Airnorth - Air Pilots Award 2020 and Individual Flexibility Agreements
The Aircrew Logistics Pilots Enterprise Agreement 2006 has now terminated. It ceases to apply to any of you.
The terms and conditions of your employment are now governed by your common law contract of employment and the Air Pilots Award 2020 (Award). If you have already signed the individual flexibility agreement (IFA) offered to you, it will also govern the terms of conditions of your employment.
IF YOU HAVE NOT SIGNED THE IFA, YOU ARE RIGHT NOW ENTITLED TO ALL THE BENEFITS CONFERRED ON YOU BY THE AWARD, INCLUDING ALL ROSTERING PROVISIONS.
Very little information has been provided to you by Airnorth regarding the IFAs that it has offered you.
This briefing will give you as much information as the AFAP knows, and will tell you what further information the AFAP thinks you should have. You (or you via the AFAP or the ALPG) need to ask for this information from Airnorth. You can then decide whether to enter into the IFA if you have not already done so, or whether to give notice of 4 weeks that it should terminate if you have already signed it.
WHAT IS AN INDIVIDUAL FLEXIBILITY AGREEMENT?
IFAs are permitted under Clause 5 of the Award.
Clause 5.1 of the Award says, despite anything else in this award, an employer and an individual employee may agree to vary the application of the terms of this award relating to any of the following in order to meet the genuine needs of both the employee and the employer:
- arrangements for when work is performed; or
- overtime rates; or
- penalty rates; or
- allowances; or
- annual leave loading.
Clause 5.5 of the Award says, an IFA must result in the employee being better off overall at the time the agreement is made that if the agreement had not been made.
Similarly, section 144(4)(c) of the Fair Work Act 2009 (Cth) makes clear that an IFA must result in the employee being better off overall that the employee would have been if no individual flexibility arrangement were agreed.
YOU MUST BE SATISFIED THAT YOU WILL BE BETTER OFF UNDER THE IFA THAN UNDER THE AWARD – THAT IS AN ASSESSMENT YOU MUST MAKE ACCORDING TO YOUR OWN INDIVIDUAL CIRCUMSTANCES
The IFA contains a table comparing what is contained in the Award and what is proposed in the IFA.
The IFA is predominantly about arrangements for when work is performed – to avoid the restrictions on hours of work and rostering contained in the Award.
Clauses 15.2 – 15.8 and 16.6 of the Award contain clauses in relation to rostering and how it can be changed. These are in addition to CAO 48.1. Airnorth must comply with both the Award and CAO 48.1 – and must therefore comply with the most restrictive, which will usually be the most beneficial to the pilot from a rostering perspective.
Clause 16.6 of the Award provides that you can be displaced from your rostered duty period for disruptions to service, checking and training, cancellation of a flight or having insufficient hours to complete a flight. These are very broad, and their limits have not been tested.
MAKE SURE YOU READ THE PROTECTIONS CONTAINED IN THE AWARD THAT ARE LISTED IN THE TABLE IN YOUR IFA
IF YOU HAVE ANY QUESTIONS ABOUT HOW AIRNORTH WOULD IMPLEMENT THEM, ASK THAT QUESTION OR THE AFAP CAN ASK THAT QUESTION FOR YOU
Clause B1.1 of the Award refers to your base rate of pay with clause B.7.1 providing for additions to salary. As noted above, an IFA can only be about certain matters. It is unclear whether they can be about base salary. In addition, your base salary will also depend on what your common law contracts of employment say.
IT NOT CLEAR WHAT IS APPLICABLE TO THE E120, AS IT IS NOT CONTAINED AS A TYPE IN SCHEDULE B OF THE AWARD. AIRNORTH SHOULD EXPLAIN, IN RELATION TO BOTH THE E120 AND THE E170/190: NOW THAT YOUR EBA HAS TERMINATED, WHAT GOVERNS YOUR BASE SALARY? WHAT DOES YOUR COMMONLAW CONTRACT OF EMPLOYMENT SAY?
The remainder of the Award clauses referred to in the IFA relate to allowances and the like. These appear to be largely the same amounts as proposed in the IFA, except for:
Overseas layover – the Award provides for $61.55 and the IFA provides for $27.97
Night Operation – the Award provides for $17.92 per occasion and the IFA provides for $9.00 for night operations in excess of 4.
It is unclear to the AFAP what the purpose of the IFA is in relation to allowances. It undercuts some of them and is otherwise the same as what is contained in the Award.
YOUR PAY – WILL IT DECREASE IF YOU DO NOT SIGN THE IFA?
We refer to our comments above regarding your base salary. You need to ask Airnorth what your common law contract of employment says. Airnorth should comply with that contract (as long as it is more beneficial than what is contained in the Award).
In relation to overtime, there are proceedings currently on foot on the following: (a) are standby or reserve hours included in your 38 hours per week and (b) if you work over 38 hours per week, does the Award entitles you to be paid overtime. A court has already ruled in the affirmative to both these questions. A copy of that decision can be accessed [HERE].
In short, there is a court decision that has been made that says pilots employed under the Award that work more than 38 hours per week are entitled to overtime payments. The rate of overtime pay is yet to be determined as the matter is ongoing.
AIRNORTH SHOULD CLEARLY TELL YOU, IN LIGHT OF THE RECENT COURT DECISION, IF IT WILL PAY OVERTIME UNDER THE AWARD AND HOW MUCH
Take care when deciding whether to sign your IFA. You must be certain that you personally will be better off under the IFA than the Award. There is no obligation on you to sign it. If you need more information from Airnorth, ask for it – or ask the AFAP or the ALPG to ask it for you.
If you have any question, please contact Andrew Molnar (andrew@afap.org.au) or Jason Newell (jason@afap.org.au) or call them on (03) 9928 5737.
Your AFAP Industrial Team