Keith
I do not consider that I have provided an academic's thesis on any subject, I have simply referred to the Fair Work Act, the transitional provisions legislation and the other documents being discussed and presented the facts laid before me.
You said:
You have provided an academic’s thesis on the subject, which is nice and comfortable in academia, but a commissioner he isn’t and ultimately that is what counts in the real world.
Are you suggesting that the Commissioner has a free rein to determine as he sees fit or is it not, certainly in this case, that he simply has to determine on the correct application of the Act?
Firstly, the Air Pilots Award provides for a base pay of $81,781. This rate of pay is for a full time pilot. The award describes the full time pilot as one who’s “ordinary hours of work must not average more than 38 hours per week.” The generally accepted application of a 38hr week is 5 work days and 2 days off (refer 24.6). So here is where I sharpen my pencil. 5 workdays per week equates to 260 workdays per annum. NOTE – Public holidays are provided for within the Award annual leave of 42 days AND the minimum wage (refer 31.1 of the award). Cadets are provided with 42 days of Annual Leave. Cadets ALL work 15 days per month, which equates to 180 workdays per annum. The cadet is working 69.2% of a full time equivalent pilot as prescribed by the award (refer 11.4). 69.2% of the Award rate is $56,617. So we don’t need to get into a hollow argument over the transition arrangements when the Cadets base pay ($57,118 and $58,831 in 2012) is above the Air Pilots Award. The figures look even healthier when you consider that the Annual Leave HAS NOT been prorated under the Jetstar deal.
Where did this calculation get dreamt up from? - And you say I invent things!!
This is another argument all together, albeit I accept it is connected to the discussion in hand as it may provide one method of pro-rata to the minimum wage stipulated by the Modern Award, so I will endulge you in debate on this occasion.
Whilst in the normal working world a 38 hour week is generally regarded as 5 working days and 2 days off (the traditional 9 'til 5), both you and I know that this is not true of the life of a pilot. Clause 24.6 does not prescribe this working pattern it simply states that a normal roster period will comprise of 5 working days and 2 days off, it does not say that a pilot must work on each or all of those days. Practically for various reasons a pilot does not necessarily work this pattern and the actual pattern is generally determined by flight time limitations and company operational requirements.
The fact of the matter is that there are no stipulations as to the pattern of work, the number of duty hours that a pilot must work, or indeed flying hours that a pilot must fly in the Modern Award.
The fact is that there only exists limitations which cannot be exceeded, an average of 38 hours per week in the case of duty hours as provided for in the NES and 900 flying hours per year (together with the progressive totals) stipulated by CAO48.1.
The Jetstar EBA through Clause 23.1.1 suggests that a Full Time Pilot's salary as detailed in Clause 25.1 of the Jetstar EBA is based upon 900 flying hours per annum, the maximum allowed under CAO48.1 Flight Time limitations (without the Jetstar exemption issued by CASA). This would be the same 900 hour flight time limitation prescribed by the Award. I would suggest that it is more appropriate to use the commonality of flight time between the agreements as the basis for the pro-rata. Indeed it is exactly this method that the Jetstar EBA uses to establish the salary applicable to a part-time or job share pilot so it must be valid. In the interest of comparing apples with apples I would suggest the commissioner would see that this is a reasonable assertion to make despite the possibility that he or she is not an academic.
BS. Your argument regarding flight hours are plain wrong and deceptive. A flexi line employee (all cadets are flexi line) is a part time employee with reduced availability. What additional duties are permitted under the EBA? Can they be directed to work on duty free days or days off? NO!
Let me try to clarify what I meant. The flexi-line agreement provides for a reduced availability only as a direct result of the initial company requirement to offer contracts that guaranteed only a proportion of the full time credit hours in a given roster period which in turn, through the mechanism provided in the EBA, would lead to a reduced level of remuneration compared to a full time employee. The reduced availability in physical time was demanded as a secondary consideration by AFAP, and is in the same proportion to ensure the true part-time operation of the contract was preserved and to ensure it was not a full time role simply working less hours and being paid less.
What is actually happenning is the converse to that feared by AFAP in that the company is rostering cadets for a higher number of flight hours on the reduced number of available days (allowed due to roster flight hours being notional only), ie. a lesser number of longer duty periods but still within the reduced physical time provided for by the flexi-line agreement. The cadets must work these longer duty periods comprising more flight time as a condition to qualify for the minimum salary payment, clause 11 of the cadet agreement states (my bolding):
11. The Minimum Remuneration will only apply where the Cadet undertakes all duties as directed and the Cadet remains employed by JQA. The Minimum Remuneration will be pro rated in the event that a Cadet takes unpaid leave.
