1 Fair Work Act 2009 s 234 - Application for an intractable bargaining declaration Network Aviation Pty Ltd as Trustee for The Network Trust Trading AS Network Aviation Australia v Australian Federation of Air Pilots, Australian and International Pilots Association, Transport Workers’ Union of Australia (B2024/91) DEPUTY PRESIDENT BEAUMONT DEPUTY PRESIDENT O’KEEFFE COMMISSIONER LIM PERTH, 12 AUGUST 2025 Application for an intractable bargaining declaration; workplace determination TABLE OF CONTENTS 1 Introduction and outcome ............................................................................................... 4 2 Background ....................................................................................................................... 7 2.1 Network’s evidence ............................................................................................... 12 2.1.1 Bartlett ....................................................................................................................... 12 2.1.2 Hosegood ................................................................................................................... 24 2.1.3 Verner ........................................................................................................................ 30 2.2 Evidence of the Unions .......................................................................................... 33 2.2.1 Williamson ................................................................................................................ 34 3 Statutory Framework .................................................................................................... 35 4 Section 275 matters ........................................................................................................ 38 4.1 Section 275(a) – merits .......................................................................................... 39 4.2 Section 275(c) - the interests of the employer and employees .............................. 39 4.3 Section 275(ca) - the significance of any arrangements of benefits in the 2016 Agreement ........................................................................................................................ 41 4.4 Section 275(d) - the public interest ........................................................................ 41 4.5 How productivity might be improved for Network (s 275(e)) .............................. 42 4.6 The reasonableness of bargaining representative’s conduct in bargaining (s 275(f)) 44 Network’s conduct ..................................................................................................................... 45 [2025] FWCFB 176 [Note: a correction has been issued to this document] REASONS FOR DECISION [2025] FWCFB 176 2 The Unions’ conduct ................................................................................................................. 49 4.7 Whether the bargaining representatives complied with the GFB requirements (s 275(g)) .......................................................................................................................... 54 4.8 Incentives to continue to bargain at a later time (s 275(h)) ................................... 54 5 Terms that deal with the matters at issue .................................................................... 54 5.1 No Reserve Period, the two hours sign on and issues with the BOOT .................. 55 5.1.1 Reserve period and the BOOT .................................................................................. 61 5.1.1.1 Background ........................................................................................................... 61 5.1.1.2 Network’s position ................................................................................................ 65 5.1.1.3 The AFAP’s position ............................................................................................ 70 5.1.1.4 Consideration ........................................................................................................ 72 5.2 No 0400hrs starts after days off ............................................................................. 76 5.3 Business class duty travel ...................................................................................... 82 5.4 DHA rate and Low Experience First Officer Rate ................................................. 84 5.5 Low Hour First Officer Rate .................................................................................. 87 5.6 Additional hourly payment .................................................................................... 89 5.7 10 RDOs per roster period ..................................................................................... 96 5.8 Revised rostering provisions ................................................................................ 103 (a) A pilot activated from reserve will be issued with a shift start time, a destination (or destinations) and a shift finish time. In lieu of this information, the pilot will be released from duty. ............................................................................................................................ 108 (b) Each roster shall specify in detail each pilot’s designated days off, duty days and duty periods, reserve duty days and periods designated free of all duty and leave periods. ...... 109 (c) A pilot will not be rostered greater than 38 hours of duty per week unless by agreement. For the purpose of this calculation, duty includes all work required by the pilot to the employer, inclusive of reserve in a Monday – Sunday period. ............................................ 109 (d) Any known or anticipated delays in departure from home base, in excess of two hours, will be clearly communicated to the pilot at the earliest opportunity. ................................ 110 (e) When a reserve period commences before 0600 hours or terminates after 1700 hours, it shall not exceed 8 hours in duration. .................................................................................. 110 (f) No pilot is to be contacted during a mandatory rest period which immediately precedes a tour of duty. ......................................................................................................................... 110 (g) The company will aim to reduce unwarranted or excessive reserve coverage. Data on reserve coverage, allocations and activations will be provided to the PWG with the goal of streamlining reserves. ......................................................................................................... 110 (h) A Pilot may fly privately provided this does not compromise their ability to fly for Network Aviation or impact compliance with its Fatigue Risk Management system. A Pilot cannot fly for hire or reward unless they have obtained prior approval from Network Aviation. .............................................................................................................................. 111 5.9 Salary rates and backpay ...................................................................................... 112 [2025] FWCFB 176 3 5.9.1 Network ................................................................................................................... 115 5.9.2 AFAP ....................................................................................................................... 117 5.9.3 AIPA ........................................................................................................................ 118 5.9.4 TWU ........................................................................................................................ 119 5.9.5 Consideration ........................................................................................................... 120 6 Disposition ..................................................................................................................... 122 Annexure 1 – Network Aviation’s proposed Network Aviation Pilots Workplace Determination 2024 .............................................................................................................. 125 Annexure 2 –Workplace Determination 2025 ................................................................... 166 Annexure 3 – Salaries Tables .............................................................................................. 206 [2025] FWCFB 176 4 1 Introduction and outcome [1] On 5 February 2024, Network Aviation Pty Ltd as Trustee for The Network Trust T/A Network Aviation Australia (Network) applied for an intractable bargaining declaration (intractable bargaining declaration/declaration) pursuant to s 234 of the Fair Work Act 2009 (Cth) (Act) in respect of the bargaining with the Australian Federation of Air Pilots (AFAP), the Australian and International Pilots Association (AIPA) and the Transport Workers’ Union of Australia (TWU) (collectively the Unions) for the proposed Network Aviation Pilots Enterprise Agreement 2023 (proposed agreement). [2] Network is headquartered in Perth, Western Australia, and forms part of the Qantas Group. It is a wholly owned subsidiary of Qantas Airways Limited (QAL).1 It employs approximately 260 pilots in the roles of Captains and First Officers. It also employs cabin crew, aircraft engineers and head office employees in flight operations, human resources, sales, and safety roles.2 [3] Through its operation of F100 and A320 aircraft, Network provides a mix of air transport services to the public and closed air charter services to private clients.3 Those same planes and flights are QantasLink branded.4 [4] Approximately 60% of Network’s operations are said to be closed charter services for the resources industry and its fly-in-fly-out (FIFO) workforces.5 However, we acknowledge that the percentage of operations dedicated to closed charter services, was a point of contention during proceedings. The public cannot purchase tickets on these closed charter services. The remaining 40% of its air transport services are said to be flights available for booking by the public (regular public transport or RPT). A significant portion of this capacity is purportedly filled by other private clients booking seats for their FIFO workforces.6 Of Network’s private clients, approximately 60% are said to be drawn from the mining industry (iron ore), 10% from mining gold and other metals, and 30% from the oil and gas industry.7 [5] In relation to Network’s FIFO services, it services twenty routes, many of which are to remote mining sites. These routes can be serviced by either Network’s Airbus A320-200 or the Fokker 100 aircraft.8 However, the routes are unable to be serviced by other aircraft in the Qantas Group such as the Boeing 737-800.9 [6] Bargaining had been on foot between Network and its pilots since 2019. Although, the COVID-19 pandemic gave rise to a hiatus in bargaining during the period of early 2020 to September 2022. [7] Since the COVID-19 pandemic, the Qantas Group’s financial results have been very good,10 to the extent that it has been communicated by the Group that there have been record profits.11 [8] Perhaps obvious to note, bargaining between the parties did not culminate in an enterprise agreement being made. On 15 March 2024, having received the application under s 234 of the Act, the Commission made an intractable bargaining declaration that was accompanied by an order giving effect to the declaration and specifying a post-declaration negotiating period.12 [2025] FWCFB 176 5 [9] The post-declaration negotiating period started on 15 March 2024 and ended on 28 March 2024. The matter remained unresolved at the end of that period and, as no order for a further post-declaration negotiating period was made,13 it fell upon the Commission to make an intractable bargaining workplace determination (workplace determination or determination) ‘as quickly as possible’ under s 269 of the Act. [10] As to a workplace determination, the Act requires that it must include certain terms. These include the ‘core terms’ set out in s 272,14 the ‘mandatory terms’ set out in s 273,15 terms that the Commission considers ‘deal with the matters that were still at issue’ at either the time of the intractable bargaining declaration or, if there was a post-declaration negotiating period under s 235A, the end of that period,16 and the ‘agreed terms’ as provided for by s 274.17 [11] On 12 July 2024, the Full Bench as currently constituted, handed down its decision on the ‘Agreed Terms’ for the purposes of ss 270(2) and 274(3) of the Act (Agreed Terms Decision).18 We found there to be Agreed Terms, as had been contended by Network, the AIPA and the TWU. Attached to the Agreed Terms Decision, at Attachment A, were the Agreed Terms as set out in the ‘22 December Proposed Agreement’ (as commonly referred to by the parties), with the exception of those matters that were still at issue – listed at Attachment B of the Agreed Terms Decision. [12] The Act requires that the terms that have been agreed between the parties must be included in the workplace determination. It follows that the Agreed Terms will be included in the final workplace determination which we will make. However, at this point it is relevant to also note that within the Agreed Terms were certain ‘core terms’ and ‘mandatory terms’. In respect of the core terms, these included, by the operation of s 272(2) of the Act, a nominal expiry date which must not be more than four years after the date on which the determination comes into operation. There was agreement between the parties that the nominal expiry date would be 14 October 2027 as seen at clause 3 of the workplace determination. [13] Regarding the mandatory terms, that is terms about settling disputes, flexibility and consultation, they also formed part of the Agreed Terms. Network correctly notes that by operation of s 273(6), the workplace determination must include a delegates’ rights term – a term that was agreed. Insofar as the mandatory, core and Agreed Terms comply with legislative requirements, we consider that to be the case. [14] There were, however, multiple matters at issue at the relevant time, as detailed below: Claim Bargaining Representative Workplace Determination clause 1. Two hour sign on AFAP N/A proposed new clause 20.6.3 2. No 4:00AM starts after days off AFAP 20.1.4 3. Business class duty travel AFAP N/A – proposed new clause (possibly in 9.27.1) 4. DHA (Duty Hour Allowance) rate AFAP, Network 10.6, Schedule 1 [2025] FWCFB 176 6 5. Overtime rate AFAP, AIPA, TWU, Network 10.8.5 6. 10 days off per roster period AFAP, AIPA, TWU, 20.1.1 7. Revised rostering provisions AFAP, TWU 20 8. Low Experience First Officer rate / Low Hour First Officer rate AIPA 10.3, 10.4 9. Improvements to salary tables Network 10.1-10.4 10. Backpay Network 10.1, 10.2 11. RDO provisions Network 20.1 [15] During the course of proceedings, the parties have each filed a number of draft workplace determinations, setting out their respective positions in relation to the wide range of issues which were subject to dispute during the bargaining period. [16] Essentially, we have adopted the draft workplace determination of Network (see Annexure 1) (Network draft determination) – but have made several amendments including to the two hours sign on, ‘overtime rate’, Low Experience First Officer rate (removed) and the provision of backpay. Further, it has proved necessary to address an issue arising in respect of ‘reserve periods’, which has, regrettably, extended the timeframe concerning the publication of the determination. [17] A ‘Reserve Period’ had been defined in the Network draft determination to mean ‘a period of time during which a pilot is required to be available and contactable for duties but is not performing duties’. This definition of the term ‘Reserve Period’ had initially appeared somewhat uncontroversial. That is, during negotiations for the multiple proposed agreements and through the course of several hearings in respect of Network’s application for an intractable bargaining declaration, the definition of a ‘Reserve Period’ had not proved contentious or been an issue in dispute. [18] It was generally understood that a pilot is not on ‘duty’ during a ‘Reserve Period’.19 That is a ‘Reserve Period’ and a ‘Duty Period’ referred to different concepts, as had been evident in the Network draft determination.20 [19] However, in April 2025, prior to the publication of the workplace determination and reasons accompanying it, the Full Court of the Federal Court of Australia handed down its judgment in Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots (Corporate Air),21 which considered whether ‘stand-by’ (a term equivalent to a ‘reserve period’) under the Air Pilots Award 202022 (the Award) constituted work and, if it did, whether it was paid work. At paragraph [49] of the judgment, the Full Court concluded that the text, context and purpose of the Award supported a conclusion that rostered stand-by duty is work under the Award.23 It further held that the maximum number of hours per week under the Award was 38 hours, and rostered stand-by hours worked beyond the minimum number of hours must be remunerated.24 [2025] FWCFB 176 7 [20] Having already conducted a hearing over several days commencing in early October 2024, we nevertheless considered it appropriate to hold a further hearing on 23 June 2025, in light of the Corporate Air judgment and its implications, if any, for the determination. Following the hearing, the parties submitted further materials, modelling and submissions to assist the Commission with its evaluation of whether the workplace determination would pass the better off overall test (BOOT) in light of the treatment of reserve periods under the Award. At paragraphs [267] to [333] of this decision, we provide our detailed reasons regarding the treatment of the ‘reserve periods’ under the determination and our reasons for our conclusion that the determination, located at Annexure 2 of our reasons, passes the BOOT. [21] We further observe that, in its closing submissions at the hearing on 3 October 2024, the AFAP filed written closing submissions and asked that its prior written submissions of 8 September 2024 and 23 September 2024, be disregarded.25 Whilst we have honoured that request, we simply note that at times the evidence of Mr Aikens, Senior Industrial Officer of the AFAP, which we have considered at length, overlapped with that which was included in those written submissions. 2 Background [22] We provided a comprehensive history of the bargaining between the parties in our Agreed Terms Decision and, therefore, do not intend to repeat what was written there, noting that we rely upon it in full. [23] We do, however, consider it necessary to provide further context in respect of Network’s operations – whether provided by Network’s witnesses or those of the Unions. The reason for doing so is twofold. First, there are matters in issue that will invariably interact with, or otherwise impact upon, Network’s operations. Second, the parties, in addressing the matters in issue, have referred in detail to Network’s operations and to those of other airlines who they consider to be, or not to be, industrial comparators. Presumedly, the parties’ purpose for drawing upon such detail is to address s 275 of the Act, and to support their contention of what constitutes an appropriate resolution for a matter in issue, when one considers Network’s operations, that of the Qantas Group more broadly, and the aviation industry generally. [24] Whilst levelling no criticism toward the parties, we were confronted with a large body of evidence, with the initial Digital Hearing Book amounting to some 3853 pages and a second Digital Hearing Book of 438 pages and other subsequent materials addressing issues concerning the BOOT. Consequently, it has been neither possible nor desirable to report the evidence of each witness. However, an assumption that all the evidence has not been considered if not referred to specifically in our reasons, would be misconceived. In arriving at the workplace determination issued, we have considered the evidence of the witnesses listed in the following table. For ease of reading, we have opted to reference only the surname of witnesses in our reasons – with the exception of those witnesses that share the same surname. Witness Position Witness Statement Exhibit Digital Hearing Book Required for XXM Network Aviation Witnesses Evan Bartlett General Manager Flight Witness Statement of Evan Bartlett – A3 DHB pp 410-59 Yes [2025] FWCFB 176 8 Witness Position Witness Statement Exhibit Digital Hearing Book Required for XXM Operations and Chief Pilot 23 February 2024 Witness Statement of Evan Bartlett in Reply –11 March 2024 A4 DHB pp 468-76 Statement of Evan Bartlet as to Agreed Terms – 17 April 2024 A5 DHB pp 496-502 Witness Statement of Evan Bartlett – 6 September 2024 A6 DHB pp 595-640 Witness Statement of Evan Bartlett in Reply – 23 September 2024 A7 DHB pg. 712-869 Ian Hosegood Executive Manager Health and Safety Witness Statement of Evan Bartlett – 5 May 2025 A1-2025 2025 DHB pp 24–29 Yes Ian Verner Senior Manager Line Operations seconded to National Jet Systems Witness Statement of Evan Bartlett – 23 May 2025 A2-2025 2025 DHB pp 52–66 Yes AFAP Witnesses Ian Hosegood Ian Verner Chris Aikens Executive Manager Health and Safety Witness Statement of Ian Hosegood – 20 September 2024 A12 DHB pp 693-705 Yes Yes Yes Senior Manager Line Operations seconded to National Jet Systems Witness Statement of Ian Verner – 23 September 2024 A11 DHB pp 870-7 [2025] FWCFB 176 9 Witness Position Witness Statement Exhibit Digital Hearing Book Required for XXM Senior Industrial Officer Witness Statement of Chris Aikens – 7 March 2024 DHB pp 930-1023 Witness Statement of Chris Aikens – 17 April 2024 DHB pp 1035-60 Witness Statement of Chris Aikens – 17 April 2024 RAFAP1 DHB pp 1139-46 Matthew Atkinson First Officer Network Witness Statement of Chris Aikens – 6 September 2024 RAFAP2 DHB pp 1165-95 Clayton Bateman Captain Airbus A320 Witness Statement of Chris Aikens – 23 September 2024 RAFAP3 DHB pp 2802-10 Katie Bateman Captain Airbus A320 Witness Statement of Chris Aikens – 5 May 2025 AFAP1-2025 2025 DHB pp 160-3 Michael Crain Training Captain Witness Statement of Chris Aikens – 23 May 2025 AFAP2-2025 2025 DHB pp 165-8 Matthew Atkinson First Officer Network Witness Statement of Matthew Atkinson – 6 September 2024 RAFAP18 DHB pp 1268-74 Clayton Bateman Captain Airbus A320 Witness Statement of Clayton Bateman – 6 September 2024 RAFAP17 DHB pp 1287-92 Katie Bateman Captain Airbus A320 Witness Statement of Katie Bateman – 6 September 2024 RAFAP16 DHB pp 1308-13 Michael Crain Training Captain Witness Statement of RAFAP23 DHB pp 1328-31 [2025] FWCFB 176 10 Witness Position Witness Statement Exhibit Digital Hearing Book Required for XXM Michael Crain – 6 September 2024 Louie Elias Miha Hace Captain Airbus A320 Witness Statement of Louie Elias – 6 September 2024 RAFAP24 DHB pp 1337-41 Training Captain Witness Statement of Miha Hace – 6 September 2024 RAFAP19 DHB pp 1352-5 Andrew Kehoe Sasha Leavy Captain Witness Statement of Andrew Kehoe – 6 September 2024 RAFAP20 DHB pp 1370-2 Captain Airbus A320 Witness Statement of Sasha Leavy – 6 September 2024 RAFAP12 DHB pp 1375-7 Simon Lutton Executive Director of the AFAP Witness Statement of Simon Lutton – 6 September 2024 RAFAP9 DHB pp 1378-83 Yes Justin Royce Second Witness Statement of Simon Lutton – 25 September 2024 RAFAP10 DHB pp 2814-5 Stephen Maughan Captain Airbus A320 Witness Statement of Stephen Maughan – 6 September 2024 RAFAP5 DHB pp 1414-21 Yes Joshua Sheldon First Officer A320 Second Witness Statement of Stephen Maughan – 23 September 2024 RAFAP6 DHB pp 2795- 2801 [2025] FWCFB 176 11 Witness Position Witness Statement Exhibit Digital Hearing Book Required for XXM Jackson Smith First Officer A320 Third Witness Statement of Stephen Maughan – 5 May 2023 RAFAP3-2025 2025 DHB pp 165-8 Harley Wells Captain Airbus A320 Fourth Witness Statement of Stephen Maughan – 23 May 2023 RAFAP4-2025 2025 DHB pp 185-95 Ben Reid Justin Royce Captain Airbus A320 First Officer A320 Witness Statement of Ben Reid – 6 September 2024 RAFAP11 DHB pp 1454-8 Witness Statement of Justin Royce – 6 September 2024 RAFAP22 DHB pp 1458-64 AIPA Witnesses Sean Schofield Joshua Sheldon Captain Airbus A320 Witness Statement of Sean Schofield – 6 September 2024 RAFAP21 DHB pp 1486-9 First Officer A320 Witness Statement of Joshua Sheldon – 6 September 2024 RAFAP15 DHB pp 1490-3 TWU Witnesses Jackson Smith Harley Wells First Officer A320 Witness Statement of Jackson Smith – 6 September 2024 RAFAP14 DHB pp 1502-4 Captain Airbus A320 Witness Statement of Harley Wells – 6 September 2024 RAFAP13 DHB pp 1505-7 Professor Ann Williamso n Report of Professor Ann Williamson – 1 September 2024 RAFAP7 DHB pp 1507-19 Yes Supplementary Report of RAFAP8 Not in DHB [2025] FWCFB 176 12 Witness Position Witness Statement Exhibit Digital Hearing Book Required for XXM Professor Ann Williamson – 25 September 2024 [25] The background in this part is predominantly drawn from the evidence of Network’s witnesses. We have chosen this approach because we considered that Bartlett, Hosegood and Verner had an intimate first-hand knowledge of Network’s operations, those of other airlines within the Qantas Group, and some comparators. However, we have also considered it appropriate to provide an abridged account of Williamson’s evidence. Williamson, having been called to give evidence on behalf of AFAP, addressed the management of pilots’ fatigue and lifestyle measures. [26] When it comes to examining each matter in issue we have taken a more forensic approach, extracting passages from the evidence of multiple witnesses that we consider critical to the workplace determination. Again, at times, for the sake of brevity (albeit we are acutely aware of the length of our reasons), we have seen fit to refer to evidence in the form of footnote only. 2.1 Network’s evidence [27] Bartlett, the General Manager Flight Operations and Chief Pilot, provided the mainstay of Network’s evidence. As the person responsible for the overall safety and delivery of flight operations under the Network Aviation Operator’s Certificate,26 his selection as a key witness by the airline, is unremarkable. He was an impressive witness, having had an extensive history in aviation generally. We considered him forthright in his evidence, he acknowledged when his knowledge was lacking, and demonstrated no tendency to descend into a superfluous domain or emotive assertion. [28] Hosegood similarly presented as an adept professional with particular expertise in aviation and health – his resume in the medical and medical aviation field sufficient to make any lay person feel decidedly inadequate. While these reasons do not permit detailed record of his storied experience and various qualifications, we have briefly traversed them when outlining some of his evidence. [29] Finally, insofar as ‘Network’ employees are concerned, Network called Verner. Verner commenced with QAL in 2004 and, at the time of drafting his witness statement, was the Senior Manager Line Operations – seconded to National Jet Systems (NJS). Verner said that he had held his current role since 10 July 2023 and prior to this had held a similar role in which he was responsible for the operational management and supervision of all pilots and support services across Eastern Australia Airlines Pty Limited (Eastern) and Sunstate Airlines (Qld) Pty Limited (Sunstate).27 Again, Verner struck us as well positioned to speak to the matters traversed in his evidence, given his experience working in the Qantas Group. 