LHP cohort is of long service and the majority of LHPs sit at the top of the current scale are not compelling reasons to do away with the current arrangements.

● In the event that there is growth and Qantas needs to recruit LHPs, AIPA’s proposed pay structure would substantially increase the costs to Qantas of doing so.

[344] We are not persuaded to give effect to AIPA13 in the AWD. AIPA has not provided any real basis in support for its proposal. Whilst AIPA13 might have no immediate practical effect, other than simplifying the pay structures, and impose no immediate cost on Qantas, we are not satisfied that this would be true at times of growth in LHP numbers. That potential cost outweighs the limited benefit of simplifying the structure relied on by AIPA to support its claim.

AIPA14—Rate for Boeing B787 (B787) aircraft

[345] By claim AIPA14, AIPA seeks to have the workplace determination include rates of pay for crew operating the B787 aircraft, which might be introduced into the Qantas fleet. This claim also seeks to have the workplace determination set the status of the B787 (ranking it against other aircraft), which affects the status of pilots in categories and bidding rights for a position on the aircraft.

[346] Each of the proposed workplace determinations include provisions setting the rate for the B787 aircraft and maintaining a general provision in respect of new aircraft or equipment (but excluding the B787 aircraft given specific provisions proposed).

[347] The Qantas Group currently has contracts for the future purchase of Boeing 787-800 aircraft (B787-8) and Boeing 787-900 aircraft (B787-9) . The B787-8 aircraft will all be added to the Jetstar fleet of aircraft. 232 Whilst Qantas has in place contractual arrangements to purchase B787-9 aircraft, it has the option of withdrawing from the purchases. The evidence of Mr Evans233 is that no decision has been made on who will operate the B787-9 aircraft, or even whether or not they will be purchased. His evidence was that:

“No firm decision has been made by the Qantas Group as to the allocation of the B787 aircraft to either Qantas Airlines or Jetstar. The B787 aircraft are not due until 2014 at the earliest and the Qantas Group has the right to cancel any or all of the aircraft that it has contracted to purchase without penalty.” 234

[348] Since giving that evidence Qantas announced, in the context of the release of the 2011–12 financial year results, that it had reduced its potential commitment for B787-9s from 85 to 50, an effective two year delay, cancelling firm commitments for 35 B787-9s and retaining 50 options/purchase rights from 2016. 235

[349] The earliest that any B787 aircraft will enter service in Qantas’ Mainline is 2016. The issue raised in AIPA14 will not require resolution within the nominal life of the workplace determination we have determined. In that circumstance and given relatively limited evidence, we think it better to leave the matters relating to the B787 issue for Qantas and AIPA to address in negotiations for a replacement agreement, when the likelihood of the introduction of B787 aircraft into Qantas’ operations is clearer.

7.4.5 Leave and Entitlements

QAL5—Insert provision defining “ordinary hours of work”

[350] Qantas seeks to insert a definition of “ordinary hours of work” in the workplace determination to confirm the position that a LHP temporarily transferred to full-time ground duties is required to work 38 hours a week. Qantas submitted that that issue arises due to the provisions of the Act. Unlike the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the Act does not contain a definition of “ordinary hours of work” in circumstances where an enterprise agreement is silent. As the Act is silent, it is necessary to include in the workplace determination an express provision. Qantas submitted that it is merely seeking to confirm current arrangements and to avoid issues with LHPs who may dispute the requirement to work full-time when moved to ground duties (i.e. 38 hours per week).

[351] AIPA supports QAL5 in principle, subject to additional wording within the CWD provision which AIPA submitted is necessary to provide certainty that pilots’ parental leave will not be affected by adjustment to hours of work while on ground duties.

[352] We are satisfied that the definition is necessary within the workplace determination, given the absence of a current statutory definition. We are not persuaded that it is necessary to amend or elaborate upon the EBA7v entitlement to receive parental payments (i.e. primary carers’ leave) arising from Qantas’ policy and reflected in clause 37.1.4 of the QWD. We will include the Qantas formulation in clause 15.16 of the QWD in the workplace determination.

QAL10—Allowances within Australian Ports - pay in arrears or daily travelling allowance arrangement

[353] Currently allowances paid in Australian ports are paid in cash. The pilot may collect the cash either at Travelex (for transit allowances) or in hotels (for overnight allowances). QAL10 seeks to allow Qantas to pay allowances that would normally occur in Australian ports by electronic transfer through payroll in arrears.

[354] In the AWD, AIPA supported the maintenance of current arrangements, proposing the use of debit cards as an alternative. In the CWD, AIPA included a provision which permits payment of transit allowances through payroll in arrears but continues the current system for overnight allowances.

[355] Qantas supported QAL10 on the basis that it will update an inefficient process which requires cash floats at domestic crew hotels and manual certification and payment processes, streamline Qantas’ administrative processes, achieve savings by removing Travelex service fees, reduce administration, remuneration and fleet management costs and remove the risks associated with cash floats at domestic crew hotels.

[356] AIPA brought evidence that the proposed change would negatively affect LHPs by creating difficulty in ensuring entitlements are paid correctly and the reconciliation of allowances some weeks after the entitlement was due.

[357] We will give effect to QAL10 in the workplace determination in the form of clause 28.5 of the QWD. We are satisfied that the administrative and cost benefits to Qantas outweigh the adverse consequences on pilots identified by AIPA, in circumstances where the underlying entitlement to the allowances is unaffected.

QAL23—Implement new provisions in relation to certification of sick leave

[358] Qantas characterises QAL23 as seeking to codify long-established practices relating to when a sick leave certificate is to be provided, disclosure of the nature of the illness or injury in the certificate and attendance at a medical examination at Qantas’ direction and expense if required. AIPA characterises the claim as seeking to implement new processes in relation to sick leave.

[359] Mr Wagener’s evidence was that QAL23 is directed:

(a) to strengthen governance around the use of sick leave entitlements;

(b) to align the sick leave certification process for long haul operations with Qantas’ other business units including short haul operations; and

(c) in relation to medical examinations, to reflect the existing practice of directing LHPs on long term sick leave to attend examinations to ensure the relevant LHP is obtaining the best treatment options to expedite the return of their aviation licence. 236

[360] Clause 38.3.6 of the QWD deals with sick leave without pay. This matter is agreed 237 and the provision will be included in the workplace determination.

[361] Clause 38.3.7 of the QWD requires a pilot to notify Qantas immediately upon becoming ill and to state the nature of the personal illness or personal injury that is affecting the pilot and the estimated duration of absence. Clause 31.3.7 of EBA7v is in terms similar to clause 38.3.7 of the QWD, save that the requirement to state the nature of the illness is qualified by the words “as far as possible”. AIPA retains the EBA7v provision in the AWD and the CWD. 238 Qantas has not brought evidence of any impediment to treatment options which delay the return of an aviation licence arising from the current provision. The provision will remain in the workplace determination in the form of Clause 31.3.7 of EBA7v.

[362] Through clause 38.3.10—When a medical certificate is required, of the QWD, QAL23 seeks changes to the current sick leave arrangements:

● Clause 38.3.10(a) of the QWD reduces the EBA7v entitlement 239 to un-certificated medical absences from a maximum of four separate occasions or seven days to three separate occasions or four days of sick leave commencing from 20 August in each year. The proposed change is based on the proposition that it produces an outcome consistent with the requirements imposed on SHPs240 or with Qantas’ other business units including short haul operations.241

● The addition of a new provision, in clause 38.3.10(c) of the QWD, by which Qantas may require a pilot to attend an appointment with a medical practitioner appointed by it for the purpose of a medical examination and the provision of a report to Qantas (with the cost of both being met by Qantas). Mr Wagener’s evidence was that Qantas has had a long-standing practice of directing pilots who are on long term sick leave to attend a medical appointment arranged by Qantas Aviation Services to ensure that the pilot is obtaining the best treatment options that may expedite the return of his or her aviation licence. 242 Advice to Mr Wagener from a Medical Officer within Qantas Medical Services was that “Qantas Medical does complete management initiated medical reviews on our pilots” and also directs employees to see an outside doctor for review, although it does not formally record such directions.243

[363] AIPA opposed the change on the basis that it is much more than simply a “codification” of current practice, but has the potential for creating a requirement within an industrial instrument for pilots to attend medical examinations by a doctor nominated by Qantas, altering the common law position which would permit Qantas to direct an employee to attend a medical practitioner only if Qantas had not been provided with sufficient medical reports and extend access to doctor-patient medically privileged information.

[364] Qantas has not established a case for including the changes reflected in clause 38.3.10(c) in the workplace determination. To the extent that Qantas can and currently does require pilots to attend medical examinations, as suggested by the advice of its Medical Examiner, it can continue to do so on the same basis and with the same access to doctor-patient medically privileged information, without the authority of the workplace determination. We are concerned that the changes reflected in clause 38.3.10(c) of the QWD would alter, rather than simply codify, the current arrangements. Qantas provided no evidence of problems with the level of uncertificated sick leave of LHPs, in absolute terms, changed levels or levels relative to other Qantas employees, including SHPs arising from the current EBA7v provision, to support the change. We are not persuaded that Qantas has advanced a sufficient basis for the changes, when assessed against the inconvenience and cost to LHPs associated with additional certification requirements.

QAL24—Require 90 day half-pay sick leave entitlement to be separated by 12 months service

[365] We are satisfied that the compromise position in clause 39.3.5 of the CWD represents an appropriate outcome, providing a more limited alteration to the entitlement than reflected in the AWD and maintaining access to the 90 days sick leave at half pay on a “rolling” year. We are satisfied that it appropriately balances the interests of Qantas and LHPs.

QAL25—Rewrite of provisions relating to annual and long service leave

AIPA2—Rewrite of provisions relating to annual and long service leave

[366] Annual leave and LOL were previously contained in EBA7v in several different places. QAL25 and AIPA2 have substantial similarity, seeking to streamline annual leave and LOL procedures, and have been dealt with together. There is substantial agreement between the parties in this area as evidenced by Mr Voget 244 and Captain Beavan.245

[367] The provisions in respect to annual and long service leave are substantially agreed. There are, however, several matters in issue in relation to the rewrite, reflected in the evidence of Mr Voget. 246 They are:

(a) Mr Voget believed that AIPA removed a provision which enables Qantas to “slide” annual leave by up to five days where a pattern conflicts with leave from the AWD. This is not so. The clause is contained, as clause 36.1.6 of the AWD and the CWD. 247 It will be retained in the workplace determination;

(b) EBA7v contained the following provision:

“A short line holder who takes advantage of this provision is not entitled to pattern protection, however this restriction will be removed 12 months’ after implementation of the provision if it can be shown that the advent of “golden leave” days has not significantly increased the Company’s liability in terms of short lines.” 248

Qantas proposed that the WD contain a provision that 35.1.7(d) “a short line holder who takes advantage of this provision is not entitled to pattern protection” on the basis that the clause is necessary to limit Qantas’ exposure to pattern protection for a short line holder who takes advantage of “golden leave”. The AWD does not contain the provision.

Qantas submitted that the exclusion of short line holders taking “golden leave” from pattern protection should be retained because it will prevent the misuse by LHPs of the provision and avoid associated pattern protection costs and exposure. AIPA submitted that Qantas has produced no evidence that there has been a significant increase in Qantas liability over a period well in excess of 12 months;

There is no evidence before us as to the taking of “golden leave”, such as would justify the removal of the restriction. The provision will be included in the workplace determination as proposed in clause 35.1.7(d) of the QWD.

(c) Qantas is seeking additional wording to make it clear that if a LHP bids for leave in the same period they are projected to be a BLH, the award of such leave would be at Qantas’ discretion. AIPA agreed to the Qantas wording in clause 64.8.3 of the CWD. They will be included in the workplace determination;

(d) AIPA seeks the inclusion of clause 36.2.19 of the AWD and the CWD in relation to the taking of annual leave in single days. Clause 36.2.17 of the AWD and the CWD appears in EBA7v as clause 28.26. Qantas has not justified its removal and we will include it in the workplace determination; and

(e) Qantas seek to amend clause 28.14.4 of EBA7v relating to minimum periods of notice to take leave by maintaining the current four week period for 56 day rosters and introducing a new three week notice period for LHPs operating on a 28 day roster. This point is not pressed by Qantas. 249

[368] Qantas submits that the position otherwise agreed position is reflected within the AWD. This is disputed by Qantas by reference to clauses 36.2.9, 36.2.10 and 36.1.4 of the AWD. Only those changes agreed between Qantas and AIPA in reformulating the annual and long service leave and those disputed matters determined by us above will be reflected in the workplace determination. We have determined that the reformulated provision should be in the form proposed in clauses 35 and 36 the QWD, subject to our decision in relation to the matters identified in the evidence of Mr Voget and dealt with above.

AIPA24—Improve home transport and related matters

QAL33—Change to home transport entitlements

QAL34—Review arrangements for transport between city and airport

[369] QAL33 and QAL34 seek to remove the requirement that Qantas supply transport to LHPs:

(a) to and from home and the airport in certain situations as outlined; 250 and

(b) to and from Sydney’s Central Station or Melbourne’s Flinders Street Station and the airport.

[370] AIPA24 seeks to insert provisions in relation to home transport and parking into the workplace determination. AIPA contends that they reflect current practice. Qantas contends that it will extend current discretionary benefits through the AWD and lock in discretionary benefits through the CWD.

[371] We see no reasonable basis to include current discretionary benefits afforded to LHPs in relation to home transport and parking in the workplace determination.

[372] The Qantas claims would provide cost savings to Qantas, at a cost to pilots. On the limited evidence before us we are unable to properly assess these competing interests and are not able to consider the impact of the changes in the context of flight and duty time limits. Save for one exception, we are not persuaded to give effect to QAL33 and QAL34 in the workplace determination. The one exception concerns city transport. The provision currently reflected in clause 35.1 of EBA7v 251 will not be contained in the workplace determination.

AIPA22—Definition of “First class accommodation” and AIPA5 Definition of “Flight deck duty time”

“First class accommodation”

[373] EBA7v provides that accommodation be classified as first class. 252 AIPA seeks to define the meaning of that term against an external standard (AIPA5), and by setting minimum standards (AIPA22).

[374] AIPA5 inserts a definition of “first class accommodation” consistent with Rank 7 in the internationally recognised “Hotel and Travel Index”. AIPA submitted that AIPA5 would minimise disputes about the meaning of first class, which is not an industry accepted standard, by utilising the definition of “Superior First Class” in the Hotel and Travel Index Rating System which AIPA contends is a proper reflection of the current required standards for accommodation. The claim was not pressed in the CWD.

[375] Qantas opposed AIPA5, as it relates to first class hotels, on the basis that the proposed changes are unnecessarily costly, impose onerous requirements on Qantas, and do not provide for any commensurate efficiencies. It submitted the definition proposed by AIPA was a new definition, which would cost Qantas approximately $8.2 million 253 and reduce the number of hotels at each port able to tender for the Qantas pilot accommodation contracts, thereby reducing competition amongst tenderers.

[376] We are not persuaded that we should include AIPA5, insofar as it relates to a definition of first class hotels, in the workplace determination. The change proposed would be at considerable cost to Qantas and there is insufficient evidence of benefits to LHPs which would outweigh that cost consideration. We are not satisfied that the change is required to reduce disputation. The evidence pointed only to one current dispute, concerning the DoubleTree by Hilton in Honolulu, which is based on issues, whether valid or not, far more fundamental than those raised by AIPA5.

[377] AIPA22 seeks to further clarify the meaning of first class by setting minimum room requirements of:

● one pilot per room;
● separately controlled airconditioning;
● 24 hour room service; and
● access to free internet.

[378] In addition, the AWD seeks to ensure the selection of hotels reflects current practice and:

● includes provisions as to the process to facilitate changes in hotel accommodation;

● clarifies provisions relating to hotel inspections that will ensure joint inspections; and

● provides a regime for pre-approved back-up hotels.

