Qantas Short Haul EA Update No 25
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Further to our recent updates, Deputy President Saunders of the Fair Work Commission (FWC) has issued a decision today regarding the two non-compliance issues raised by the AFAP in respect of the proposed new SH Enterprise Agreement (Agreement). These are issues that the AFAP are obligated to raise at the approval stage and they cannot be deferred to a later time.
Disputes Procedure (DSP)
On the first issue, the Deputy President has upheld the AFAP position, which is that Unions covered by the Agreement need to have the right to bring disputes over the application of the agreement without naming an individual pilot.
The effect of this is the Deputy President has indicated the agreement will not be approved in its current form as the DSP does not meet the requirements of section 186(6) of the Fair Work Act 2009 (Cth) (Act).
The Deputy President has now given Qantas until 4pm on 6 May 2025 to provide any undertakings to address the issues in relation to the dispute settlement clause. This is the precise option we put to Qantas’ when the agreement was submitted for approval.
By way of background, this issue arose in a decision of a Fair Work Commission in December 2024 regarding a similar DSP in which an EA was refused to be approved. To avoid this occurring, we raised this issue with Qantas at the first opportunity following this decision.
As pilots are aware the AFAP were excluded from the drafting of the document because we did not reach in principle agreement. On Friday 31 January the AFAP were provided the final draft EA by Qantas for the first time and given two business days to respond. Despite this unreasonable timeframe, on Tuesday 4 February 2025 we advised in writing that the dispute procedure did not meet the the requirements of section 186(6) of the Act.
Qantas in response provided legal analysis of the FWC decision and maintained its view the DSP did comply. Qantas also was well aware of the case from December and the issues it posed for the DSP. Despite this it made no attempt to resolve it in drafting of the document.
The delay in approving the agreement until this point rests solely with Qantas which despite its extensive legal resources has misinterpreted case law. Qantas has also missed opportunities to provide undertakings and instead delayed approval with an unnecessary hearing.
The Company’s clear motivation has been to deny Unions covered by the agreement a powerful tool to enforce the provisions of the agreement and hold Qantas to account. Pilots having to take a dispute in their own name has been a significant barrier to escalating disputes under the agreement. This ruling ensures a critical right for Short Haul pilots which is their EA conditions can be enforced by the AFAP through the FWC.
FOT Salary
Disappointingly on the second compliance issue the Deputy President has ruled that the Miscellaneous Award 2020 rather than the Air Pilots Award applies to FOTs for the purpose of the BOOT. On this basis the salaries for FOTs are above those under the Miscellaneous Award 2020 and therefore the Deputy President has ruled the proposed FOT salaries are compliant with BOOT under the Act.
The AFAP does not resile from our role to uphold minimum standards in the industry. Qantas has run an argument which has not been put forward by even the dodgiest general aviation Company. Further, outside of the higher salaries and conditions of the Air Pilots Award, this decision creates uncertainty as to whether pilots under line training are covered by the indemnity and insurance coverage provided under the Award.
It is important to note that regardless of this ruling on FOT salaries, the delays to the approval of the agreement would not have changed because of the DSP compliance issue outlined above.
This leaves Qantas’ providing the requested undertakings to address the non-compliance of the DSP with the Act as the only barrier to the agreement being approved.
Commencement Date for Pay Rises
As we have outlined, Qantas were notified of the issue regarding the non-compliance of the dispute procedure in writing by the AFAP on 4 February 2025, which was prior the document being put out to vote. In response the Company knowingly elected to ignore these concerns based on its legal advice which has been proven wrong.
The AFAP reiterate our call for Qantas to undertake to provide the increased pay rises to SH pilots from the date the agreement otherwise would have commenced being implement pay rises for SH pilots to commence from the commencement of BP3685 on 19 May 2025 irrespective of the date of approval.
We will continue to update members on developments next week.
In the meantime if you have any questions regarding SH bargaining we welcome members contacting your QPC pilot representatives or the AFAP legal and industrial team of Senior Legal/ Industrial Officer Pat Larkins (
patrick@afap.org.au), Senior Industrial Officer Chris Aikens (
chris@afap.org.au), and Executive Director Simon Lutton (
simon@afap.org.au) to ensure that you are informed.
Regards,
AFAP Legal
Jared Marks – AFAP In-House Counsel
Simon Lutton – AFAP Executive Director
Patrick Larkins – AFAP Senior Legal/ Industrial Officer