2.1.1 Bartlett [2025] FWCFB 176 13 [30] According to Bartlett the aviation market is highly competitive, particularly in charter operations. Network is said to have several competitors, namely: (a) National Jet Express; (b) Alliance Airlines; (c) Airnorth; (d) Nexus Airlines; (e) Regional Express; and (f) Virgin Australia Regional Airlines (VARA).28 [31] In respect of Network’s competitors, Bartlett was asked in cross examination by Mr Bakri, Counsel for the AFAP, whether the airlines he had referred to were comparable to Network.29 Mr Bakri specifically observed that at paragraph [54] of Bartlett’s witness statement dated 6 September 2024, Bartlett had only referred to Network’s competitors in charter operations, namely VARA, National Jet Express, Alliance Airlines and Airnorth – none of whom were RPT.30 Bartlett disagreed, noting that VARA conducted RPT services and Alliance Airlines conducted RPT services for different entities.31 [32] Mr Bakri took Bartlett to the evidence of Maughan who had undertaken an analysis of the percentage of Network flights that were RPT and asked Bartlett whether the summary was accurate. [33] It is relevant to note at this point that Maughan is an Airbus A320 Captain at Network having worked in the Qantas Group for approximately ten years (inclusive of episodes working for Sunstate, Eastern and Network).32 Maughan’s analysis is recorded as follows: (a) Roster 10 Analysis (2024): An analysis of Roster 10 (2024) reveals that captains from both fleet types were assigned 1,170 duties within the specified ranges. The breakdown shows that 61.8% of these flights were 'Scheduled,' while 38.2% were 'Charter.' (b) Roster 9 Analysis (2024): Similarly, an analysis of Roster 9 (2024) shows that captains from both fleet types had 1,184 duties falling within the two specified ranges. The distribution indicates that 66.8% of these flights were 'Scheduled' and 33.2% were 'Charter. (c) Roster 8 Analysis (2024): In the analysis of Roster 8 (2024), captains from both fleet types were involved in 1,198 duties within the defined flight number ranges. The results indicate that 65.5% were 'Scheduled' and 34.5% were 'Charter.'33 [34] Maughan’s evidence was that whilst Bartlett had claimed that 50% of Network’s flying was composed of closed charters, the figure appeared inconsistent with the data provided to the Roster Working Group (RWG).34 [35] Maughan explained that Network regularly shared group rosters with the RWG, which detailed all planned flying activities for a 28-day period. Additionally, the company provided a document to all pilots that distinguished between 'Scheduled' and 'Charter' flights, specifying that flights numbered QF1600-QF1859 are 'Scheduled,' while QF2700-QF2999 are classified as 'Charter.' Maughan said he had analysed rosters for group rosters 8, 9 and 10 of 2024. [36] Bartlett admitted that Maughan’s summary was correct based on flight numbers.35 However, in his witness statement, Bartlett stated that identifying the nature of the flying (whether it is a charter or RPT service) was not merely a matter of looking at flight numbers and determining whether they are categorised as scheduled RPT or charter FIFO flying.36 Bartlett continued that in the context of Network’s operations, looking at whether a flight was a charter or RPT service was not a useful indicator as to whether the flight hours were longer or shorter. This was because a significant portion of the capacity on RPT services were filled by private clients booking seats for their FIFO workforces, and those flights were travelling to [2025] FWCFB 176 14 similar locations (if not the same locations) as charter flights.37 Bartlett gave the example that Network operated RPT and charter services from Perth to Newman and Perth to Paraburdoo. [37] Bartlett further disclosed that whilst the demand for charter services had continued to increase since 2022, Network was limited in its ability to offer clients closed charter services. This, said Bartlett, was because the Western Australian Government had imposed restrictions on the number of closed charter services that could operate on routes that were also regulated RPT air routes.38 Bartlett again said Network operated a number of services which were categorised as RPT flights, but a significant portion of the capacity on those flights was filled by Network’s closed charter clients booking seats for their FIFO workforces.39 Bartlett said these clients had contractual arrangements in place regarding seat pricing and minimum bookings, therefore seats on these RPT services were not priced and sold in the same way as leisure travel RPT services, where demand played a more significant role in pricing.40 [38] Turning to other airlines, Mr Bakri questioned Bartlett about the operations of Airnorth, proposing that the aircraft used by Airnorth were very different to those of Network.41 Bartlett did not accept that proposition, noting that whilst Airnorth used a range of Embraer 120s, which were very different to Network, it also operated ERJ 170s, a 76-passenger, single-aisle jet which operated on routes not dissimilar to those of Network, and it had E190s.42 However, Bartlett accepted that the size of the planes at Airnorth was not equivalent to the A320.43 [39] In response to questions during cross examination concerning VARA aircraft, Bartlett gave evidence that VARA had a mix of Fokker Aircraft, a fleet of A320 aircraft, and had just announced the purchase of eight new E195s.44 Bartlett noted that when he worked for VARA, the RPT work of VARA was a balanced split, and all that he could say was that he was aware that VARA currently operated closed charter and RPT.45 [40] Regarding overtime for VARA pilots, Bartlett, when asked, acknowledged that he understood that the overtime trigger for pilots was 57.5 hours, and it was an additional rate that was supplied for flight hours above that.46 Bartlett added: I might just, you know, highlight the term 'overtime' is synonymous with people working above the normal rostered maximum, and the purpose of the additional hours payment that is applied in what we're discussing is about recognising there is an average that the pilots will work, and there is a desire – even though the flight hours are lower than would be experienced elsewhere – the basis is providing a reward and recognition to those that do fly above the average.47 [41] In addition, it was proposed to Bartlett in cross examination that even after the workplace determination: a) the VARA overtime trigger would remain lower than the Network overtime trigger, which Bartlett acknowledged was correct;48 and b) VARA pilots would earn more money from overtime than Network pilots, which Bartlett acknowledged would be the case based on the hours flown and the additional hours payment.49 [42] Mr Bakri proposed to Bartlett that in respect of Network’s RPT operations, relevant competitor airlines included Jetstar, VARA and Qantas short haul. Bartlett did not agree with the proposition that those airlines were direct competitors because, for example, Network did [2025] FWCFB 176 15 not compete with Jetstar in the markets in which Jetstar was operating (leisure travel markets).50 However, Bartlett accepted that VARA, in relation to RPT, was a relevant competitor, ‘on some routes’.51 [43] Turning to Network’s cost base, Bartlett stated that the need to maintain a sustainable cost base was something he had raised with pilots.52 He voiced that increases to the cost of any enterprise agreement (presumedly increases other than those contemplated by Network’s own draft determination) would risk making the airline uncompetitive.53 Bartlett noted that unsustainable costs would mean that Network would be unable to submit competitive tenders and would, in addition, present a challenge to Network’s ability to grow the business and provide job opportunities.54 [44] Bartlett emphasised that increases to the total cost of terms and conditions of Network’s pilots, or additional restrictions on the flexibility of deployment, would have the effect of increasing the total operating cost of the aircraft and in turn, would make the services less competitive.55 [45] Bartlett explained that charter contracts were typically multi-year arrangements (up to five years), and a significant shift (beyond what was agreed) in Network’s labour costs would change the economics of flying the existing long-term contracts.56 On this point, Bartlett spoke of existing long term contracts being serviced at a lower margin, and at the time of renewal of the contract, Network may be in a position where its tender is uncompetitive.57 [46] Reflecting on the nature of Network’s operations (particularly in respect of FIFO workforces in the mining industry), Bartlett said that the demand was cyclical and dependent on commodity prices, with Network having a particularly high exposure to iron ore.58 Bartlett stated that when commodity prices fall, capital expenditure can reduce and demand can fall away, resulting in aircraft capacity oversupply and dropping market prices.59 This, said Bartlett, triggered reduced market pricing particularly in RPT. [47] In respect to the tendering process, Bartlett referred to his attendance at resourcing and commercial meetings at which Network’s tenders for work and the results of those tenders were discussed. As a result of his attendance at those meetings and from his discussions with Dean Howarth, a member of Network’s Commercial and Sales Team, Bartlett understood that since January 2023, Network had submitted five tenders for closed air charter services to private clients and was successful in one.60 Regarding the other four tenders, they had been won by Alliance Airlines (two tenders), NJS and VARA. In addition, Network had lost a contract to another airline in May 2022, to provide charter services to AngloGold Ashanti. [48] Bartlett further explained that the normal process for charter operations is that a client seeks proposals from tenderers and therefore proposals are submitted in a cost competitive environment. Bartlett expressed that this was different to competing for RPT in, for example, leisure markets, where supply and demand and yield management were significant drivers for individual seat pricing.61 Bartlett noted that increases to Network’s cost base substantially above those of competitors, would place Network into a position where it was operating on reduced margins and/or submitting uncompetitive tenders (assuming that operators were seeking broadly similar expected levels of return). [2025] FWCFB 176 16 [49] Bartlett’s evidence on market factors was not limited to the commercial reality of competitive tendering processes as noted above, he also highlighted the material differences between Network’s operations and those of Qantas mainline and Jetstar, in addition to competitors. He outlined that Network’s services and operations were materially different to those of other operators, including those in the Qantas Group (including Jetstar) and its competitors,62 which therefore impacted upon the remunerative and operational terms that Network could responsibly agree to for its pilots. Examples of such differences included that Network pilots: (a) typically flew early mornings and afternoons; (b) undertook minimal overnighting; (c) had shorter flight sectors (typically flying two sectors with lower average flight times a day, and normally no more than four sectors); and (d) had lower average annual flight hours but could have longer duty hours.63 [50] In respect to the differences outlined at points (c) and (d), Network clarified that pilots working for other operators could fly more hours largely due to the sector lengths and pairings applied to a more complex route network, and as a result of the lower flight hours, the hourly cost of flying was substantially higher on a per flight hour rate compared to other parts of the Qantas Group.64 [51] In his evidence, Elias, a witness for the AFAP, gave evidence on the factors that he considered distinguished Network’s operations from those of other airlines. We have included his evidence at this part to provide context for Bartlett’s response to the same. [52] At paragraph [15] of Elias’ witness statement, he referred to his role at Network being harder, more challenging and exhausting when compared to Mainline/Jetstar team members.65 He spoke particularly to his experiences that included dealing with: (a) no weather/lack of information at aerodromes; (b) lack of company support (for example during diversion); (c) lack of airport infrastructure such as lighting/correct water dispersion (Ginbata on a dark night and Newman before grooving); (d) an outsourced ground services team that disregarded policies and promoted ‘SOP’ divergence; (e) uncontrolled airspace containing a high volume of general aviation traffic (low time pilots); (f) extreme weather conditions; (g) storms that were vertically restricted in size to 20,000 but hold the same energy potential as storms that are over 40,000 high; (h) temperatures over 40 degrees; (i) varying wind conditions; (j) Perth identified as one of the windiest airports in the world; (k) high potential for windshear and missed approaches; (l) visual approaches; (m) two to four sectors per day involving multiple take-offs and landings; (n) challenging approaches to aerodromes that have short and narrow runways, incorrectly designed/maintained; and (o) 30m wide runways are at the minimum widths, and Network and VARA are the only operators globally that fly to airports with this minimum.66 [53] Bartlett’s response to Elias’ evidence was essentially disagreement. Reiterating that Network pilots typically undertake less flight hours than Mainline Qantas and Jetstar pilots and that Network flights involved predominantly morning departures, Bartlett emphasised that Network’s Fatigue Risk Management System (FRMS), which we traverse in greater detail at paragraphs [65] to [107], provided protections to manage fatigue, including limitations on the number of sectors and hours worked.67 [2025] FWCFB 176 17 [54] Responding to some of the individual factors in Elias’ evidence, Bartlett clarified: (a) Qantas Mainline and Jetstar pilots can and do operate in conditions of low visibility (visibility less than 550 metres), whereas Network pilots do not undertake activities in these conditions;68 (b) some aerodromes do lack infrastructure such as lighting – however, in all cases there were appropriate operational restrictions or risk mitigation measures to ensure the operation remains safe, and in the case of a runway without lighting, there was a prohibition on any operations occurring after last light;69 (c) Network did not utilise an ‘outsourced ground services team that disregards policies and promotes SOP divergence’, as the provision of ground services was facilitated under agreements by Qantas and monthly updates were provided to multiple safety forums – where safety and compliance reports were reviewed;70 (d) Network operated in an uncontrolled airspace but there were multiple examples of aerodromes that had much higher levels of general aviation traffic with lower experienced pilots, particularly on the East Coast of Australia; (e) Network operated in areas that can be impacted by extreme weather conditions, but such conditions were not any more extreme than those experienced in other Group airlines;71 (f) while physical dimensions can change from aerodrome to aerodrome, all entities operated under the same aircraft performance requirements for take-off and landing, which included performance safety margins regulated by Civil Aviation Safety Authority (CASA) and supported with performance data from the aircraft manufacturer;72 (g) Network did not operate from ‘incorrectly designed/maintained runways’;73 and (h) 30 metre runway operations were supported with performance data from aircraft manufacturers - utilised worldwide by many operators – within the Qantas Group other operations are also conducted on 30 metre runways, including Ballina where Jetstar operates scheduled services.74 [55] Bartlett acknowledged that Network promoted itself on the basis that the employment it offered pilots had lifestyle benefits. Bartlett distilled those benefits into three. First, Network pilots had lower flight hours.75 Second, because of the nature of the flying (most commonly same day return trips, two sectors), the pilots spent less time away from home base on overnights when compared to other airlines.76 Third, save the one exception, Network pilots did not perform ‘back of clock’ flying (flying late at night).77 [56] Regarding the exception to the ‘back of clock’ flying, Bartlett noted that Network rosters an aircraft on the ground reserve (AOG).78 That is, a flight crew is rostered on reserve in order to be able to respond and recover passengers in the event of breakdown on site.79 For many of the ports that Network services, there are minimal accommodation options available, and therefore Network has an aircraft and crew available to be able to respond so that those passengers can be returned to Perth.80 The AOG is rostered seven days per week but is only called out occasionally.81 [57] Bartlett added that Network is centred in Perth, from which its RPT and FIFO charter services operate. In comparison, other operators such as Qantas and Jetstar had a much broader footprint around Australia. The mainline pilots that fly routes for Qantas and Jetstar, have, [2025] FWCFB 176 18 according to Bartlett, a much broader range of flying across Australia and overseas, and as a consequence have higher flight hours because they can fly longer and multiple sectors (on average, twice those flown by Network pilots) given the high frequency of routes that they service, and the broader footprint resulting in longer flights.82 [58] Concerning flight hours, Bartlett stated that Network pilots typically have around an average of nine ‘flight hours’ (being the time from when the aircraft begins to move under its own power, to when it stops moving under its own power) a week for Captains, and around four to five flight hours for First Officers, which is approximately 40% lower than other Qantas group entities.83 [59] Expanding upon this point further, Bartlett noted that during the ‘town halls’ conducted as part of the access period for various ballots, he presented to pilots a presentation where he compared the flight hours of Network and Jetstar pilots and provided high-level information regarding the different flying activity and remuneration which included the following:84 NAA A320 First Officers fly 55% of JQ Comparison NAA A320 Captains fly 54% of JQ Comparison [60] In his witness statement in reply, Bartlett noted that having identified in his previous witness statement that the flying activity performed by Network pilots was generally low, he acknowledged that it did fluctuate based on growth, changes in client requirements, training activities and the movement of pilots.85 Referring to a pilot ‘KPI Productivity Report’ for the period roster 11 in 2022, Bartlett stated that the report demonstrated in respect of ‘stick hours’ (flight hours) over the preceding 13 roster periods (each of 28 days duration) that: (a) the A320 Captains with the highest level of flight hours had approximately 75 flight hours per month (average of 3.75 flight hours per day with eight RDOs) – with a peak of 80 flight hours. The average was approximately 30 flight hours per month (average of 1.5 flight hours per day). The A320 First Officers with the highest levels of flight hours had approximately 65 flight hours per month (approximately 3.25 flight hours per day) – with a peak of about 70 flight hours. However, the average for the A320 First Officers was 35 flight hours (1.75 per day);86 and ADL 15-Oct % HR JQ FO An. Hrs $/Hr NAA FO An Hrs $/Hr 0-1 Yr 138203.9 701 $197.15 Commence 141714 388 $ 365.24 185% 1-5 Yr 143745.8 701 $205.06 Year 3 145965 388 $ 376.20 183% >5 155725.7 701 $222.15 Year 5 150344 388 $ 387.48 174% 155725.7 701 222.1479 Year 7 154854 388 $ 399.11 180% ADL 15-Oct JQ Capt An Hrs $/Hr NAA An Hrs $/Hr 239577 726 $ 330.00 0-1 218674 395 $ 553.61 168% 239577 726 $ 330.00 3 Yr 225234 395 $ 570.21 173% 239577 726 $ 330.00 5 Yr 231991 395 $ 587.32 178% 239577 726 $ 330.00 7 Yr 238951 395 $ 604.94 183% 239577 726 $ 330.00 10 Yr 246120 395 $ 623.09 189% [2025] FWCFB 176 19 (b) the F100 Captains with the highest levels of flight hours were performing approximately 65 per month (average 3.25 per day) – with a peak of about 70 flight hours. The average was approximately 35 flight hours per month (average of 1.75 flight hours per day). The F100 First Officers with the highest levels of flight hours were performing approximately 65 flight hours per month (approximately 3.25 flight hours per day). The average was approximately 35 flight hours (1.75 per day).87 [61] Barlett noted that in the last six months there had been an increase in the flying hours of pilots, particularly the A320 Captains.88 Bartlett attributed this increase to higher levels of attrition, with pilots leaving to take employment with MinRes Air. The increase therefore was not due to higher levels of flying activity or a change in the nature of flying, said Bartlett. However, he noted that the increase in flight hours was not expected to continue and that the data for the roster period ’20, 2024’ (part of which had been projected based on rosters) showed that flight hours were starting to decline (Annexure EB-11 of Bartlett’s reply statement sets out this evidence).89 Bartlett said that an increase in recruitment activity to increase headcount, along with schedule variations, had contributed to the decline in flight hours.90 [62] Returning to Annexure EB-11 of Bartlett’s reply statement, this was a ‘KPI Productivity Report’ for the roster period ‘10 2023 to roster period 10 2024’ (which concluded on 6 October 2024), Bartlett gave evidence that the report revealed the following in respect of the A320: (a) there was an increase in stick hours for Captains and First Officers particularly from the roster period 5 2024 however this had started to decline; (b) the Captains with the highest levels of flight hours were performing approximately 70 flight hours per month (average of 3.5 flight hours per day with 8 RDOs); (c) the average flight hours for a Captain and a First Officer were approximately 35 per month (average of 1.75 per day); and (d) the First Officers with the highest levels of flight hours were performing approximately 60 flight hours per month (average 3 flight hours per day with 8 RDOS).91 [63] The same report identified the following in respect to the F100: (a) the Captains with the highest levels of flight hours were performing approximately 65 flight hours per month (average 3.25 flight hours per day); (b) the average flight hours for a Captain were approximately 35 per month (average 1.75 per day); (c) the First Officers with the highest levels of flight hours were performing approximately 50 flight hours per month (average 2.5 flight hours per day); and (d) the average flight hours for a First Officer were approximately 30 per month (average of 1.5 per day).92 [64] Whilst Network relied heavily on the evidence of Hosegood, Executive Manager Safety and Health, in respect of Network’s approach to safety and its fatigue management of its pilot workforce, Bartlett who, within his role, assumed responsibility for safety, gave the following evidence. [2025] FWCFB 176 20 [65] Network has responsibilities for fatigue management as a holder of an Air Operator’s Certificate (AOC).93 Network has a FRMS, which is approved by the CASA.94 The FRMS is said to reflect the Civil Aviation Order (CAO). CAO 48.1 requires AOC holders to operate in accordance with one or more appendices to CAO 48.1. Pursuant to Appendix 7 of CAO 48.1, an AOC holder can apply to CASA for approval of an FRMS.95 In all cases, there is a trial period before full implementation. As noted in the evidence of Hosegood, which we traverse at paragraphs [83]–[107], Network’s FRMS is in a trial period.96 [66] Bartlett detailed that Appendix 1 to CAO 48.1, sets out basic fatigue limits, and that there were several other appendices that prescribe requirements for other operators. [67] Bartlett stated that the FRMS was developed in consultation with CASA prior to his employment commencing with Network.97 That same FRMS had been developed having regard to Appendix 7 requirements, and the specific fatigue-related risks for Network, taking account the nature of its operations and flying.98 [68] According to Bartlett, the FRMS recognises that fatigue is a risk that needs to be managed. However, it is tolerant of fatigue, premised on the reality that some level of fatigue is unavoidable, so elimination is not the objective.99 The systems in the FRMS were in place to ensure that fatigue is appropriately identified and managed, consistent with Network’s commitment to safety.100 [69] As part of the trial period the FRMS is reviewed on an ongoing basis, and these reviews are said to involve CASA representatives. Bartlett noted that in early 2024 the AFAP wrote to CASA expressing concerns about the governance and oversight of safety-related matters at Network.101 This occurred, said Bartlett, at a time when there was ongoing protected industrial action (work stoppages) by Network pilots, and there was substantial strain placed on Network's resources as a result.102 CASA wrote to Network about the AFAP's letter on 8 March 2024.103 [70] Bartlett said that around this time a review of the FRMS was undertaken by CASA, with Hosegood involved in the review.104 Correspondence passed between Network and CASA in March and April 2024, to the extent that CASA confirmed to Network that based on the assurances provided by Network, it had no safety concerns.105 [71] It is uncontroversial that CAO 48.1 Appendix 2 addresses flight duty limits. The limitation on flight hours in a 28-day period is 100 hours, with a limitation on duty hours of 60 hours in seven consecutive calendar days.106 [72] Bartlett stated that one of the Agreed Terms was that hours of work would be determined in accordance with the FRMS (see also clause 8.1.2(c) of the 2016 Agreement and clause 9.1.2(c) of the agreement that had been put to the vote in February 2024 (29 February Proposed Agreement).107 [73] Bartlett explained that, on average, the rostered duty hours for Network pilots are approximately 23 hours per week. This can, however, fluctuate depending on flying activity. In addition, Network rosters 106 reserve periods per week on the A320 and 88 per week on the F100. As a result, pilots can be rostered approximately six reserve periods of up to 12 hours maximum, per roster period. However, on average, the rostered duty hours for Network pilots [2025] FWCFB 176 21 are approximately 23 hours per week. This may fluctuate depending on flying activity. 