[379] The changes proposed in the CWD include:

● the requirement for Qantas to give sufficient notice to provide a 30 day window between inspection and occupancy for new accommodation to allow resolution of any disagreement regarding suitability;

● clarifying the facilitation of joint inspections;

● a regime for pre-approved back-up hotels; and

● in the event of the selection in a new port, an additional provision to make allowance for interim accommodation where agreement is not reached in time.

[380] AIPA22 is directed to a variety of changes to the minimum standard of accommodation, and the process for the selection of hotels, and for changing hotels. The claim by AIPA seeks to set a minimum standard by which suitable accommodation should be provided and serve as a guideline in sourcing acceptable standard hotels, providing flexibility and certainty in the selection of hotels.

[381] Qantas opposed AIPA’s claim to introduce additional criteria as to accommodation standards, submitting that they would significantly limit the amount of viable hotel options, as in many cases these services are not available. Mr Voget’s evidence 254 was that it would be difficult to provide for individually controlled (four pipe) airconditioning and difficult or impossible to provide 24 hour room service, limiting the number of available hotels. His evidence was that the provision of free in-room internet would cost around $2 million per annum, an unnecessary cost given that if a LHP is required to use the internet for work-related purposes, they may use the hotel’s business centres, or they may purchase in-room internet access and be reimbursed by Qantas.

[382] We are not satisfied that AIPA has established a sufficient basis for the inclusion of the room requirements in AIPA22 in the workplace determination, given the practical difficulties and costs likely to be visited on Qantas. Nor has it established a sound basis for altering the current arrangements which apply in respect of changing hotel accommodation 255 within the workplace determination.

“Flight Deck Duty Time”

[383] Given our decision above to include in the workplace determination changes to slip times, flight and duty time to the extent reflected within the CWD, it is unnecessary to include the definition of flight deck duty time proposed by AIPA into the workplace determination. 256

AIPA28—Change to method for debiting personal leave

[384] AIPA submitted that AIPA28 seeks to clarify the manner in which personal leave is paid and deducted. It submitted that during 2011 Qantas unilaterally changed the system previously used so that days after a pilot reports sick are counted against a pilot’s sick leave balance even if the pilot is not subsequently paid for a day, or was never going to be allocated work for the day. This change made by Qantas means that pilots are being debited sick leave without payment on days that they would never be required to work.

[385] AIPA submitted that AIPA28 proposes a fair and equitable system for the debiting of personal leave. It is based on the principle that personal leave should only be debited against pilots on days when they would have worked and would have been paid.

[386] AIPA presses its claim in the form advanced by it in the CWD: 257

“39.3.9 Debiting of personal leave

(a) A pilot will only be deducted for days where he/she is unable to perform a scheduled duty or is not available for a scheduled available day.”

[387] It replaces the current EBA7v prescription 258 which is reflected in the QWD:259

“When sick leave commences and finishes

Sick leave will be deemed to commence on the day on which a pilot is unable to perform a scheduled duty or, if sooner, on his or her next Available Day, and will continue until, but not including, the first full day on which the Company has been notified the pilot is fit for duty. A pilot who, on an Available Day, reports sick before 1700 hours local time, will not be debited sick leave for that day.”

[388] AIPA submitted that, under the CWD, a pilot will only be deducted for days where he/she is unable to perform a scheduled duty or is not available for a scheduled “Available Day” and will no longer be debited a day’s personal leave when they were planned to be on a “Designated Duty Free Day”.

[389] AIPA submitted that the change will provide clarity in circumstances where there have been disputes as to the “interpretation” and the intent of clause 31.3.9 in EBA7v and Qantas has used several methods of deduction for personal leave in recent times, all without a change in the words of EBA7v. It submitted that the CWD provision provides certainty by valuing personal leave at the appropriate level, taking into account a realistic view of the number of days a pilot is expected to work and, most importantly, provides an even-handed approach in deduction and payment of personal leave.

[390] Qantas submitted that AIPA28 does not “clarify” how personal leave is to be paid and deducted but seeks to make significant changes to the existing process. It submitted that the current method of debiting personal leave has been in place since approximately 1972. It provides that a LHP who is a PLH:

(a) is debited for each day of personal leave taken;

(b) is credited and paid for each day of personal leave taken at a rate of bid period divisor/56; and

(c) if the LHP is a PLH and provides a medical certificate - is credited and paid for each day of personal leave taken at a higher rate, meaning a PLH would not be required to “make up” the difference between the credited hours and pattern protected hours, i.e. would be paid the residual value of those patterns foregone due to leave but not required to work them.

[391] Qantas submitted that AIPA28 seeks to change the existing process by:

(a) restricting the debiting of personal leave to days which the LHP is unable to perform a scheduled duty or is not available on a scheduled available day;

(b) precluding debits where a pilot reports sick by 1700 local time on an available day; and

(c) limiting the debiting of personal leave to a maximum of 38 [19] days per bid period.

[392] The evidence of Mr Wagener was that the change would increase the amount of personal leave available to LHPs by approximately one third, 260 in circumstances where LHPs entitled to 25 days’ paid personal leave per year (cumulative to 365 days) and an additional half-pay entitlement of up to 90 days per year.

[393] Qantas submitted that it is not accurate for Captain Backhouse to contend that “the Company unilaterally changed the system” so that “some pilots are being debited sick leave at double the rate that had previously been used”. 261 It submitted that what Captain Backhouse referred to as “unilateral change” was a process engaged in by Qantas to amend an error in the payroll system which had given effect to the debiting arrangement now sought by AIPA. During that three-year bargaining process, Qantas did not seek to recover the increased leave benefits generated by the error.262 Qantas submitted that AIPA28 is a claim to codify in the workplace determination an administrative error rather than “clarify” the existing provisions.

[394] Qantas submitted that AIPA, through clause 82.2 of the CWD, also sets out changes to the formula for the accrual of credited hours in respect of personal leave taken by a LHP. These changes will reduce the number of sick leave days debited and increase the daily credit accruing to personal leave for each of PLHs, BLHs, LHPs on leave and LHPs on long term sick leave.

[395] Qantas submitted that AIPA provided no evidence in support of its claim to build on the current entitlement of LHPs to personal leave and the accrual of credited hours in respect of that leave. It submitted that AIPA28 should be rejected and the wording in the QWD and Rostering Manual should be endorsed by the Fair Work Commission as it maintains the current method for debiting personal leave (and is consistent with the debiting treatment for other forms of leave).

[396] The issue which arises between the parties concerns the method of debiting personal leave in the context of the unusual work patterns of LHPs. It is evident that the personal leave entitlement for LHPs is greater than that provided through the National Employment Standards, at a level of 21 days personal leave and four days leave for Upper Respiratory Tract Infections (URTI), reflecting the particular circumstances of airline pilots. Captain Beavan’s evidence, 263 which was not challenged by Qantas, was that the 21 day entitlement predated pattern protection. The evidence of Mr Wagener,264 which was not relevantly challenged by AIPA, was that at the time of the introduction of “pattern protection”, around 1972, Qantas and the Australian Federation of Air Pilots (representing LHPs at the time) agreed that each day in a bid period would be assigned a “value” of “divisor / bid period” - 2.86 hours in a 56 day bid, with:

“each day of the bid period is worth 2.86 hours, regardless of pilot activity. Each day taken as a personal leave day in the bid period is ‘debited’, and paid at a value of 2.86 hours per day. The credited hour difference between 2.86 hours per day and the value of the pattern or patterns not worked while on personal leave was ‘pay or pattern protected’ and Qantas could require the PLH to work in accordance with the pattern protection provisions to offset the residual value of those patterns paid for, but not worked, due to personal leave. This practice in relation to credit was maintained until the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2003-2004 (EBA6) was made.” 265

[397] In EBA6, agreement was reached through clause 27.15.7(d) that where a medical certificate is supplied, a PLH was no longer required to “make up” the time lost (credited hour difference between 2.86 hours per day and the value of the pattern or patterns not worked) in the bid period. The credited hours for personal leave was now used to offset pattern protected hours, and would not be used to increase a LHP’s projected credited hours. It is evident that, whatever the origins of the personal leave entitlement for LHPs, the method and level of debiting and crediting of leave is related to pattern protection.

[398] AIPA28 is advanced on the basis of an inequity arising from debiting of personal leave in respect of days on which a LHP would not have been required to, or be available to, work by reference to conventional work arrangements, without acknowledgement of previous agreed arrangements in the context of pattern protection. On the material before us we cannot be satisfied of the full implications of the changes proposed in AIPA28, in the CWD, and properly assess the competing interests of Qantas and AIPA. In that circumstance, and in the context of the previously agreed arrangements disclosed by the evidence of Mr Wagener, we are not persuaded to give effect to AIPA28. We think that the issues raised by AIPA are best addressed in future negotiations between the parties who have a fuller understanding of the past agreed arrangements and the relationship to pattern protection.

AIPA29—Fatigue – debiting of personal leave

[399] AIPA29 seeks to prevent the deduction of a pilots’ personal leave in circumstances when a pilot is unable to perform duties due to fatigue.

[400] AIPA contended that the effect of its claim is to ensure that Qantas deals with the circumstances of fatigue consistent with its FAM. The FAM states that fatigue is not (at first instance) considered a medical issue.

[401] At present Qantas debits sick leave where pilots are unable to operate due to fatigue. AIPA29 provides that Qantas should not deduct sick leave if a pilot reports unfit due to fatigue unless that period exceeds 48 hours.

[402] AIPA submitted that the nature of the claim is simply to restore previous practice. It contends that prior to 2011 pilots who reported unfit for duty due to fatigue were not debited personal leave, but in 2011, based on the understanding of Captain Beavan, 266 Qantas began a practice of debiting a pilot’s personal leave for instances of fatigue.

[403] The AWD prohibits the deduction of personal leave for fatigue unless the period exceeds 48 hours. AIPA submitted that this position is consistent with:

(a) an understanding of the nature of fatigue (which is not an illness);

(b) the provisions of the FAM; and

(c) the fact that pilots may be allocated other duties when they report unfit due to fatigue.

[404] In the CWD, AIPA did not press this claim, and would permit Qantas to deduct URTI leave to be able to be used for fatigue as well, as part of its overall rewrite of provisions relating to the debiting of sick leave in AIPA28 (which we have not included in the workplace determination). URTI leave is four days of non-cumulative paid leave that is exhausted before personal leave is used.

[405] Qantas submitted that AIPA29 is a claim to extend the personal leave entitlements of LHPs, which are already generous and should be rejected. It submitted that LHPs have generous personal leave entitlements which are intended for use on occasions they are unfit for work, including due to fatigue. In Qantas’ view, it is neither valid nor relevant to distinguish between “fatigue” and “sickness” for the purposes of the debiting of personal leave. It illustrated its submission by reference to a LHP who is unfit due to fatigue may take personal leave because he/she was kept up late the night before by his/her crying baby.

[406] AIPA29 is advanced on the basis that fatigue is not an illness and does not fall within the compass of personal leave. It relies on the Qantas FAM which describes fatigue as:

“A physiological state of reduced mental or physical performance capability resulting from sleep loss or extended wakefulness and/or physical activity that can impair a crew member’s alertness and ability to safely operate an aircraft or perform safety related duties.”

and notes:

“As fatigue is not (in the first instance) considered a medical issue, Aircrew Operations are the appropriate company contact as they will be re-crewing services.”

[407] AIPA also relied on the fact that pilots may be allocated other duties when they report unfit due to fatigue.

[408] Under each workplace determination proposed, a pilot is entitled to be paid personal leave when absent from duty for the following reasons:

● personal illness or injury (sick leave);

● to care for and support an immediate family or household member who is sick and requires care (carer’s leave); or

● when a member of his or her immediate family or household is suffering from a serious or life-threatening personal injury or illness or for bereavement (compassionate leave)

[409] It would appear that an entitlement to personal leave could only arise in respect of an inability to fly due to fatigue if it fell within the meaning of “personal illness or injury”. There was no evidence and no submissions as to whether fatigue was a “personal illness or injury”, other than the submission of AIPA that it was not and its reliance, as evidence, upon the passage in the FAM cited above. However, if AIPA is right in its contention that fatigue is not a “personal illness or injury”, a fatigue related absence would not create an entitlement to personal leave (or payment in respect to personal leave). Clause 39.3.12(b) of the AWD would leave a void as to what would occur in circumstances where a pilot is unable to perform his or her duties of safely operating an aircraft (putting aside alternate duties), where fatigue may arise from reasons associated with their work, unrelated to their work or some combination of the two. It does not require payment in respect of such absences, it simply provides that no deduction from sick leave will occur in respect to such absences when the absence is less than two days. There appears to be no provision within EBA7v which expressly deals with absences due to fatigue unless they are taken to be absences due to “personal illness or injury”. We have no substantive evidence as to whether fatigue falls with the meaning of “personal illness or injury”. There is no evidence to suggest that Qantas pilots would not meet their professional responsibility to not fly when they are unfit for duty nor, by implication, that they have done so over recent years when Qantas has debited sick leave where pilots were unable to fly due to fatigue.

[410] In all of the circumstances, we will not include in the workplace determination a provision of the type sought by AIPA in the AWD. Nor will we include the compromise URTI provision proposed in the CWD. Whilst the CWD formulation attempts to chart a middle course, it inappropriately brings absences due to fatigue into URTI leave, which has a distinct and separate purpose. This is a matter, in our view, which would benefit from consideration by the parties in future negotiations, allowing them to address the manner in which absences due to fatigue should be dealt with, having regard to all of the potential implications and in a manner which provides certainty as to arrangements which should apply.

7.4.6 Managing Surplus Pilot Situations

AIPA8—Qantas livery

[411] In the AWD, AIPA sought an AOEC clause providing for all “Qantas Flying” to be done by pilots employed by Qantas or by others on terms no less favourable. Qantas flying was described as operators in Qantas livery, or codeshare operators with other Qantas Group companies. AIPA no longer presses the AOEC clause.

[412] In the CWD at clause 5, AIPA seeks a livery clause as follows:

“5 Qantas livery

5.1 All aircraft in Qantas livery will be operated by pilots:

5.1.1 covered by this Determination; or

5.1.2 on terms and conditions no less favourable than if they had been covered by this Determination;

5.2 The provisions of clauses 5.1 do not apply:

5.2.1 where the aircraft is operated under the Qantas Short Haul Workplace Agreement;

5.2.2 where the aircraft is operated in the established roles of Express Freighters Australia, Jetconnect or QantasLink;

5.2.3 where terms and conditions for the engagement of pilots on new types of aircraft cannot be agreed pursuant to the provisions of the Integration Award and clause 41 of this Determination;

5.2.4 where there is an agreement between the parties to that effect.

5.3 For the purpose of clause 5:

5.3.1 ‘Qantas livery’ means Qantas branding, colours, emblems or markings designed to pass off an aircraft as being a Qantas aircraft; and

5.3.2 terms and conditions are no less favourable if persons engaged under this Determination are not ‘better off overall’ within the meaning of that term in the Fair Work Act in comparison.”

[413] AIPA submitted the clause brings into the workplace determination an assurance previously provided by Qantas. In 2009 Qantas wrote to the President of AIPA giving the following assurance as part of the settlement of EBA7v:

“Aircraft operated on the Company’s commercial operations in Qantas livery will be flown by mainline pilots subject to the terms and conditions being agreed between the parties. The established roles of QantasLink and Jetconnect are recognised.” 267

[414] AIPA also submitted the clause permits contractors to be used on terms no less favourable than those in the workplace determination on a “better off overall basis”, has no effect as against current practice, creates no additional cost against current practice, creates no obligation to change current practice and would create a disincentive against undercutting LHPs or avoiding using LHPs on operations with Qantas livery.

[415] Qantas objected to both the AOEC clause in the AWD and the Qantas livery clause in clause 5 of the CWD.

[416] Qantas submitted the AOEC claim is an unreasonable constraint on its ability to respond and adapt to an increasingly competitive environment, is costly and would be counter-productive to job security. Further, Qantas submitted the livery clause contains concepts which are ill-defined and broad ranging. Qantas pointed out that the AOEC and livery clauses are protections not afforded in EBA7v.

