Keith
With the greatest of respect it is you that are barking up the wrong tree.
The BOOT applies
only to Enterprise Agreements made since the FWA was introduced and to EBAs made under the WR Act during the FWA bridging period as defined in the transitional provisions legislation. The legislation absolutely does not require or suggest that the BOOT should be applied to agreements made under the WR Act.
It is this fundamental misunderstanding of the Act that you do not seem to be grasping. I would encourage you to personally read both the Act and particularly the transitional provisions legislation and the wealth of information available on the internet on this very subject. If you want to be sure that you are talking fact then you should do the research yourself instead of listening to, and being pursuaded by others who quite obviously have a fundamental misunderstanding of the requirements of the Act. For a union that represents a large number of members this is very disturbing as these guys should be the smartest in the room when it comes to the requirements of this Act.
The transitional provisions legislation classifies all existing EBAs as 'transitional instruments' and more particularly 'agreement based transitional instruments' and calls for all existing EBAs signed prior to 1/1/09 to remain in force. There is an exception to this in relation to Base Rate of Pay and complying with the NES which i will cover later. To verify the correctness of this statement that i have made I would encourage you to go onto the FWA website and look up Schedule 3 of the Fair Work (Transitional Provisions & Consequential Amendments) Act 2009.
The following is extracted from an article written by Professor Andrew Stewart and was published in the Piper Alderman publication Employment Matters, March 2009. It summarises the legal situation of tge Jetstar EBA. (my bolding)
Status of old agreements
Any agreement-based transitional instrument that is in operation when the FW Act commences will continue in force, until terminated or replaced. This covers a collective agreement, certified agreement, workplace determination, s 170MX award, Australian Workplace Agreement (AWA) or ITEA made under the WR Act, as well as a preserved State agreement or an old IR agreement.
Such agreements do not just apply to the original parties, but to any new employees who fall within their coverage.
There is no sunset or ‘drop dead’ date for agreement-based transitional instruments – except those involving a non-national system employer, which cannot operate beyond 27 March 2011.
The permissible content of any old agreement is generally determined by whatever ‘content rules’ applied immediately before the commencement of the FW Act. Hence, for example, any workplace agreement made between 27 March 2006 and 30 June 2009 will remain subject to the ‘prohibited content’ rules in s 356 of the WR Act.
However, where an agreement confers any function or power on the AIRC, for example in relation to dispute resolution, the agreement will be taken to refer to FWA instead.
Old agreements will also generally be subject to whatever ‘interaction rules’ applied before the commencement of the FW Act, in determining whether it prevails or has priority over some other transitional instrument.
Modern awards will be generally be inapplicable while an old agreement remains in force. The main exception here is a pre-reform certified agreement (ie, a collective agreement made under the WR Act prior to Work Choices). This can operate alongside a modern award, though it will prevail over the award to the extent of any inconsistency.
[bold]As with EAs made under the FW Act, the basic rates of pay set by an old agreement cannot be less than the minimum rates set by a modern award or a national minimum wage order.[bold] If that requires a significant wage increase as from 1 January 2010 that would threaten the viability of a business, the employer can apply to FWA to phase in the increase.
Old agreements, like other transitional instruments, can generally be enforced under the compliance provisions in Part 4-1 of the FW Act. But no injunction can be granted by a court to restrain a breach of a transitional instrument.
Keith, you also make reference to the cadet agreement. Again, read it, carefully, and you will see that when read in conjunction with the FlexiLine agreement in does not stack up as you suggest.
The flexi line deal is a part time policy with 75% availability (working 15 days per month instead of 20).
....and a threshold of 56 flight hours per roster period after which Extra Flying Allowance (EFA) is paid according to the provisions of the EBA. You casually left that bit out!!!
As far as the cadets are concerned the $56k is not a payment for 56 flight hours per month as the flexi-line agreement and you suggest, it is a minimum payment to undertake all flight hours as directed by management within the 15 duty days. The flexi line agreement clearly requires a pro rata calculation to be made by dividing the $56k by 12months and then by 75flighthours. The result is then multiplied by 56flighthours to determine the new salary under flexi line.
Using the stated pro-rata calculation, A Cadets adjusted base salary under flexi line is $42,468 for working 56 flight hours. In order to qualify for the minimum payment provided for under the seperate cadet agreement they must work all additional duties as directed.
If you think the cadets will be paid 56k for flying 56 hours per month you are even more niave than i thought and you should read the documents, your comments on here suggest to me that you have not done so up to this point. Once you have read the documents you will clearly see that your calculations to demonstate equality between the JFO rate and the modern award are fundamentally flawed!!
Spot the JQ management slight of hand? Flight hours are the basis of pro-rata for salary then duty days are the pro-rata for when you have to work and not flight hours!!! WTF. At least that is what is written!!
Finally, the FWA definition of Base Rate of Pay does not allow the inclusion of allowances, bonuses and such like so these cannot be considered when drawing a comparison between the base rate of pay under the Jetstar EBA and the Modern Award.
Keith, i have no problem with you calling me mischevious but please only do so when you can present an argument that shows this to be case. So far you have failed to do this.
The fact that Lawrie has not responded to my previous post perhaps shows that there may be truth and fact in what i am saying. If the information you have posted is straight from the AFAP party line then let Lawrie fight his own battles and be held to account when the truth comes out. After all it is his job to be accountable to the membership for allowing AFAP to be hoodwinked by JQ managment. The best he can do now is not to bury his head in the sand and use the legislation to sort this situation out.
More to Follow
The Kelpie
Ps. Regarding the extinguishing of the cadet funding agreement - refer to clause 16.5 of the Air Pilots Award under which they were working for Jetstar Group prior to being taken under the EBA recently!!! It should have gone when they started with Jetstar Group. Do not even start the argument that this was a concession given by Jetstar Management.