108 Bartlett stated that a ‘Reserve Period’ did not count as duty.109 A pilot is on duty when they are activated from reserve and complete duties.110 [74] CAO 48.1 refers to ‘standby’ rather than ‘reserve’, and defines standby as a period of time during which a flight crew member: (a) is required by an AOC (air operator’s certificate) holder to hold herself or himself available for duties; and (b) has access to suitable sleeping accommodation; and (c) is free from all duties associated with his or her employment.111 [75] Evidence was given by several Network pilots in respect of their flying hours. In response to Royce’s evidence that he had flown approximately 670 hours in the last 12 months, Bartlett agreed with that figure, noting, however, that in 2023 Mr Royce had completed 567 flight hours in the 12-month period (approximately 43.6 flight hours per roster period or slightly over two flight hours per day).112 [76] In terms of Network’s client requirements, Bartlett gave evidence that client requirements favoured a dedicated fleet and operation for charter and mining RPT services, and that roster swings of clients typically resulted in demand mid-week (Tuesday to Thursday) and minimal demand on the weekend.113 [77] Turning to the terms that Network had offered pilots (and which Network said it was prepared to include in a workplace determination), Bartlett stated that they were, on an overall basis, highly competitive when considered against those afforded to pilots employed by Network’s biggest competitors.114 It was proposed to Bartlett in cross examination that the evidence he had given regarding the competitiveness of Network’s proposed terms did not account for the different overtime arrangements between the various airlines. Bartlett confirmed that his evidence at paragraph [54] of his witness statement dated 6 September 2024 provided base rates.115 [78] In respect of Bartlett’s evidence at paragraph [54] of his witness statement dated 6 September, he gave the following comparison of terms:116 Issue NAA Proposed Agreement Vara National Jet Express Alliance Airlines Airnorth Base salary A320/A319 Captain $218,674.62 $246,120.21 A320/A319 FO $141,714.04 $154,854.76 F100/E190 Captain A320 Captain117 $206,732.72 $231,152.82 A320 FO $131,244.49 $150,248.70 F100 Captain 146 and EJET Captain118 $218,560.70 Q400 Captain $162, 693.60 FO 146 & EJET Captain119 $155,563.26 FO $106,949.74 (increased for CPI from September 2021) EJET Captain120 $205,000.00 EJET FO $125,000.00 EMB120 Captain [2025] FWCFB 176 22 Issue NAA Proposed Agreement Vara National Jet Express Alliance Airlines Airnorth $198,466.10 $223,375.35 F100/E190 FO $129,276.76 $141,714.04 $193,824.50 $193,824.50 F100FO $126,245.32 $124,560.00 $142,375.40 FO Q400 $89,881.32 $106,061.80 Pilots also receive WA retention bonus ($19,455.41 for Captains $14,043.90 for First Officers). Also adjusted for CPI from September 2021 $125,000.00 EMB FO $85,000.00 RDOs (per roster period) 9 RDOs 4 blocks of 2 RDOs or 3 blocks of 2 RDOs and 3 single RDOs121 9 RDOs consisting of 3 periods of 2 consecutive days and 1 period of 3 consecutive days; or 10 RDOs consisting of 4 periods of 2 consecutive days plus 2 separate days.122 8 RDOs123 Average of 8 RDOs. Minimum of 7 in each roster period provided 24 RDOs are in any 3 consecutive roster periods.124 Overtime triggers Tier 1 – 59 flight hours Tier 2 – 75 hours 57.5 hours125 60 hours126 57 flight hours127 Productivity pay: 50 flight hours Overtime: 152 duty time hours128 DHA $10.93 for Captains and $7.11 for First Officers per duty hour N/A N/A (Duty Time Allowance) payable only for hours in excess of 135 duty hours in a monthly N/A N/A [2025] FWCFB 176 23 Issue NAA Proposed Agreement Vara National Jet Express Alliance Airlines Airnorth roster period129 [79] Regarding the RDOs that VARA pilots received, Bartlett observed that in their statements, Lucas (at paragraph 38) and Aikens (at paragraph 76) had said that VARA pilots receive 12 designated days off (DDOs) pursuant to clause 102 of the Virgin Australia Regional Airlines Pilots’ Enterprise Agreement 2022130 (VARA EA). Bartlett, who one may recall had previously worked for VARA, noted that the VARA EA was divided into three parts, Part A ‘General Provisions’, Part B, provisions that apply to all VARA pilots other than 737 pilots, and Part C which applied to VARA Boeing 737 pilots. Bartlett observed that the 12 DDOs applied only to B737 pilots and that the Part C conditions were not an appropriate comparator for Network’s operations, given Network’s significantly greater focus on charter flying and fleet of F100 and A320 aircraft.131 Bartlett explained that VARA has a fleet of only three F100s (Network has 15) and seven A320s (Network has 15, and 3 A319 aircraft). Whilst the A320 and B737 are similar sized aircraft, VARA pilots flying a B737 operate under the Virgin Australia AOC and can be required to fly anywhere in the Virgin Australia network with other Virgin Australia pilots (i.e. a significantly broader footprint of flying than that undertaken by Network). [80] Returning to the establishment of rosters and their interaction with fatigue, Bartlett explained that bio-mathematical fatigue modelling had been used by Network as part of the predictive (pairing and roster build), proactive (planning pre-operational rosters) and reactive fatigue hazard identification (actual/post operational roster and identified areas of concern). [81] According to Bartlett, the FRMS provided a number of mechanisms that could be initiated by pilots where they have concerns about fatiguing duties (from the point of publishing a roster) or when they have experienced fatigue such that they feel unfit to perform or continue a duty. An abridged version of Bartlett’s evidence on this point is as follows: (a) under the FRMS, pilots may initiate a roster review, for example, once the roster is published and a pilot has concerns that it may cause fatigue issues – where this roster review is initiated, the roster is reviewed by members of the Safety and FRMS team (and is run through bio-mathematical modelling); (b) pilots are able to submit fatigue reports, safety issues and hazards through ‘Intelex’ – a safety reporting system. Pilots are, in addition, encouraged to report any fatigue events during the onboarding process, at pilot town halls and at Fatigue Safety Action Group meetings. FRMS encourages pilots to submit fatigue safety reports in certain circumstances (e.g. a period of duty not commenced or not completed due to fatigue). An example of a fatigue report was included in the witness statement of Elias; and (c) the FRMS requires all fatigue related occurrences to be the subject of an assessment in accordance with the FRMS. This involves a weekly review of fatigue reports by the Flight Operations Weekly Safety Tracking Meeting and a review at the Fatigue Safety Action Group established under the FRMS and attended by Line Operations Management, Safety and pilot representatives.132 [2025] FWCFB 176 24 [82] Bartlett provided an example of the FRMS being revised following fatigue reports and analysis. He explained that the FRMS previously provided that the ‘AOG reserve roster periods’ could commence at 1500hrs. There were some occasions where the crew needed to complete late night recoveries and did not sign off until approximately 0400hrs, after which time the crew reported a level of fatigue being experienced. A review was undertaken and the FRMS was revised to provide that the maximum duty period a pilot would be rostered from commencement of the ‘AOG reserve’, was 12 hours. It followed that the AOG reserve sign on time was changed to 1700hrs.133 2.1.2 Hosegood [83] Continuing with the topic of safety and fatigue, Hosegood holds the position of Executive Manager Safety and Health for QAL. He is responsible for oversight of all of the Qantas Group safety and health services, which provide safety and health services to the Qantas airline business, the Jetstar airline business, the associated airlines business (which includes regional airlines such as Network operating under the brand QantasLink), the Qantas Ground Services business and Qantas Freight. [84] Hosegood explained that the abovementioned services included the health and medical functions; occupational rehabilitation; workers’ compensation; safety programs and oversight; health and wellbeing; and work health and safety services. Hosegood said that up until January 2024, he had oversight of the Aviation Psychology and Human Factors team which provided the Qantas Group with subject matter expertise on Human Factors including fatigue management.134 [85] It was evident from Hosegood’s witness statement that he had extensive experience in aviation medicine. His qualifications and experience included: a) Medical Bachelor and Bachelor of Surgery (1990); b) Diploma in Aviation Medicine (UK) from the London Royal College of Physicians (1998); c) Postgraduate diploma in Occupational and Environmental Health from Monash University (2008); d) Fellowships: i. the Royal Australian College of General Practitioners (1996); ii. the Australasian College of Aerospace Medicine (2012); iii. the Royal Australasian College of Medical Administrators (2013); e) Chair of the International Air Transport Association (IATA) and Medical Advisor Group (IATA being a trade association for airlines -representing approximately 290 airlines around the world); f) Member of the IATA Fatigue Risk Management Task Force from 2012-2023; g) Board Member and Secretary for the Australasian Society of Aerospace Medicine and immediate past President of the International Airline Medical Association; and h) Associate Professor in Environmental Science at University of Queensland.135 [86] Hosegood noted, amongst other aspects of his experience, that between 2000 and 2006, he was employed by Emirates Airlines in various clinical teaching and research roles, including Vice President of Clinical Services.136 During this time he established the Emirates Airlines [2025] FWCFB 176 25 Fatigue Risk Management System, and provided fatigue subject matter expertise on the introduction of the long-haul aircrafts Airbus A340-500 and Airbus A380.137 [87] Between 2006 and 2009, Hosegood was employed in the position of Principal Medical Officer and Director of Aviation Medicine at CASA in Canberra.138 During this period he was a member of the International Civil Aviation Organisation Medical Provisions Study Group and provided CASA with subject matter expertise in the development and amendment of the regulations that would eventually enable FRMS to be established by Australian Airlines.139 [88] In 2009, Hosegood worked for the Royal Flying Doctor Service as General Manager of Health Services in Queensland and then in 2012 he joined the Qantas Group. Hosegood said that whilst working in the Qantas Group he had been intimately involved in the development of FRMS across the Group’s airlines.140 In addition, he had involvement with fatigue management studies conducted across the Qantas Group, which included partnerships with academic institutions such as Monash University and the Charles Perkins Centre. Hosegood added that he had been involved in the development of the fatigue risk management plans for Project Sunrise, which would eventually introduce and operate the world’s longest commercial flights. [89] As to the management of fatigue, Hosegood explained that a holder of an AOC, such as Network, is responsible for the management of fatigue-related risks.141 Hosegood gave evidence that in general, the CASA regulations support two distinct approaches for fatigue management: a) the AOC holder complies with prescriptive flight and duty time limits defined by CASA, and manages fatigue hazards using the SMS processes that are in place for managing other types of hazards (set out in Appendix 1 of CAO 48.1); or b) the AOC holder develops and implements a FRMS that is approved by CASA, having regard to the requirements of Appendix 7 of CAO 48.1142 [90] Network had adopted an FRMS, which was in its trial period. That is, CASA had issued an approval to Network to undergo a specified trial period in which Network was required to apply the processes set out in the FRMS, and CASA would monitor, review and assess Network’s FRMS implementation.143 [91] Whilst Hosegood provided a detailed explanation concerning the establishment and implementation of the FRMS, we have, for the sake of brevity, extracted the following from his evidence: a) FRMS is the primary framework of the measurement, management and monitoring of fatigue-related risk; b) it is based upon the systematic identification of workplace hazards relating to fatigue; c) a key component of the FRMS is the use of biomathematical fatigue modelling (BMM) – a digital tool that uses scientific algorithms based on fatigue science to predict likely levels of alertness or fatigue based on the planned or actual hours of work. BMM contains a circadian and homeostatic algorithm and calculates likely [2025] FWCFB 176 26 sleep obtained. Whilst the tools have limitations, they provide a relatively accurate prediction of ‘average’ fatigue across an individual duty or across a roster; d) the objective of FRMS is not to eliminate fatigue-related risk, but rather to manage fatigue-related risk, which is recognised as a risk which is experienced by all and which requires management; e) whilst not involved in the development of Network’s FRMS, Hosegood was involved in a review of the FRMS undertaken by CASA earlier in 2024, in the context of concerns raised by the AFAP about governance and the oversight of safety-related matters, in that fatigue-related risks were being satisfactorily monitored and addressed; and f) as part of his review of the FRMS, Hosegood said he was satisfied with the data and systems in place – and this was confirmed by the CASA CEO and in discussions between Network and CASA representatives.144 [92] Hosegood gave evidence that Network shared similar risks with other domestic operators in relation to fatigue, including: a) consecutive early starts; b) the presence of some ‘minimum rest periods’, where the rest between sectors is at the minimum required by the rule set; and c) transition from late starts to early starts or vice versa (having regard to shift sleeping patterns).145 [93] As to a higher level of fatigue risk, Hosegood referred to Network having some more severe environmental issues (heat) and split duties with non-flying time spent in an austere facility, for example, a donger at a mine site.146 However, that appeared to be balanced by what Hosegood described as Network’s lower fatigue-related risks (when compared with other Group airlines), including: a) the absence of time zone transitions; b) the predominance of day flying (in comparison to night flying); c) the predominance of pilots sleeping in their own bed (very few overnights); d) the relatively low block hours flown; and e) the low number of sectors flown per day. [94] Hosegood explained that Network’s flying activity tended to occur predominately on Monday to Friday and in two daily ‘waves’ with an early morning wave and an afternoon wave. Other than occasional specific duty travel, there was no real time zone crossing and there was no late-night flying. Hosegood said that this was very different to some other airlines in the Qantas Group. Hosegood said that Express Freighters and Qantas International have flights or patterns of flights that cross many time zones and may fly through the ‘back of clock’ (i.e. that they occupy the entire ‘window of circadian low’ period where an individual would normally sleep). [95] However, in respect to comparable domestic airlines, Hosegood stated that Network’s pilots generally fly a lot less hours.147 Hosegood gave an example concerning ‘block hours’ – that is the total duty hours flown.148 For Network, the average for a 28 day roster was 35-40 hours, whereas for the Qantas B737 domestic pilots, the average ranged from 65-72 hours.149 [2025] FWCFB 176 27 Hosegood noted further that because of the two waves, Network pilots flew fewer sectors per day (median of two) compared to QantasLink pilots (median of four).150 [96] Turning to roster arrangements, Hosegood’s evidence was that the Qantas Group used the same BMM tool to proactively assess rosters and that each airline reviewed rosters that had been flagged as potentially fatiguing - using thresholds or triggers that were determined in their FRMS.151 Hosegood said generally, Network had very few rosters flagged with alertness levels reaching the threshold of interest (where mitigation measures may be necessary) and no rosters that reached the ‘critical level’ (where fatigue-related safety risk is likely and a roster change is required).152 Expanding upon this point, Hosegood said that overall the Network BMM results showed lower predicted fatigue levels when compared with other Qantas Group airlines, such as Eastern and Sunstate.153 [97] Network’s rosters are said to be built to have 100% compliance with any ‘hard rule’ contained in the FRMS or an industrial instrument.154 ‘Soft rules’, said Hosegood, were able to be waived due to operational needs from time to time.155 As to what is meant by the term ‘soft rules’, Hosegood gave the following evidence pointing to a layered approach to fatigue management: The FRMS would tend to contain the fatigue management aspects and then there may be additional layers of restrictions placed above that, either through soft rules which are, you know, can either be incorporated with the FRMS or can be layered on top and then industrial rules after that. So they are augmented in that way, through additional layers of restrictions.156 [98] Hosegood spoke to the requirement for airlines to have flexibility in their day-to-day operations in respect of unplanned circumstances, such as delays, cancellations and crew illness. He noted that the FRMS had, built within it, flexibility to enable the operations to be safely completed with permissible extensions to hours of duty.157 Hosegood clarified that an extension would occur after suitable fatigue checks had been conducted and at the discretion of the operational Captain.158 [99] Hosegood had, at paragraph [59] of his witness statement, listed five scheduling related causes of fatigue, as referred to in an article by Bendak and Rashid, titled, ‘Fatigue in aviation: A systematic review of the literature’. This same article was it was traversed in the evidence of Williamson. [100] Regarding Williamson’s evidence, at paragraphs [127]–[131]) of this decision we refer to the evidence of Williamson in greater detail. Williamson is a scientist from the School of Aviation at the University of New South Wales, who holds a PhD in Behavioural Science and has researched the effects of fatigue on injury and safety. In Williamson’s report, she cited the article by Bendak and Rashid in support of assertions in her report including, at paragraph 8.3, the following: 8.3 Question 8. What if any, are the fatigue management benefits of the AFAP’s proposal in respect of the Second Issue? The AFAP proposal that an additional two RDO’s, rather than one, be added to each 28-day roster will have some benefits for fatigue management. Review of the published and actual roster work by a Network Aviation pilot, suggests a need to reduce the accumulation of fatigue [2025] FWCFB 176 28 across the 28-day roster. Evidence for accumulation of fatigue across the roster can be seen in the following: Out of the 28 shifts in the published roster, just over half (60.7%) were worked as scheduled, including the four pairs of RDO’s. Of the work shifts in the roster, most involved fewer hours of duty by 2 to 3 hours than in the published roster which might be expected to reduce fatigue risk. In contrast, however, three shifts in the actual roster involved longer than expected duty hours by between 3 to 6 hours which would be expected to increase fatigue risk compared to the published roster. Further, one shift in the actual roster involved the pilot calling a fatigue day which also indicates higher fatigue risk in the published roster than was expected. Lastly, the total duty hour actually worked by this pilot was also significantly longer by around 34 hours than expected from the published roster. This is likely to have increased the fatigue risk in the worked roster. Scheduling additional RDO time will reduce the duty time worked to that expected in the published roster so also reducing the risk in the overall roster, but this would not be achieved by a single additional RDO. The second additional RDO that will allow 10 RDO’s during the 28 day roster would come closer to achieving the total duty time intended in the published roster so achieving the level of fatigue management intended.159 [101] Hosegood stated that he was not aware of any evidence which supported Williamson's view that ‘[t]he AFAP proposal that an additional two RDO's, rather than one, be added to each 28-day roster will have some benefits for fatigue management’.160 [102] Regarding the five scheduling related causes of fatigue in the Bendak and Rashid article, Hosegood said he had reviewed this paper, which he observed had not identified a specific number of ‘days off’ or similar as an important factor in fatigue mitigation.161 Rather, it had identified five scheduling related causes of fatigue, being: (a) workday duration; (b) workday starting time; (c) available recovery time; (d) number of segments flown; and (e) other scheduling related-factors (see AFAP page 425).162 [103] Hosegood remarked that Network’s rosters were favourable for these factors, other than the earlier start times.163 [104] In cross examination, Mr Bakri took Hosegood to the five scheduling related causes of fatigue, highlighting that the third of those factors was ‘available recovery time’ and that he presumed this would include rostered days off. Hosegood clarified that any recovery time would be included but that in the article factor ‘c’ referred specifically to recovery time from time zone changes and acclimatisation.164 [105] When asked in cross examination whether he would agree with the general proposition that the more RDOs that a pilot had in a roster the more recovery that would be available to them, Hosegood acknowledged that any rest or non-working time would be recovery time, and that the RDO was a specific term, so he would not phrase it that way.165 Hosegood was further asked: [2025] FWCFB 176 29 I understand your opinion to be that it's not necessary, from a purely safety perspective, for the workplace determination to provide that there be 10 RDOs per 28-day period. But you would accept, wouldn't you, that if that entitlement was afforded to the pilots, as a result of this workplace determination process, that this would have some benefits for fatigue management?---It may or it may not. It could be that the lesser amount of RDOs is sufficient for fatigue recovery and therefore the additional RDOs would be providing a benefit to lifestyle and may not be benefitting or conferring a benefit in relation to safety. So I would partially agree with your statement because it may.166 [106] Regarding the rosters that had been provided to Williamson to review, Hosegood said that three were published and one was actually worked. Hosegood said that he had caused the actual and published rosters to be analysed through the BMM. This had revealed that none of the rosters exceeded the acceptable thresholds set in the FRMS, and while the rosters represented fatigue levels seen in Network rostering from time to time, they did not exceed acceptable limits.167 [107] With regard to Hosegood’s evidence in respect of the AFAP’s proposals concerning a limitation on signing on before 0600hrs after an RDO and having 10 days off within a 28-day rostering period, we touch on this further when considering in detail these particular matters in issue. [2025] FWCFB 176 30 2.1.3 Verner [108] One may recall that Verner had a lengthy history with QAL and at the time of drafting his witness statement was the Senior Manager Line Operations – seconded to NJS. Verner had held his current role since 10 July 2023. Prior to this he had been in a similar role where he was responsible for the operational management and supervision of all pilots and support services across Eastern and Sunstate.168 [109] Verner referred to paragraphs 37 and 38 of the witness statement of Lucas, a witness for the AIPA, and paragraphs 19 to 38 and 70 to 76 of the witness statement of Aikens, a key witness for the AFAP.169 [110] Lucas gave evidence at paragraphs 37 and 38 of his first witness statement dated 5 September 2024, in the following terms: 37. It is common practice across the companies within the Qantas Group to have a minimum of 10 rostered days off in each 28-day roster cycle. For instance, the following Qantas Group enterprise agreements contain the following terms: (a) Qantas Airways Limited Pilots (Short Haul) Enterprise Agreement 2020 (EBA8) at clause 33.1.1 - "Each pilot must receive at least ten (10) X days in each twenty-eight (28) day bid period." (b) Jetstar Airways Pilots' Enterprise Agreement 2019 at paragraph 46.4 - "Subject to clause 46.6 pilots will be rostered a minimum of 10 Designated Days Off in each of 6 roster periods and 11 Designated Days Off in the remaining 6 roster periods". (c) Eastern Australia Airlines Pty Limited Pilots Enterpriser Agreement 2023 at paragraph 41.2.2 - "Subject to clause 41.3, from the first full roster period after the Date of Commencement pilots will receive 10 DDOs per 28-day roster period." (d) Sunstate Airlines (Qld) Pty Limited Enterprise Agreement 2023 at paragraph 36.17.2 - "From the first full roster period after the Date of Commencement pilots will receive 10 DDOs of duty per roster period." 38. It is also common outside of the Qantas Group airlines for pilots to be entitled to a minimum of 10 rostered days off during a roster cycle. For instance: (a) Virgin Australia ATR Air Pilots' Enterprise Agreement 2019 at paragraph 36.17.2 - "From the first full roster period after the Date of Commencement pilots will receive 10 DDOs of duty per roster period." (b) Virgin Australia Regional Airlines Pilots' Enterprise Agreement 2022 at paragraph 102.1(a) - "Full time Pilots will be rostered 12 DDOs per Roster Period.” [111] Regarding paragraphs 19 to 38 of Aikens’ witness statement dated 6 September 2024, Aikens had detailed at length the ‘Reserve Periods’ for QLink subsidiaries (see Eastern (paragraph 20) Sunstate (paragraph 21) and NJS (paragraph 22)), other Qantas operations (see Jetstar (paragraph 23), QAL (paragraph 24)), and competitor operators (see Alliance Airlines (paragraph 25), NJS (paragraph 26) and VARA (paragraph 27). Thereafter, at paragraphs 28 to 38, Aikens had recorded the position of other airlines in respect of ‘no 4AM starts after days off’. [112] Verner stated that Sunstate and Eastern, wholly owned subsidiaries of QAL that operated regional flights under the ‘QantasLink’ brand,170 connected passengers to many [2025] FWCFB 176 31 domestic destinations, including both larger cities and smaller towns. For Sunstate, the majority of the flying was said to occur in Queensland, with locations serviced from Brisbane including Cairns, Canberra, Hamilton Island, and Moranbah, amongst others.171 For Eastern, most of the flying occurred in New South Wales and Victoria, with flights to locations such as Armidale and Tamworth.172 According to Verner the nature of operations for both Sunstate and Eastern was predominantly RPT, with approximately 5% attributable to closed charter flying.173 [113] Regarding flights out of Brisbane, Verner explained that Sunstate and Eastern conducted a number of early morning flights requiring pilots to sign on between 0400hrs and 0600hrs (generally for the closed charter flying).174 However, the number of early morning flights, was, in relative terms in the context of overall flying activity, significantly less than that performed by Network.175 In respect of sectors flown, Verner stated that Sunstate and Eastern pilots typically operate four to five sectors, and whilst they did not perform back of clock flying, they did work more flight hours and days in a roster period, compared to Network pilots.176 [114] Verner clarified at paragraph [12] of his witness statement, that in preparing his evidence, he had reviewed the data recording flight hours and days for Qantas Group pilots for the 12-month period January 2023 – December 2023, which indicated the following: a) Sunstate and Eastern pilots averaged 36.3 flight hours and 89.53 duty hours per roster period, and worked 16.2 days per roster period (28 days); and b) Network pilots averaged 32.1 flight hours and 88.37 duty hours per roster period, and worked 15.4 days per roster period (28 days). [115] Turning to NJS, Verner gave explanation that it was a regional operator based at Adelaide airport that scheduled services under the ‘QantasLink’ brand to capital cities and large regional towns.177 All of the NJS’ flying was RPT and its pilots were typically rostered multi- day trips (two to four days in duration) and up to four to five flight sectors a day – with a majority of duties requiring pilots to sign on after 0600.178 [116] Verner commented that NJS was engaged in a flight renewal program and hence the level of flying activity had substantially reduced – the 2023 calendar year seeing average flight hours of 28.7 per roster period (28 days), and reducing through the year as the fleet renewal program continued), with pilots working on average 15.4 days per roster period (28 days), and average duty hours being 89.24 per roster period (28 days).179 [117] In respect of Qantas, Verner noted the following: a) its short haul operations serviced all capital cities and many short haul international destinations, such as New Zealand, various Pacific islands and some ports in south- east Asia; b) it undertook RPT flying for business and leisure travellers, with its pilots engaging in a mix of flying that would typically include flying two to four sectors per day and regularly completing multi-day trips involving time away from home base, and long flight duties, including some back of clock flying; c) it provided extremely limited charter flying; and [2025] FWCFB 176 32 d) for the period 2 January 2023 until the end of the 2023 calendar year, its pilots performed on average, 69 flight hours per 28 day roster period, and 102.5 duty hours, and work on average, 13.2 days per 28 day roster period.180 [118] Jetstar, the lowest-cost carrier in the Group, serviced all capital cities and many short haul internation destinations, such as New Zealand and Asia, said Verner.181 Verner noted that Jetstar undertook RPT flying for primarily leisure travellers, and its pilots typically flew two to four sectors per day, multi-day trips, and their work involved long flight duties.182 Regarding flight hours, Verner said that Jetstar pilots performed, on average, 62.5 flight hours per roster period, and 105.0 duty hours.183 They also worked on average 18.0 days per month (based on a roster period of one calendar month).184 [119] At paragraph [22] of his witness statement, Verner summarised the abovementioned data in the table below: Network EEA/SSA NJS Jetstar Qantas Flight hours 32.1 36.3 28.7 62.5 69 Duty hours 88.37 89.53 89.24 105 102.5 Days worked 15.4 16.2 15.4 18 13.2 Sectors flown (typical) 2 4-5 4-5 2-4 2-4 [2025] FWCFB 176 33 2.2 Evidence of the Unions [120] The AFAP relied on the evidence of multiple witnesses, whilst witnesses for the AIPA and the TWU were limited. [121] We stress, as we did in respect of Network’s witnesses, that all witnesses who were called to give evidence on behalf of the Unions, struck us as candid, experienced, knowledgeable, and demonstrated no tendency to obfuscate. There was clearly a difference in the evidence of the parties in respect of several matters in issue. Where that was the case, we have detailed reasons for the findings arrived at – but note that the integrity of a witness called to give evidence was not in issue. [122] The AIPA relied upon the evidence of Lucas, who, not only held the position of the President of the AIPA but, in addition, worked as a full-time A330 Check and Training Captain employed by QAL. We acknowledge that Lucas’ evidence differed to that of Network, particularly in respect of the composition of Network’s work. Lucas spoke to Network having been predominately operated in the past as a charter service for FIFO workers but noted that in the last 18 months or so, the composition of its work had changed with approximately 65% of flights being for the public.185 Lucas also provided detailed evidence in respect to the rates of pay for the ‘two-tiered overtime rate’,186 the argument for 10 RDOs,187 why the workplace determination should not provide for a ‘low flying hours first officer rate of pay’,188 and various statistics that support the salary increases pursued by the AIPA.189 Lucas also addressed directly the issue of backpay.190 [123] The TWU relied upon the evidence of Nell191 and Rousset,192 with Rousset providing two witness statements – particularly directed at the third hearing. Rousset, a pilot for Network and a TWU delegate, was at the time of writing his witness statement, employed on higher duties as a Senior Base Pilot and Line Training Instructor.193 Rousset addressed certain matters in issue in his witness statement of 6 September 2024.194 He too observed that the composition of Network’s work had changed – with a shift from mining charter flying to RPT –Rousset noting that his understanding was that 65% of Network’s work was RPT and 35% was charter flying.195 [124] Regarding the AFAP’s evidence, which was extensive, Aikens