[417] In respect of the effect of the Qantas livery claim, Qantas submitted the clause attaches Qantas LHPs’ conditions to a brand rather than an employer, imposing obligations without reference to ownership, control, the operations or the nature of the entity operating the aircraft. The other flying businesses within Qantas have very different terms and conditions for their pilots compared to Qantas LHPs, which terms and conditions have been developed, including by bargaining, with regard to the particular circumstances and operations in those entities. Qantas submitted the current conditions of existing Qantas mainline pilots are generous compared to many of the competitors of Qantas and the QWD, the AWD and the CWD do not decrease such conditions overall. Qantas submitted its aim is, and has been, to grow the premium brand flown by its LHPs, and each of the businesses associated with Qantas branding, in their respective markets, as each flying business benefits from the growth of the others by increasing network reach and connectivity. As a result there is no parallel with concepts of “contracting out” and it cannot be, and is not, suggested the arrangements between Qantas and its subsidiaries are “sham arrangements”.

[418] Over the last decade, according to Qantas, the structure of the Qantas Group has developed in response to the market and other external events that have occurred globally as well as within the region. From 2000 to the present, there have been a number of external factors and reactions thereto that have impacted on Qantas and contributed to the structure that now exists. For example:

(a) in around 2000, a number of domestic competitors were operating, including Impulse and Virgin Australia.

(b) in 2001, Ansett and Tasman Pacific Airlines of New Zealand Pty Limited collapsed, which led to an immediate demand for flying services in Australia and in New Zealand;

(c) Qantas contributed much to meeting this demand in Australia and New Zealand where it provided planes and pilots to meet domestic demand;

(d) in 2001–2002, Impulse, which was in financial difficulties, was taken over and operated by Qantas;

(e) in 2002, trans-Tasman flying was being undertaken, in part, by Air Canada, Air Pacific and Polynesian Airlines under “wet-lease” to Qantas;

(f) in 2002, Jetconnect commenced operating in New Zealand with a New Zealand AOC, flying domestically and soon thereafter in 2004 commenced some trans-Tasman flying;

(g) in 2002, Qantas established Australian Airlines as a leisure carrier with its own industrial arrangements and livery and routes which generally commenced at its base in Cairns, but that operation ceased in or around April 2006 and the flying undertaken by Australian Airlines pilots was absorbed by Qantas and the pilots continued to operate the routes (with QF flight numbers) using Qantas aircraft on a “wet-lease” basis;

(h) in 2004, Impulse was rebadged Jetstar Australia and undertook LCC flying;

(i) the global financial crisis occurred in 2008;

(j) Jetconnect ceased domestic flying in New Zealand and concentrated on trans-Tasman routes in 2009; and

(k) Jetstar Asia operations commenced in Jetstar Japan, Jetstar Vietnam and Jetstar Hong Kong (in 2013).

[419] Qantas made decisions to exit some routes for economic reasons. For example:

(a) Qantas ceased flying some trans-Tasman routes because of a number of fundamental changes in the trans-Tasman market, notably the entry of LCC such as Pacific Blue (Virgin) and the dumping of capacity by non-Australian airlines which put great pressure on price;

(b) Qantas ceased some flying to and from Japan because it was completely non-economic; it was not core to the main customer segments that Qantas serves, which are business and premium leisure; it was low-cost leisure travel; and other factors such as the depreciation of the yen; and

(c) Qantas decided to withdraw from many of the other routes because they were low yielding leisure travel routes which were not suitable for Qantas’ premium product offering and caused Qantas to incur substantial losses (such as Bali and Jakarta).

[420] Qantas further maintains that EFA commenced in 2006 as a wet-lease operator on freighter services provided by Australian Air Express, using retired Qantas B737 passenger aircraft converted to freighters. In June 2009, Air Transport International, a US-based operator using US crew, aircraft and engineering, commenced wet-lease operations for Qantas Freight with a B767 freighter. In March 2011, Air Transport International ceased that operation and EFA started a wet-lease operation for Qantas Freight on a B767 freighter. Before Air Transport International, Qantas had a limited belly freight operation on B767s. Qantas has not operated a “combi” aircraft for passengers/freight for over 10 years as the freighter market is dominated by freight-only aircraft due to the cost sensitive nature of that market.

[421] Qantas submitted that the inclusion of the livery clause in the workplace determination will result in any new operations not making use of the Qantas livery, or new or expanded operations only commencing with AIPA’s agreement, or there not being any new or expanded operations. Qantas maintained that these are results which are inimical to job security and the public interest.

[422] The livery clause, Qantas submitted, will not improve productivity and there is nothing in the bargaining conduct of the bargaining representatives which is a factor favouring the awarding of the claim in the workplace determination. Indeed, the inclusion of the clause will not create incentives to bargain at a later time.

[423] Qantas also submitted that in so far as the clause seeks to create obligations between other employers than Qantas and its employees, such obligations are not matters that pertain to the relationship between Qantas and its employees. Further, the livery clause is inconsistent with the objects of the Act relating to enterprise bargaining.

[424] We are not persuaded we should include the Qantas livery clause sought by AIPA in the workplace determination.

[425] AIPA submitted the clause brings into the workplace determination an assurance previously provided by Qantas. However, the assurance Qantas provided as part of the settlement of EBA7v that “aircraft operated on the Company’s commercial operations in Qantas livery will be flown by mainline pilots” 268 was subject to “the terms and conditions being agreed between the parties” with the established roles of QantasLink and Jetconnect being recognised. The livery clause sought by AIPA is not subject to such agreement between the parties. Further, provisions of the clause extend well beyond the assurance and the terms of EBA7v. The merits of the clause have not been made out. On a narrow view the clause is in the interests of the LHP. But we accept the submissions of Qantas to the effect that the clause is not in its interests or the public interest. The productivity benefits of the clause were not established. We think the incentives to continue to bargain at a later time are likely to be greater without the clause being included in the workplace determination, given the extent of its deviation from the terms of the current assurance and EBA7v and the benefits it bestows on LHPs compared to Qantas.

AIPA9—Prevent using workplace determination efficiency to reduce a pilot in category or make redundant

[426] AIPA seeks a clause preventing a pilot being reduced to a lower category or made redundant due to an increase in a divisor. Qantas opposes such a clause on the basis that it seeks to limit Qantas’ right to manage its establishment. We are not persuaded we should include such a clause in the workplace determination. We later provide appropriate safeguards and processes in the workplace determination with respect to reductions in numbers and redundancy.

AIPA11—Leave without pay

[427] In support of its claim for leave without pay provisions, AIPA submitted that the basis of its claim is that, for the period of leave without pay, the pilot is not paid by Qantas and is not subject (other than as specifically provided for under the workplace determination) to the benefits and obligations of the workplace determination. The pilot is paid at whatever rate is negotiated or required for any employer they work for during the period of leave without pay. The pilot has a right to return at the end of the leave without pay period, and retains their relative seniority.

[428] AIPA submitted that LHP’s may seek leave without pay for three reasons:

(a) to work as a pilot for a different employing entity in the Qantas Group;

(b) to work as a pilot for an employing entity that is not in the Qantas Group; or

(c) to not work as a pilot at all.

[429] AIPA does not seek changes to the leave without pay arrangements described in (b) and (c) above. AIPA’s claim concerns leave without pay arrangements where the pilot undertakes leave without pay and remains within the Qantas Group.

[430] AIPA pointed out that, at present, the only specific process relating to leave without pay for Qantas pilots is the “Jetstar MOU”. The Jetstar MOU sets out a basis for Qantas pilots employed before 3 November 2004 to obtain leave without pay to work at Jetstar Australia on a preferential basis. However, the arrangement is limited as:

(a) it does not assist pilots employed after 3 November 2004;

(b) it is limited to terms of three years, with no capacity for shorter or longer periods as may be required by Qantas/Jetstar and no capacity for extension;

(c) pilots have one opportunity only to work at Jetstar under the MOU; and

(d) there is no obligation on Jetstar or Qantas to advise LHPs of opportunities for leave without pay vacancies.

[431] AIPA submitted the current arrangement is also deficient as:

(a) it only covers Jetstar Australia and there are no processes that facilitate leave without pay to any other Jetstar company, or to the range of other entities within the Qantas Group that employ pilots such as Jetconnect, EFA or QantasLink.

(b) the industrial instrument that gives effect to the Jetstar MOU for LHPs is the Jetstar pilots agreement and those provisions are vulnerable to change or removal pursuant to the arrangements between Jetstar and Jetstar pilots.

[432] AIPA also submitted the additional measures it proposes to facilitate and encourage the taking of leave without pay for Qantas pilots should be incorporated in the workplace determination because of their clear benefits for the parties. In particular:

(a) it saves Qantas significant amounts of money as they do not need to pay pilots for whom there is no work to be done;

(b) it buys Qantas time to ensure that the amount of flying is appropriate for the number of pilots employed, without having to go to the expense of retrenching pilots and then re-employing them a couple of years later;

(c) it avoids the need for retrenchments;

(d) by providing pilots opportunities to undertake new and different work without leaving the Qantas Group, it minimises the possibility of pilots in whom Qantas has invested significant resources, resigning their employment to take up work elsewhere;

(e) it provides pilots new and different opportunities at times when there are limited opportunities within Qantas.

[433] AIPA submitted the key ways in which the provisions they propose may assist is by the identification of vacancies, the obtaining of endorsements (the licence to operate the aircraft), and providing a mechanism for pilots to access appropriate positions in the other entities.

[434] In the AWD, at clause 40.2, AIPA seeks to incorporate provisions facilitating leave without pay by:

(a) requiring Qantas to distribute, as soon as practicable, advertisements for pilot positions with other members of the Qantas Group;

(b) ensuring other Qantas Group members consider a LHP’s application before considering applications from external applicants, although no preference against applicants from other Qantas Group companies is sought;

(c) by requiring Qantas to supply the subsidiary company with such relevant information about the pilot and the pilot’s personnel file as the pilot directs;

(d) granting any request for leave without pay, provided that the request is for a period of 12 months or more and the request would not create a shortage of pilots in Qantas;

(e) facilitating the payment by Qantas of some of the costs associated with the leave without pay; and

(f) ensuring that the Qantas subsidiary company provides the pilot with the appropriate level of seniority commensurate with their service in Qantas.

[435] In the CWD, including at Appendix K, AIPA seeks the establishment of a Group Mobility Scheme. The key features of the Group Mobility Scheme are:

(a) for Qantas Group companies that are currently operating and whose pilots are engaged on collective agreements, it has application only if the collective agreement that covers the pilots provides for it to operate;

(b) each participating Qantas Group company will fill a vacancy first from within its own ranks and, if more vacancies exist, from pilots who are in surplus in other participating Qantas Group companies;

(c) in all instances the pay and conditions that will apply to pilots will be those that apply in the receiving Qantas Group company;

(d) pilots employed in each participating Qantas Group company will be part of an integrated seniority list, with each company using the joining date of the pilots in that Company (pilots employed in other Qantas Group companies having a notional joining date of either 1 January 2013, or their actual date of joining, whichever is later); and

(e) the maintenance of provisions which extend entitlements available to pilots on leave without pay at Jetstar to pilots on leave without pay at any Qantas Group company.

[436] Qantas seeks to maintain in the workplace determination the existing arrangements regarding leave without pay and objects to the proposed group mobility scheme. At clause 39 of the QWD, Qantas mirrors clause 32 of EBA7v which made general provision concerning leave without pay. At clause 40 of the QWD, Qantas mirrors LOA165 in Part 12 of EBA7v, which is a letter of agreement between Qantas and AIPA which accommodates fixed term employment with Jetstar and gives effect to the Jetstar MOU negotiated between Qantas, Jetstar, AIPA and the Jetstar Pilots Council on 3 November 2004.

[437] We will include clauses 39 and, as earlier indicated, clause 40 of the QWD in the workplace determination. We are not persuaded we should extend the leave without pay arrangements beyond those available in EBA7v. In advancing the CWD clause, AIPA submitted that it avoids a number of the issues raised by Qantas in respect of the AWD clause, particularly the evidence given for Qantas in relation to the AWD potentially creating conflicts with other seniority lists and imposing requirements on other Group companies without their consent. We are conscious, however, that the CWD clause was raised late in the workplace determination proceedings after most of the evidence in respect of the proceedings had been given, thereby precluding the practical operation and possible effects of the clause from being properly tested. While the clause may be in the interests of LHPs who will be covered by the workplace determination, we accept Qantas’ submission that the clause seeks to further limit its discretion with respect to leave without pay and imposes additional costs and administrative obligations on them. The public interest in the clause was not established, nor was the manner in which the clause would improve relevant productivity. The clause is one on which, given its reach, detailed bargaining should occur.

AIPA12—Improved provisions relating to establishment levels

[438] AIPA seeks, in clauses 14 and 68 of the CWD, definitions of “surplus” and “vacancy” and to improve the operation of the Scheduling Committee and clarify “correct establishment”. Qantas opposes the clauses sought by AIPA to the extent that they seek to fix a target planning formula for correct establishment that removes the existing flexibility available to Qantas. To the extent the differences between the clauses sought by AIPA in respect of the “Establishment formula” and those sought by Qantas depart from the provisions of EBA7v, we are not persuaded they are warranted as the need for them has not been established. We will include the clauses on the “Establishment formula” as proposed by Qantas in the workplace determination. Nor are we persuaded definitions of “surplus” and “vacancy” are needed in the workplace determination, given the establishment formula provisions and the other detailed provisions we will include in the workplace determination dealing with such matters.

AIPA31—Changes to consultative committee

[439] AIPA, in the CWD at clause 8, seeks a change to the consultative committee prescription in EBA7v to clarify and secure the role of the consultative committee in facilitating communication between Qantas and pilots, particularly in relation to issues around establishment, job security and new flying work in the Qantas Group and pilots under the WD undertaking that work.

[440] Qantas opposes clause 8 of the CWD and seeks that the WD include its clause 8 of the QWD, which it submitted reproduces clause 11 of EBA7v with updating for the fact the clause is for a WD.

[441] The changes sought by AIPA to clause 8 are, in summary: to require the consultative committee to meet monthly; Qantas to advise the committee if Qantas or its associated entities propose to undertake a significant expansion of operations, including the establishment of a new operating entity, a significant change to the established role of any current operating entity or the introduction of new aircraft; and to discuss whether LHPs will, or could, undertake the services created by the expansion, the terms and conditions for pilots that will apply and measures to facilitate LHPs obtaining positions created by the expansion.

[442] We will include clause 8 of the QWD in the workplace determination. AIPA’s proposed clause 8 of the CWD was raised late in the workplace determination proceedings. There was scant evidence to support it. The evidence does not establish that the existing consultative committee clause requires more than updating to reflect its inclusion in a workplace determination. Moreover, the workplace determination will include the model consultation term which, in substance, reflects the consultation clauses proposed in clause 9 of both the QWD and the CWD. It requires Qantas to consult on a decision to introduce major changes in production, program, organisation, structure or technology that are likely to have a significant effect on the LHPs covered by the workplace determination. AIPA highlighted evidence about its co-operation around 2000 in the establishment of Australian Airlines and agreement to different terms and conditions to facilitate the business model presented by Qantas and to ensure the job security and career progression of pilots. AIPA also highlighted evidence about the development of EFA, a wholly owned Qantas subsidiary, and the Qantas decision to employ new pilots for it rather than offer EFA aircraft work to Qantas pilots. However, there was also evidence that at the time it was established Qantas did not have a surplus of pilots. Further, the evidence was that EFA is a separate business which makes its own business decisions. The merits of a further role for the consultative committee have not been established. We accept that changing the consultative committee clause as sought by AIPA is not in the interests of Qantas, even though it is in the interests of LHPs covered by the workplace determination. The public interest in the change was not established. Nor was its impact on productivity improvement. We think a further role for the consultative committee would be better left for bargaining given its reach beyond Qantas.

AIPA34—Once only right to bid backwards

[443] In clause 16.4.10 of the CWD, AIPA seeks to extend the limit on bidding backwards to also include bidding to aircraft at equal ranking. Qantas opposes this extension on the basis that it was not in the AWD and will result in additional training costs, rejecting the suggestion that it is a benefit to Qantas. We will include clause 16.4.10 of the CWD in the workplace determination, subject to the deletion of the references to “or equal” in the clause. We consider that the extension sought by AIPA is a matter appropriate for future bargaining.

