As previously reported your Council had been keen to meet the AFAP Legal Team to discuss the outcome of the recent Workplace Determination and yesterday those that were free were able to discuss further both the implications and the options ahead.
At the meeting the Legal Team also expressed their surprise and disappointment at the outcome but were clear that the options to challenge the decision were little to non-existent, the reasoning being a number of factors including:
- The Full Bench of the FWC has a significant amount of latitude in deciding the outcome of the disputed matters, they can accept either party’s position or a compromise position, and they have a broad discretion to apply what they believe to be an appropriate outcome.
- Because this is a Full Bench decision the only available appeal is a Judicial Review to the Federal court.
- The Federal Court will not rehear the matter, they would only consider if a ‘jurisdictional error’ had impacted or infected the outcome, whether an error (if one had occurred) was material, and then whether that error could have affected the outcome. If all those factors were met then the power exists to send the matter back (usually to the same bench) to address those errors.
- Even if the matter is sent back to the FWC that also does not ensure a different outcome, indeed many reheard matters make reference to addressing the directions of the Federal Court to then deliver no material change to an original decision.
The legal team then explained that in closely reviewing the full written decision of the Full Bench they were of the opinion that there was no evidence that the FWC had committed any form of ‘legal error’. Consequently the options to review the case were effectively closed.
In addition the legal team explained that the previous workplace determinations that received much coverage (due to their being so few and this being new legislation) were also not relevant to the Network decision as each determination had to be decided on a merit based approach in a case by case basis. The decision making process undertaken by the FWC was not a precedent based process.
What is clear is that comments by the Full Bench to often refer to the in principle agreements that were reached periodically during negotiations will have an impact on how future negotiations are undertaken, especially if it seems likely that a negotiated agreement may not be achieved.
The discussion then centred on some additional information that the Qantas Legal Team had forwarded regarding the issue of backpay. There was some fairly lengthy discussion about the information supplied and in the end due to the lack of clarity the AFAP legal has sought a short 48 hour extension from the FWC to seek further clarity from Qantas as to how the back pay was formulated and confirmation that as the backpay constitutes wages, superannuation was to be paid on top.
Once further information is forthcoming we shall of course be in touch with members.
In addition the next AFAP Pilot Council is scheduled to take place on 1st September and it was felt appropriate that a members meeting be held to discuss both this whole process and the way forward for the pilot group in light of this recent outcome. Details are still being worked through but a member meeting will be most likely to be held on either Sunday 31st August or Monday 1st September. Further information to be coming through soon.
In unity,
AFAP Network Aviation Pilot Council
Stephen Maughan: smaughan@iinet.net.au
Ben Walmsley: ben.walms@gmail.com
Joshua Sheldon: Josh.b.sheldon@gmail.com
Sasha Leavy: sasha_leavy@hotmail.com
Matt Atkinson: matkinson209@gmail.com
Eman Zimmerman: mano01@hotmail.com
Mark Levitt: ml.network.pilotcouncil@outlook.com
Geoffrey Aro: flyingaro@gmail.com
In addition, the AFAP Senior Industrial Officer Chris Aikens is contactable on chris@afap.org.au. The AFAP Member Assistance Program (MAP) can be contacted via Freecall 1300 307 912. The AFAP website also advises of other welfare services at https://www.afap.org.au/membership/member-articles/welfare-services