provided several witness statements for the purpose of the three proceedings to date. However, his witness statement dated 6 September 2024, directly addressed the matters in issue by reference to the status quo, Network’s position, the AFAP’s position, and terms that addressed the matters in issue - which the AFAP considered relevant and comparable. The structure of his witness statement was helpful. [125] The AFAP relied on the witness statements of several witnesses, many of whom were not called to give evidence. We have recorded detail of those witnesses at the beginning of our reasons. [126] The AFAP also relied upon the evidence of Williamson, who kindly joined the hearing from a remote location. Williamson’s evidence traversed fatigue management and addressed directly the issue of RDOs and early starts – early starts being a predominant factor of Network’s rosters. A portion of Williamson’s evidence is provided below. [2025] FWCFB 176 34 2.2.1 Williamson [127] The AFAP had provided to Williamson nine questions which required a response, a copy of the ‘Harmonised Expert Evidence Practice Note’, the rostering arrangements sought by the AFAP, and published rosters for Sasha Leavy, Royce and Fort, and an ‘actual roster worked’ for Sasha Leavy.196 [128] Concerning the nine questions, the first questions arose from the time that shifts should commence following an RDO. Williamson was informed that Network had proposed that pilots should not be required to sign on earlier than 0400hrs after days off, whereas the AFAP proposed that pilots should not be required to sign on before 0600hrs. Williamson noted that a summary of the evidence supporting her response to the questions posed could, as noted, be found in the systematic review of research literature on fatigue in aviation by Bendak and Rashid (2020).197 [129] Williamson was asked when the Window of Circadian Low (WOCL) typically occurs.198 Williamson stated that the WOCL is a period of lowest arousal and alertness in the circadian rhythm and corresponds to the period most conducive to sleep. Williamson’s evidence was that the WOCL occurs between midnight and 0600hrs.199 [130] When asked what, if any, the fatigue management benefits of the AFAP’s proposal were in respect of the start time after an RDO, Williamson responded that in answering the question she had reviewed the example of a 28-day roster worked recently by a Network pilot (Sasha Leavy). Williamson clarified that she had summarised details of the published roster compared to the roster worked in practice (which included start and end times and duration of duty and separated flight and total duty hours).200 Williamson said that an analysis of these rosters revealed some aspects that presented considerable risk relevant to the start time after an RDO. These aspects where: (a) early starts were a common feature of the roster for the pilot, with the published roster including 15 shifts starting before 0700hrs, 12 shifts with a start time before 0600hrs and 10 shifts starting before 0500hrs – whilst there were fewer early starts in the roster actually worked, there remained eight shifts starting before 0600hrs and five before 0500hrs; (b) each pair of RDOs were followed by an early start in both the published and worked roster; and (c) the Fatigue Day called by the pilot during the 28-day roster occurred on a work shift where the pilot was scheduled to do an extremely early start with work commencing at 0230hrs. The pilot had done an early start the previous shift commencing duty at 0430hrs. Although the pilot had completed duty as early as 1011hrs in the previous shift, and the pilot may have had the opportunity to sleep from as early as 1100hrs, depending on their circumstances, it is hard to sleep in the 14 hours between 1100hrs and 0130hrs to be ready to start work at 0230hrs.201 [131] Other observations were made by Williamson about early starts after an RDO, these included: [2025] FWCFB 176 35 (a) early starts increase fatigue because they require early waking time which reduces sleep opportunity (seven to eight hours of sleep opportunity was referred to by Williamson); (b) Australian research on short haul pilots estimated that pilots lose 15 to 30 minutes of sleep for each hour their duty period starts before 0900hrs (Roach et al, 2012). Therefore, 0600hrs starts would be estimated to result in loss of 45 minutes to 1.5 hours of sleep and 0400hrs starts a loss of 1.25 hours to 2.5 hours of sleep; and (c) early start times following an RDO impose limits on the pilot’s ability to use the RDO for the intended rest, reducing the benefit of the RDO on reducing accumulation fatigue, and for family and social purposes (rendering pilots less likely to make the required adjustments to their bedtimes before an early start when they are on an RDO).202 3 Statutory Framework [132] As previously observed in our Agreed Terms Decision, as the intractable bargaining declaration has been made and the post-declaration negotiation period of 13 days has passed, the provisions of Division 4 of Part 2-5 of the Act, which deal with the Commission making a workplace determination are invoked. [133] After a declaration is made, s 269 of the Act imposes a duty on the Commission to make a workplace determination as quickly as possible following the end of the post-declaration negotiating period. [134] Section 270(1) of the Act establishes the basic rule for workplace determinations. First, it requires that the workplace determination must comply with s 270(4). That subsection requires that the workplace determination be expressed to cover the employer and employees that would have been covered by ‘the agreement’ and any employee organisation that was a bargaining representative for those employees. ‘The agreement’ in this context is the proposed agreement the subject of the intractable bargaining declaration. Essentially the workplace determination that we make must cover the Applicant, relevant employees and the three bargaining representatives for those same employees. [135] In addition, s 270(1) provides that the workplace determination must include terms set out in s 270, which include the ‘core terms’ as detailed in s 272, the ‘mandatory terms’ as set out in s 273 and the ‘agreed terms’ as set out in ss 270(1)(a) and 270(2) of the Act.203 [136] A workplace determination must also include terms that the Commission considers ‘deal with the matters that were still at issue’ at either the time of the intractable bargaining declaration or, if there was a post-declaration negotiating period, the end of that period.204 Hence, the Commission must include terms in the workplace determination that deal with the matters in issue identified by the Full Bench in the Agreed Terms Decision, as not having been agreed. [137] Section 270A of the Act further addresses the terms which are at issue. It requires that where an enterprise agreement was in operation prior to the workplace determination being made, terms dealing with ‘particular matters’ must not be less favourable to each of the employees and employees’ organisations that were bargaining representatives for employees, [2025] FWCFB 176 36 than terms of the agreement that dealt with the ‘matter’. The correct construction of s 270A was considered by the Full Bench in TWU v Cleanaway Operations Pty Ltd (TWU v Cleanaway No. 2), where it was said: a) the purpose of s 270A is to regulate the content of terms to be included in a workplace determination that are ‘still at issue’ by requiring that, in relation to those particular terms, employees and any employee organisation that was a bargaining representative of those employee cannot be worse off than they were under a term of a current enterprise agreement (that is the terms must not be less favourable);205 b) for the protection afforded by s 270A to apply, there must be an enterprise agreement that applies to one or more employees who will be covered by the determination, immediately before the workplace determination is made;206 c) if a term was included in the workplace determination because it was ‘still at issue’ at the end of the post-declaration bargaining period or, if there was no such period, after making the bargaining declaration, the term ‘must be not less favourable’ to each of ‘those employees’, and any employee organisation that was a bargaining representative of any employees, than a term of the enterprise agreement that deals with the matter;207 d) the expression ‘those employees’ as referred to in s 270A(2) is a reference to the employees to whom an enterprise agreement applied immediately before the determination and therefore the focus of s 270A is on current employees, not potential future employees;208 and e) s 270A(3) is a facilitative provision that enables the Commission to assume, absent evidence to the contrary, that if a term to be included in the determination is not less favourable to a class of employees then it is not less favourable to an employee who belongs to that class of employees.209 [138] Returning to the ‘core terms’, the workplace determination must include a term specifying a date as the determination’s nominal expiry date, which must not be more than four years after the date on which the determination comes into operation.210 [139] In respect of mandatory terms, these include a term about settling disputes,211 a flexibility term,212 a consultation term,213 and a delegates’ rights term.214 [140] However, if the Commission is satisfied that an ‘agreed term’ about settling disputes would, if the workplace determination were an enterprise agreement, satisfy s 186(a) and (b) of the Act then, s 273(2) of the Act does not apply and the mandatory term about settling disputes is not required. Similarly, the mandatory model flexibility term is not required if the Commission is satisfied that an ‘agreed term’ for the workplace determination would, if the determination were an enterprise agreement, satisfy s 202(1)(a) and s 203 of the Act. The same can be said for the inclusion of the mandatory model consultation term, which is not required to be included in the workplace determination, if the Commission is satisfied that an ‘agreed term’ for the determination would, if the determination were an enterprise agreement, satisfy s 205(1) of the Act. [141] In respect of a delegates’ rights term, s 273(6) which provides for such term, was inserted into the Act by the Closing Loopholes Act 2023 (Cth) and applies to a workplace determination made on or after 1 July 2024. [2025] FWCFB 176 37 [142] Sections 270(1)(a) and 270(2) of the Act specify that, amongst other things, the workplace determination must include the ‘agreed terms’. An ‘agreed term’ for an intractable bargaining workplace determination is defined in s 274. That section is entitled ‘Agreed terms for workplace determinations’. Section 274(2) details what an ‘agreed term’ for an industrial relation workplace determination is, whilst s 274(3) addresses ‘agreed terms’ for intractable bargaining workplace determinations. It is the latter which is relevant for current purposes. [143] An ‘agreed term’ for a workplace determination is understood to be any of the following: a) a term that the bargaining representatives for the proposed enterprise agreement concerned had agreed, at the time the application for the intractable bargaining declaration concerned was made, should be included in the agreement; and b) any other term, in addition to a term mentioned in paragraph (a), that the bargaining representatives had agreed, at the time the declaration was made, should be included in the agreement; and c) if there is a post declaration negotiating period for the declaration—any other term, in addition to a term mentioned in paragraph (a) or (b), that the bargaining representatives had agreed, at the end of the period, should be included in the agreement.215 [144] Section 271 of the Act constrains the terms which the Commission may include in a workplace determination providing that it must not include any terms other than those required by s 270(1). [145] Section 272(3) of the Act precludes the inclusion of terms that are not about ‘permitted matters’, being matters of the kind detailed in s 172(1) of the Act.216 Section 272(4) requires that terms cannot be included which, if the workplace determination were an enterprise agreement, would preclude the agreement being approved because the terms contravened s 55, or due to ss 196-200. [146] Section 275 of the Act sets out the factors that the Commission is obliged to have regard to when deciding which terms to include in a workplace determination, they include the following: (a) the merits of the case; (c) the interests of the employers and employees who will be covered by the determination; (ca) the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees; (d) the public interest; (e) how productivity might be improved in the enterprise or enterprises concerned; (f) the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement; [2025] FWCFB 176 38 (g) the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements; and (h) incentives to continue to bargain at a later time. [147] A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ in the sense discussed in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others,217 that is, it is a matter which the decision maker is bound to take into account. The obligation to take into account the matters set out at s 275 of the Act means that each of the matters must be treated as a matter of significance in the decision-making process,218which must be evaluated and accorded appropriate weight.219 [148] The weight given to a particular matter is ultimately a matter for the Commission, however in ascribing weight to each matter care should be taken to ensure that a relevant factor of great importance is given adequate weight and that excessive weight to a relevant factor of no great importance is not ascribed.220 [149] Whilst s 275 of the Act specifies the factors the Commission must consider, the use of the word ‘include’ in that section suggests that the Commission is not confined to those considerations alone and can have regard to any other relevant considerations in the circumstances of the particular case.221 As was said in Parks Victoria v Australian Workers’ Union222 (Parks Victoria) reference to the word ‘include’ suggests the factors are not an exhaustive list of considerations and that the Commission is able to have regard to any other relevant matter in the circumstances of a particular case. 4 Section 275 matters [150] Turning to our consideration of s 275 of the Act, we consider that the appropriate approach is to assess the respective positions of the parties in relation to the matters in issue and, by reference to the statutory factors, arrive at a conclusion that would be regarded as appropriate in the context of the bargaining, including, but not limited to, where the bargaining concluded.223 This does not involve a form of subjective prognostication as to the outcome of the negotiations, but, rather, the task involves an objective assessment of the statutory factors and an overall judgment as to an appropriate workplace determination to apply to the operations concerned.224 [151] We observe that none of the factors detailed in s 275 of the Act necessarily take on more particular significance than others. That is, one factor is not necessarily more consequential or significant than another, and whilst the factors in s 275 must be taken into account, the section does not preclude the consideration of matters in ss 577-578 of the Act. The Commission is to exercise its powers and functions in a manner that achieves an outcome that is fair and just and promotive of harmonious and cooperative workplace relations, and the Objects of the Act must be considered. [152] Whilst the factors in s 275 of the Act will have a general bearing on the terms to be included in the workplace determination, they may also have a more specific bearing on many of the particular issues in dispute. That is, some of these factors will necessarily apply themselves differently to the specific matters in issue. Where this has occurred, we have [2025] FWCFB 176 39 addressed this under the particular matter in issue. However, by way of summary and in respect of the entire workplace determination, we have had regard to each factor in the following way. 4.1 Section 275(a) – merits [153] The Full Bench in Transport Workers’ Union of Australia v Qantas Airways Limited; Q Catering Limited (Q Catering)225 made a workplace determination in the context of an order having issued to terminate industrial action. When considering the merits of the case, the Full Bench identified that whilst an obviously important consideration, it was neither desirable nor possible to exhaustively list the disparate merit considerations that might be considered relevant. However, the Full Bench in Q Catering provided guidance on the merit factors that we see fit to repeat and adopt. They included: a) the package of terms the parties had previously agreed to apply, the terms under which the parties were presently operating (see also s 275(ca)), and the basis for the negotiations conducted by the parties; b) where a party had sought a change from the terms that previously had applied, consideration of whether they had made out a case for that change; c) traditional merit considerations, including the Objects of the Act (such as the achievement of productivity and fairness through enterprise level collective bargaining); d) practices of other employers, in this case, within the airline industry and the terms and conditions applying to their employees (such information being capable of being relevant to fairness of particular terms as well as the appropriateness of the package of benefits in a highly competitive environment) having been thoughtfully measured; e) the principle and approach of industrial tribunals to particular matters historically – including a general reluctance to interfere with the right of management to manage its business, unless some unfairness to employees is demonstrated; and f) the extent to which Network and the Unions had been prepared to deal with matters in enterprise bargaining negotiations and their approach to such matters for this purpose.226 [154] Our consideration of the merits of the case is further traversed and considered in respect of each matter in issue under the relevant headings within these reasons. 4.2 Section 275(c) - the interests of the employer and employees [155] The requirement to consider the interests of the employer and employees who will be covered by the determination requires that those interests be identified and considered. This includes the employees who will be covered by the workplace determination and is therefore said to encompass the interests of future employees,227 albeit we observe what was said by the Full Bench in TWU v Cleanaway No. 2 insofar as the operation of s 270A is concerned. [156] The interests of employees who will be covered by the workplace determination will include obtaining wage increases which enable them to meet their costs of living, having sufficient RDOs in order to meet their own family and personal needs or desires, receiving [2025] FWCFB 176 40 appropriate payment for additional flight hours, amongst the other interests we have detailed in the matters in issue. [157] The AFAP’s evidential case included the evidence of fifteen pilots covered by the 2016 Agreement. Those pilots gave evidence which, said the AFAP, showed the importance and need for the AFAP’s draft determination to be granted – including the practical difficulties that the pilots faced under the existing status quo. Difficulties included fatigue management, family and lifestyle issues and financial strain caused by the salaries paid and the absence of any salary increase since 2019. [158] The AIPA pressed that both employees and Network had an interest in securing a stable workforce resourced to an appropriate level, and that its claims sought to support this through the provision of benefits that would, essentially, foster recruitment and retention. The AIPA acknowledged that by improving employee conditions, its claims were directly in the employees’ economic interest and more indirectly in Network’s interest – by the promotion of workforce cohesion. [159] As is the approach to the merits of the case, our consideration of the employees’ interests is further traversed and considered in respect of each matter in issue under the relevant headings within these reasons. [160] Regarding the interests of Network, the company directs attention to several matters which it states are relevant to the cost envelope in which it has sought to bargain. [161] It first contends that to be competitive in the market in which it operates, it needs to maintain a competitive cost base. In this respect, it relies upon the evidence of Bartlett about the competitive challenges that Network faces and the impact of increased labour costs on its cost base, and therefore, on its ability to retain and win work.228 We have detailed this at length in the background to this decision. [162] Second, it reflects upon the nature of its operations, and the associated requirements of the roles of its pilots, which it says impact the level of entitlements it can reasonably and responsibly offer to its pilots. The company presses that pilots working for a regional airline such as Network will necessarily attract lower entitlements than might exist for pilots of other entities that operate under more strenuous and less flexible conditions. Network differentiates the circumstances its pilots face from those working for other entities in the Qantas Group and some of its competitors, noting that it provides more lifestyle-friendly arrangements, including:229 (a) typically flying early mornings and afternoons (i.e. not nights); (b) undertaking minimal overnighting; (c) having shorter flight sectors, and therefore fewer flying hours; and (d) as a result, having substantially higher costs of flying. [163] Third, it states that the approach it has adopted in relation to particular entitlements in bargaining is reflective of an expectation it will act consistently within its own organisation, within the Qantas Group, and within the broader market, and in a manner commensurate with the nature of its operation and the work of the relevant employees. Network asserts that [2025] FWCFB 176 41 agreeing to substantially increase the entitlements for pilots would have a flow on effect in terms of the standard expectation elsewhere in its business, or within the broader Qantas Group, as would the inclusion of such entitlements in a workplace determination. The imposition of more favourable salary increases for the pilots in the workplace could lead, said Network, to sentiments of inconsistent and inequitable treatment, and provide problems for future bargaining, with potentially inflated future claims leading to an artificial rise in overall costs. [164] Fourth, it claims that for each claim by the Unions that would have the effect of limiting or restricting Network’s operational capacity or flexibility, the Commission should have regard to the impact that would have on Network’s business, in the way of disruptions to its ability to continue to service its flight schedule and the interest of its clients. [165] Regarding the interests of its employees, Network pressed that their interests were well- served by the terms that were contained in the proposed agreements offered by Network. In particular, Network made reference to the terms of the 22 December Proposed Agreement (which appear, by and large, in the terms of Network’s draft determination). [166] As is the case in respect of the interest of employees, we have further considered Network’s interest under the heading of each matter in issue. 4.3 Section 275(ca) - the significance of any arrangements of benefits in the 2016 Agreement [167] This consideration is, in effect, a statutory direction for the Commission to take any significant terms from the 2016 Agreement into account in making the Determination.230 The section was inserted into the Act by s 552A of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). The Supplementary Explanatory Memorandum to the Bill, described that the provision was designed to ensure existing workplace arrangements and benefits are given due consideration by the Commission in setting the arbitrated terms of a workplace determination. [168] Network submitted that the consideration had little work to do from the pilots’ perspective, as it was clear that the terms proposed by Network did not seek to remove or detract from - but rather add to, improve and build upon - the arrangements and benefits currently provided for the pilots in the 2016 Agreement. We agree with this proposition. [169] However, Network also considered that the factor did have relevance in terms of the arrangements in the 2016 Agreement, to the extent they preserved Network’s operational capacity and flexibility. Network submitted the Commission should have regard to the careful balance that was struck by those arrangements and the potential operational and cost ramifications of increased restrictions on Network in that regard (particularly with respect to rostering), noting the matters raised above in respect of the merits, and the detail in Bartlett’s evidence. [170] Where relevant, we have considered this factor under the heading of each matter in issue. 4.4 Section 275(d) - the public interest [2025] FWCFB 176 42 [171] This factor refers to matters that may impact the public as a whole and are distinct from the interests of employees and employers who will be covered by the workplace determination – albeit the considerations may overlap.231 The public interest may include, for instance, the achievement of the Objects of the Act, employment levels, inflation and the maintenance of appropriate industrial standards.232 [172] The section imports a discretionary value judgment confined only by the subject matter, scope and purpose of the Act.233 [173] According to Network, save for one exception, this case is not one in which significant identifiable public interest considerations loomed large, beyond the extent to which they were reflected in the other matters to which the Commission is bound to have regard. [174] In respect to the exception, it was the needs of the Western Australian regional aviation market, and the important contribution mining makes to the economic prosperity of Australia. Network pressed that the mining industry in Western Australia is heavily reliant on a nimble, flexible and successful regional airline. Network noted that the dynamic nature of that industry including its locations and needs (from time to time), required flexible and dynamic service providers (such as regional airlines), who could quickly and efficiently respond to changed circumstances without over-regulation and restrictions on operational flexibility. [175] The AFAP submitted that the public interest weighs in favour of granting the AFAP workplace determination as it is in the public interest that pilots who perform an important and safety critical public service are fairly remunerated, and that all appropriate fatigue management measure are in place. The AIPA echoed the AFAP’s submissions, highlighting that workplace determinations are to promote fair and reasonable conditions of employment, and wages which recognise work value and the need for employees to maintain and improve their standard of living over time. [176] Whilst we primarily consider the public interest to be a neutral consideration, we have considered the context in which Network operates and the necessity to ensure that pilots who perform an important and safety critical public service are fairly remunerated. 