QAL27—Streamline basing, posting and transfer procedures

QAL2 and QAL11—Review and clarify reduction in numbers process and when election needs to be made

AIPA17—Localised lines

AIPA33—Threshold issues in reduction in numbers process

[444] Qantas seeks to alter the provisions in EBA7v dealing with the base for LHPs and replace them with provisions concerning bases, postings and localised lines. Qantas also seeks changes to the reduction in numbers process under EBA7v. A reduction in numbers process is not a redundancy process, rather it concerns the management of surplus LHP numbers to achieve an optimal allocation of pilots to a particular aircraft type. AIPA has also made claims in respect of localised lines and a reduction in numbers. AIPA has now agreed to most of the changes sought by Qantas but objects to several. We deal with these below. Subject to what we decide below, we will include clause 18 of the QWD in the workplace determination.

Temporary base establishment shortage (clause 18.1.5)

[445] Qantas, at clause 18.1.5 of the QWD, indicates that a LHP may be required to operate from another base on a temporary basis— the total duration of such a localised line will be the earlier of three bid periods or until another pilot has been trained for the vacancy and the conditions in its clause 18.1.3 will apply to the temporary basing. AIPA seeks to add as protections that a LHP will only be allocated to a localised line for one bid period, unless they are the only LHP bidding for it, and a pilot assigned to a localised line will not be assigned again until all LHPs in their category have been assigned. We will include these added protections in clause 18.1.5, subject to changing the reference from to one bid period, as proposed by AIPA, to two bid periods. We are not persuaded they would significantly impede the ability of Qantas to organise its LHP establishment effectively erodes the benefits to Qantas from the other provisions of clause 18.1.5.

Duty free time associated with base transfers (clause 18.1.7)

[446] At clause 18.1.7 of the QWD, Qantas seeks to limit the number of days it affords a LHP to arrange their personal affairs associated with a base transfer to three days prior to the transfer and three days after. AIPA seeks to provide for 10 days after the transfer if the LHP is required to find their own accommodation. We will include clause 18.1.7 of the QWD in the workplace determination, subject to a pilot who has to find their own accommodation having 10 days immediately on their arrival to arrange their personal affairs, having regard to the entitlement in EBA7v and because, on balance, we think the additional time the LHP may need to find their own accommodation outweighs the extra cost and effect on Qantas’ productivity of the further days.

Compassionate base transfer (clause 18.1.8)

[447] Qantas allows for compassionate base transfers in consultation with AIPA at clause 18.1.8 of the QWD. AIPA seeks to limit the Qantas consultation with them to compassionate reasons of personal or family ill-health and to require other compassionate reasons to have AIPA’s agreement. We are not persuaded we should require Qantas to get the agreement of AIPA before they approve a base transfer on compassionate grounds other than personal or family ill-health, notwithstanding that such transfer may infringe on seniority.

Ability of Qantas to reject a pilot’s bid (clause 18.1.10)

[448] In clause 18.1.10 of the QWD, Qantas seeks to have the discretionary ability to reject a LHP’s bid for a basing if there is no net increase required in a category. In their CWD, AIPA permits pilots within a category to move between bases to fill vacancies before LHPs of another the category may exercise their seniority to bid for the vacancies. We see the Qantas and AIPA positions as consistent in this regard. Indeed, AIPA submitted that the provisions in clause 18.1.10 of the QWD are contained in clause 16.6 of the CWD. We will include clause 18.1.10 in the QWD in the workplace determination.

Effective date of transfer of base (clause 18.1.11)

[449] In clause 18.1.11 of the QWD, Qantas provides for the publication by it of effective dates of base transfer where a LHP is changing category, to provide certainty. AIPA opposes these dates on the basis that if the LHP fails to qualify in the new category they will be subject to additional costs in returning to their home base. We are not persuaded we should include the provisions to which AIPA objects in the workplace determination. We will include in the workplace determination provisions similar to the current procedure in respect of the effective date of base transfer for a LHP changing category.

Reduction in numbers at base (clause 18.1.12)

[450] In the CWD, AIPA seeks changes to clause 18.1.12 of the QWD about the process for the reduction of numbers at a base which it maintains are less restrictive on Qantas and clearer than those in the QWD. Further, AIPA submitted that the CWD sets out clear timelines for the base balancing procedure to occur which are consistent with the requirements for the advertising of the vacancies. Qantas opposes the consultation obligation and the introduction of a 60 day, as opposed to 28 day, notice period to advertise a reduction in numbers at a base. We are persuaded to include the consultation provision sought by AIPA in the workplace determination given the significant effect the reduction in numbers at a base may have on LHPs, and to also include a 30 day notice period in the workplace determination, as that is consistent with the provision in EBA7v for bases other than Sydney. We are satisfied the wording otherwise proposed by Qantas in its clause 18.1.12 is appropriate for the workplace determination.

Transfer costs between bases (clause 18.1.13)

[451] There is partial difference between Qantas and AIPA as to whether the transfer costs of certain base transfers should be reimbursed by Qantas or be the subject of salary sacrifice.

[452] In regard to this difference, we will include in the workplace determination a provision which reflects that in EBA7v.

Allocation to a posting (clause 18.2.1)

[453] AIPA’s CWD, at clause 14, contains a definition of a “posting”. We think such a definition adds clarity to the difference between base transfers and postings and will include the definition sought by AIPA in the workplace determination, subject to it also including a reference to it being for periods in excess of two bid periods so as to differentiate it from a localised line.

[454] In the QWD, at clause 18.2.1, Qantas seeks the right to allocate a posting to a pilot, whereas, in the CWD, AIPA seeks that Qantas only be able to assign, as opposed to awarding, a pilot to a posting following consultation and agreement with AIPA. We recognise that an assignment to a posting may have significant consequences for a pilot. As a result, we will include clause 18.2.1 of the QWD in the workplace determination but with a provision requiring Qantas to consult with AIPA, including on all reasonable alternatives, prior to assigning a pilot to a posting. It follows that we will not include in the workplace determination a requirement for Qantas to reach agreement with AIPA before assigning a pilot to a posting. Further, it follows that we accept the terms of the QWD in respect of the inclusion of clauses 18.2.5, 18.2.9 and 18.2.11 in the workplace determination.

Posting vacancies (clause 18.2.3)

[455] The QWD provides for Qantas to advertise posting vacancies in a timely manner, whereas the CWD requires posting vacancies to be advertised at least 60 days before the intended date of commencement of the vacancy, unless AIPA agrees otherwise. We will provide for a period of at least 30 days in the workplace determination consistent with the provision in EBA7v.

[456] We will also include in the workplace determination a provision, as proposed by AIPA, that the parties may agree to an “alternative system” to apply in lieu of seniority. Qantas raises no substantive objection to this provision and the QWD contains a similar, although more limiting, provision.

Duty free time associated with a posting (clause 18.2.6)

[457] The QWD provides a pilot with three days on arrival at a posting to arrange their personal affairs. The CWD provides for a pilot who has to find their accommodation at a posting to have 10 days on arrival at the posting to arrange their personal affairs. We will include clause 18.2.6 in the QWD in the workplace determination, subject to a pilot who has to find their own accommodation at a posting having five days immediately on their arrival to arrange their personal affairs, where the posting is for more than six months, and 10 days where the posting is for more than 12 months. We understand there is some additional entitlement in EBA7v, but we expect the time required may vary on the length of the posting and recognise there is a cost and effect on productivity for Qantas of the further days.

Qantas may reject a pilot’s bid for a posting vacancy in certain circumstances (clause 18.2.7)

[458] In the CWD, AIPA seeks to remove provisions in clause 18.2.7 of the QWD that are contained elsewhere in its CWD and to clarify the intent of the QWD. We are not persuaded these changes to clause 18.2.7 of the QWD are necessary. We will include clause 18.2.7 of the QWD in the workplace determination.

Request to terminate a posting on compassionate grounds (clause 18.2.10)

[459] We will include clause 18.2.10 of the QWD in the workplace determination for the same reasons we gave in respect of clause 18.1.8.

Termination of a posting (clause 18.2.12)

[460] AIPA, in the CWD, seeks to clarify to the wording in the QWD associated with the termination of a posting. We are not persuaded this is needed and will include clause 18.2.12 of the QWD in the workplace determination.

Transfer costs between postings (clause 18.2.14)

[461] AIPA, in the CWD, seeks that the transfer costs of a pilot who is awarded a posting be the subject of salary sacrifice and that, where a pilot’s posting is terminated by Qantas their transfer costs from the posting be reimbursed by Qantas. Qantas opposes these proposed changes to the transfer costs provisions in its clause 18.2.14 of the QWD. We will include clause 18.2.14 of the QWD in the workplace determination, subject to a pilot who is required to return to base due to the termination of their posting by Qantas being entitled to receive reimbursement for reasonable expenses incurred in transferring from the posting, as detailed in the Company Staff Transfer Policy. A provisions in such terms will provide some consistency in the workplace determination regarding the transfer costs in respect of bases and postings, while recognising that a pilot may be required to return early from a posting at the initiative of Qantas, in which case, in our view, Qantas should meet the return transfer costs.

Reduction in numbers at a posting (clauses 18.2.15 and 18.2.16)

[462] AIPA opposes the Qantas provisions in the QWD for a process of reduction in numbers at a posting, instead of the termination of a posting provided for in clause 8.2.12 of the QWD. AIPA submitted that clauses 18.2.15 and 18.2.16 in the QWD are unnecessary, contradictory and confusing. We are not of the view that we should include clauses 18.2.15 and 18.2.16 of the QWD in the workplace determination given the broad right to terminate a posting afforded to Qantas in clause 8.2.12 of the QWD, which we have decided to include in the workplace determination.

Constructing localised lines (clause 18.3.1)

[463] In the CWD, at clause 18.3.1(c), AIPA seeks to provide certainty as to the value of the localised line component of a pilot’s pattern line, to set a higher guaranteed minimum base rate of pay in certain circumstances and to remove the ability of Qantas to recover any pattern protection ordinarily offsettable from the allocation of the localised line.

[464] We will include clause 18.3.1(c) of the QWD in the workplace determination, subject to it providing the certainty AIPA seeks as to the value of the localised line component. However, we are not persuaded we should include the other matters AIPA seeks having regard to the current provisions of EBA7v and because we consider Qantas should be able to so recover any pattern protection ordinarily offsettable from the allocation of the localised line.

[465] AIPA also seeks, at clause 18.3.1(d) of the CWD, to impose a minimum three day rest period following the pilot’s completion of a pattern before the pilot recommences operating duties irrespective of the length of the pattern. This is not a feature of EBA7v and is opposed by Qantas on the basis of roster inefficiency and lack of necessity. We are not persuaded it is necessary to include clause 18.3.1(d) of the CWD in the workplace determination in light of existing requirements regarding minimum rest periods.

Allocating localised lines (clause 18.3.2)

[466] In clause 18.3.2(a) of the CWD, AIPA provides for localised lines to be assigned in certain circumstances. This was not opposed by Qantas and we will include clause 18.3.2(a) of the CWD in the workplace determination, subject to a change to it to reflect our decision in respect of clause 18.2.1 of the workplace determination. We will also include clause 18.3.2(f) of the CWD, instead of clause 18.3.2(f) of the QWD, in the workplace determination–there being no objection by Qantas to that course. Otherwise we will include the remainder of clause 18.3.2 of the QWD in the workplace determination.

Leave to discuss the terms and conditions of a localised line (clause 18.3.3)

[467] We will include AIPA’s proposed clause 18.3.3 of the CWD in the workplace determination—there being no objection from Qantas.

Allowances (clause 18.3.5)

[468] In clause 18.3.5 of the CWD, AIPA seeks to insert additional wording to that in clause 18.3.5 of the QWD to allow Qantas and a pilot to reach agreement in relation to the payment of meal allowances. We are not persuaded the additional wording is necessary and will include clause 18.3.5 of the QWD in the workplace determination.

Accommodation (clause 18.3.6)

[469] AIPA seeks to modify clause 18.3.6(a) of the QWD for purposes of clarity. We think such modification is unnecessary. We will include clause 18.3.6(a) of the QWD in the workplace determination.

[470] In clause 18.3.6(b) of the QWD, Qantas seeks not to be limited to the “regular” hotel for a specific port where an alternative is appropriate. In clause 18.3.6(b) of the CWD, AIPA requires its approval of alternative accommodation. Qantas opposes this on the basis, AIPA is not involved at present. That is so, but, as Qantas also points out, at present it is not Qantas, but the pilot, who decides on alternative accommodation. We will include clause 18.3.6(b) of the CWD in the workplace determination, instead of clause 18.3.6(b) of the QWD.

Transport (clause 18.3.7)

[471] AIPA seeks to modify clause 18.3.7 of the QWD for purposes of clarity. We are not persuaded such modification is necessary and will include clause 18.3.7 of the QWD in the workplace determination.

Beneficiaries travel (clause 18.3.8)

[472] In clause 18.3.8 of the CWD, AIPA seeks to clarify clause 18.3.8 of the QWD. We agree that clarification of who the beneficiaries are, where the return ticket will be to, and the entitlement of each beneficiary to one return ticket for each occasion a pilot is allocated a localised line is desirable. We will include clause 18.3.8 of the CWD in the workplace determination.

7.4.7 Redundancy

AIPA10—Redundancy provisions

[473] Redundancy entitlements in EBA7v are contained in clause 17.2.6. In summary, it provides an entitlement to at least six months’ notice of possible termination due to redundancy, a right for AIPA to negotiate with regard to the paying of severance pay for a pilot with more than five years service with Qantas who is terminated due to redundancy, selection for redundancy in reverse order of seniority and a redundancy list from which offers of re-employment in seniority order are made.

[474] In claim AIPA10, AIPA seeks improvements on the current redundancy provisions in EBA7v, although the improvements sought were modified in the CWD. Qantas is agreeable to many of the improvements. However, Qantas objects to the aspects of AIPA’s claim concerning:

● the threshold for redundancy;

● the redundancy list applying to re-employment within any of the airlines in the Qantas Group and with seniority then based on the date of seniority with Qantas Mainline;

● the “at least six months” notice of actual redundancy;

● the “passover” of LHPs on leave without pay;

● the means of calculating a “week’s pay” for the purposes of the redundancy clause; and

● staff travel entitlements following redundancy pay.

[475] We will include in the workplace determination the matters in AIPA10, as modified by the CWD, with which Qantas has now agreed, including that concerning superannuation payments on redundancy. 269 As to the matters in AIPA10 to which Qantas objects, we have decided the following:

Threshold for redundancy (clause 15.9.1(b))

[476] In the AWD, AIPA seeks that there be no compulsory redundancy of a LHP where, from the commencement date of the workplace determination, there has been an increase in Qantas flights operated by pilots not covered by the workplace determination, or there has been an increase in the ratio of such flights relative to flights being operated by LHPs. In the CWD, AIPA seeks that a LHP not be made redundant where a contract pilot is operating aircraft pursuant to the Qantas livery clause or where, since the commencement of the workplace determination, an associated entity has engaged new pilots in circumstances where it was reasonable for pilots covered by the workplace determination to undertake the work. In support of this clause, AIPA submitted that the changes are consistent with its modified claims regarding job security at clauses 5 and 8 of the CWD, is a critical component in addressing the concerns of LHPs regarding job security and career progression and does not provide undue restrictions on managerial prerogative.

[477] Qantas opposed this clause on the basis that it would provide a threshold for redundancy that is not available to a number of other categories of Qantas employees, fails to recognise the diversity of the airline businesses within the Qantas Group, does not take into account provisions in the Act requiring an employer to consider redeployment within associated entities and is impractical. Further, Qantas submitted that it is not in its interests and its benefit to the LHPs is not certain; it is contrary to the public interest as reflected in the policy behind termination, change and redundancy entitlements; there is nothing to suggest it will improve productivity; the provision as set out in the CWD was not the subject of relevant bargaining, although the earlier form of the clause was; and it would not create incentives to bargain.

