EFA - s206 Dispute Decision and Bargaining Update
On Friday 7 March 2025, Commissioner Crawford of the Fair Work Commission handed down his decision in our dispute application involving Section 206 (s.206) of the Fair Work Act 2009 (FW Act).
s.206 of the FW Act states that an employee’s “base rate of pay” under an enterprise agreement that applies to the employee must not be less than the “base rate of pay” in a modern award that covers the employee.
In summary Commissioner Crawford found that the additions to salary under the Air Pilots Award 2020 (Award) relating to flying a jet aircraft, being required to hold an ATPL and being required to hold a command instrument rating do not apply for the purposes of s.206 of the FW Act.
A copy of the full decision is attached - here
We encourage all members to read this decision closely. We also provided a link to the full Hearing Book in our previous update of 28 February 2025 (the day after the hearing) for anyone who wishes to refresh themselves on the arguments and material submitted.
The case largely turned on whether the minimum additions to salary, which the Award defines as forming part of salary, are included for the purposes of “base rate of pay” under s206 of the FW Act.
Interestingly, Commissioner Crawford found that it is possible to have a base rate of pay under s206 of the FW Act that is lower than any employee could lawfully be paid under the Award. This finding is described at paragraphs 34 and 35 of the decision, repeated below with emphasis added.
[34] Mr Marks referred during the hearing to the test for whether a payment falls within the meaning of “base rate of pay” as being whether the amount forms part of the “least that the employee can be paid for performing work” under the Award. Given Mr Semenikow’s role and qualifications, the minimum amount he can be paid under the Award includes the aircraft allowance, ATPL payment, and the rating allowance. It was submitted that these amounts are therefore part of his “base rate of pay” under the Award.
[35] I reject this argument. Although it may seem odd that it is possible for the lowest rate an employee can lawfully be paid under an enterprise agreement to be lower than the minimum rate they could be paid under the relevant modern award, the outcome is clearly possible given the definition of “base rate of pay” in s.16(1) of the FW Act.
To us this finding seems to undermine the purpose of s.206.
Obviously, we are disappointed by the decision in this case. We are still reviewing the decision carefully and determining the appropriate next steps.
EFA Bargaining Update
As previously advised, our next bargaining meeting is scheduled for 18 March 2025 in Sydney where we expect to finalise taking the company through our Joint Statement of Claims. The EFA pilot reps from all the unions are also meeting separately before this meeting to agree our joint approach.
Given the outcome in the s.206 dispute, the need to make tangible progress in bargaining has only heightened.
We will keep you advised of developments.
If you have any questions on the above please contact us directly or Simon Lutton at the AFAP on (03) 9928 5737 or email simon@afap.org.au.
Yours sincerely
Susha Semenikow and Dean McMahon
AFAP EFA Pilot Representatives