4.5 How productivity might be improved for Network (s 275(e)) [177] ‘Productivity’ is not defined in the Act but given the context in which the word appears in s 275(e) it is clear that it is being used to signify an economic concept.234 [178] The Full Bench in Schweppes Australia accepted that the conventional economic meaning of the word ‘productivity’ is the number of units of output per units of inputs. In this respect, productivity is seen as a measure of the volumes or quantities of inputs and outputs, not the cost of purchasing those inputs or the value of the outputs generated. To therefore equate productivity with the average cost of labour per unit, which, properly understood, is a measure of nominal unit labour costs, is incorrect.235 [179] The word ‘productivity in this context is therefore directed at the conventional economic concept of the quantity of output relative to the quantity of inputs. Considerations of the price [2025] FWCFB 176 43 of inputs, including the cost of labour, raise separate considerations which relate to business competitiveness and employment costs – a proposition which was similarly observed in Parks Victoria at paragraph [52]. [180] The Full Bench in in Schweppes Australia further explained: [46] Financial gains achieved by having the same labour input - the number of hours worked - produce the same output at less cost because of a reduced wage per hour is not productivity in this conventional sense. A reduction of unit labour costs, achieved under Schweppes’ shift proposal through less overtime and lower shift loadings, does not constitute productivity within that conventional meaning. Similarly, an increase in the value of output achieved through product differentiation and a higher average value of the quantity of output is not productivity in the conventional sense. [47] In each case, however, a financial benefit to Schweppes, other than through productivity improvement, is a relevant matter for us to consider. As Mr Cowgill observed in his evidence: “37. The proposal to increase product differentiation would presumably allow the firm to undertake price discrimination based on market segmentation. As a result it would be expected to increase the average revenue received by the firm for each unit of output; profitability would therefore increase. This is an important consideration, but it is separate and distinct from the question of the effect of the changes in the operations of the plant on productivity.” [48] It is common ground that the introduction of the proposed shift arrangements is in Schweppes’ financial interest and hence those benefits can be taken into account pursuant to s.275(c). The impact of such shift arrangements on employees is also a relevant consideration pursuant to s.275(c). [49] Further, to the extent that the Schweppes proposal results in better utilisation of capital, allowing greater output from a given capital input, it would generate some productivity benefit in the conventional sense. Similarly, to the extent that the proposed shift arrangements facilitated investment in new, more productive capital equipment by Schweppes, it might also enhance productivity in the conventional sense.236 [181] The AFAP presses that the consideration of productivity is neutral in the circumstances of this case. [182] Network claims that there is little for the Commission to scrutinise in the matters at issue in terms of an improvement of productivity from Network’s perspective, given that the terms which are in play involve only, to varying degrees, operational restrictions, which could only be likely to negatively impact Network’s productivity. [183] However, to the extent that any restrictions are imposed upon Network, Network submitted they should be appropriately limited to what is reasonable (so as not to unreasonably impact Network’s productivity). It is the case that some Unions have sought for inclusion in the workplace determination rostering practices which would fetter the flexibility that Network has previously enjoyed – say for example, in respect of start times after RDOs or the amount of notice required to be given when activated from reserve. However, we consider this factor a consideration under s 275(c) rather than s 275(e). Nevertheless we have considered the factor when deliberating on the matters in issue. [2025] FWCFB 176 44 4.6 The reasonableness of bargaining representative’s conduct in bargaining (s 275(f)) [184] It has been said that the consideration of the bargaining representatives’ conduct should be applied against the background of the rights and obligations available to parties involved in enterprise bargaining under the Act.237 [185] Further, it is conceivable that a party may engage in unreasonable conduct during bargaining, at least for the purposes of s 275(f), if it pursues vexatious or meritless applications to the Commission, pursues applications for an ulterior purpose or behaves in an unreasonable manner in proceedings before the Commission.238 [186] We do not believe that the conclusion can be drawn in this matter that the bargaining representatives, being Network and the Unions, have engaged in unreasonable conduct for the following reasons. [2025] FWCFB 176 45 Network’s conduct [187] For its part, the TWU asserts that Network engaged in conduct that was capricious and unreasonable for the purposes of s 275(f) of the Act – and it follows, was unreasonable. The TWU refers the circumstances where the 22 December Proposed Agreement was put to vote and was not successfully voted up239 and Network subsequently ‘unagreed’ five costs items. [188] In respect of the ‘unagreed’ five costs items, the TWU submitted that the 22 December Proposed Agreement contained the following: (a) in clause 10.6 and Schedule 1, an entitlement for pilots to a DHA from the first full pay period after commencement of the agreement, which was payable for all duty hours (being the period between sign-on and sign-off in any port). The DHA was to be treated as a wage-related allowance and adjusted from time to time in accordance with changes to pilot salaries. Hourly rates for DHA for Captains and First Officers operating F100/E190s and A319/A320s were detailed in Schedule 1. These were expressed to commence at the time the agreement commenced, with increases from 15 October 2024, 15 October 2025 and 15 October 2026; (b) in clause 10.8.5 and Schedule 1, a two-tiered entitlement to an AHP (additional hourly payment). For flying hours worked in excess of 59 in a roster period, an hourly payment stipulated as a ‘Tier 1 rate’ as set out in Schedule 1 was specified. For hours flown in excess of 75, a Tier 2 rate’ was set out. The Tier 1 rate was the same as that set out in the agreement proposed by Network in September 2023. The Tier 2 rate was some 80% higher than the Tier 1 rate; (c) in clause 20.1.1, a total of nine RDOs per 28 day roster period, with four pairings of RDOs to occur within a roster period; (d) in clause 20 concerning roster practices, an obligation on Network to ‘endeavour to provide an equitable allocation of Duty Hours for Pilots over a roster period’; and (e) in clause 10, salary increases as follows: (i) of 3% on and from 15 October 2022; (ii) of 3% on and from 15 October 2023; (iii)of 6.84% on approval of the agreement; (iv) of 3% on and from 15 October 2024; (v) of 3% on and from 15 October 2025; and (vi) of 3% on and from 15 October 2026. [189] We observe that after the unsuccessful vote for the 22 December Proposed Agreement, the Unions outlined to Network the issues which they considered were crucial for endorsement of the proposed agreement by their members. The AFAP communicated these issues to Network on 23 January 2024, and the TWU and the AIPA advised Network of what they considered to be the crucial issues on 1 and 2 February 2024 respectively. The Unions were proposing specific changes to the 22 December Proposed Agreement to get it ‘over the line’, to borrow from the parlance of the AIPA.240 [190] As observed in the Agreed Terms Decision, by correspondence dated 2 February 2024, Network responded to the AFAP setting out that ‘agreement to a particular item was subject to agreement on the overall package’ and the ‘overall package could not exceed a particular cost to the Company’.241 These sentences in Network’s 2 February 2024 correspondence to the [2025] FWCFB 176 46 AFAP cannot be read in isolation. The letter of 2 February 2024 is to be construed on its terms, having regard to the objective background facts known to the parties.242 Network continued in that same correspondence to state, ‘certain terms contained in the proposed agreement, will, of necessity, become matters at issue for the purposes of any intractable bargaining workplace determination’.243 Network then proceeded to expressly withdraw agreement from those terms in the 22 December Proposed Agreement, where improvements had been made to salary tables, the DHA, backpay, improvements to the Additional Hourly Payment rate and structure, and the RDO provisions in respect of the definition of an RDO and the restrictions around an RDO. [191] The TWU submitted that there was no rational or logical reason for Network to determine to withdraw its agreement to these matters, and that the ineluctable inference is that in light of the fact that it filed its application for an intractable bargaining declaration three days later, it did so to avoid these matters being considered as ‘agreed terms’ for the purposes of s 274 of the Act. [192] The AFAP submitted that a factor that supported the grant of its draft workplace determination, was the very conduct of Network during enterprise bargaining. It too referred to Network having used the ‘threat of this workplace determination process against employees and threatened to unagree [sic] items to gain a tactical advantage’.244 [193] Having had the 22 December Proposed Agreement voted down and the Unions, predominately the AFAP, advancing further issues which were said to be crucial for potential endorsement, Network withdrew its agreement to certain items included in the 22 December Proposed Agreement. Those items, as we acknowledged in our Agreed Terms Decision were all obvious cost items - including where improvements had been made to salary tables, the DHA, backpay, improvements to the Additional Hourly Payment rate and structure, and the RDO provisions in respect of the definition of an RDO and the restrictions around an RDO. [194] However, we are not persuaded that the conduct engaged in by Network, that is, its withdrawal from certain cost items that had been included in the 22 December Proposed Agreement amounted to unreasonable conduct. We accept that this change in position was not an arbitrary move by Network to step back from its agreement to certain cost items (as described). We further accept that the timing of such conduct was temporal to the making of the application for an intractable bargaining declaration. However, in our view the conduct was not simply redolent of avoiding certain cost items forming what would later be considered ‘agreed terms’. [195] It is apparent that Network had included the cost items in the 22 December Proposed Agreement with the intent of securing a ’yes’ vote. Arguably, buoyed by the support of the Unions (save the AIPA’s position in relation to one cost item), it likely considered that the package would have engendered more support from the pilots than it did. The Unions, then, having been advised by their members of what was required to achieve a ‘yes’ vote, had, it would seem, little choice but to communicate to Network a shift away from what they and Network, had considered was a proposed enterprise agreement worthy of a ‘yes’ vote at that time. [196] Had Network sought to change its position by acceding to the addition of the cost items sought by the Unions, or at least some of those cost items, notwithstanding a change in the [2025] FWCFB 176 47 overall package that had been bargained at that point, we would, perhaps, not be contending with the current argument. It is not, therefore, simply the change by Network to the terms of the 22 December Proposed Agreement that the Unions appear to take issue with, it is that the change is a withdrawal from certain cost items, matters or terms, that were included in the proposed agreement that was voted down. [197] Network’s conduct was, in our view, a direct response to the Unions raising items with an obvious increased cost (with perhaps the exception of the revised rostering appendix).245 The conduct was reflective of the bargaining that had been occurring between the parties, the kind of give and take in respect of those matters that sat within the ‘cost envelope’, which we will speak to shortly. Network did not put anything else at issue, although it did forewarn that should any further improvements (Union improvements) be sought that would drive up the cost of any agreement or workplace determination: ‘other significant cost items which the Company was otherwise prepared to agree to, will also be at issue’.246 Again, we do not consider that such conduct unreasonable. When the 22 December Proposed Agreement was voted down, the Unions unequivocally added to the ‘list’ of cost items – identifying additional costs items to the list of claims that were considered by them as crucial for potential endorsement. That is, the Unions changed their position following the failed vote. Just as the Unions were responsive to the changed circumstances they confronted, it was open to Network to adopt a similar stance by repositioning itself after receiving further claims that would see the cost of any enterprise agreement escalate. [198] Network’s refusal to move from its extraordinarily rigid bargaining policy and self- imposed arbitrary ‘costs envelope’ was a further factor that the AFAP relied upon as demonstrating Network’s unreasonableness for the purpose of s 275(f). The AFAP observed that Network seemingly operated on the basis that even if the proposed enterprise agreement was not approved by the pilots, it would be able to impose the terms of the proposal on employees by seeking a workplace determination. [199] In our view and as previously observed, Network’s statements that ‘agreement to a particular item was subject to agreement on the overall package’ and the ‘overall package could not exceed a particular cost to the Company’,247 when fairly read, in context, was simply a proposition that, because certain additional cost items had then been put in issue by each of the three Unions after the failed vote on the 22 December Proposed Agreement, in response, Network was doing the same in respect of certain items. For example, if an employee bargaining representative changed their position on a certain cost term, it might trigger Network adjusting its position in response to a certain term– which Network did. Network was not precluded from working within its own self-imposed bargaining policy, ‘costs envelope’, or pricing parameters. To do so was not unreasonable where there had been ongoing negotiations, compromise and movement by Network in respect of multiple matters that culminated in there being agreed terms, which marked a significant improvement to the terms of the 2016 Agreement. [200] We consider Network was entitled to adopt the position that it had certain cost parameters within which it was willing to operate. Further, it was open to it to convey it was not willing to make further concessions. That conduct did not, in our opinion, give rise to unreasonableness. [2025] FWCFB 176 48 [201] The AIPA focused on Network’s withholding of the 2018 Record Results bonus and the $5000 COVID-19 recovery sign-on bonus. The AIPA submitted that the Qantas Group sold to the public that the payments were contingent on agreements being made in a certain time. However, in circumstances where bonuses were directly intended to compensate for detriments Network pilots suffered and reward for those contributions that the pilots had made, was very much unreasonable. [202] At paragraph [110] of Network Aviation v Australian Federation of Air Pilots, Australian and International Pilots Associate & Transport Workers’ Union of Australia248 the issue of the two bonuses was traversed: Bartlett gave evidence that by the time of the ballot, pilots had ceased to be eligible for the ‘Record Results Bonus’ or the ‘Recovery Boost payment’ under the conditions that applied to all Qantas Group employees. Bartlett noted that had the prior proposed agreement been approved in October, the pilots would have received these two payments. The first, for not engaging in action harmful to the Qantas Group or any Qantas Group Company ($2000.00) and the second for having an agreement approved within nine months of bargaining having been commenced ($5000.00). [203] In Bartlett’s witness statement of 23 February 2024, he gives the following evidence commencing at paragraph [34]: [34] On 12 October 2023, the ballot results were declared. The Proposed Agreement was not voted up, with 90% of those pilots entitled to vote voting against the Proposed Agreement. [35] If the Proposed Agreement had been approved by pilots at the ballot, they would have been eligible for the following one-off payments which were applicable to employees across the Qantas Group: a. a “Record Results Bonus” announced as a part of the FY18 financial results, which was a payment of $2,000 for voting up an enterprise agreement after 2018. The conditions applicable to that bonus included that there was a right not to award it if an employee group engaged in action that harmed the Qantas Group or any Qantas Group Company; and b. a $5000 “Recovery Bonus” payment. One of the conditions for this payment was that an agreement was approved by employees within 9 months of commencement of bargaining. This was applied across the Group on the basis that the condition had been met if an in- principle agreement was reached with bargaining representatives within the 9 month period (and an enterprise agreement reflecting that in-principle deal was subsequently voted up and approved). Network Aviation considered that, having regard to the bargaining from September 2022 and reaching in-principle agreement with AIPA and the TWU in March 2023, pilots would be eligible if the Proposed Agreement was voted up and approved. [204] Bartlett stated that on 29 November 2023, Network made a further request under s 181 of the Act for pilots to approve the proposed agreement, consistent with the in-principle agreement with the Unions, with each of the Unions endorsing a ‘yes’ vote for the proposed agreement.249 By this time, said Bartlett, the pilots had ceased to be eligible for the Record Results Bonus or the Recovery Boost payment under the conditions that applied to all Qantas Group employees.250 [205] Lucas gave the following evidence at paragraph [60] of his witness statement: [2025] FWCFB 176 49 NAA pilots have also not received a Qantas Group allocated $2000 bonus (FY2018 results) or a $5000 ‘covid recovery/sign on’ bonus. The ‘covid recovery/sign on’ bonus was contingent upon the parties reaching agreement on the terms of the Enterprise Agreement within 9 months of the expiry of the previous agreement. In both cases the bonus payments were contingent upon employees not undertaking industrial action or other actions that would damage the Qantas Group’s Brand. AIPA’s members that were not dual members of another Union did not partake in industrial action and should still be eligible and paid both bonus payments. [206] Attached to the witness statement of Lutton at Annexure SL-3 was a document titled ‘2018 Record Results Bonus Q&A’, it set out the following: 2018 Record Results Bonus Q&As On 23 August 2018 the Qantas Group announced a record result for the 2018 financial year. In recognition of our people’s contribution to this outstanding performance, Alan Joyce announced that funds have been set aside to pay eligible employees a one-off Records Results Bonus valued at AU$2500 for full time employees and AU$2,000 for part time employees. This is made up of a AU $500 staff travel credit, as well as cash… Eligibility criteria and other information is included in detail in this document but here are the main things to note: …For those employed under a collective agreement, the cash component is payable after the employee’s Post Wage-Freeze Collective Agreement is voted up and approved. This sign on approach is consistent with the past three bonuses that have been awarded.251 [207] We understand that the AIPA, on behalf of its members, was aggrieved that Network had not afforded to its members the payment of certain bonuses. It would seem to us, for the most part, that these bonuses constituted discretionary contractual payments. At all times, it would appear, that the Qantas Group was positioned to determine to whom it would award the bonuses, the eligibility criteria that was required to be met and whether an employee or employees had met that eligibility criteria. If the AIPA considered that its members were entitled to the bonus payments, such that they were eligible and therefore should have been paid, it was open to the AIPA to seek recourse through the appropriate avenue in respect to a contractual benefit that was denied. To now draw upon that conduct of the Qantas Group for the purpose of asserting unreasonableness on the part of Network bargaining representatives, is, in our view, a long bow to draw, and we do not accept that the conduct of the Qantas Group in this respect is akin to the conduct of Network bargaining representatives in bargaining. [208] Network contends that the Commission should have regard to the fact that: (a) it has been an active and willing participant in bargaining, regularly making concessions in good faith in the interests of reaching agreement with the Unions; and (b) the evidence shows that from Bartlett’s commencement in July 2022, and upon resumption of bargaining after the COVID- 19 pandemic, it has been the driving force in bargaining. We do not take issue with these propositions and have factored both in our decision. The Unions’ conduct [2025] FWCFB 176 50 [209] Whilst hesitant to group the Unions as one, we observe that Network pressed that the Unions had not always acted reasonably in bargaining. Network pointed to the following conduct: (a) the agreement that was first reached between all bargaining representatives in March 2023 was resiled from by the AFAP in June 2023, and then the AFAP put forward a revised position containing radically different terms to those which it had previously agreed; (b) the AFAP’s conduct ultimately delayed an agreement being put to the vote of pilots until September 2023, which (despite having been consistent when the terms were agreed in March 2023) was opposed by the AFAP; (c) the proposed agreements put to the vote in November and December 2023, despite being fully agreed to by all the Unions (with the limited exception of the AIPA’s opposition to the Low Experience First Officer rate in the latter), was then too voted down by the pilots; (d) further, after the 22 December Proposed Agreement was voted down, in late January and early February 2024, despite being aware that Network was bargaining within a cost envelope, each of the Unions made additional (significant) money claims – notably, on 24 January 2024, the AFAP provided Network with a list of seven largely vague and unparticularised claims that it said were ‘essential for potential endorsement’ of a proposed agreement. [210] Network argued that the Unions’ conduct was relevant for two reasons in respect of making a workplace determination. First, to the extent that the Commission was satisfied that the conduct had been causative of delay in the making of an instrument to replace the 2016 Agreement, the employees should not be compensated by the terms of the workplace determination for any shortfall in entitlements produced by that delay, including by way of backpay. Second, to the extent that the Unions now sought to press claims that had arisen belatedly in bargaining, and which are presented as unconditional improvements on terms which they had previously agreed as a part of an overall package, the Commission should decline to include those terms as additional items in the workplace determination. [211] Starting with Network’s contention about the AFAP resiling from the in-principle agreement regarding the terms of the proposed agreement back in March 2023. Network submitted that it was open to the Commission to conclude that a lot of time and expense could have been saved for all parties, had the AFAP not resiled from its agreement. [212] It is uncontroversial that on 20 April 2023, Network circulated a draft Heads of Agreement to the Unions.252 The AFAP’s evidence that it advised Network on 9 June 2023 that it was conducting a survey of its membership in order to canvass the views of members in respect of the proposed agreement, is similarly uncontroversial. Having canvassed those views and in response to Network having circulated a draft of the proposed agreement to the Unions on 15 June 2023, the AFAP sent an email to Network, the AIPA and the TWU, advising that it had completed the foreshadowed survey with its membership and the result of the survey (noting a 90% participation rate) was that 92% found the proposed agreement unacceptable. [2025] FWCFB 176 51 [213] We do not perceive anything unusual or unreasonable in the AFAP having canvassed the views of its membership in June 2023 regarding the proposed agreement. We appreciate that given the Heads of Agreement was received by the AFAP in April 2023, the survey could have been conducted by the AFAP earlier. But, when one considers that bargaining had stalled for near on two plus years during the COVID-19 pandemic, and this was the first iteration of an agreement being proposed after a period of bargaining between September 2022 and March 2023, there was nothing unreasonable about the AFAP’s conduct in obtaining the views of its members. That the AFAP then advised Network it would not endorse the proposed agreement to its membership if it was put out to the vote, appears to be not only a foreseeable consequence of the AFAP being advised of its members’ dissatisfaction with the proposal, but a prudent step by the AFAP to maintain the trust of its membership going forward. Had the AFAP refused to continue bargaining that would be a different case in hand, but it did not. In fact, it expressed a willingness to have further negotiations in an effort to achieve a proposal more suitable to its membership.253 [214] Regarding Network’s contention that the AFAP delayed an agreement being put to the vote until September 2023, we make two observations. First, a delay in putting a proposed agreement to a vote, in and of itself, may not constitute unreasonable conduct by a bargaining representative in the absence of other factors suggestive of unreasonableness. Second, on 30 June 2023, it was Network who indicated an unwillingness to further negotiate the terms of an agreement and thereafter proposed dates for drafting meetings in respect of the proposed agreement circulated by it on 15 June 2023.254 [215] Whilst we consider it was open to Network to have adopted this stance in the context of bargaining, it was equally open to the AFAP to have declined to attend meetings, the function of which was to draft the proposed agreement rather than negotiate the terms of a proposed agreement. We refer particularly to the AFAP having communicated to Network as of 3 July 2023, that it would not attend drafting meetings.255 [216] Ultimately, having had drafting meetings with the TWU and the AIPA during June and August 2023, Network circulated a draft of the proposed agreement to the two Unions on 25 August 2023.256 On that same day the AFAP filed an application for a protected ballot order with the Commission, which it was entitled to do under the Act. A protected action ballot order subsequently issued; the Commission having clearly concluded that the requirements of the Act for making such an order had been met – including that the AFAP had been, and was, genuinely trying to reach agreement. And, whilst a compulsory conference was then held pursuant to s 448A of the Act, which did not result in a resolution of the outstanding issues between Network and the AFAP, it is not the case that criticism can be levelled at the AFAP for exercising the rights it had under statute and complying with the obligation that arose under s 448A, from exercising those rights. [217] We are not persuaded that the AFAP was the causative factor in delaying, until September 2023, a proposed agreement being put to the vote by Network. In our view there were multiple factors in play that culminated in an agreement being put to the vote at that time, including Network’s own conduct in having adopted the position that it did as of 30 June 2023. It appears to us that what the AFAP was attempting to do was to simply leverage its position to bring Network back to the bargaining table – having considered that meeting to draft the terms [2025] FWCFB 176 52 of a proposed agreement was premature given the dissatisfaction of the pilot group whom the AFAP represented, and who clearly constituted the majority of pilots. [218] We understand there being frustration on Network’s behalf in respect of having put proposed agreements to the vote in November and December 2023, which were fully agreed to by the Unions (with the one exception regarding the AIPA’s opposition to a particular rate of pay), to only have them voted down by the pilots group. [219] As observed in our Agreed Terms Decision, on 29 November 2023, Network commenced another access period for the pilots to approve the proposed agreement (the 29 November Proposed Agreement), consistent with the in-principle agreement reached with the Unions. Each of the unions endorsed a ‘yes’ vote for the proposed agreement from their respective members.257 The 29 November Proposed Agreement was not voted up.258 [220] To the extent that Network levels any contention toward the Unions that their conduct was unreasonable because the 29 November Proposed Agreement was voted down, the contention cannot be sustained. It does not appear that the Unions were communicating one thing to Network and another to their members – Network and the Unions all appeared to be on the same page regarding the endorsement of the 29 November Proposed Agreement. That the pilots declined to take guidance from their Unions to vote in support of the 29 November Proposed Agreement, does not, in the circumstances before us, reflect upon the conduct of the Unions. That is, the pilots’ refusal to vote in support of a proposed agreement that their Union endorsed, does not in turn mean that the conduct of the Unions was unreasonable. [221] The AFAP submitted that it cannot be unreasonable conduct for employees to exercise their workplace rights to reject a proposed agreement, and that the Commission should not countenance withholding back pay as some sort of punitive act against employees. However, this submission is misconceived insofar of our consideration of s 275(f) is concerned – our focus is not on the conduct of the employees, the question is whether the conduct of Unions was not reasonable for the purposes of s 275(f). [222] After the unsuccessful vote and following further discussions between the bargaining representatives about the status of the proposed agreement, changes were made to the 29 November Proposed Agreement.259 That is, the Unions worked cooperatively with Network in a solution seeking exercise. For pilots, changes were in the nature of improvements to the terms and conditions proposed, and for Network, the introduction of a reduced base salary for low-experience First Officers that applied until a First Officer reaches 1500 flying hours or three years' service.260 [223] Finally, Network presses that after the 22 December Proposed Agreement was voted down, in late January and early February 2024, and despite being aware that Network was bargaining within a cost envelope, each of the Unions made additional (significant) money claims – notably, on 24 January 2024, when the AFAP provided Network with a list of seven claims said to be ‘essential for potential endorsement’ of a proposed agreement. [224] After the 22 December Proposed Agreement was voted down more than once, it was reasonable for the Unions to confer with their membership to determine, essentially, what was going to be required to secure a ‘yes’ vote. Once obtained, it was reasonable for the Unions to [2025] FWCFB 176 53 communicate to Network the conditions sought by the pilots that were propitious for agreement. This is notwithstanding that those same conditions fell outside the cost parameters set by Network and had, to borrow from the parlance of Network been ‘opportunistically advanced at the “heel of the hunt”, suspecting that the likelihood of going backwards is low’.261 [225] It is again necessary to emphasise, the pilots’ conduct cannot be conflated with the conduct of their Unions in these circumstances. As to Network’s assertion that that there was no indication from the Unions that they were willing to compromise on the cost of existing agreed terms, so as to offset the costs of those new claims – those ‘new’ claims were advanced by the Unions over the course of 23 January 2024 to 2 February, and by 5 February 2024 Network had made this application - there hardly seemed time. [2025] FWCFB 176 54 4.7 Whether the bargaining representatives complied with the GFB requirements (s 275(g)) [226] For the reasons so described in our consideration of the reasonableness of conduct engaged in by both Network and the Unions, we consider this factor neutral when it comes to our consideration of the content of the workplace determination. 