[478] We have determined not to include clause 15.9.1(b) in either the AWD or the CWD in the workplace determination. We do not think we should provide a redundancy threshold which is not generally available to other categories of Qantas employees. None of the other matters in s.275 of the Act or other matters of merit advanced by AIPA are sufficient to overcome this concern and persuade us to include the provisions. We accept the submissions of Qantas in this regard.

“Passover” of LHPs on leave without pay (clause 15.9.2(b))

[479] AIPA did not include clause 15.9.2(b) in its AWD, but it is included in the CWD. There is now little difference between AIPA and Qantas in respect of the issue. AIPA is seeking that the clause be subject to the Qantas/Australian Airlines Pilots Integration Award 1994, 270 a requirement that the leave without pay have been approved, as opposed to commenced, before notice is given of redundancy, and that the LHP be on leave without pay at the time the redundancy takes effect. We will include the wording Qantas proposes on the issue as we are not persuaded as to the relative merit of subjecting the provision to the Integration Award and passing over LHPs who are not on leave without pay but whose leave has been approved.

Notice period (clause 15.9.4)

[480] In both the AWD and the CWD, AIPA seeks at least six months’ notice of termination due to redundancy. Qantas seeks at least three months, provided the combined period of notice and redundancy entitlement is not less than 26 weeks. EBA7v currently provides for at least six months’ notice of possible termination due to redundancy, as does LOA154 concerning Flight Engineers. We will adopt the Qantas wording in respect of notice of termination due to redundancy. We have come to this decision because three months’ notice is consistent with that afforded to other categories of Qantas employees and also having regard to the agreed inclusion of new redundancy entitlements in the workplace determination, which were not a feature of EBA7v, and which result in the combined notice period and redundancy entitlement being, in effect, no less than six months.

Calculation of a “week’s pay” (clause 15.9.6)

[481] AIPA proposes in the AWD that a week’s pay for the purpose of the redundancy clause be based on the formula used for Flight Engineers which equates to payment on the basis of the planning divisor. In the CWD, AIPA proposes a week’s pay be based on the greater of the MGH for a LHP or their average of the six bid periods preceding their redundancy. Qantas proposes that a week’s pay be based on the MGH for a LHP. We are satisfied we should base a “week’s pay” for the purpose of the redundancy clause in the workplace determination on MGH as proposed by Qantas as it is the most consistent with the basis on which most other Qantas employees’ redundancy entitlements are calculated. The fact that Flight Engineers, pursuant to LOA154, are paid on the basis proposed in the AWD, and the CWD basis is similar to that used to calculate a lump sum payment on medical termination for LHPs, is not sufficient to persuade us otherwise.

Staff travel entitlements following redundancy (clause 15.9.11)

[482] AIPA seeks, in the AWD, to provide an entitlement to staff travel following redundancy as per the Qantas policy, provided it is no worse than a LHP’s entitlement at the time of their redundancy. In the CWD, AIPA effectively accepts the Qantas position that staff travel following redundancy will be as per the Qantas policy from time to time. We will include the Qantas position in the workplace determination. It is the existing position which applies to LHPs and is consistent with that applying to most other Qantas employees. We see no need to include a provision allowing Qantas to provide better staff travel entitlements if they wish to do so, as Qantas may do so notwithstanding the workplace determination.

Redundancy list (clause 15.9.19(b))

[483] AIPA seeks, in the AWD, a redundancy list linked to other entities in the Qantas Group, with seniority on re-employment being the date they were first employed as a pilot in the Qantas Group. In the CWD, AIPA removes this seniority provision. Qantas opposes the redundancy list extending to other Qantas Group entities. We are not persuaded we should include in the workplace determination a provision extending the redundancy list to other entities in the Qantas Group. No such provision exists in EBA7v. The Joyce/Brown letter, 271 on which AIPA relied in support of the provision does not extend as far as the provision sought. Further, while the provision would be in the interests of the LHPs covered by the workplace determination, and AIPA submitted it is in the interests of the Qantas Group, Qantas strongly opposed the provision, submitting that it would potentially lead to claims against Qantas for breach of the workplace determination, in circumstances where Qantas is unable to compel another entity in the Qantas Group to take action enabling them to comply with the provision. Qantas does not see the provision as in their interests and suggests the provision may be at the expense of the pilots in the other entities. We accept that the LHPs and Qantas have competing interests in respect of the provision. In addition, there is an insufficient evidentiary basis for us to conclude the provision is in the public interest, will advance productivity or is a matter warranted having regard to the conduct of the bargaining representatives or the extent of their compliance with the good faith bargaining requirements. We think it is a matter which we should leave for future bargaining.

[484] In the AWD, AIPA seeks to include in the workplace determination, at clause 25.2.6(b), a requirement that, in the event of the redundancy of a Training Captain Category A or B, the redundancy will be in the reverse order of their appointment to the position in the Flight Operations Department. EBA7v currently provides the Head of Training with the discretion as to who is to be made redundant. The claim is opposed by Qantas and not pressed in the CWD. We are not persuaded a case for a change to EBA7v in this regard has been established. A Check Captain selected for redundancy is only made redundant from that role, not from their position as a LHP at Qantas.

7.4.8 Miscellaneous Claims

QAL6 and QAL7—loss of licence policy “psychosis or psychoneurosis”

[485] Clause 20 of EBA7v requires Qantas to provide the benefits to LHPs of a loss of licence (LOL) plan as at 1 November 2004 and as amended by clause 3 of Section C of an agreement between Qantas and AIPA. 272 The LOL plan is annexed for reference purposes only to EBA7v. Qantas is currently self-insured regarding the LOL plan.

[486] In the negotiations, Qantas initially sought to remove the indexation provisions in the LOL plan and sought to require repayment of compensation paid to a LHP if that LHP was to return to employment following termination of employment due to the LOL. During negotiations, Qantas reviewed its position, abandoned those claims, but sought to amend a exclusion to the LOL plan, in relation to “psychosis” and “psychoneurosis”. The exclusion, one of many within clause 3.5 of the LOL plan, is subject to a discretion 273 to accept a claim, notwithstanding the exclusion.

[487] Qantas’ submission was that it does not seek to extend or limit the current exclusion relating to “psychosis” and “psychoneurosis”. Rather, Qantas seeks to update the wording in the exclusion using current medico-legal terminology to express the original intention of the exclusion. To give effect to QAL6 and QAL7, as amended, Qantas proposes a term in the workplace determination which states:

“This Determination changes the exclusion at clause 3.5.11 of the Loss of Licence Plan from ‘psychosis or psychoneurosis’ to the following:

‘Psychosis, generalised anxiety, dissociation, unintentional conversion of psychological factors to physical symptoms, phobias, obsessions and compulsions, and depression, as described within the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM-IV-TR)’”

[488] Some psychiatrists’ reports arising from claims on the LOL policy 274 conflict with the inclusion of depression in the Qantas proposal, stating “it is beyond dispute that major depressive disorder is neither a psychoneurosis nor a psychosis” and “a major depressive disorder single episode, with illness being an organic/biological disturbance of brain function and not a psychoneurosis or a psychosis”.

[489] A table detailing payments under the LOL policy between 2002 and 2010 275 indicates that payment was made to pilots on the basis of conditions which would be excluded under the wording Qantas proposes to add to the workplace determination—for example, in relation to “depression”. However, the table does not identify if the payments were made on the basis that the condition was accepted as not constituting “psychosis” and “psychoneurosis” or as a result of Qantas or its external insurer exercising its discretion in favour of the pilot.

[490] Evidence was called by Qantas from Dr K Walker and by AIPA from Dr J Phillips. There is no doubt that each is an expert Psychiatrist. Neither is, or claims to be, an expert in drafting exclusion clauses within insurance policies.

[491] Both Dr Walker and Dr Phillips agree that the term “psychosis” has a contemporary medical meaning. Both agree that the term “psychoneurosis” has little validity or usefulness in contemporary psychiatry. 276

[492] The words proposed by Qantas are intended to replace the term “psychoneurosis”, reflecting the advice of Dr Walker that as at 11 November 1964 and 31 August 1967, the LOL exclusion “would have applied to what are now classified under the psychotic, mood, anxiety, somatoform, dissociative, and adjustment disorders. It would not have applied to cognitive (including dementia), substance related, factitious, sexual and gender identity, eating, sleep or personality disorders”. 277

[493] The evidence of Dr Phillips is that the past accepted meaning of “psychoneurosis” is that a person will exhibit a repetitive, obligatory and stereotyped form of behaviour thought to be based on aberrant mental processes, a meaning having little validity or usefulness in the day to day assessment of persons. His view is that the word “psychoneurosis” requires reconsideration and replacement in an up-to-date LOL policy. 278

[494] Dr Phillips expressed an opinion that the words proposed by Qantas would have the effect of excluding from the benefit of the LOL policy a majority of Qantas pilots who, like the general population, will have a history of an identifiable and diagnosable psychological disorder at some time of their lives, the greater number of which will have been minor and brief. 279 Dr Phillip’s evidence was that the exclusion as proposed by Qantas gave no consideration to reasonableness, fairness or decency.

[495] Dr Phillips’ evidence was directed to what was a reasonable exclusion in a LOL policy, reflecting his strong expert opinion that psychological ill health should not be treated differently from physical ill health, a broader consideration than that raised by Qantas of replacing a medical term with no accepted contemporary meaning with a modern expression to reflect the intention and effect of the LOL policy. His evidence was critical of Qantas’ approach of seeking to ascertain the meaning of “psychoneurosis” in the 1960s, which “harks back to a period when medical science was less advanced” and because it “perpetuates the outdated and inappropriate Cartesian” distinction between physical and psychological ill health. 280

[496] Qantas and AIPA argued their cases on completely different bases. Qantas addressed the claim on the basis of replacing the term “psychoneurosis”, which is acknowledged by both expert witnesses as having no contemporary medical meaning, with different medical expressions which reflect the intended meaning of the term at the time the policy was made (in the 1960s). AIPA, reflecting the opinion of Dr Phillips, argued the claim on the basis that exclusions in relation to mental health, should not be included in the policy as it currently operates.

[497] We are not persuaded to include in the workplace determination the words Qantas seeks to add to modernise the exclusion intended by “psychoneurosis”. The psychiatrists’ reports in relation to specific cases do not support the evidence of Dr Walker, at least in relation to depression. Further, it is unclear how the current policy has been applied, on a medical basis, to some of the conditions clearly within the exclusion as now proposed by Qantas. We cannot be satisfied that the changes proposed would not broaden the effect of the exclusion as it has been applied. Qantas paid LOL insurance premiums on behalf of pilots initially through enterprise bargaining in 1987 and continued to do so until it provided coverage as a self insurer in 2007. Qantas has provided LOL benefits through various enterprise agreements over a long period of time, notwithstanding issues about the relevance of the term “psychoneurosis” over that time.

[498] We think it best to leave the current provisions unchanged, despite the continuing deficiency within the term “psychoneurosis”. Qantas and AIPA can undertake a review of the arrangement as a whole and negotiate appropriate contemporary provisions in future bargaining.

QAL8—Re-employment after medical termination subject to Qantas approval

[499] “Medical termination” refers to a situation where a pilot’s employment with Qantas as a pilot is terminated due to the fact that he or she is unable to maintain the CASA medical requirements of holding a licence.

[500] Qantas, through clause 23 of the QWD, seeks to remove a long established process involving consultation and agreement during the process of re-employment of pilots following medical termination. That process is contained in clause 22 of the EBA7v 281 and clause 23 of the AWD and the CWD. They set out the current requirements, which need to be met in order for a pilot to be entitled to be re-employed with Qantas in the event of medical termination. These requirements are that:

(a) the pilot’s services with Qantas had to be terminated as a result of his or her licence being cancelled or not renewed by CASA;

(b) within four years following termination of employment with Qantas, the pilot is medically cleared by CASA for the issue of a licence (this period may, at the discretion of Qantas, be extended to seven years); and

(c) at the date of medical clearance by CASA, the pilot meets the criteria as agreed to between Qantas and AIPA.

[501] In the event that a pilot is medically cleared by CASA but there are still doubts in relation to his/her fitness to resume duties as a pilot, Qantas may, at its discretion, refer the matter to the Medical Review Board (MRB). Any decision by the MRB that the pilot is not fit to resume duties is binding.

[502] Once the pilot’s fitness has been determined (either because Qantas accepts the CASA clearance, or by review of the MRB), Qantas may either accept or reject the pilot’s application for re-employment.

[503] In the event that Qantas resolves to reject the application, Qantas is required to advise AIPA of the rejection and provide it with information relevant to the pilot. If AIPA agrees that the pilot should not be re-employed, the application will be rejected. If AIPA believes that the pilot should be re-employed (after a process of compulsory conference), Qantas is obliged to re-employ the pilot. Similar provisions apply in respect of re-employment (clause 22.3 of EBA7v) and re-employment subject to conditions (clause 22.4 of EBA7v), concerning the obligation to re-employ in the absence of agreement.

[504] Qantas seeks to alter the process in clauses 22.3 and 22.4. of EBA7v, as set out above with a provision, in clause 23.3 of the QWD, which provides that “The Company retains the discretion to reject an application for re-employment”. AIPA supports the retention of clauses 22.3 and 22.4 of EBA7v as clauses 23.3 and 23.4 of the AWD and the CWD.

[505] Qantas supports its application on both jurisdictional and merit grounds.

[506] In relation to jurisdiction, Qantas submitted that the workplace determination made by the Full Bench must only include terms that fall within the meaning of “permitted matters” and an obligation to re-employ a former pilot is not a matter pertaining to the employment relationship.

[507] Section 272(3) of the Act (which applies to the making of an industrial action related workplace determination) provides that:

“(3) The determination must not include:

(a) any terms that would not be about permitted matters if the determination were an enterprise agreement; or . . .;”

[508] In relation to the definition of “permitted matters” s.172(1) of the Act provides:

“(1) An agreement (an enterprise agreement) that is about one or more of the following matters (the permitted matters) may be made in accordance with this Part:

(a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement;

(b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement;

(c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement;

(d) how the agreement will operate.”

[509] Whilst Qantas contends that a term which imposes an obligation on Qantas to offer employment to someone who used to be an employee, but who was medically retired up to four years previously, does not pertain to the employment relationship.

[510] Conceptually, however, the provision in respect of re-employment after medical termination is no different to that concerning re-employment following redundancy within clause 15.10.19 of the QWD.

[511] We are satisfied that the provision dealing with re-employment after medical termination pertains to the relationship between Qantas and its employees who will be covered by the workplace determination. It creates an obligation upon Qantas and rights for LHPs, who meet the criterion within clause 23.1 of the QWD, in which LHPs covered by the workplace determination have a clear interest relevant to their employment relationship. The fact that the provision relates to prospective employment, in circumstances where a pilot who has been ‘medically terminated’ becomes available for re-employment, subject to a medical clearance by CASA, does not take it beyond the scope of the relationship between an employer in his or her capacity as an employer and an employee in his or her capacity as an employee. 282

[512] As to merit, Qantas submitted that the requirement upon it, arising from clause 22.4.3 of EBA7v, to re-employ a LHP, where the Chief Pilot has concerns regarding the LHP’s operating capacity, could potentially conflict with the Chief Pilot’s regulatory responsibilities to ensure the standards of all Qantas LHPs. Qantas’ evidence was that:

“Re-employment is a new employment offer and as the manager with ultimate responsibility for pilot standards I [the Chief Pilot] should have the final say on whether a person is offered employment as a Qantas pilot.” 283

[513] AIPA submitted that QAL8 would remove a long established process involving consultation and agreement during the process of re-employment of pilots following medical termination, and remove all appeal rights and the right of a pilot to know why their application for re-employment had been rejected.