This is where the slight of hand takes place, and I feel you just aint getting it:
IF Jetstar roster the cadets for 56 hours flying per month for a year then the cadets WILL be paid the minimum salary of $57,118. THAT IS WHAT IS WRITTEN IN THE AGREEMENT THAT WAS STRUCK FOR THE CADETS!!
At last we agree on something!! Jetstar will pay a cadet as you have stated but only as a result of the minimum remuneration clause in the cadet contract. Unfortunately, as stated above what is actually happenning is that the company is rostering cadets for more than 56 hours per roster period but this does not necessarily lead to an increase in monthly salary payment. In fact they are actually being rostered for at least the full-time equivalent hours in each roster period.
This leads me on quite nicely to the next matter you wished to debate:
Where is your EVIDENCE that the cadets will be paid less than $57,118. Your pro-rated $42,468 salary is utter tosh and has no basis in any agreement. You have invented this amount to back up your argument.
I never said that the cadet would be paid less than $57,118 per annum, what I said was that a Cadet's adjusted base salary, (note, not minimum salary) under flexi line is $42,468 for working 56 flight hours and that in order to qualify for this to be topped up to the minimum payment provided for under the seperate cadet agreement they must work all additional duties as directed. Hopefully the remainder of this post will illustrate what I mean.
The following is taken directly from the Flexi-Line agreement:
1.1.2. Monthly base salary will be as defined by Subclause 25.1 of the Jetstar Airways Pilots Agreement 2008 (‘Agreement’) and will be calculated by dividing the relevant fulltime Pilot’s base salary by 12 months then dividing by 75 Credit Hours then multiplying that figure by 56 Credit Hours.
1.1.3. All hours worked in a Roster Period greater than 56, where there is no Annual Leave in that Roster Period, will be paid in accordance with Paragraph 25.5.1 of the Agreement (i.e., Annual Salary / 787.0).
1.1.3.1. For example, if a FL Pilot performs 77 Credit Hours in a Roster Period and there is no Annual Leave in the Roster Period, the Pilot will receive the following:
Credit Hours 0-56 = Base Salary divided 12 months divided 75 credit hours multiplied by 56 Credit Hours; and
Credit Hours greater than 56 will be paid in accordance with Paragraph 25.5.1 of the Agreement (i.e., Annual Salary / 787.0 multiplied by 21 Credit Hours (77 Credit Hours minus 56 Credit Hours = 21 Credit Hours).
1.1.4. If a Pilot performs less than 56 Credit Hours per Roster Period, Jetstar will pay the Pilot for a guaranteed minimum of 56 Credit Hours per Roster Period.
For illustration purposes lets work through the example quoted in the actual agreement using the benefit of an actual cadet roster of 75 flying hours (900 hours per year or the full time equivalent) in a given roster period:
Credit Hours 0-56 = $57,188 divided 12 months divided 75 credit hours multiplied by 56 Credit Hours; $3,559 per month or $42,468 per year
Credit Hours greater than 56 will be paid in accordance with Paragraph 25.5.1 of the Agreement (i.e., $57,188 / 787.0 multiplied by 19 Credit Hours (75 Credit Hours minus 56 Credit Hours = 19 Credit Hours); $1,381 per month or $16,572 per year.
Total annual salary for the cadet rostered and working 75 flying hours per month (Full Time Equivalent)= 12 x ($3,559+$1,381) = $59,280.
The salary determined by the Modern Award as a direct comparison to the example given above is by your reckoning $81,781. Difference $22,501.
if you think you have a case then go test it in front of a commissioner.
In the legal profession we call this 'fortressing', it is usually seen where a lawyer believes his client's position is under attack and is in danger of crumbling. A lawyer will shut down, cease introducing new argument, put up the barricades and try and pass the buck to a third party. I am disappointed that our little debate has resulted in such a tactic.
Finally to a bit of unfinished business:
Can you answer my question from the first post?
Quote:
WHAT IMPENDING FEDERAL COURT ACTION IS AIPA TALKING ABOUT???
Sorry cannot help there, like I said previously you are are barking up the wrong tree!!
More to follow
The Kelpie