4.8 Incentives to continue to bargain at a later time (s 275(h)) [227] The Full Bench of this Commission has expressed that the consideration of incentives to bargain at a later time for the purpose of s 275(h), which is congruent with the encouragement of collective bargaining as an important means to achieve productivity and fairness as an object of the Act, requires an assessment of what substantive provisions are likely to encourage the parties to return to bargaining in the future.262 It has also been previously held by a Full Bench that it would be inconsistent with this consideration for the Commission to attempt to resolve every issue that remains in dispute between the parties.263 [228] Network submitted that this consideration is pertinent to the Commission’s consideration of the further claims made by the Unions after the unsuccessful vote for the 22 December Proposed Agreement. Network observed that those claims were made in the context of successive narrow no-votes, as an afterthought, in response to which Network had made concessions around certain terms in an attempt to get employee endorsement. In this respect, Network relies on the evidence of Bartlett who said he had been told that some pilots considered that they could continue to vote proposed agreements down, in order to extract more favourable offers from Network.264 [229] While some pilots may have informed Bartlett that they could continue to vote proposed agreements down in order to extract a more favourable offer from Network, we place limited weight on the Bartlett’s evidence in this particular instance, due to the lack of specificity regarding the context, content and identification of the pilots in question who conveyed this information. [230] Nevertheless, we are cognisant that the terms of the 22 December Proposed Agreement marked a significant departure from those of the 2016 Agreement, and have, when addressing the matters in issue, indicated where we considered that there needed to be an incentive for the parties to bargain in the future, that is, there must be something for them to bargain about in the next round. 5 Terms that deal with the matters at issue [231] Pursuant to ss 270(1)(a) and 3(a) of the Act, the Commission must include in the workplace determination the terms which it ‘considers deal with the matters that were still at issue’ as at the end of the post declaration negotiating period. [232] It is uncontroversial that there were eleven matters at issue at the relevant time, as detailed below: [2025] FWCFB 176 55 Claim Bargaining Representative Determination clause 12. Two hour sign on AFAP N/A proposed new clause 20.6.3 13. No 4:00AM starts after days off AFAP 20.1.4 14. Business class duty travel AFAP N/A – proposed new clause (possibly in 9.27.1) 15. DHA rate AFAP, Netwok 10.6, Schedule 1 16. Overtime rate AFAP, AIPA, TWU, Network 10.8.5 17. 10 days off per roster period AFAP, AIPA, TWU, 20.1.1 18. Revised rostering provisions AFAP, TWU 20 19. Low Experience First Officer rate AIPA 10.3, 10.4 20. Improvements to salary tables Network 10.1-10.4 21. Backpay Network 10.1, 10.2 22. RDO provisions Network 20.1 [233] The task of the Bench is to assess the respective positions of the parties in relation to the above matters at issue and, by reference to the statutory factors, arrive at a conclusion that would be regarded as appropriate in the context of bargaining had the bargaining concluded successfully.265 In TWU v Cleanaway Operations Pty Ltd (TWU v Cleanaway No. 1), it was said that this involves an objective assessment of the statutory factors and an overall judgment as to an appropriate workplace determination to apply to the operations concerned until the parties replace the determination with a new enterprise agreement.266 [234] Each of the identified considerations are dealt with in turn under the respective headings below. It is noted that no party has suggested that any terms of the draft workplace determination dealing with the matters at issue, are less favourable to employees or the Unions than those contained in the 2016 Agreement, and for the reasons that follow we similarly hold the view that terms decided upon in the Determination do not transgress the obligation articulated in s 270A. [235] While the reasons in paragraphs [236] to [577] below primarily focus on the merits of each of the matters in issue per s 275(a) of the Act, that is not to say that those factors in s 275(c)–(h) have been overlooked. 5.1 No Reserve Period, the two hours sign on and issues with the BOOT [236] The AFAP seeks the inclusion of a term to the effect that pilots who are ‘activated’ from ‘reserve’ (i.e. called in from on-call to perform duties) will not be required to ‘sign on’ (i.e. commence duties) within 120 minutes from the time of notification of the activation (two hours sign on). [2025] FWCFB 176 56 [237] As observed a ‘Reserve Period’ is defined in the Network draft determination to mean ‘a period of time during which a pilot is required to be available and contactable for duties but is not performing duties’. It follows that it has generally been understood that a reserve period does not constitute duty or otherwise paid work. By necessity of the AFAP’s materials, and the Corporate Air judgment, we explore this proposition further at paragraphs [267]–[332] – albeit appreciative that it is an issue separate to the ‘sign on’ issue. [238] Under the Network draft determination, a ‘Duty Period’ is taken to mean ‘all the time that the Pilot is undertaking duties at the instruction of the Company’. If a pilot on a ‘Reserve Period’ is required to undertake duties, this is generally described as an ‘activation’ – albeit this term is not adopted in the Network draft determination. However, at hearing, that term was used when an issue was raised about pilots having been ‘activated’ from ‘reserve’ without certain information having been provided.267 We note for ease of reading, we will simply refer to the term ‘reserve’ or ‘reserve period’ rather than Reserve Period and so on. [239] The 2016 Agreement is silent on the period that pilots have to report for duty when they are called in from reserve. It is uncontroversial that the existing practice (which is not regulated by the 2016 Agreement) requires pilots on reserve to sign on within 90 minutes of activation.268 According to Network, this has always been the practice for pilots at the company.269 [240] Bartlett gave evidence that under Network’s current flight schedule, the earliest time that an A320 pilot signs on is 0400hrs, and the earliest time that an F100 pilot signs on is between 0300hrs and 0400hrs depending on the day.270 Bartlett explained that the early morning sign on times were set because the schedule contains a number of flights that depart at and around 0500hrs.271 It therefore proved necessary for pilots to sign on by at least 0400hrs in order for pre-flight duties to be completed in time to enable a 0500hrs departure as planned.272 It followed that reserve periods were rostered by Network to commence at 0230hrs, so that it could contact pilots on reserve and have them available to sign on at 0400hrs.273 [241] Whilst we heard evidence from several pilots regarding their preference for two hours sign on, which we will shortly detail, Bartlett spoke of a number of pilots advising him that they held concerns about the two hours sign on. The concerns were said to centre on the effect the two hours sign on would have on sleep. However, we observe that we did not receive direct evidence from pilots that indicated such concern. [242] Network submitted that the length of the period between activation and sign on needed to strike a balance between the convenience to pilots of longer notice, the inconvenience to pilots of earlier notification (noting that early sign-on times of 0300hrs or 0400hrs could see pilots being contacted as early as 0100hrs or 0200hrs under the AFAP’s claim), and the operational imperative for Network to be able to have reserve pilots on duty within a reasonable timeframe.274 [243] The AFAP relies on two reasons why its proposed clause 20.6.5 in its draft determination, which provides for two hours sign on, should be included in the workplace determination. Clause 20.6.5 reads: 20.6.5 A Pilot on Reserve must be contactable during a Reserve Period and will report for the allocated duty no later than two (2) hours after being contacted.” (emphasis added) [2025] FWCFB 176 57 [244] First, says the AFAP, its inclusion in the workplace determination would be consistent with the safety net standard and the prevailing industry standard across the Qantas Group and the operations of competitors. Second, pilots gave evidence to the Commission about the hardship caused by the status quo. In respect of the pilots’ evidence, the AFAP directed attention to the evidence of Schofield,275 Atkinson,276 Royce,277 and Reid.278 [245] Turning first to the evidence of Schofield, Atkinson, Royce and Reid, essentially their evidence spoke to the limitations on their personal circumstances arising from the requirement to sign on within 90 minutes of activation. Schofield spoke to being unable to be more than 10 minutes away from home to ensure that if called out from reserve he could reach the workplace in the stipulated time,279 Atkinson similarly referred to being unable to make appointments, see friends or go anywhere,280 and Royce said that the existing sign on requirement confined him to a form of home detention and the ability to do anything away from home was virtually impossible.281 Reid spoke of the imposition it had on his wife and friends in respect of childcare arrangements.282 [246] At hearing, Rousset gave evidence on behalf of the TWU regarding reserve periods. When questioned about the number of duty hours and whether that would be a relevant consideration in assessing difference in the package terms and conditions, Rousset gave evidence that he thought so and continued that a lot of time was spent on reserve, probably more than other members of the Qantas Group, and that during reserve, a pilot must be available and on-call to be utilised by the company, as the company sees fit.283 However, if not called whilst on reserve that time was given no credit, and the pilots were not compensated for being on reserve or on standby.284 When questioned whether the pilots had made a claim for compensation for periods on reserve, Rousset clarified that the pilots had made no such claim but added that he thought the DHA, in the pilots’ minds, was a way of being compensated for time on duties other than flying duties (such as waiting four hours at a mine site to return the plane).285 [247] Counsel for Network raised with Rousset that Network had, in this round of bargaining for an enterprise agreement, agreed to cap the number of reserve periods in a roster to seven.286 The following dialogue ensued: PN1130 MR FOLLETT: You agree that one of the things that the company agreed to in this round of bargaining was to cap the number of reserve periods in a roster period?---Yes. PN1131 Yes. To seven?---I believe so. Yes. PN1132 That was, in part, recognition of some of the observations you've just made about some of the difficulties with being on reserve?---Yes. PN1133 That was a beneficial compromise, from the company?---It was. PN1134 Yes. And perhaps next time around you can come up with different claims for what further concession should be given, in relation to reserve periods?---Yes. [248] On 10 November 2023, bargaining representatives for a proposed agreement reached an in-principle agreement during a conference. The bargaining representatives released a joint statement in support of the proposed agreement noting improvements including ‘[a] cap on rostering of reserve duties of seven per rostered period.’287 This compromise was considered, at least by Rousset, as a ‘headline improvement’ and was included in the proposed agreement that went to the vote on 29 November 2023.288 [2025] FWCFB 176 58 [249] Further, as part of bargaining that occurred through late 2022 and early 2023, Network agreed to introduce an ‘Early Call Allowance’.289 That allowance is payable when a pilot signs on inside 90 minutes of being called out from reserve – a claim that was pursued by the Unions and to which Network agreed to as compensation for the inconvenience that is associated with being called out early in the morning. [250] Ultimately, the provision for the Early Call Allowance became an agreed term. Under Network’s draft determination pilots will receive an ‘Early Callout Allowance’ where they sign on within 90 minutes of activation (Network’s draft determination, clause 9.27.16). Network considers that this allowance is an appropriate means to compensate employees for the inconvenience arising from shorter periods between activation and sign on. The Agreed Term reads as follows: Early Call Allowance a) A Pilot will be paid an Early Call Allowance when a Pilot signs on within 90 minutes of being called out from reserve. b) The Early Call Allowance is set out in Schedule 1. [251] Returning to the AFAP’s contentions about the safety net standard and the prevailing industry standard, in respect of the safety net standard, the AFAP submitted that clause 15.6 of the Award provides as follows: (a) An employee on reserve or stand-by will be contactable within any scheduled reserve duty period and will report for the appointed duty no later than 2 hours after being contacted. The employer will specify reserve duty period commencement and finishing times which will be as agreed between the employer and the majority of employees but the duration of such reserve duty periods will not exceed 11 hours. (b) On any day a rostered tour of duty will not be immediately preceded by or immediately followed by a period of reserve duty. (Emphasis added). [252] Regarding the industry standard, the AFAP referred to certain Qantas Group enterprise agreements which also afforded pilots a period of two hours to report for duty after receiving the call to come in from reserve. These enterprise agreements included the following: a) Eastern Australia Airlines Pty Limited Pilots Enterprise Agreement 2023 (the Eastern Airlines EA) at clause 41.4.2; b) Sunstate Airlines (QLD) Pty Limited Pilots Enterprise Agreement 2023 (the Sunstate EA) at clause 35.2.1; c) National Jet Systems Pty. Ltd. Pilot Enterprise Agreement 2022 (the National Jet EA) at clause 35.6: d) Jetstar Airways Pilots’ Enterprise Agreement 2019 (the Jetstar EA) at clause 46.11.3; and e) Qantas Airways Limited (Short Haul) Enterprise Agreement 2020 (the Qantas EA) at RM66. The AFAP also highlighted that competitor agreements afforded pilots a period of two hours to report to duty after receiving the call to come in from reserve: (a) Alliance Airlines Pilots’ (Perth) Enterprise Agreement 2020 (the Alliance Airlines EA) at clause 12.4(c); (b) National [2025] FWCFB 176 59 Jet Express Pty. Ltd. Pilot Enterprise Agreement 2022-2026 (the National Jet Express EA) at clause 5.34; and (c) VARA EA at clause 61.2. [253] We are appreciative that the appropriate balance needs to be struck between the interests of Network and that of the pilots. [254] It is not lost on us that there is a legitimate question as to whether this claim is truly within the interests of the employees in the sense that they are interested in pursuing it. That the claim is of such importance to the pilots is difficult to reconcile with why it was not pursued and negotiated as an item of interest throughout the whole of the bargaining, rather than being raised after the last December 2023 failed vote. We do not discount that Maughan gave evidence that the two-hour sign on was always a controversial issue through the entire round of bargaining, yet the AFAP supported two proposed agreements that embedded the position of Network. [255] Notwithstanding we have heard evidence from some Captains and First Officers that details the personal imposition that the current approach to signing-on from reserve had caused. We again refer specifically to the evidence of Schofield,290 Atkinson,291 Royce,292 and Reid.293 [256] However, we understand Network’s position that it considers its current practice of 90 minutes strikes the right balance, because it allows for operational flexibility - enabling the call- out time to be flexible in light of operational need and allows pilots a reasonable amount of notice that is not unduly disruptive on their personal time. [257] It must, in addition, be acknowledged that it is an Agreed Term that pilots will receive an ‘Early Callout Allowance’ where they sign on within 90 minutes of activation (Network’s draft determination, clause 9.27.16). We accept, in part, that this allowance is an appropriate means to compensate employees for the inconvenience arising from shorter periods between activation and sign on. However, we do not accept, as submitted by Network, that it would be inconsistent with that Agreed Term for the determination to preclude a requirement to sign on within 120 minutes from the time of notification. Particularly, if such limitation was imposed only on part of the working day. [258] As observed, much time was spent by the parties either trying to draw comparison to other airlines within the Qantas Group and ‘competitor’ airlines or distinguishing between the same, in the quest, perhaps, for an industry standard. We accept the evidence of Bartlett294 and Verner295 regarding the differences and the similarities between Network and those airlines within the Qantas Group. We do so, given their extensive experience in the industry, and, in respect to Verner, within the Qantas Group. Both were well positioned to inform the Commission as to differences of other operations, with Bartlett reasonably well positioned to speak, in addition, to the operations of VARA. As to whether, other airlines in the Qantas Group are appropriate comparators, we are not necessarily persuaded that they are in respect of the totality of their operations. [259] Concerning reserve and the period for sign on, whilst Sunstate and Eastern in Brisbane predominantly engage in RPT, with approximately 5% of their flights attributable to closed charter flying, they conduct a number of early morning flights requiring pilots to sign on between 0400hrs and 0600hrs (generally for the closed charter flying).296 We understand [2025] FWCFB 176 60 however, that they conduct significantly less early morning flights than those performed by Network in relative terms, and in the context of overall flying activity.297 We observe that both Sunstate and Eastern provide a two hour sign on period, as does the Award. [260] At hearing, the Full Bench raised with the parties the prospect of a two-tiered reserve period, observing that the pilots’ agitation about the 90 minutes sign on appeared directed to a sign on during the latter part of the day. Whilst Network appeared desirous of maintaining the status quo, it was evident that the 90 minutes sign on in the early part of the morning, was, for Network, particularly vital due to its operational requirements. Those requirements concerned the operation of early morning flights for its client base. A client base that included the mining industry of Western Australia, arguably an important ‘client’ in respect of economic context. The parties were provided with opportunity to file additional material concerning the Bench’s proposition.298 [261] On 8 October 2024, the AFAP filed a revised draft determination in which it amended clause 20.6.5 to provide for the two-tiered approach. The AFAP proposed that for duties commencing before 0800hrs, pilots sign on within 90 minutes of being contacted, and for duties commencing at or after 0800hrs, pilots sign on within 120 minutes of being contacted.299 [262] In response, Network identified that the AFAP’s proposed clause 20.6.5 was inappropriate because it did not recognise that employees may be given more than the minimum period of notice required when a pilot is on reserve. Explaining the point further, Network provided an example where, in respect of a duty commencing at 1100hrs, it may elect to contact the pilot at 0845hrs (rather than 0900hrs) to give the pilot more notice, and/or to contact another pilot if the first did not answer. Network stated that in such an example, the AFAP’s clause would require the pilot to report for duty by 1045hrs, notwithstanding that Network did not require them until 1100hrs. [263] Network accepted that a clause in the following terms would be capable of appropriately dealing with the matter in issue: 20.8.5 A Pilot on a Reserve Period must be contactable during the Reserve Period and must sign on for a duty as directed by the Company, however a Pilot must be given: (a) a minimum of 90 minutes notice to sign on for a duty that is to commence before 0800hrs; or (b) a minimum of 120 minutes notice to sign on for a duty that is to commence at or after 0800hrs (the Revised Reserve Clause). [264] On 14 October 2024, the AFAP submitted that the Revised Reserve Clause appropriately dealt with the matter at issue, and that the Commission ought to resolve the matter by including the Revised Reserve Clause in the determination. We consider that the appropriate course to take, and for the purpose of the determination have incorporated the Revised Reserve Clause. [265] However, before concluding our reasoning on the issue of the reserve period, for completeness, we observe that it is necessary and appropriate to address the AFAP’s submissions of 3 October 2024 in respect of reserve periods and the requirements of the BOOT. This is particularly pertinent given the recent judgment of the Full Court of the Federal Court of Australia in Corporate Air.300 [2025] FWCFB 176 61 5.1.1 Reserve period and the BOOT 5.1.1.1 Background [266] Section 272(4) of the Act provides that a workplace determination must include terms that would be required to pass the BOOT if it were an enterprise agreement. [267] On the subject of Corporate Air, Aikens gave evidence in his second witness statement that the AFAP had recently been in a legal dispute with Corporate Air Charter Pty Ltd about the entitlements afforded by the Award in respect of standby (which, says the AFAP, is another way to refer to reserve). The legal dispute was the subject of three judgments of the South Australian Employment Tribunal (SAET/ South Australian Employment Court). That same Court delivered judgments on 17 July 2023 (AFAP v Corporate No.1),301 29 May 2024(AFAP v Corporate No.3),302 and 11 April 2024.303 It is observed that Aikens noted that all three judgments had been appealed by Corporate Air Charter Pty Ltd to the Federal Court of Australia. In this regard, we observe the following in respect of the appeal: a) on 11 September 2024 the Federal Court of Australia ordered execution of judgement in Australian Federal of Air Pilots v Corporate Air Charter Pty Ltd (No 3) [2024] SAET 36 stayed pending outcome of appeal; b) on 18 October 2024 the Federal Court of Australia dismissed an interlocutory application by Qantas to intervene in Corporate Air Charter Pty Ltd v Australian Federation of Air Pilots [2024] FCA 1225; c) on 19-20 October 2024 there was a hearing; d) on 20 October 2024 the decision was reserved; and e) on 4 April 2025 the Full Court of the Federal Court handed down their judgment in Corporate Air. [268] Regarding the first judgment on 17 July 2024,304 the claim before the Court was that the performance of stand-by duty was expressly recognised by clause 15 of the Award as work, and that it was a contractual duty or function that must be performed when requested.305 The Court held that the evidence before it fully supported the claim, expressing: 47 The plain meaning of the ‘Reserve time’ provision of the Award is that an employee is performing stand-by duty when they agree to being personally available to report at the workplace within two hours for other duty that may extend beyond the stand-by period. That is basic stand-by duty. 48 The Award uses the term work to generally describe the different types of duty covered by it. Hence the cl 15 heading ‘Hours of work’, and the cl 9.4 requirement for pattern and days of ‘work’ to be agreed for parttime employees. 49 The Award includes reference to the following types of work: a tour of duty, flying time, stand-by duty, reserve duty, engineering duties, deadhead transportation, administrative duties, ground training, “duty of any nature associated with the employment” and “reserve time at the airport”.306 [2025] FWCFB 176 62 50 In addition to the Award references submitted by the applicant, it is significant that periods of stand-by duty are limited to 11 hours, and that a rostered tour of duty cannot immediately precede or immediately follow a period of stand-by: cl 15.5. Clause 15.7 includes other regulation of stand-by duty for the purpose of ensuring certain periods are free of all duty, likely for fatigue risk management purposes. Examples are subclauses 15(a), (c), (d), (e), (h), (j), (n), (q) and (r). 51 In contrast to the various duties, the Award describes rest periods as ‘days free from all duty’, periods of no ‘further duties whatsoever’, ‘duty free days’, ‘day off', ‘rest period on the ground’, or ‘leave’. 52 While there are some subtleties to the rules for rest periods associated with some duties, the Award clearly describes stand-by duty as a work duty performed by pilots. 53 Further support for the applicant’s construction derives from the CASA flying time restriction of 100 flying hours in 30 days. This necessarily means other types of duty are intended to be rostered to make up the 152 ordinary hours over 28 days. The Award inclusion of duties other than flying time in this context implies those duties may constitute part of the ordinary full-time hours in addition to flying time. 54 I find Ms Pulaska performed the basic stand-by duty as well as additional work tasks during the rostered period, as described above. The additional duties put beyond any doubt that she was performing stand-by duty for the whole time she was complying with the rosters. I observe that these extra duties were not necessary for the rostered periods to qualify as stand-by duty under the Award. 55 I agree that the absence of a clause providing a penalty rate for working overtime hours does not show an intention to prohibit paid overtime. Not all awards include a penalty rate for overtime. It only means that the minimum rates of pay for overtime are no more than the ordinary minimum rates of pay. I find there is no basis to the respondent’s construction. 