[514] Qantas seeks to replace clauses 22.3 and 22.4. of EBA7v, with clause 23.3 of the QWD, on the basis that it effectively requires Qantas to re-employ a pilot that it may not wish to re-employ and it is particularly inappropriate that Qantas be compelled to re-employ a pilot in current circumstances when it employs approximately 300 more pilots than are required to carry out the available work. 284

[515] We think the second point has little basis, given the provision in clause 23.12(b) of the QWD also found in clause 23.13.2 of the AWD and clause 23.13.2 of the CWD that:

“The re-employment of a pilot under this clause 23 may be deferred in circumstances where pilot recruitment is suspended and re-employment would create a surplus. In the case of deferment, the four year period set out in clause 23.1.2 will be extended by the period of deferment and, when pilot recruitment resumes, the pilot will be re-employed before any other person is employed as a pilot.”

[516] As to the first point, we are not persuaded to replace clauses 22.3 and 22.4 of EBAv7, with the formulation proposed by Qantas as clause 23.3 of the QWD. The provisions form part of the current agreement between the parties and were included in previous agreements between them. Qantas supported the change essentially on the basis that the current provision could conflict with the Chief Pilot’s regulatory responsibilities. It has brought no evidence that such conflict has arisen in respect of the operation of the current provision within past agreements of Qantas and AIPA, including EBA7v. No satisfactory basis has been established for disturbing the arrangement agreed between Qantas and AIPA in the past. We will include a re-employment after medical termination provision in the workplace determination in the terms of clause 23 of the CWD.

QAL9—Requirement that each pilot provides and maintains up-to-date contact details

[517] Currently, LHPs are not required to provide Qantas with their contact details (apart from an address, which may be only a PO Box). They are required to provide a contact telephone number, and be available on that number while on standby, and to contact Qantas to check for duties around days on which they are required to be available for duty. There is currently no obligation to be contactable on other days.

[518] Through QAL9, Qantas seeks to insert a new clause into the workplace determination:

“15.17 Personal contact details

Each pilot will provide to the Company their personal contact details including home address (not a post office box) and, where available, a home phone number, a mobile phone number and a personal email address and will update the personal contact details within 21 days of any of the details changing.”

[519] The claim is directed to removing the inherent administrative inefficiency of not having ready access to up-to-date LHP contact information. Qantas submitted that the possession of accurate and up-to-date contact details is necessary in the event that Qantas needed to contact the LHP in cases of emergency and/or to permit contact with the pilot to pass on information or messages regarding his or her flight rostering.

[520] AIPA expressed concern that the claim:

(a) created a new obligation on pilots, without good justification; and

(b) will be likely (in time) to change the way Qantas seeks to contact pilots on standby and on available days.

[521] We are persuaded to give effect to QAL9 in the workplace determination. In our view, it provides a reasonable administrative means by which Qantas is able to more easily contact pilots for legitimate operational reasons at current contact points and imposes no significant burden upon pilots.

QAL39—Update clause 36 to reflect Qantas Group aircraft

AIPA23—Duty Travel

[522] Qantas submitted that there are two issues that arise with respect to deadheading under clause 36 of EBA7v:

(a) the definition of “Company aircraft” in clause 36.1.1 is too narrow, being limited to the current aircraft types and should be defined to encompass any aircraft operated under Qantas’ AOC; and

(b) if there is no “company aircraft” available, under clause 36.6.1 Qantas must default to a “foreign carrier” within certain geographic regions, and should be able to use other carriers within the Qantas Group (e.g. Jetstar).

[523] In respect of the first issue, QAL39 (as set out in the QWD at clause 30.1) seeks to change the definition of company aircraft to any aircraft operated under the Qantas AOC. This claim is opposed by AIPA. The current provision simply lists the aircraft types operated by Qantas. By AIPA23, the AWD and the CWD amend the current provision by adding reference to a B787 aircraft. The current definition of “company aircraft” in clause 36.1 of EBA7v is “A380, B744, A330, B767 and B737 aircraft”. On the evidence, the definition is adequate for the period of time over which the workplace determination will operate save that, although it is now implicit, the words “operated by the company” should be added.

[524] In respect of the second issue, Qantas submitted that QAL39 will reduce costs and provide greater flexibility in arranging and providing duty travel in circumstances where safety is not compromised. It submitted that QAL39 will enable it to use a Qantas Group aircraft to deadhead a LHP, rather than to pay for business or first class seats on a competitor’s airline at full rates.

[525] We are satisfied that Qantas would benefit financially from the ability to utilise Qantas Group aircraft to deadhead a LHP, rather than to pay a competitor airline to do so. The evidence and submissions of AIPA raise no significant detriment to pilots, with Captain Butt expressing a concern about conceivable or likely opening up of variance on the standard without any consultation with the pilot group. 285 We are satisfied that, subject to the requirements generally within clause 30 of the QWD, Qantas should have available to it the option to be able to position LHPs on one of its Qantas Group aircraft, rather than being forced to use competitor aircraft to deadhead a LHP.

QAL40—Change duty travel: First class on a space available basis

[526] EBA7v, and the AWD and the CWD, stipulate that the duty travel for LHPs must be confirmed first class, where the aircraft is configured with first class seating.

[527] Qantas’ changes, through QAL40, do not seek to prevent a LHP from being allocated first class seating for duty travel, rather the allocation of such seating should be on a space available basis, allowing Qantas to sell a first class ticket, at a premium, to a paying passenger ahead of using it for duty travel. Qantas submitted that the entitlement for LHPs to travel first class during duty travel was first provided at a time when there were two classes of airline travel, first class and economy and that:

(a) the number of Qantas aircraft with first class configurations has been reduced in categories of aircraft and on certain flights and replaced with higher configurations of business class seating; and

(b) current Qantas business class seating is superior to the first class seating at the time the LHPs first received the entitlement to travel first class for duty.

[528] AIPA contended that the changes set out a number of provision within the QWD and the Rostering Manual are far more extensive than those described in the evidence prepared by Qantas and would:

(a) require pilots to accept seats on any aircraft, operated by any carrier where there was no Qantas service;

(b) change the basic entitlement from a first class seat to a business class seat;

(c) require pilots to accept any class of seating (provided it is the highest available).

[529] AIPA submitted that at present Qantas may only require pilots to undertake duty travel on airlines other than Qantas in a limited number of circumstances, and subject to conditions. These circumstances and conditions are reflected in clauses 36.6.1 and 36.6.2 of EBA7v. AIPA submitted that Qantas seeks to delete these provisions and replace them with a general rule that pilots may be required to travel on any carrier where a Qantas flight is not available, with such travel to be in business class, or the highest class available if there are no business class seats available (see clauses 30.3, 30.4, 30.6 and 30.7). AIPA submitted that the changes are inconsistent with the principle of providing pilots with the best available seating for duty travel, in order to obtain adequate rest during the service, so that they are able to safely perform their next duty.

[530] We are not satisfied that Qantas has substantiated a case for the breadth of the changes to current arrangements arising out of QAL40. The changes are justified primarily on the basis of increasing the opportunity for Qantas to generate greater first class seat sales with a premium and the proposition that current business class seating is superior to the first class seating at the time the LHPs first received the entitlement to travel first class for duty. The changes sought through QAL40 are significant and represent a change in arrangements which have prevailed for many years after the growing emphasis on business class travel and high standards of business class seating. Further, it is not apparent that consideration has been given to the effect of changed class of travel on the appropriate flight and duty time limits. Given the significant change to a longstanding provision, a detrimental effect on the interests of LHPs and the paucity of evidence to support the changes, we are not persuaded to include QAL40 in the workplace determination. In our view, future negotiations can address the issues raised by Qantas and better take into account the interests of pilots and of Qantas.

AIPA6—Restore the value of the capital amount payment under the loss of licence policy

[531] AIPA6, as pressed in the AWD, seeks to impose an obligation on Qantas to ensure that the net capital amount pilots receive under the LOL plan is not less than the net amount received by pilots under the LOL plan prior to 1 July 2007. The claim is not pressed in the CWD.

[532] Clause 21.2 of the AWD provides:

“The Company will ensure that the amount received by pilots (after tax) under the plan is not less than the amount received by pilots (after tax) under the plan prior to 1 July 2007 (adjusted for indexation).” (emphasis added)

[533] As submitted by Qantas, the effect of this claim would require Qantas to “gross up” the benefit to be received by the LHP to cover their tax liability in relation to the LOL payment. The AIPA claim, reflected in the AWD, has its genesis in differential (less favourable) tax treatment afforded to capital payments made by Qantas under the LOL policy, upon it becoming a self-insurer in 2007. The claim reflects rulings received from the Australian Taxation Office by both Qantas and AIPA. Some individual LHPs, supported by AIPA have, commenced litigation to test the Australian Taxation Office’s conclusion. That litigation is currently before the Federal Court of Australia. 286

[534] Given the genesis of the claim, reflecting a changed taxation position and a substantial cost to Qantas in meeting the claim—in effect by meeting part of the LHPs taxation obligation—we are not persuaded that the claim has merit. In the circumstances, we think the issue is better dealt with in future negotiations between the parties, once the matter in the Federal Court has been decided. This is particularly so, given that Qantas has offered to enter into discussions with AIPA about the possible restructure of the LOL plan to achieve a more advantageous tax outcome for its members (should one be available), if the Federal Court case is unsuccessful.

AIPA15—Expand the range of items that can be salary sacrificed including access to the Executive Motor Vehicle Schemes for F/O and S/Os

[535] Clause 23.5 of EBA7v provides limited capacity for salary sacrifice.

[536] AIPA15 seeks to extend the range of items that can be salary sacrificed, to provide tax-effective employment benefits to pilots as allowed under Australian taxation legislation. Primarily, it seeks to allow pilots access to Associated Leasing for motor vehicles, loss of income insurance, mobile phones and portable electronic devices. It also seeks to extend the Executive Motor Vehicle Scheme to F/O and S/Os so they can obtain motor vehicles on more favourable terms than the existing Novated Lease Scheme and extending membership of the Qantas Club to LHPs at corporate rates.

[537] Clauses 31.4.4 of the QWD reflect the current EBA7v provisions:

“31.4.4 Salary Sacrifice

A pilot may voluntarily receive part of pre-tax remuneration he or she is entitled to under this Determination in the form of agreed salary sacrifice items (including superannuation) where this is permitted under and is done in accordance with Company Policy as varied from time to time. Any arrangements entered into between the pilot and the Company in accordance with this clause must be recorded in writing.

31.4.5 Motor vehicles

The Company will provide a facility enabling Captains to salary sacrifice for novated lease vehicles with a purchase price above the “luxury vehicle” limit as prescribed by the Australian Tax Office. Captains also have access to the Qantas Executive Car Scheme.”

[538] The proposed clause 32.4.4 within the AWD removes reference to company policy and lists a number of matters which may be the subject of salary sacrifice arrangements, including such other items permitted by Qantas, provided that Qantas will not unreasonably refuse requests to salary sacrifice items where it is tax advantageous to the pilot to do so. Clause 32.4.5, as proposed, extends the clause to F/Os and to vehicles generally, including those above the “luxury vehicle” limit.

[539] The comparable clauses in the CWD involve more limited change, seeking to distinguish between the Executive Motor Vehicle Schemes and the existing Novated Lease Scheme.

[540] Qantas resists the changes in the AWD and submitted that extending Qantas’ salary sacrifice scheme in the manner sought by AIPA would render the scheme “fluid”, in that the Australian Taxation Office would be in a position to dictate Qantas’ approach to salary sacrifice. Given the scheme applies to all Qantas Group employees, Qantas would be obliged to roll out any concessions made to LHPs to the rest of its employees, or have different policies for different groups of employees. This aspect of the claim was not pressed in the CWD.

[541] Qantas also opposes the extension of the Executive Motor Vehicle Schemes because it would remove from Qantas the discretion it has to provide additional employment benefits to reward certain employees at various levels within the organisation and create an additional administrative burden in managing a larger fleet of motor vehicles. This aspect of the claim was not pressed in the CWD.

[542] AIPA has not substantiated the change to existing arrangements it seeks, through AIPA15, in the AWD. Nor has it substantiated a case for formalising the existing arrangements for Captains to obtain motor vehicles under a Novated Lease with purchase prices above the luxury vehicle limit as specified by the Australian Taxation Office through the changes proposed in the CWD. Neither claim will be included in the workplace determination.

AIPA18—Domicile rights

[543] AIPA18 would permit pilots who are domiciled away from their base (or posting) to, with the consent of Qantas, undertake stand-by duties from their domicile. The effect of the claim would provide an entitlement for those pilots to make that request, and permit Qantas to accede to that request, if possible.

[544] AIPA’s claim is not one that would entitle the pilot to undertake stand-by duty from their domicile. It simply provides an entitlement to request such an arrangement. There is no obligation on Qantas to agree to the request.

[545] AIPA submitted that a provision such as AIPA18 currently exists for SHP in their agreement. It noted that Qantas has permitted the arrangement in the past for some pilots 287 and Qantas agrees that the arrangement may be beneficial to it in some circumstances.288

[546] AIPA18 is opposed by Qantas on the basis that it will create a multiplicity of arrangements for the allocation of standby duties and will erode the purpose of standby arrangements (being the ability to have LHPs available for duties on short notice), rendering the process ineffective.

[547] We will include AIPA18 in the workplace determination. It simply provides for a pilot who is domiciled at a location other than his or her base or posting to carry out a stand-by duty at their domicile if permitted by Qantas. It seems to us to provide a flexibility, which could only be given effect with the express agreement of Qantas, in particular circumstances and on the basis that Qantas is satisfied that the concerns it raised in its evidence and submissions do not arise in or as a result of the particular agreed arrangement.

AIPA26—Entitlement to class related privileges to pilots using duty travel

[548] AIPA26 is a claim to add certainty within the workplace determination as to pilot entitlements when travelling on duty. The claim is not pressed in the CWD. In the AWD, AIPA has inserted a new clause 31.1.2(b), which imposes an additional obligation on Qantas to ensure that a LHP on duty travel enjoys first class facilities, including lounges, amenities, check-in facilities, security, customs, immigration and quarantine channels.

[549] No proper basis has been made out to support the claim in the AWD.

AIPA27—Concessional Travel

[550] AIPA27 seeks to restore pilots’ relative staff travel priorities to the level that existed at the time of the last negotiation (i.e. EBA7v) and to have them included in the workplace determination. In addition, AIPA seeks to replace the current long service leave staff travel benefit with an entitlement to two confirmed economy class tickets per annum. AIPA submitted that, historically, staff travel has been bargained for during enterprise agreement negotiations but the entitlements are reflected in a “side arrangement”—a possibility which does not arise in respect of a workplace determination. AIPA submitted that these entitlements in the agreement and proposed determinations are clearly not “discretionary benefits”, having been historically agreed as part of enterprise negotiations, in the context of finalising an overall outcome, but contained in “side agreements” at the insistence of Qantas.

[551] AIPA submitted that there is no cost imposition on Qantas in restoring pilots relative staff travel priorities. It submitted that the proposal in AIPA27 in essence allows the “purchase” of two confirmed economy class tickets per annum per pilot, as part of a remuneration package item such as staff travel, decreases direct expenditure, but serves as sweetener in justifying other more critical productivity changes.

[552] Qantas submitted that AIPA27 is not a permitted matter in that it seeks to confer ongoing benefits to a LHP who retires after the determination date during the period after their employment ends 289 and opposes the claim as a matter of merit. Qantas submitted that concessional staff travel is not an “entitlement” but a “discretionary benefit”, and it should remain that way because these benefits are necessarily contingent upon the commercial considerations of the day. It submitted that, while Qantas has engaged in discussions regarding staff travel entitlements during bargaining for previous enterprise agreements with the LHPs, these discussions were not part of bargaining, as Qantas’ position has consistently been that staff travel is a discretionary benefit and not an entitlement under an enterprise agreement. Staff travel is not substantively addressed in any enterprise agreement made between Qantas and any of its employee groups. In any case, Qantas disputes the AIPA proposition that staff travel benefits have been eroded such that it is “almost impossible” to use, providing evidence “that LHP beneficiaries utilised concessional travel tickets over a total of 52,605 sectors during the period 1 April 2011 to 31 April 2012” [sic].290 Further, Qantas submitted that AIPA’s proposal would impose a cost of $3.5 million per annum by reducing Qantas’ revenue and raising fringe benefits tax complications, and place LHPs in an advantaged position relative to other Qantas staff.

