Chapter 3
3.1
The committee recognises that the Aircraft Crew Bill and the Qantas Sale
Amendment Bill received a mixed response from the stakeholders that provided
evidence to the inquiry. Although the committee does not agree with those submitters
and witnesses who supported the bills, the committee recognises that they
raised a number of legitimate concerns with respect to the broader public
policy issues that are addressed in the bills. In particular, the committee
considers the issues discussed below to be of importance.
3.2
The committee notes the concerns of a number of submitters about the
future off-shoring of Australian jobs in the aviation industry. It is
particularly mindful of the difficulties of keeping airline maintenance
employment on-shore and is concerned by airline business strategies that may
constrain future Australian employment opportunities in the industry.
3.3
The committee is also mindful of the concerns raised by submitters
regarding the pay differences between Australian and foreign-based crew on the
same flight and recognises that addressing this issue was a significant
motivation for the Aircraft Crew Bill being introduced into Parliament.[1]
3.4
The committee is aware of the risks to aviation safety associated with
the fatigue of staff working long hours and was concerned by any
inconsistencies that may exist in the management of fatigue between foreign
based cabin crew and Australian based cabin crew operating on Australian
flights.
3.5
The relationship between Qantas' overseas subsidiaries and its
Australian based operations was another key aspect of the inquiry as the committee
examined the implications of the Qantas Sale Amendment Bill's for Qantas'
obligations under the Qantas Sale Act 1992.
3.6
The impact on the Australian economy and on Qantas' workforce and
customers caused by the grounding of the Qantas fleet 29 October 2011 became an
important development during the inquiry. As a result, the committee considered
these issues in terms of the broad context within which the Qantas Sale
Amendment Bill would operate if enacted.
3.7
While the committee was mindful that these issues need to be addressed,
it is of the view that the bills before the inquiry are flawed in a number of
respects and are not the appropriate mechanisms for achieving positive outcomes
for the aviation industry and its workforce.
3.8
The committee is concerned that the Aircraft Crew Bill is extra-territorial
in its scope and would be difficult to enforce in practice because of this.
3.9
The committee accepts the evidence provided by some submitters that the
Aircraft Crew Bill has the potential to be unduly restrictive on the operations
of Australian airlines in foreign markets. Given the highly competitive nature
of the aviation industry, the committee is of the view that the consequences of
the bill in this respect would be detrimental to Australia's international
aviation operators.
3.10
The committee is of the view that the Civil Aviation Act 1988 and
the Air Navigation Act 1920 are not the appropriate legislative instruments
for regulating the workplace relations of employers and employees in the
aviation industry. It accepts the evidence provided by CASA that this would
have undesirable implications for CASA as the body that would administer the
amendments and that it could have negative implications for the aviation
industry as a result. This would include an inappropriate and unnecessarily
complicated linkage between AOCs and the conduct of workplace relations
negotiations or the settlement of workplace relations disputes.
3.11
Furthermore, the committee is of the view that CASA already has
appropriate mechanisms to manage safety issues in the aviation industry (such
as fatigue) that may arise from workplace relations practices. The committee
recognises the work undertaken by CASA and the existing regulations regarding
fatigue management. It also notes the continued development of the fatigue
management project by CASA in parallel with the International Civil Aviation
Organization.
3.12
The committee urges CASA to accord this project a high priority and
ensure the timely implementation of these fatigue management standards. The
committee is of the view that issues of fatigue are more appropriately managed
on this basis rather than through the legislative changes proposed by the bill.
3.13
The Qantas Sale Amendment Bill relates to a number of issues that the committee
considered in relation to Qantas' structure and planned business strategy. The
grounding of the entire Qantas fleet as part of industrial action during the
inquiry highlighted some of the issues relevant to the bill, including job
security and the off-shoring of Qantas facilities.
3.14
However, the committee is mindful that in attempting to address these
concerns the Qantas Sale Amendment Bill is inappropriately restrictive on
Qantas and would risk reducing its competiveness in a difficult industry.
3.15
The committee is also concerned that there could be significant practical
difficulties arising from the bill requiring changes to Qantas' articles of
association. The bill does not address the need for Qantas shareholders to
accept the changes to Qantas' constitution that would be required by the
changes to the articles of association. In addition, the committee is concerned
that there is a risk that clauses 5 and 6 of the bill, regarding the
applications for Court injunctions, could be used against Qantas by various
small groups of shareholders with vastly different motives.
3.16
The committee is of the view that both bills include a number of key
terms that are ambiguous and therefore may have unintended consequences if
enacted. This includes terms which are not clearly defined in the bill and do
not have a generally accepted single meaning. However, some members of the
committee note that some difficulties may be able to be resolved, either by
refining the primary legislation or providing expanded definitions in the
regulations.
Draft amendments proposed by Senator
Xenophon
3.17
As part of the inquiry the committee agreed to consider draft amendments
to both bills put forward by Senator Xenophon and called for public comment on
these additional amendments.[2]
3.18
The proposed amendments to the Qantas Sale Amendment Bill focus on the definitions
of 'associated entity' and 'exercising Australian rights' and therefore seek to
clarify the intent of the bill and restrict its scope with respect to some of
Qantas' foreign operations. However, the committee is of the view that this
does little to address a number of the concerns regarding the bill outlined
above. In particular, the committee remains mindful of the potentially adverse
effects of the bill on Qantas' ability to conduct business in a competitive
manner in overseas markets and may restrict those bodies covered by the draft
amendments to being essentially domestic operations.
3.19
The proposed changes to the Aircraft Crew Bill would remove workplace
relations issues from the bill's amendments to the Air Navigation Act 1920
and the Civil Aviation Act 1988 and proposed changes to the Fair Work
Act 2009. The committee recognises that these changes address a major
criticism of the original bill that the Air Navigation Act 1920 and the Civil
Aviation Act 1988 are not appropriate legislative instruments for
addressing workplace relations issues.
3.20
The changes included in the new proposed amendments to the Civil
Aviation Act 1988 regarding the implementation of fatigue management
systems are problematic and not supported by the committee. While the committee
is still mindful of the importance of managing fatigue to maintain aviation
safety standards it is of the view that the legislative prescriptions outlined
by the proposed amendments are not the appropriate avenue for this.
3.21
However, the committee remains concerned with the issue of pay and
conditions of foreign-based employees on the domestic legs of flights that are
'tagged' as international services. The committee received evidence from the
Department of Education, Employment and Workplace relations regarding a level
of ambiguity about the extent of the coverage offered by the Fair Work Act
2009 and the relevant modern awards for work carried out by foreign-based
employees on Australian domestic flights. The committee considers that these
provisions would benefit from further examination.
Recommendation 3
3.22
The committee recommends that the relevant government authority examines
the application of the Fair Work Act 2009, and the relevant modern
awards, for work carried out by foreign-based employees on Australian domestic
flights (particularly the domestic legs of international flights) in order to
clarify how the current regulatory regime applies to these workers and whether
any legislative changes are required.
Recommendation 4
3.23
The committee recommends that the Air Navigation and Civil Aviation
Amendment (Aircraft Crew) Bill 2011 not be passed.
Recommendation 5
3.24
The committee recommends that the Qantas Sale Amendment (Still Call
Australia Home) Bill 2011 not be passed.
Senator Glenn Sterle
Chair
Navigation: Previous Page | Contents | Next Page