56 Further, I agree with the applicant’s submission that the Award clearly contemplates paid overtime can be worked. In addition to the new time off in lieu form, cl 5.1 includes ‘overtime rates’ as a topic of ‘individual flexibility agreements’, and a new Schedule E.7.2 does include overtime penalty rates for helicopter aircrew conducting helicopter operations. 57 The Award provisions for casual employees are also inconsistent with the respondent’s general submissions. Clause 11.3(e) expressly recognises stand-by duty as part of a period of duty. It treats that duty in the same way as all other non-flying duties. While payment is not made for all hours of stand-by or any other duty besides flying, that is due to use of the much higher casual rate for flying duties, being one eight hundredth of the annual salary. 58 As stand-by duty is unambiguously identified as one of a pilot’s duties of employment the Award does not need to duplicate its Sch A.1.1 direction that “Full-time pilots … must be paid at least the following minimum annual salaries.” All stand-by duty is paid work under the Award. 59 No finding is required about whether the contractual duties included stand-by because the Award prevails over the contract. But I will rule on this point in the event my primary conclusion is incorrect, and this issue become relevant. [2025] FWCFB 176 63 61 In my view the hourly rate for stand-by overtime is set in the same manner as for part-time employees. That is to identify “on a pro rata basis” the “equivalent pay and conditions to those of full-time employees: cl 9.3.[sic] [269] The AFAP submitted that as a result of the of aforementioned judgment, standby under the Award is to be treated as a period in which an employee is undertaking duties, and these judgments, being within the jurisdiction of the South Australian Employment Court, are binding on the Fair Work Commission in this proceeding and more generally when considering what the Award requires and when applying the BOOT. [270] In AFAP v Corporate No.3, his Honour observed that in AFAP v Corporate No.1 it was held that the Award provides for all rostered standby duty performed by a pilot to be a duty of employment paid at ordinary rates.307 [271] In short, the AFAP referred to the three judgments of the South Australian Employment Court to emphasise that ‘stand by’ is to be treated as a period in which an employee is undertaking duties - albeit essentially it is the judgment in AFAP v Corporate No.1 that is of relevance. The AFAP stated that it now proposes that for the purpose of satisfying the requirement in s 272(4) of the Act, clauses 5.1(4), 9.1.3 and 10.5.5 of the AFAP’s draft workplace determination ought to be amended as per the notes set out within it. In the alternative, the AFAP submitted that if the clauses are not amended in accordance with the abovementioned notes in the AFAP workplace determination, then the treatment of standby/reserve as time worked is a matter that weighs in favour of making a workplace determination in the terms of the AFAP workplace determination as the improvements in the AFAP workplace determination would assist it to pass the BOOT. [272] On 14 April 2025, we brought to the attention of the parties the judgment of the Full Court in Corporate Air and provided the opportunity to respond to the issues, if any, that the judgment raised in light of the determination. In particular, we referred the parties to the requirement in s 272(4) of the Act that the Full Bench include in the workplace determination terms which would, if it were an enterprise agreement, see it pass the BOOT under s 193 of the Act. [273] In Corporate Air the Full Court explained that the Award makes provision for ‘reserve or stand-by duty’. That duty requires a pilot on reserve or stand-by to be contactable and, if contacted, to report for the appointed duty no later than two hours after being contacted.308 The relevant clause of the Award provides: 15.6 Reserve time (a) An employee on reserve or stand-by duty will be contactable within any scheduled reserve duty period and will report for the appointed duty no later than 2 hours after being contacted. The employer will specify reserve duty period commencement and finishing times which will be as agreed between the employer and the majority of employees but the duration of such reserve duty periods will not exceed 11 hours. (b) On any day a rostered tour of duty will not be immediately preceded by or immediately followed by a period of reserve duty. [2025] FWCFB 176 64 [274] As observed, at paragraph [49] of the judgment, the Full Court concluded that the text, context and purpose of the Award supported a conclusion that rostered stand-by duty is work under the Award.309 [275] In determining whether rostered stand by duty is work under the Award that is paid, the Full Court had regard to Civil Aviation Order 48.1 Instrument 2019 (Order), the CASA Exemption (Exemption) and the relevant Fatigue Risk Management System (CA FRMS). The relevance of the Order, Exemption and CA FRMS, arising from clause 15.2 of the Award which relevantly provides: Hours of work, days off and rest periods will be determined in accordance with the following provided that ordinary hours of work must not average more than 38 per week: (a) the regulations approved by CASA from time to time; (b) general or employer-specific exemptions to, or concessions under, the regulations approved by CASA from time to time; or… [276] The Full Court observed that clause 15.2 provided that ordinary hours of work must not average more than 38 per week. However, that same clause did not provide, or otherwise identify, a period over which hours are to be averaged.310 [277] The Full Court set out that s 62(1) of the Act provides that an employer must not request or require a full-time employee to work more than 38 hours unless the additional hours are reasonable. Section 62(3) sets out matters that must be taken into account in determining whether the additional hours are reasonable as follows: In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account: … (i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64; … [278] The Full Court further observed the operation of s 62(4) of the Act and then noted that s 63(1) relevantly provided that a modern award or enterprise agreement may include terms providing for the averaging of hours of work over a specified period, but that the average weekly hours over the period for a full-time employee must not exceed 38 hours.311 [279] Regarding the provision for ‘averaging’ in clause 15.2 of the Award, the Full Court acknowledged that s 63 provided that, where an award contemplated weekly hours exceeding 38 hours, the award may specify a period over which weekly hours will be averaged.312 The Full Court observed that consistently with the capacity for an award to provide for averaging, clause 15.2 sought to provide for full-time employees to work no more than an average of 38 hours per week.313 However, the Full Court observed that whilst clause 15.2 did not specify a period over which hours are to be averaged, it was willing to accept that if the Order, Exemption or an FRMS specified a period over which hours were to be averaged, then clause 15.1 could be regarded as ‘providing for averaging of terms over’ any such period, as contemplated by [2025] FWCFB 176 65 s 63(1) of the Act.314 The Full Court was, however, unable to discern such a specified period in the Award, the Order or the Exemption. [280] The Full Court held that the maximum number of hours per week under the Award was 38 hours, and rostered stand-by hours worked beyond the minimum number of hours must be remunerated.315 5.1.1.2 Network’s position [281] Network submitted that in Corporate Air the Full Court held that for the purpose of the Award, periods of ‘reserve or stand-by duty’ constituted paid work, and that the effect of that finding was that under the Award such periods count towards a pilot’s 38 maximum weekly hours, and any such periods extending beyond those maximum weekly hours must be remunerated. [282] Referring to the supplementary materials filed by the parties on 6 May 2025 in respect of the potential BOOT issue, Network submitted that, factoring in Corporate Air, s 272(4) did not require the Full Bench to include any further or other terms to its determination, in addition to the Agreed Terms and Network’s proposed terms to deal with the matters at issue, so as to be satisfied that it would pass the BOOT. [283] Network further submitted that by contrast with the Award, its draft determination clearly distinguished between periods in which a pilot is performing duties (i.e. ‘duty periods’) and periods in which a pilot is required to be available and contactable but is not performing any duties (reserve). It referred particularly to the following clauses of its draft determination (with clause 10.5.1 referring to salaries being inclusive of certain hours, loadings, penalties, allowances and public holiday entitlements): Clause 5.1 (4) Duty Period means all the time that the Pilot is undertaking duties at the instruction of the Company. … (9) Reserve Period means a period of time during with a Pilot is required to be available and contactable for duties but is not performing duties. Clause 9.1.3 The ordinary hours of work are seventy six (76) hours per fortnight, when averaged over a twelve (12) month period. Clause 10.5.1 (a) payment for a reasonable amount of additional hours; (b) payment for hours worked outside of the ordinary hours of work; and (c) loadings, penalties, allowances and public holiday entitlements. [2025] FWCFB 176 66 [284] Clause 10.5.2 of Network’s draft determination provided the following in respect of ‘reasonable’ in the context of hours worked: For the purposes of this Determination, ‘reasonable’ shall mean the total of ordinary and additional hours worked each week and will not exceed ninety (90) hours of cumulative duty in any consecutive fourteen (14) days provided that over a 12 month period hours will not exceed 1976 hours (38 hours x 52 weeks). Hours for this purpose means the period from sign on to sign off for each duty (it does not include periods between sign on and sign off in a slip port). [285] Network stated that the effect of the abovementioned clauses was that that the total amount of reasonable hours a pilot can be required to work in a 12-month period is 1,976 duty hours. Furthermore, clauses 5.1, 9.13 and 10.5 of its draft determination were agreed terms for the intractable bargaining workplace determination,316 and therefore those terms must be included in the determination.317 [286] Network pressed that whilst the AFAP sought to define a ‘Duty Period’ as being ‘inclusive of reserve’, it had been accepted by the AFAP’s witness, Aiken, in cross-examination before the Full Bench, that the decision to seek the inclusion of that term was as a result of the SAET judgment.318 [287] Network pressed that the only BOOT-related issue that had been raised in the proceeding, and which had drawn focus from the Full Court’s judgment in Corporate Air, was whether the draft determination passed the BOOT if reserve periods are treated as periods of paid work for the purpose of the Award. Network observed that the issue had been first raised by the AFAP in its outline of submissions dated 8 September 2024 (at [113]–[117]) and then in the AFAP’s oral closing submissions,319 although no meaningful analysis was given to it. [288] That the BOOT had not become an issue up until the judgement in Corporate Air, was, said Network, because of the significant increased benefits that had been included in its draft determination, which included, amongst others: (a) salaries that are up to 27.9% above the Award rate; (b) a DHA payable in respect of the wide array of duty hours, which is not provided in the Award, and which would amount to an annual payment of $7,805.24 on the First Officer rate alone, for the average duty hours performed by Network pilots between 23 March 2024 and 23 March 2025;320 (c) Additional Hourly Payments for flying hours in excess of 59 and 75 hours (respectively) in a roster period (i.e. 28 days), which is not provided for in the Award;321 (d) flying hours are limited to 100 hours per roster period, and duty hours are limited to 60 in seven consecutive calendar days;322 and (e) the maximum number of reserve hours in a roster period is 84 hours, being a maximum of seven periods of reserve up to a maximum of 12 hours each (the Award contains no limit).323 The cap of seven reserve periods was agreed in bargaining in response to the Union claims to limit reserve.324 [289] Network submitted that in light of the substantial benefits (over and above those provided for by the Award), the only circumstance in which a BOOT issue would potentially arise is if, by a combination of duty periods and reserve periods, Network’s pilots were required [2025] FWCFB 176 67 to work in excess of the maximum of 38 hours per week provided by the Award (or, as the agreed term in Network’s draft determination casts it, 1,976 hours (being 52 x 38 hours) in a 12 month period) without the level of compensation provided by the Award. [290] Network submitted that in the 12-month period between 23 March 2024 and 23 March 2025, none of Network’s 274 pilot employees performed more than 1,976 combined duty hours and hours on reserve, noting also that the agreed cap of seven reserve periods per roster period was not applicable in that period.325 [291] Network added that even if there was the potential for Network pilots to perform combined hours in excess of 1,976 hours, the generally applicable increased benefits provided by its draft determination, together with the agreed limitations imposed by the draft determination on the rostering of duty and reserve, eliminated any doubt that the pilots under Network’s draft determination will be better off overall than they would under the Award. [292] In respect of evidence, Network relied on the witness statements of Bartlett dated 5 May 2025 and 23 May 2025 and that of Douglas Wiliam Johnson dated 19 June 2025, in addition to evidence previously filed. [293] Bartlett explained that Network utilises a rostering system referred to as iFlight.326 For the purposes of preparing his statement, Bartlett had caused reports to be extracted from iFlight which showed all hours worked by pilots over a 12-month period from 23 March 2024 to 23 March 2025, which had been broken down into two categories.327 The first, all duty hours and the second all reserve hours.328 Data from iFlight had then been collated into a spreadsheet marked as Annexure EB-16. [294] Bartlett clarified that the duty hours are the hours between sign-on and sign-off in any port on any day, and that under Network’s draft determination, all duty hours attract payment of a DHA ($7.32 for a First Officer and $11.26 for a Captain). Bartlett emphasised the evidence he gave at paragraph 155 of his 6 September witness statement, noting that duties for pilots are not limited to flying duties but include other non-flying activities such as ground training, simulator (etc), consolidated learning days, study days, fleet tech days, office/admin days (for those in training, leadership or project roles), rostered period, and training.329 [295] Bartlett gave evidence that for the purpose of the iFlight reports, reserve hours (understood by Network to be those periods where a pilot must be available and contactable for duty but is not performing duties) included home reserve, re-assignable reserve, training reserves and simulator reserves. [296] Bartlett stated that he had reviewed the total duty hours and reserve hours (so described) over the aforementioned 12-month period, and that no pilot had combined total hours in excess of 1976 hours over this period (with 1976 hours being the maximum hours under the Award, 38 hours x 52).330 [297] It was therefore Network’s position that the evidence did not support the Unions’ position that pilots would be worse off under Network’s draft determination than they would be under the Award. [2025] FWCFB 176 68 [298] Network then addressed the AFAP’s evidence about the BOOT, with particular reference made to the evidence of Maughan331 and Aikens.332 [299] Maughan had relied upon ‘pre release roster data’ for his analysis, which, submitted Network, did not reflect the hours a pilot actually worked. At paragraph [6] of his witness statement dated 5 May 2025, Maughan clarified that the data he relied upon had been extracted from official group pre-release rosters and had been processed using a custom built program he developed to calculate the weekly duty hours for each individual pilot.333 [300] After providing detail regarding the methodology he had adopted for remuneration modelling, Maughan stated that for the purpose of conducting a gross error check to validate the logic, he modelled a typical five-day working week.334 Maughan said that pilots generally fly three line sectors and cover two reserve shifts per week.335 He continued that the average fight duty duration (across F100 and A320 fleets) was 6.71 hours and the average reserve “duration was 8.98 hours ((3 x 6.71) + (2 x 8.98)) = 40.39 hours.”336 [301] Maughan stated that he had prepared, at Annexure SM5A to his witness statement of 5 May 2025, a bar graph showing a simple visual of the average flight and reserve duty durations for all four rank/fleet groups: [302] According to Maughan, an example of a working week in 2024 was that of an A320 First Officer, whose weekly rostered hours averaged 42, consistently ranging between 40 and 45 hours. This contrasted to extreme working weeks where, for example, Captain Robert’s working week was 59+ hours across six straight duties, Captain Konrad had 59.1 hours, and Captain Fredrik had 59.1 hours.337 [303] Addressing Maughan’s evidence first, Network observed that Maughan had utilised ‘pre-release roster data’ from the 2024 calendar year to produce the combined duty and reserve [2025] FWCFB 176 69 hours performed by pilots in 2024 and stated that the data showed a significant amount of Network pilots performing in excess of 38 combined hours per week, averaged over the 12- month period. [304] Bartlett gave evidence that Maughan’s roster analysis is flawed and unreliable for several reasons, and that he saw no reasonably foreseeable pattern of work in which pilots would perform combined duty and reserve hours in excess of the maximum 1976 ordinary hours in a 12-month period. [305] In respect of Maughan’s evidence, Bartlett identified several issues, an abridged version of which is set out below: (a) Maughan’s analysis was premised on pre-release roster data which had been generated based on the known flying that is in the schedule at that time (presumedly before its release).338 Those rosters were subject to change and frequently did change based on operational requirements – with pre-release rosters not reflecting actual operational outcomes;339 (b) rosters, including pre-release rosters, can include designated reserve periods340 – for example, a pilot may have a reserve period of 12 hours and be called out to commence a duty two hours after the commencement of the reserve period for a seven-hour flight duty.341 While Maughan’s analysis captured 12 hours total, the actual total duty hours worked and time spent on reserve is 9 hours and 15 minutes (being the two hours from the commencement of reserve, but before the commencement of the duty, the seven hour flight duty, and 15 minutes after the end of flight duty which is treated as duty time for a pilot to sign off and perform post flight duties);342 (c) Maughan had premised his modelling on an assumption that an ‘Available Day’ (that is, an ‘A-Day’) equated to eight duty hours. However, under the Network draft determination an ‘Available Day’ is defined as being a ‘day on which a Pilot may be allocated a duty’. An Agreed Term of the determination was that A-Days could only have a duty assigned and could not be converted into a Reserve Period – if a duty had not been assigned by 1700hrs the day prior to the A-Day, then a pilot would be provided with a non-work day and be marked unavailable, effectively providing an additional day off. Having caused a report to be run from iFlight to identify the total of A-Days rostered that resulted in a pilot being allocated an unavailable day in the roster period from 9 September 2024, the report identified that a total of 163 A-Days were rostered, of which 69 unavailable days were allocated. It followed that approximately 42% of A-Days resulted in the pilot being allocated an unavailable day, which was duty free. Of the 94 A-Days that were converted to a duty, the average duty hours were 5.79. Taking account, the 69 unavailable days where no duty was allocated, this meant that the average duty hours on any given A-Day in that roster period were 3.34 hours – well below Maughan’s assumption of 8 hours; and (d) Maughan’s analysis ignored that an Agreed Term of the determination was that a maximum of seven reserve periods can be allocated in a roster period of a maximum duration of 12 hours each. Bartlett stated that the maximum of seven reserve periods had been implemented by workforce planning from roster period 9 in 2024, resulting in the following: [2025] FWCFB 176 70 5.1.1.3 The AFAP’s position [306] The AFAP referred to submissions it had made on 3 October 2024. First, it had submitted that for the purposes of satisfying the requirement in s 272(4) of the Act, clauses 5.1(4), 5.1(9), 9.1.3 and 10.5.5 in the AFAP draft determination ought to be amended as per the notes in the determination. Second, and in the alternative, if the clauses were not amended as outlined, then the treatment of standby/reserve as time worked was a matter that weighed in favour of making a workplace determination in the terms of the AFAP draft as the improvements within that document would assist the draft determination to pass the BOOT. [307] Turning to the clauses in question and the notes contained in the AFAP draft determination, the AFAP set out the following: 5 Definitions 5.1 For the purposes of this Workplace Determination: … (4) Duty Period means all time that the Pilot is undertaking duties at the instruction of the Company. [Note: For the purposes of passing the Better off overall test as required by s 272(4), we submit that this clause should read “Duty Period means all time that the Pilot is undertaking duties at the instruction of the Company, inclusive of reserve.”] (9) Reserve Period means a period of time during which a Pilot is required to be available and contactable for duties but is not performing duties. [Note: For the purposes of passing the Better off overall test as required by s 272(4), we submit that this clause should read “Reserve Period (Standby Period) means a duty period during which a Pilot is required to be available and contactable.”] … 9 Employment conditions 9.1 Work organisation and hours of work … 9.1.3 The ordinary hours of work are seventy six (76) hours per fortnight, when averaged over a twelve (12) month period. [Note: For the purposes of passing the Better off overall test as required by s 272(4), we submit that this clause should read “Total duty Roster Period F100/E190 A319/A320 Total CPT FO CPT FO Roster Period 1 2 1 0 1 4 Roster Period 2 3 3 2 2 10 Roster Period 3 1 8 2 2 13 Roster Period 4 9 13 0 2 24 Roster Period 5 1 3 0 2 6 Roster Period 6 2 2 0 0 4 Roster Period 7 13 6 0 0 19 Roster Period 8 2 0 0 0 2 Roster Period 9 0 0 0 0 0 Roster Period 10 0 0 0 0 0 [2025] FWCFB 176 71 hours (as per definition) of work must not exceed more than 76 hours per 14 consecutive days.”] 10 Pay 10.1 Annual salary and incremental pay scale for Captains & First Officers … 10.5.5 Additional Hourly Payment Where a Pilot achieves more than 59 flying hours in a roster period, the Pilot will be entitled to receive an hourly payment. For each hour flown in excess of 59 hours in a roster period, a Pilot will be entitled an hourly payment at the Additional Hourly Payment rate set out in Schedule 1. For the purpose of calculating the flying hours in a roster period for this clause: (i) a Pilot will receive a credit of one flight hour for each flight simulator duty hour worked, to a maximum of four hours per simulator duty; (ii) a Pilot will receive a credit of one flight hour for each company-approved administrative ground duty hour worked, to a maximum of two hours per day; and (iii) a Pilot on annual leave will receive a reduction to the flying hours prorated for the period of annual leave taken during the roster period. Hours accrued for the period a Pilot is undergoing a type rating do not contribute to the flying hour thresholds for an Additional Hourly Payment. For part hours in excess of the flying hour thresholds, the payment will be prorated. Until the Company provides notice otherwise, the Pilot must submit a claim for an Additional Hourly Payment to receive payment. [Note: For the purposes of passing the Better off overall test as required by s 272(4), we submit that this clause should have the following added to it “Where a Pilot achieves more than 76 hours of duty in a 14 day period, the Pilot will be entitled to receive an hourly payment for each hour of duty over 76 hours at the Additional Hourly Payment rate set out in Schedule 1. ”] [308] The AFAP submitted that Corporate Air must be followed by the Commission in determining the application before it, such that the Commission must now proceed on the basis that standby/reserve under the Award is to be treated as a period in which an employee is undertaking duties. Significantly, said the AFAP, the construction of standby/reserve under the Award must be applied when undertaking the BOOT. [309] As to the impact of holding that standby/reserve under the Award is to be treated as a period in which an employee is undertaking duties, the AFAP relied upon the evidence of Aikens and Maughan. At paragraph 6 of Maughan’s third witness statement dated 5 May 2025, he acknowledged that the data he had relied upon to conduct his modelling was extracted from official group pre-release rosters provided to him in his capacity as a RWG representative. Maughan further notes that Aikens (in his fourth witness statement) has relied upon the dataset as compiled by Maughan.343 [2025] FWCFB 176 72 [310] The AFAP submits that in respect of the impact of holding that standby/reserve under the Award is to be treated as a period in which an employee is undertaking duties, the AFAP relies upon Aiken’s fourth witness statement and Maughan’s third witness statement. According to the AFAP its analysis illustrates that when standby/reserve is treated as time worked (which it must be for the purposes of applying the BOOT), this is a matter that weighs in favour of the AFAP’s draft determination, because the analysis establishes that Network’s proposed wage rates are insufficient and in many instances significantly below the Award rates (or will likely fall below the Award rates in the future). 