[553] On the evidence a cost would be imposed on Qantas from each element of AIPA27. We see no good reason to impose such a cost by formalising a previously enjoyed staff travel priority within the workplace determination or including a provision to use confirmed travel to provide staff travel benefits. The evidence of Qantas suggests that concessional travel arrangements are extensively used with current arrangements.

7.4.9 The Role of AIPA

[554] Qantas seeks changes (QAL41 and QAL63) which reduce the role provided to AIPA under current EBAv7 arrangements. AIPA, through AIPA30, AIPA31 and AIPA32, on the other hand, seeks to extend its role. Each party has an obvious interest in succeeding in its claims. However, we are not satisfied that either interest is greater than the other. As a general proposition, we have decided that unless there are other considerations which support a particular claim, the current arrangements, which arose by the industrial agreement of the parties, should remain in place for the duration of the workplace determination and change, if any, should be achieved in the same manner as existing arrangements, by agreement through negotiations for an agreement to replace the workplace determination.

QAL41—Remove requirement for AIPA approval of computer systems

[555] QAL41 removes the requirement 291 for AIPA agreement of the computer rostering system.

[556] Qantas submitted that the key purpose of this claim is to enable Qantas to update, amend or introduce a new rostering platform without necessitating continued bargaining with AIPA during the life of the workplace determination, submitting that the consultation provision in clause 9 of the QWD will be enlivened by any “major changes” to technology which are likely to significantly affect LHPs.

[557] We are not satisfied that sufficient reason for altering the existing arrangement for agreement in relation to computer programs has been advanced. The involvement of AIPA in the updating and amendment of the rostering platform or introduction of a new rostering platform provides a safeguard in respect of the interests of LHPs and there is no evidence of an adverse impact on Qantas of current arrangements.

[558] AIPA submitted that Qantas has made two other changes to the QWD under the auspices of QAL41 (which it opposes):

(a) the removal of the agreed audit system; 292 and

(b) the removal of the requirement to agree on bid lines. 293

[559] AIPA submitted that the removal of the agreed audit system and the requirement to agree on bid lines were not part of the QAL41 claim and Qantas has provided no evidence to support the changes.

[560] In its written submissions, Qantas did not address the additional changes identified by AIPA. Mr Voget’s evidence was that Qantas agrees with AIPA in respect of clause 57.3 of the AWD (as a new insertion to 10(c) to the Rostering Manual). That provision will be included.

[561] We are not satisfied that Qantas has made out a case for the removal of the agreed audit system and the requirement to agree on bid lines.

QAL63—Remove from definitions and various sections all industrial processes and provisions that relate to or affect Qantas’ ability to manage pilot standards

[562] QAL63 seeks to remove industrial provisions and processes that relate to, affect, or impact upon Qantas’ ability to manage pilot standards by removing from the QWD requirements to refer certain matters, including suitability for promotional training (see clause 17.5.5 of the QWD) or further training where initial training is failed (see clauses 17.6.1, 17.6.3, 17.6.4 and 20.7.3 of the QWD), to the Pilot Assessment Committee (PAC). Additionally, through QAL63, Qantas seeks to remove the requirement that a recommendation for demotion by the Company Aircraft Assessment Committee (CAAC) be referred to the Demotions Committee (DC) (see clauses 17.7.3 and 17.7.4 of the QWD).

[563] Qantas submitted that current arrangements are inappropriate, particularly where they limit the Chief Pilot’s capacity to deal in accordance with his regulatory obligations as Head of Flying Operations, that there are existing measures in place to ensure these processes are thorough and fair, and the current processes inevitably introduce an industrial overlay to a process that should purely be about operational and safety standards.

[564] The arrangements in the above Committees are long standing features of the consensual industrial prescription existing between the parties, which have a role in protecting the pilots’ legitimate industrial/professional interests. There is no evidence that they have materially impeded Qantas’ commercial operations or otherwise now require change. We are not persuaded to remove these provisions when making the workplace determination. We are persuaded, however, to include in the workplace determination a provision, as proposed in the CWD that in the event AIPA is unable to appoint members to a PAC within three weeks from the date upon which Qantas inform AIPA of the requirement to appoint members to the PAC, the Chief Pilot may decide the outcome of the matter. We do so to address one practical concern raised by Captain Wilson in his evidence concerning the difficulties experienced in securing the timely participation of AIPA nominees. 294

AIPA30—Changes to grievance and dispute procedures

[565] AIPA30 seeks to vary the current grievance, dispute and disciplinary procedures (clauses 45-47 of each proposed workplace determination), it submitted, to ensure procedural fairness and that the principles of natural justice are included in the steps of these processes. The changes sought by AIPA are to: 295

● allow a pilot to obtain an external review (by the Fair Work Commission) of a decision of the CAAC, PAC and/or DC on the basis of procedural fairness and natural justice not being afforded, by amending the matters excluded to allow a pilot to dispute and/or grieve any decision of the CAAC, PAC and/or a committee established pursuant to clause 17.7 on the grounds of lack of natural justice and/or procedural fairness, or in circumstances where the procedures provided for by the workplace determination were not followed;

● add “AIPA” to the definition of a party to ensure AIPA is able to raise disputes and grievances under this section of the workplace determination.

● include time limits on the first two steps in the dispute settlement process to ensure that disputes are handled in a timely and efficient manner; and

● add provisions in the disciplinary process that provide the right to review reports of allegations before being requested to respond.

[566] AIPA submitted that the natural justice provisions would prevent a decision maker considering an appeal from/review of his/her own decision and ensure that a party is entitled to be heard before a decision adverse to it is made.

[567] AIPA submitted that the processes and procedures outlined by the CAAC manual do not provide adequate procedural fairness and/or natural justice. This is said to be unacceptable given that these are processes that relate to demotion, reduction in remuneration, the loss of future promotion rights and ongoing employment.

[568] Qantas opposes this claim on the basis that it would unreasonably interfere with the Chief Pilot’s decision-making in this area, where there are already excessive industrial processes. The Qantas’ processes were said to be robust and ensure that the procedures and requirements followed by the CAAC provide procedural fairness and this is an essentially employee-focused process.

[569] We are prepared to incorporate the explicit requirement for procedural fairness as a basis for external review. No substantial detriment to Qantas’ interest arises from the possibility of review in circumstances where the provision of procedural fairness is in issue, particularly in circumstances where the evidence of Captain Wilson was that natural justice is embedded in the Qantas processes. 296

[570] AIPA seeks to include “AIPA” in the definition of a party to ensure it is able to raise disputes under this section of the workplace determination when a group of pilots are affected by a change or matter that should be disputed, rather than requiring that one of the pilots must be named as the party to the dispute. This element of the claim was not pressed in the CWD.

[571] We see no reason to include AIPA as a party to any of the clause 45-47 processes. There is no evidence to suggest that there is any need for AIPA to have the capacity to raise disputes and grievances on behalf of a pilot or pilots where the pilot or pilots can raise them and be represented by AIPA, if they chose, within the process.

[572] AIPA30 seeks to incorporate time limits 297 on dispute settlement procedures to ensure disputes are handled in a timely and efficient manner. AIPA30 also seeks to amend clause 47.2.2 of the AWD and the CWD to allow pilots up to 90 days to lodge a grievance from the date of Qantas’ action (i.e. in lieu of the current 60 days) on the basis that pilots are often away for periods of up to ten days or more and do not have sufficient time to realise that they have been affected by a change in company policy.

[573] Qantas submitted that no adequate reason is given to support the extension of the timeframes for pilots to lodge grievances and the limitation on the time for Fleet Managers and the Chief Pilot to respond. Further, it submitted that the amendments are unnecessary and burdensome, particularly where Fleet Captains are often flying and would be very unlikely to be able to comply with such a timeframe. During cross-examination Mr Haggerty conceded that 28 day time limits may not be “unreasonable”. 298

[574] We are not satisfied that the general evidence of Captain Anderson that “[t]here have been occasions where AIPA or a member have written to their Fleet Manager or Chief Pilot, invoking the DSP and have not received a response for many weeks” 299 provides a sufficient basis of introducing the time limits sought by AIPA. There is no clear evidence of a practical issue requiring this change proposed in AIPA30.

[575] Nor are we persuaded that a sufficient case has been put to extend from 60 days to 90 days the period, for pilots to lodge a grievance from the date of Qantas’ action. There is no evidence to suggest a problem of pilots having insufficient time to lodge a grievance. However, we think it reasonable to reference the 60 day period to the date on which a pilot is affected by a change in company policy within the workplace determination.

[576] AIPA30 also seeks to extend the opportunity to review all relevant information and make notes before the flight crew member is requested by Qantas to attend an interview to circumstances where a pilot is required to “provide a written response”. When properly understood, the claim is not opposed by Qantas. 300 We think the balance of interests and merit clearly supports this change, which will be reflected in the workplace determination.

The workplace determination will contain grievance, dispute and disciplinary procedures in the form of clauses 45-47 of the QWD, subject to the AIPA changes we have accepted. We are satisfied that the disputes procedure meets the requirements of s.273(2) of the Act.

AIPA 32—Association Business

[577] In AIPA32, the AWD includes provisions to extend time relief entitlements (as previously agreed to in Part 11 in EBA6), and obliges Qantas to provide financial support from Qantas for pilots undertaking AIPA business. In the CWD, AIPA no longer sought the EBA6 provisions, instead seeking to:

● increase the amount of relief from flying to which the President and a delegate is entitled;

● increase the number of pilots that can be nominated by the President of AIPA for pre-allocation of flying from two to five; and

● alter arrangements for offsetting pattern protection for a pilot attending a meeting with Qantas as part of their representative duties.

[578] AIPA submitted that the change would recognise the role of AIPA representing LHPs under the workplace determination and rebuild the relationship between Qantas and its pilots. The claim is opposed by Qantas.

[579] We will not include in the workplace determination changes to give effect to AIPA32 in the form of either the AWD or the CWD. The AIPA changes depart from current arrangements and no reasonable basis has been established for including them in the workplace determination.

7.4.10 Other Claims

QAL64—New Superannuation clause

[580] QAL64 seeks to replace the existing superannuation provisions in order to comply with Qantas’ current legislative obligations and to standardise the superannuation clauses in agreements across Qantas.

[581] Qantas submitted that these amendments are necessary because they:

(a) remove references to the phrase “successor fund” which has a specific meaning and may not be appropriate in the context that it is currently used;

(b) remove references to the previous name of the relevant superannuation plan and replace them with the current name; and

(c) are consistent with 13 other agreements that operate in respect of other groups of Qantas Group employees.

[582] QAL64 seeks to:

(a) “update” the superannuation provisions to comply with Qantas’ current legislative obligations and to standardise the superannuation clauses in enterprise agreements across Qantas;

(b) “ensure” that payments are made in accordance with the Superannuation provider’s rules; and

(c) “include” a clause in respect of the minimum superannuation guarantee legislation.

[583] AIPA agreed in principle to (a) and (b), but objected to the wording of the QWD. In respect of (a) and (b), Qantas ultimately accepted the wording changes proposed by AIPA in respect of clauses 31.4.1–31.4.3 of the QWD 301 and agreed to the deletion of any reference to a minimum contribution level as contained at clause 31.4.3 of the QWD.302 As a result, there was agreement by the end of the hearing program to the following clauses (with clause 31.4.3 of the QWD being deleted):

“31.4.1 Entitlement to choose a superannuation fund

The Company will make superannuation contributions to a complying superannuation fund in respect of each pilot. The superannuation fund to which contributions will be made in respect of a pilot will be the fund chosen by that pilot which is consistent with the choice of fund regime (including MySuper).

31.4.2 Default fund

If a pilot does not select a superannuation fund in accordance with the choice of fund regime, the superannuation contributions in respect of that pilot will be made to the Qantas Superannuation Plan (or any successor to that plan) to be credited to the pilot’s designated division or divisions (including the MySuper division) as the default fund for the purposes of the choice of fund regime.”

[584] We are satisfied that those clauses, in that form, should be included in the workplace determination. The additional clauses within clause 34 of the QWD have been considered in respect of AIPA15 above. Our decision in respect of AIPA15 will result in the inclusion of clauses 31.4.4 and 31.4.5 in the terms proposed in the QWD, but renumbered to reflect the deletion of subclause 31.4.3.

7.5 NO OTHER TERMS S.271 OF THE ACT

[585] No other terms will be included within the workplace determination.

8. CONCLUSION

[586] The parties are directed to provide a draft workplace determination giving effect to our decision, identifying any areas of disagreement between them that may arise in doing so. It is an understatement to indicate that the matters before us involved a high level of complexity, compounded by the extensive terms of EBA7v, the base document and the workplace determinations sought. Accordingly, we will also provide the opportunity for Qantas and AIPA to identify and raise any technical issues, uncertainties, or potential unintended effects of the workplace determination drafted to give effect to our decision at the same time as they provide the draft workplace determination. We make it clear, however, that we will not accommodate any attempts to re-argue the matters decided by us through that opportunity.

[587] We will afford Qantas and AIPA an opportunity to agree upon and advise us of a date by which the draft workplace determination and a document identifying technical issues, uncertainties, or potential unintended effects can be filed. In the absence of agreement that date will be Tuesday, 12 February 2013. The workplace determination will be settled by Senior Deputy President Watson, with recourse to the Full Bench. If necessary the matter will be listed for the settlement of the workplace determination.

SENIOR DEPUTY PRESIDENT

Appearances:

M Kimber SC with T Slevin of Counsel and D Taylor for Australian and International Pilots Association.

F Parry SC with R Dalton of Counsel for Qantas Airways Limited.

I Woods on his own behalf.

Hearing details:

2012.

Melbourne:

May 25;

June 12, 13, 14, and 15;

Sydney:

August 6, 7, 8, 9, 10, 13, 14, 15, 16 and 17;

September 4, 5 and 6;

October 30 and 31.

Final submissions:

2012.

Melbourne:

October 30 and 31.

 1   Section 266(3) of the Fair Work Act 2009.

 2   Section 266(2) of the Fair Work Act 2009.

 3   Fair Work Amendment Act 2012.

 4   [2011] FWAFB 7444 and PR516214.

 5   AG844026.

 6   Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 (10 May 2012); per Lander, Buchanan and Perram JJ.

 7   Section 269(2) of the Fair Work Act 2009.

 8   Exhibit QF 6.

 9   Exhibit AIPA 9.

 10   Exhibit AIPA 40, Attachment DB27.

 11   Exhibit AIPA 63, at para 1.13.

 12   Exhibit Woods 4.

 13   Exhibit AIPA 63, at para 7.1.5 and QF 57, at para 63.

 14   Exhibit Woods 1, at para 17.

 15   Exhibits QF 7 and QF 8.

 16   Exhibits QF 9 and QF 10.

 17   Exhibits QF 14 and QF 15.

 18   Exhibits QF 17 and QF 18.

 19   Exhibits QF 21 and QF 22.

 20   Exhibit QF 25.

 21   Exhibits QF 26 and QF 27.

 22   Exhibits QF 29 and QF 30.

 23   Exhibits QF 31 and QF 32.

 24   Exhibits QF 33 and QF 34.

 25   Exhibits QF 4, QF 23 and QF 24.

 26   Exhibit QF 55.

 27   Exhibits AIPA 22, AIPA 23, AIPA 24 and AIPA 40.

 28   Exhibits AIPA 25 and AIPA 26.

 29   Exhibits AIPA 29 and AIPA 30.

 30   Exhibits AIPA 31 and AIPA 32.

 31   Exhibits AIPA 34 and AIPA 35.

 32   Exhibits AIPA 41 and AIPA 45.

 33   Exhibit AIPA 46 and AIPA 47.

 34   Exhibits AIPA 37 and AIPA 38.

 35   Exhibit AIPA 33.

 36   Exhibit AIPA 61 and Appendix K of Attachment KTW-1 of Exhibit QF 55.

 37   Exhibit QF 38.

 38   Exhibits AIPA 20 and AIPA 21.

 39   Exhibit AIPA 62.

 40   Exhibit AIPA 57.

 41   Transcript, at paras 7669, 7670 and 12991.

 42   Exhibit Woods 1.

 43   Exhibits Woods 2, Woods 3 and Woods 4.

 44   Transcript, at paras 6895 and 6903.

 45   Transcript, at para 1115

 46   Transcript, at para 5178

 47   Transcript, at para 5227.

 48   [2008] FCA 1494.

 49   [2009] 74 NSWLR 612.

 50   [2003] FCA 306.

 51   (1988) 81 ALR 710.

 52   See s.16 Parliamentary Privileges Act 1987 (Cth); Amann Aviation Pty Ltd v Commonwealth of Australia, (1988) 81 ALR 710; Mees v Road Corporation [2003] FCA 306.

 53   [2009] 74 NSWLR 612, at para 17.

 54   [2003] FCA 306, at paras 86 and 87.

 55   Transcript, at paras 1108-1113 and 1140-1277.

 56   Transcript, at paras 5229-5242.

 57   Exhibit QF 21, at para 6.

 58   Exhibit QF 21, at para 8.

 59   Exhibit QF 57, at para 1021.

 60   Exhibit QF 21, at para 9.

 61   Exhibit QF 21, at para 11.

 62   Exhibit QF 21, at para 10.

 63   Exhibit QF 8, at para 36.

 64   Exhibit QF 8, at para 37.

 65   Exhibit QF 8, at para 38.

 66   Exhibit QF 8, at para 35.

 67   Exhibit QF 8, at para 57.

 68   Exhibit QF 26, at para 7.

 69   Exhibit QF 26, at para 7.

 70   Exhibit QF 26, at para 48.

 71   Transcript, at para 5929.

 72   AC309500.

 73   Exhibit QF 26, paras 8-10.

 74   Exhibit QF 21, at para 34.

 75   Exhibit QF 21, at para 36.

 76   Exhibit QF 51, at p.9.

 77   Such as major transformational/restructuring initiatives, transactions involving investments and impairments of assets outside the ordinary course of business; Exhibit QF 51, at p.10.

 78   Exhibit QF 51, at p.8.

 79   Media Release; Qantas 2011/2012 Financial Result; 23 August 2012.

 80   Exhibit QF 51, at p.18.

 81   Exhibit AIPA 11.

 82   Exhibit QF 21, at para 37.

 83   Exhibit QF 21, at para 38.

 84   Exhibit QF 21, at para 39 and Attachment GRE-6.

 85   Exhibit QF 21, at para 40 and Attachment GRE-6.

 86   Exhibit QF 21, at para 40 and Attachment GRE-6.

 87   Exhibit QF 26, at paras 11-12.

 88   Exhibit QF 26, at paras 14-16.

 89   Used by an (intermediate) airline which is based geographically between the origin and destination point, combining rights to transport passengers and freight to and from their country to countries at the origin and destination points. See Exhibit QF 4, Attachment PJH-2 at pp 100-104.

 90   Exhibit QF 57, at para 4.

 91   Exhibit QF 21, at paras 49-50.

 92   Exhibit QF 21, at para 51.

 93   Exhibit QF 21, at para 52 and Attachment GRE-7.

 94   Exhibit AIPA 63 at para 2.2(b).

 95   Re Cram and Others; Ex parte N.S.W. Colliery Proprietors’ Association Limited and Others (1987) 163 CLR 117 at 133.

 96   [2012] FWAFB 6612, at para 29.

 97   Exhibit AIPA 46, Attachment AS-8 and AS-9, Exhibit QF28, at paras 28-36 and MWW-2, Exhibit QF 23 and Exhibit QF 4, at Attachment PJH-2 Table 6.3 on p.90.

 98   Exhibit AIPA 46, Attachment AS-10 and AS-17.

 99   Exhibit AIPA 63, at para 1.10.

 100   Schweppes Australia Pty Ltd v United Voice [2012] FWAFB 7858, at para 50.

 101   Schweppes Australia Pty Ltd v United Voice [2012] FWAFB 7858, at paras 38-47.

 102   Exhibit QF 28, at paras 18-27.

 103   Transcript, at para 6700.

 104   Exhibit QF 57, at para 111.

 105   Exhibit QF 57, at para 117.

 106   Exhibit QF 57, at para 123.

 107   Exhibit QF 10, Attachment EH-A.

 108   Exhibit AIPA 46, Annexure AS 1.

 109   Exhibit AIPA 46.

 110   Exhibit AIPA 63 at para 5.5.1 and Exhibit QF 57, at para 184.

 111   Exhibit AIPA 63 at para 5.6.1.

 112   Fair Work Regulations 2009, at Schedule 2.2.

 113   Fair Work Regulations 2009, at Schedule 2.3.

 114   Exhibit AIPA 63 at paras 1.6 and 5.10.3 and Exhibit QF 57, at para 181.

 115   See, for example, Appendix G of QF 57: Agreed Administrative Amendments. Limited other areas of agreement are evident in the submissions of AIPA and Qantas.

 116   Exhibit AIPA 63, Appendix C.

 117   Exhibit AIPA 40, at para 6.

 118   Exhibit Woods 4.

 119   Exhibit QF 59.

 120   Exhibit AIPA 12 - Agreement in relation to Sydney-Dallas-Sydney operations dated 04/04/2011.

 121   Exhibit QF 57, at para 215.

 122   Exhibit QF 10, at para 138.

 123   Exhibit QF 57, at para 216.

 124   Exhibit AIPA 62.

 125   Exhibit AIPA 63, at para 10.1.12.

 126   Exhibit QF 17, at para 16.

 127   Exhibit QF 17, at para 19.

 128   Exhibit QF 17, at para 30.

 129   Exhibit QF 17, at para 38.

 130   Transcript, at para 4179.

 131   EBA7v, clause 12.5.3.

 132   CWD, at clause 15.5.2.

 133   QWD, at clause 15.5.2.

 134   Exhibit QF 10, at para 202.

 135   Exhibit AIPA 23, at para 7(b)(viii).

 136   Exhibit QF 57, at para 236.

 137   Exhibit QF 57.

 138   Exhibit AIPA 23, at para 20.

 139   Exhibit QF 57, at para 252.

 140   Transcript, at paras 13797-13798

 141   Exhibit QF57, at paras 256-262.

 142   Assigned as an allocation to a pilot for which the pilot has not bid or awarded as an allocation to a pilot as a result of the pilot’s bid.

 143   Through clause 16.5.2 in both the QWD and the CWD.

 144   Exhibit QF 33, at para 246.

 145   Exhibit AIPA 63, at para 10.4.4.

 146   Exhibit AIPA 63, at p.257.

 147   See amendments at clause 16.4.16(b) of the QWD.

 148   Exhibit QF 57, Appendix B, table 2.

 149   Exhibit QF 57, Appendix B, table 2.

 150   Exhibit QF 26, at para 48 and Transcript, at para 5929.

 151   Transcript, at para 7654.

 152   [2010] FCA 231 at 13 and 14.

 153   Transcript, at paras 6538-6543.

 154   Exhibit AIPA 25, Annexure JB-11 and LOA162A in EBA7v, at Part 12.

 155   Exhibit AIPA 63, at para 10.13.9.

 156   Exhibit AIPA 22, at para 133.

 157   Exhibit QF 34, at para 95(b).

 158   Exhibit QF 33, at paras 197-198.

 159   Exhibit AIPA 57 at para 10.17.9(a) and Exhibit AIPA 19.

 160   Exhibit QF 33, at paras 217-218.

 161   Exhibit AIPA 63, at para 10.23.4.

 162   Exhibit AIPA 25, at para 51.

 163   Exhibit AIPA 22, at para 133(g) and AIPA 46, at para 119(ii).

 164   Exhibit AIPA 63, at para 9.19.5.

 165   Exhibit AIPA 63, at para 9.19.9.

 166   Exhibit AIPA 63, at para 9.19.11.

 167   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 168   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 169   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 170   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 171   Exhibit AIPA 63, at para 10.25.11.

 172   Exhibit AIPA 63, at paras 10.25.17 - 10.25.20.

 173   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 174   Exhibit QF 14, at Attachment RJT 1, 13 April 2009 Memo of Captain Wilson.

 175   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 176   Exhibit QF 33, at para 178.

 177   Exhibit AIPA 33, at para 20.

 178   The final priority in relation to the allocation of open time flying, which permits Qantas to assign a duty to any pilot it is able to contact, overriding many agreement provisions to ensure that operations are carried out. (Priorities 15-17 of EBA7v.)

 179   EBA7v, Clause 27.21.3(b).

 180   EBA7v, Clause 27.19.1; Priority 6.

 181   Identified in Exhibit AIPA 63, as 47(b) and (c), 47(f) and 47 (i) and (dd).

 182   Exhibit AIPA 46, Annexure AS-3 - Qantas’s claim number 56 – Update clause 17 to capture the correct training language.

 183   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 184   Exhibit QF 57, at para 508.

 185   Exhibit AIPA 25 at para 189.

 186   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 187   Exhibit AIPA 25, at para 202.

 188   Exhibit QF 34, at para 182.

 189   Exhibit QF 34, at para 182.

 190   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 191   Exhibit AIPA 31, at para 116.

 192   Clause 27.15.8(d).

 193   Exhibit QF 57, at para 596.

 194   Exhibit 34, at para 121.

 195   Exhibit QF57, at para 448.

 196   Clause 21.4 Pattern/Roster construction flight and duty time limitations in the Qantas Rostering Manual.

 197   Transcript, at para 13897.

 198   Clause 69.1 Flight and Duty Time Limitations tables.

 199   Transcript, at para 11963.

 200   Transcript, at paras 4083-4092.

 201   Exhibit QF 57, Appendix B: Summary of estimated costs and cost savings associated with Claims.

 202   Based on a report commissioned by AIPA in 1998 (since updated) and provides a recommendation for the facilities required for adequate rest in flight. See Exhibit AIPA 34, at para 161.

 203   Exhibit QF 18, at para 72.

 204   Exhibit QF 18, at para 70.

 205   Exhibit QF18, at paras 74-75.

 206   Exhibit QF 18, at para 71.

 207   Exhibit AIPA 41, at para 129.

 208   Exhibit AIPA 45, at para 94.

 209   Exhibit AIPA 25, at para 133.

 210   Exhibit AIPA 25, at para 134.

 211   Exhibit QF 29, at para 133.

 212   Exhibit QF 57, at para 698 and Exhibit QF28, at paras 55-64.

 213   Exhibit AIPA 46, at para 121.

 214   Exhibit QF28, at para 56 and Transcript at para 6810.

 215   This does not include increases to ODTA, ADTA and meal allowances.

 216   Transport Workers’ Union of Australia v Qantas Airways Limited; Q Catering Limited [2012] FWAFB 6612 at para 95 and [2012] FWAFB 236 The Australian Licenced Aircraft Engineers Association v Qantas Airways Limited at para 26.

 217   Exhibit QF 57, at para 831.

 218   Transport Workers’ Union of Australia v Qantas Airways Limited; Q Catering Limited [2012] FWAFB 6612 at para 96 and The Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [2012] FWAFB 236, at para 26; AG891046 PR519230 at Appendix B.

 219   Schweppes Australia Pty Ltd v United Voice - Victoria Branch [2012] FWAFB 8599, at para 152-153.

 220   [2012] FWAFB 236, at para 26.

 221   [2012] FWAFB 236, at para 26.

 222   [2012] FWAFB 236, at para 26.

 223   PR516214.

 224   [2012] FWAFB 236.

 225   [2012] FWAFB 6612.

 226   Exhibit QF 57, at para 833.

 227   Clause 24.4.4 of EBA7v.

 228   Clause 2 of EBA7v.

 229   Clause 10 of EBA7v.

 230   Clause 24.4.4 of EBA7v.

 231   Schweppes Australia Pty Ltd v United Voice - Victoria Branch [2012] FWAFB 8599, at para 140.

 232   Exhibit QF 21, at paras 67-68.

 233   Exhibit QF 22, at para 39.

 234   Exhibit QF 21, at para 69.

 235   Exhibit QF 51, at p. 16.

 236   Exhibit QF 28, at para 67- 69.

 237   Exhibit AIPA 63, at para 10.20.2.

 238   Clause 39.3.7 of CWD.

 239   Exhibit QF 1, Tab 4, clause 33.3.10, at p.286 of EBA7v.

 240   Exhibit QF 28, at para 66(a).

 241   Exhibit QF 57, at para 860(b).

 242   Exhibit QF 28 , at para 69.

 243   Exhibit QF 28, at attachment MWW-25.

 244   Exhibit QF 34, at para 151.

 245   Exhibit AIPA 26, at para 45.

 246   Exhibit QF 34, at para 151.

 247   Exhibit AIPA 63, at para 9.1.7(a).

 248   Exhibit QF 1, clause 28.28.6 (corrected from 28.29.6), at p.272 of EBA7v.

 249   Transcript, at para 7184.

 250   Exhibit QF 59, at Appendix B.

 251   Exhibit QF 1, clause 35.1 at p.293 of EBA7v.

 252   Exhibit QF 1, clause 34.1 at p.291 of EBA7v.

 253   Exhibit QF 34, at para 157 and ‘TRV-19’.

 254   Exhibit QF 34, at para 177.

 255   Exhibit QF 1 clause 3.5.11.

 256   Exhibit AIPA 63, at para 9.4.13.

 257   Exhibit AIPA 63, at para 9.28.7.

 258   Exhibit QF 1, clause 31.9.9 at p.286 of EBA7v.

 259   At clause 38.3.9.

 260   Exhibit QF 29, at para 102.

 261   Exhibit AIPA40.

 262   Exhibit QF29, at para 101.

 263   Exhibit AIPA 26, at para 15.

 264   Exhibit QF 29, at paras 96-99.

 265   Exhibit QF29, at para 98.

 266   Exhibit AIPA 25, at para 237.

 267   Exhibit AIPA 40 at DB28.

 268   Exhibit AIPA 40 at DB28.

 269   See QF 57 at paras 1097 and 1146.

 270   AP794089 and Exhibit QF 1 at tab 2.

 271   Exhibit AIPA 24 at Attachment DB23.

 272   Exhibit QF 55 at p.62, Appendix F at p.501.

 273   Exhibit QF 1, clause 3.5.11, at p.485 of EBA7v.

 274   Exhibit AIPA 69.

 275   Attached to Exhibit AIPA 68.

 276   Exhibit QF 55, at p.7 and Appendix K.

 277   Exhibit QF 55, attachment KTW-1, at p.11.

 278   Exhibit QF 55 and Appendix K.

 279   Exhibit AIPA 61, at para 39-40.

 280   Exhibit AIPA 61, at para 34.

 281   Exhibit QF 1, clause 22, at p.132 of EBA7v.

 282   Re Cram and Others; Ex parte N.S.W. Colliery Proprietors’ Association Limited and Others (1987) 163 CLR 117, at 136.

 283   Exhibit QF 26, at para 48.

 284   Exhibit QF 26, at para 47-48.

 285   Exhibit AIPA 34, at para 114.

 286   Exhibit QF 10, at para 90.

 287   Transcript, at para 7947.

 288   Transcript, at para 7340.

 289   Exhibit QF 57, at paras 1361-1366.

 290   Exhibit QF 29, at para 88.

 291   Exhibit QF 1, clause 27.4.2, at p.165 of EBA7v.

 292   Exhibit QF 1, clause 27.4.5, at p.179 of EBA7v.

 293   Exhibit QF 1, clause 27.4.5, at p.179 of EBA7v.

 294   Transcript, at para 6155-6161.

 295   Exhibit AIPA 63, at para 9.30.1.

 296   Transcript, at para 6192.

 297   See AWD/CWD clauses 46.2.1 and 46.2.2.

 298   Transcript, at para 3107.

 299   Exhibit AIPA 29, at para 107.

 300   Exhibit QF 57, at para 1284.

 301   Exhibit QF 57, at para 710.

 302   Exhibit QF 57, at para 711.

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