5.1.1.4 Consideration [311] Whilst we have not detailed separately the submissions of the AIPA and the TWU in respect to this particular BOOT issue, in short, the AIPA is supportive of the AFAP’s position, and the TWU holds the view that the most efficient way to alleviate the BOOT concern that it says has arisen, is to ensure that reserve is considered paid work. [312] Expanding further on the TWU’s submissions, the TWU acknowledged that Network suggested that no changes of its draft determination were necessary in light of Corporate Air due to the monetary and non-monetary clauses contained in its draft determination. However, the TWU considered the proposition flawed and fundamentally inconsistent with Corporate Air. [313] It explained that whilst Network had accepted that there is potential for proposed clause 10.5.2 of its workplace determination to raise a BOOT issue if a pilot’s duty periods and reserve periods combined to exceed 38 hours per week or 1976 hours over a 12-month period, and that Network did not currently roster pilots in excess of 1976 hours, this did not obviate the need for the workplace determination to apply Corporate Air and provide for reserve as paid duty. [314] The TWU submits, uncontroversially in our view, that a BOOT assessment is made at the time an agreement is made, and the test is not confined to an employer’s current operational or rostering pracices, but to how the enterprise agreement could be applied to reasonably foreseeable employees. [315] The TWU further submits that Network’s draft determination and those of the Unions allow for pilots to be rostered up to seven reserve duties per 28-day roster period, where each reserve duty can be rostered up to a maximum of 12 hours. This, submits the TWU, equates to 1096 hours of possible reserve duty hours that a pilot could be rostered over a 12-month period. The TWU noted that where some pilots receive a salary under the draft determination at an Entry Level First Officer rate, the salary was only 1.4% above the Award and therefore that salary would be incapable of passing the BOOT if reserve duty was not classified as paid work under Network’s draft determination. [316] Essentially, the Unions’ argument is that as a result of Corporate Air, several Agreed Terms ought to be changed to ensure that the workplace determination passes the BOOT. The concern appears to be that because reserve is not to be treated as work under the Network draft determination, as a result of Corporate Air the determination will not pass the BOOT unless [2025] FWCFB 176 73 the determination similarly reflects in express terms that a reserve period constitutes paid work or duty. [317] We observe that it is an Agreed Term under the Network draft determination that unless otherwise specified in the determination, the salary set out in that determination is inclusive of payment for a reasonable amount of additional hours and payment for hours worked outside of the ordinary hours of work.344 That salary, in addition, compensates for loadings, penalties, allowances and public holidays. For the purposes of the draft determination ‘reasonable’ is defined in the following terms: 10.5.2 For the purposes of this Determination, ‘reasonable’ shall mean the total of ordinary and additional hours worked each week and will not exceed ninety (90) hours of cumulative duty in any consecutive fourteen (14) days provided that over a 12 month period hours will not exceed 1976 hours (38 hours x 52 weeks). Hours for this purpose means the period from sign on to sign off for each duty (it does not include periods between sign on and sign off in a slip port). [318] In addition, it is an Agreed Term that a ‘Reserve Period’ is a period of time during within a pilot is required to be available and contactable for duties but is not performing duties. [319] It is to be appreciated that in reaching the requisite satisfaction that an agreement, or in this case, a workplace determination, passes the BOOT pursuant to s186(2)(d)of the Act, the Commission is required to make an evaluative judgement of whether each employee concerned would be better of overall under the terms of the agreement versus the relevant modern award. The evaluative judgment is to be formed through undertaking a global assessment of terms in the Agreement that are more and less beneficial than the award.345 [320] The BOOT therefore entails an overall, not a line by line, assessment of whether each award covered employee and each reasonably foreseeable employee would be better off under an agreement than the relevant award. This is clear from s 193 of the Act. Further, s 193A confirms, for the avoidance of doubt, that the Commission must undertake a ‘global’ assessment of whether each employee would be better off under the agreement than the award, having regard to the terms of the agreement which would be more beneficial to the employee than those in the award, and those that would be less beneficial. [321] It has been acknowledged that the task for the Commission in conducting a BOOT analysis will at times involve a comparison between the total remuneration earned by employees under the proposed instrument as compared with the relevant award, and that in respect of that assessment: …[T]he primary, and often the only, consideration which arises in the assessment of the BOOT is a comparison between the total remuneration which would be earned by existing and prospective employees under the agreement as compared to the modern award. In the case of agreements which mimic the award structure of base hourly rates and penalty rates for working ordinary hours at unsociable times and for working overtime, the required BOOT comparison may be capable of being conducted simply by comparing the dollar amounts of the base rates and penalty rates in the agreement as compared to the award. However where the agreement has a different pay structure than the award, particularly a loaded rate structure which incorporates some or all of the penalty rates which would be payable if the award applied, no meaningful comparison can be conducted without applying the loaded rates to the working hours patterns [2025] FWCFB 176 74 actually worked or reasonably capable of being worked under the agreement. Such an exercise necessarily requires examination of the practices and arrangements concerning the working of ordinary and overtime hours by existing and prospective employees that flow from the terms of the agreement.346 [322] Clause 10.5.2 of Network’s draft determination provides for ‘reasonable’ hours not exceeding 1976 hours over a 12-month period and not exceeding 90 hours of cumulative duty in any consecutive 14 days. [323] In giving his evidence in cross-examination, Bartlett explained that he had reviewed the total duty hours and reserve hours over a 12 month period because it was the basis of the Agreed Term that averaging would be by reference to the 12 months,347 and that he had assessed how many hours in excess of 152 hours occurred over a four week period for duty and reserve.348 Bartlett’s evidence was that the four week roster period had been adopted because that was how Network produced rosters over the course of a calendar year.349 [324] Bartlett further identified that prior to the judgment of Corporate Air, Network pilots were not remotely close to 1976 hours350 (regarding reserve and duty). In fact, Bartlett stated that no single pilot had combined total hours in excess of 1976 hours over the 12 month period.351 [325] Whilst a reserve period does not count as duty under Network’s draft determination, Bartlett stated if reserve hours counted as paid work for the purposes of the Award: a) there are no pilots whose combined total duty and reserve hours excess 1976; b) under the Award, the pilots would be paid the base salary for their classification plus any additions to minimum salary (notably the turbo jet aircraft and instrument rating for First Officers and Captains, with Captains also attracting the ATPL). No additional amount would be paid as no pilots have total hours that exceed 1976; c) under Network’s draft determination, pilots would be paid: i. their base salary, which exceeds the base salary that would be payable under the Award for all classifications; ii. additional payments for all duty hours (Annexure EB-16 to the witness statement of Bartlett dated 5 May 2025 records the average duty hours over the relevant 12 month period as 1066.29. Even assuming all hours are paid at the DHA for First Officers, the average additional payment across the pilot cohort would be $7,805.24); and iii. an additional payment for flying hours in excess of 59 hours per roster (and above 75 hours). [326] In Bartlett’s witness statement of 23 May 2025, attached at Annexure EB 17 was a report of average hours (duty and reserve) for the period 25 March 2024 to 23 March 2025, and Annexure EB-18 was the modelling of annual payments a pilot would receive under the Award and Network’s draft determination if pilots worked the maximum duty and flight hours under the FRMS (which is located at Annexure EB12 at pp 758-854 of the Digital Hearing Book). Whilst we have reviewed all modelling, we note that these Annexures accurately reflect the content of Bartlett’s evidence regarding hours worked. [2025] FWCFB 176 75 [327] Having reviewed at length the modelling provided by the parties, we consider that there is a low practical reality of pilots working in excess of 1976 hours over a 12-month period, and the rare circumstances if they did occur, are not reasonably foreseeable and therefore do not weigh against the determination passing the BOOT. By the word ‘work’, we refer to ordinary hours, hours worked on reserve, and additional hours. Network provided extensive details of time worked over the previous 12 months and matters pertaining to roster that, relevantly, have satisfied us of this point. Whilst the analysis of the AFAP was thorough, the shortcomings of its assessment in respect of the BOOT were highlighted by Network, and to us did not appear misplaced. [328] Having considered the modelling undertaken by the Commission itself, we are satisfied that under a range of reasonably foreseeable rostering scenarios, employees covered by the workplace determination and each reasonably foreseeable employee would be better off overall in respect of their conditions of employment when compared to the Award. This is the case notwithstanding that both DHA and the Additional Hourly Payments are dependent on duty hours and additional hours being worked respectively – albeit we note the evidence regarding average duty hours. Further, we observe that Network had conducted its modelling on the rates of pay as set out in its draft determination. However, as we foreshadowed in our introductory paragraphs those pay rates do not mirror those in our determination, the rates of pay we have provided are improved upon those which Network proposed. [329] Consequently, we are satisfied that per s 193A(6A) of the Act, hours in excess of 1976 hours (consisting of ordinary hours and those hours in reserve periods and reasonable additional hours) per 12-month period are not hours that are reasonably foreseeable for the purposes of s.193A(6) of the Act and the BOOT. Our assessment is that whilst our determination does not consider reserve periods as duty (or paid work) given the aforementioned Agreed Terms, to the extent that is a detriment, it is outweighed by the higher rates of pay in addition to the other financial benefits that pilots will receive under our determination, when compared to what the pilots would have received if the Award had applied to them. [330] As to the necessity to amend an Agreed Term or Terms, as suggested by the Unions, whether that be the definition of Duty Period,352 Reserve Period,353 the ordinary hours of work354 or the Additional Hourly Payments,355 to ensure that the draft determination is better off overall when compared to the Award, that proves redundant in light of the reasons already provided. [331] Returning briefly to Corporate Air, the Full Court observed that whilst clause 15.2 of the Award did not specify a period over which hours are to be averaged, it was willing to accept that if the Order, Exemption or an FRMS specified a period over which hours were to be averaged, then clause 15.1 could be regarded as ‘providing for averaging of terms over’ any such period, as contemplated by s 63(1) of the Act.356 We recall that the Full Court was, however, unable to discern such a specified period in the Award, the Order or the Exemption. As was the case in Corporate Air, those instruments and the relevant FRMS do not appear to address ‘averaging of terms’. Whilst relevant to the assessment of whether the determination passes the BOOT, the absence of a term providing for the averaging of hours of work over a specified period in the Award does not, in turn, preclude the inclusion of such term in a determination. In this case the parties agreed to a term that permits the averaging of hours of work over a period of 12 months and given that Agreed Term does not compromise the [2025] FWCFB 176 76 determination’s assessment under the BOOT, again there is no requirement to amend that averaging term. [332] Considering all the terms and conditions in the determination including the beneficial entitlements and detriments which we have outlined above, we are satisfied that the determination passes the BOOT as required by s 186(2)(d)of the Act. In reaching our conclusion we have had particular regard to the higher rates of pay and allowances conferred by the determination which, we consider, are such as to leave each Award covered pilot and reasonably foreseeable pilot better off overall when compared to the Award at test time. 5.2 No 0400hrs starts after days off [333] The 2016 Agreement is silent on how early Network can roster pilots the after an RDO. In fact, the 2016 Agreement does not regulate the time of day that pilots can be required to sign on, whether after RDOs or otherwise. [334] Whilst the AFAP had much to say regarding its push on behalf of pilots to secure no 0400hrs starts after an RDO, the submissions of the TWU and the AIPA did not address the issue. [335] According to the AFAP, under current rosters, pilots are rostered to commence duty as early as around 0400hrs.357 The AFAP seeks the inclusion of a term that prohibits a pilot being required to sign on earlier than 0600hrs the day after the calendar day which is designated as an RDO. The AFAP’s draft determination includes the following term at clause 20.1.4: 20.1.4 A Pilot is not required to sign on earlier than 0600 the day after the calendar day which is designated as an RDO. [336] In contrast the Network draft determination includes the following at clause 20.1.4: A Pilot is not required to sign on earlier than 0400 the day after the calendar day which is designated as an RDO. [337] In Network’s view the inclusion of a restriction on pre-0400hrs sign on times in the determination strikes the right balance between pilots not being required to meet the earliest daily sign on time (0300hrs), and ensuring that Network can continue to meet its operational requirements. Network presses that this constitutes a substantial concession given there is no such limitation on its operational flexibility in the 2016 Agreement. [338] Clause 15.8(d) of the Award provides: An employee will not be rostered for a tour of duty terminating after 2200 hours on the day preceding the rostered day or days free of duty and will not be rostered to commence duty prior to 0600 hours on the day following the day or days free of duty. [339] Consistent with the Award, the following Qantas Group enterprise agreements also provide that pilots will not be rostered to commence prior to 0600hrs after an RDO: (a) the Eastern Airlines EA at clause 8.11; and [2025] FWCFB 176 77 (b) the Sunstate EA at clause 36.9.358 [340] However, we have already observed that whilst Eastern and Sunstate provide early morning flights from Brisbane and require pilots to sign on between 0400hrs and 0600hrs (generally for the closed charter flying),359 the number of flights was said to be, in relative terms in the context of overall flying activity, significantly less than that performed by Network.360 Verner had said that in respect of sectors flown, Sunstate and Eastern pilots typically operate four to five sectors, and whilst they did not perform back of clock flying, they did work more flight hours and days in a roster period, compared to Network pilots.361 In cross examination, Verner did, however, acknowledge that the sectors flown in Western Australia by Network pilots took longer to fly than those in New South Wales and Queensland, with the shortest sector in Western Australia taking 45 minutes and the longest four hours.362 [341] The AFAP referred to the Qantas EA at ‘RM 17.2’ and the Jetstar Rostering Protocols at clause 6.4, noting that both set out that pilots will not be rostered to commence prior to 0500hrs after an RDO. We are, however, of the view that the operations of Qantas and Jetstar and the markets that they serve, can be differentiated when one considers the early morning flights Network provides through charter and private clients booking seats on RPT for FIFO workforces. [342] The AFAP primarily advanced two reason for including in the workplace determination a prohibition on earlier than 0600hrs start times on the day after the calendar day which is designated as an RDO. First, the clause would be consistent with the safety net standard (presumedly as provided in the Award) and what had been provided to employees by other Q Link subsidiaries. Further, the status quo and Network’s proposal was below the condition afforded to pilots by National Jet, Qantas and Jetstar. [343] Second, Network pilots had given unchallenged evidence to the Commission about the hardship caused by the status quo, and whilst Network had the opportunity to challenge the witnesses about this evidence, they made a forensic decision not to do so. In its submissions, the AFAP drew upon the evidence of Leavy, Reid, Katie Bateman and Clayton Bateman. [344] Network submitted that it understood that the AFAP sought this claim as a lifestyle measure for pilots, noting that it had been part of a broader campaign for lifestyle measures to be included in a proposed agreement. Network continued that many of those lifestyle measures, were agreed to by Network and offered as part of the 22 December Proposed Agreement and had formed Agreed Terms for the determination.363 Those ‘measures’ included terms which Network considered limited its operational flexibility but provided beneficial rostering practices and life style benefits to the pilots, including:364 (a) increasing RDOs from 8 to 9, with four pairings of RDOs to occur in a roster period; (b) providing for a guaranteed weekend off every roster period; (c) lengthening the duration of RDOs by 50%, from 24 hours to 36 hours (which in the context of this claim Network said was important);365 (d) limiting reserve periods (in which pilots are on call) to seven in a roster period; (e) introducing rostering restrictions around RDOs, including that employees will not be required to sign on prior to 0400hrs following an RDO; [2025] FWCFB 176 78 (f) providing that where pilots have a block of seven or more days of annual leave, they will not be required to sign off later than 2200hrs on the day before the leave commences and not before 0800hrs on the day after it finishes; and (g) removing Network’s ability to roster pilots to reserve on ‘available days’, meaning that they either need to be rostered for flight duty or ground duty, or else they will be unavailable and cannot be required to perform any duty. [345] Network submitted that the significance of the improvement to these terms was highlighted by the fact that they would have involved an increase to Network’s (largely fixed) pilot labour cost of approximately $19m per annum, or 38% ($48m to $67m)366 from commencement, and would increase over the life of the draft determination. [346] As part of these measures, Network (and all Unions, including the AFAP) agreed to include a restriction on rostering pilots for duty before 0400hrs on the calendar day after an RDO. Network stated that it maintains its willingness to implement that term (see clause 20.1.4 of Network’s draft determination). Network further stated that it was only after the 22 December Proposed Agreement was narrowly voted down that the AFAP resiled from its agreement to the term. [347] Network pressed that a minimum possible sign on time of 0400hrs is necessary to enable Network to service flights that are scheduled to depart at 0500hrs, with the pilots having enough time to perform the necessary pre-flight duties.367 In particular, Bartlett gave evidence that under Network’s current flight schedule, the earliest time that an A320 pilot signs on is 0400hrs, and the earliest time that an F100 pilot signs on is between 0300hrs and 0400hrs, depending on the day.368 Bartlett said that the early morning sign on times are set because the schedule contained a number of flights that depart at and around 0500hrs.369 [348] Bartlett had reviewed the flight duties and roster for the period 9 September to 6 October 2024 (which was said to be reflective of Network’s typical flight schedule and roster).370 He explained, as we have previously noted, that a ‘flight duty’ was a duty in which a pilot has responsibility (direct or indirect) for the operation of an aircraft.371 [349] In respect of the September to October period, for F100 pilots the flight schedule and roster showed the following regarding early morning flight duties: (a) 7 flight duties rostered to sign on between 0300 and 0400; (b) 90 flight duties rostered to sign on between 0400 and 0500; (c) 85 flight duties rostered to sign on between 0500 and 0600; and (d) 78 flight duties rostered to sign on between 0600 and 0700.372 [350] For the A320 pilots, the early morning flights extended to the following: (a) 98 flight duties rostered to sign on between 0400 and 0500; (b) 131 flight duties rostered to sign on between 0500 and 0600; and (c) 67 flight duties rostered to sign on between 0600 and 0700.373 [2025] FWCFB 176 79 [351] At paragraph 75 of his witness statement of 6 September 2024, Bartlett compiled the following table in respect of the split of duties with sign on times between 0300hrs and 0700hrs for the period 9 September to 6 October 2024: Sign on Time F100 A320 Duties % Duties % 0300-0400 7 1.35% 0 0 0400-0500 90 17.41% 98 15.63% 0500-0600 85 16.44% 131 20.89% After 0600 335 64.80% 398 63.48% Total Duties 517 100 627 100 [352] According to Bartlett the table illustrated that in respect of the F100, approximately 35% of Network’s flight duties require pilots to sign on prior to 0600hrs, and in respect of the A320, it was approximately 36%.374 [353] Regarding the consequences of not having pilots signing on until 0600hrs, Bartlett stated that the company would not have sufficient pilots available to meet is current flight schedule. Bartlett continued, that this was the position whether the day was an RDO, following an RDO, or any other day, as a substantial portion of Network’s flying required pilots to sign on prior to 0600hrs.375 [354] Maughan’s evidence paints a somewhat contrary picture. At paragraph 13 of his second witness statement of 23 September 2025, Maughan observed that Bartlett had given evidence that 35-36% of flights duties required a sign on prior to 0600hrs. Maughan remarked that Bartlett had not explained that not every pilot rostered to commence before 0600hrs is returning to work from an RDO. Maughan’s evidence was that only 7% of the total roster would be impacted by the change.376 [355] In cross examination, Bartlett was questioned about Maughan’s evidence that 7% of the total roster would be impacted by the change regarding the sign on time after an RDO and that Bartlett had not addressed that. Bartlett replied to the effect that if the underlying position was that it was only seven per cent of the total work group, then that total would probably not include things like annual leave that had been blocked in, parental leave, and disruption management.377 [356] It was proposed to Bartlett in cross examination that he was providing data and commentary on what he said would be the impact of the AFAP’s claim being accepted, but that he had not done any analysis on what percentage of the total roster would be impacted by the particular change.378 Bartlett responded: Personally me – no. We have requested through our workforce planning team the impact from an FTE basis of introducing these conditions. And the advice that's been provided to me is when you layer 36 hours, plus the 06:00, there are additional FTE requirements that are required to meet the schedule.379 [357] In respect of the evidence of Hosegood, in cross examination he was asked whether he would accept that a roster which restricted start times occurring any earlier than 0600hrs following a RDO would be preferable from the perspective of reducing fatigue, than a roster [2025] FWCFB 176 80 which scheduled shift from as early as 0410hrs. Hosegood responded that he partially agreed with the statement: …because the inclusion of the RDO actually means that this is less likely to be fatiguing because there's been time off before the early start, as opposed to where we focus on, which is consecutive early starts where somebody has worked the day prior and has an early start. Whereas an RDO, you've had, by definition, you know, an extended period of time off so a start time early on that day, after an RDO is, by definition, less fatiguing.380 [358] When Hosegood was further pressed that a restriction in an industrial instrument on a pilot being rostered at 0410hrs, or prior to 0600hrs, conferred a fatigue management benefit, Hosegood replied, ‘No. The FRMS is what takes care of the fatigue risk management, from a safety perspective. In an industrial instrument you could place additional layers… that… may confer a lifestyle benefit.’381 Having been once again pressed about the fatigue management benefit of the proposal, Hosegood stated: As a general statement, a later start, regardless of whatever has preceded it, whether it’s RDOs, previous says [sic], a later start, is going to allow for more sleep, potentially, on that night, so it’s less fatigue.382 [359] In respect of CASA Regulations, Hosegood gave evidence that the minimum RDOs in a 28-day roster period were six days and that Network currently had a minimum of eight, with a recent move to nine RDOs for some people in accordance with the FRMS (which accorded with fatigue management standards).383 [360] The AFAP, in part, relied upon the evidence of Williamson regarding the purported fatigue management benefits of the AFAP’s proposal. Williamson having analysed the published and worked roster of Leavy, identified some aspects of the roster that she thought presented a considerable risk relevant to the start time after an RDO. Those aspects were early starts forming a common feature of the roster, each pair of RDOs were followed by an early start in both the published and worked roster, and the Fatigue Day called by Leavy during the 28-day roster occurred on a work shift where Leavy was scheduled to commence work at 0230hrs. It should be noted that Leavy had an early start the previous shift, commencing duty at 0430hrs. Although Leavy had completed duty as early as 1011hrs in the previous shift and may have had the opportunity to sleep from as early as 1100hrs, Williamson stated that it is hard to sleep in the 14 hours between 1100hrs and 0130hrs to be ready to start work at 0230hrs.384 [361] Williamson further observed: (a) early starts increase fatigue because they require early waking time which reduces sleep opportunity; (b) Australian research on short haul pilots estimated that pilots lose 15 to 30 minutes of sleep for each hour their duty period starts before 0900hrs; and (c) early start times following an RDO impose limits on the pilot’s ability to use the RDO for the intended rest so reducing the benefit of the RDO.385 [362] In her supplementary report,386 Williamson stated that in general she agreed with the matters covered in Hosegood’s evidence.387 However, Williamson said that there was one point of disagreement.388 Williamson noted that Hosegood’s main argument was that the issues raised by the AFAP were not related to fatigue and safety risk, but were lifestyle or moral issues, which were less important. Williamson said that this view failed to acknowledge that there are [2025] FWCFB 176 81 three components that must be considered in scheduling work for people doing irregular work hours. Those three components are work, rest; and social and family life.389 [363] In cross examination, Hosegood agreed with Williamson about the components requiring consideration when configuring rosters.390 However, he expressed only partial agreement with Williamson’s statement that in a situation where work schedulers overlook the third need of obligations to family and social activities, sleep deprivation becomes a considerable problem.391 Williamson explained that this is because workers might use time that has been allocated for rest, for social and family time.392 Hosegood clarified that the FRMS is a shared responsibility model, so Network has an obligation to provide a safe roster that allows sufficient time for rest and the pilots have an obligation to use those rest periods to ensure that they are fit to operate when they come to work.393 However, Hosegood further clarified that spending time with family and social activities was recuperative in that it assists recovery from a mental health perspective, but it did not form a safety issue.394 [364] In light of all the evidence explored, we accept that a minimum possible sign on time of 0400hrs is necessary to enable Network to service flights that are scheduled to depart at 0500hrs, with the pilots having enough time to perform the necessary pre-flight duties.395 [365] Unlike other airlines that have been drawn to our attention, Hosegood explained that Network’s flying activity tended to occur predominately on Monday to Friday and in two daily ‘waves’ with an early morning wave and an afternoon wave. [366] Whilst we acknowledge that Sunstate and Eastern conduct a number of early morning flights out of Brisbane and require pilots to sign on between 0400hrs and 0600hrs (generally for the closed charter flying),396 we accept that there is a difference between those airlines and Network, with the number of early morning flights, being, in relative terms in the context of overall flying activity, significantly less than that performed by Network.397 Further, we accept, Verner’s evidence that Sunstate and Eastern pilots typically operate four to five sectors, and whilst they did not perform back of clock flying, they did work more flight hours and days in a roster period, compared to Network pilots.398 [367] In preparing his evidence, Verner clarified he had reviewed the data recording flight hours and days for Qantas Group pilots for the 12-month period January 2023 – December 2023, which indicated that Sunstate and Eastern pilots averaged greater flight hours and duty hours per roster period than compared to Network. Verner further explained that whilst NJS had a sign on after 0600hrs, NJS’ flying was RPT and its pilots were typically rostered multi- day trips (two to four days in duration) and up to four to five flight sectors a day.399 [368] Bartlett accepted that VARA, in relation to RPT, was a relevant competitor, ‘on some routes’.400 Albeit we observe and accept that VARA’s operations can be distinguished from those of Network. [369] Regarding the rosters that had been provided to Williamson to review, Hosegood had caused the actual and published rosters to be analysed through the BMM. This had revealed that none of the rosters exceeded the acceptable thresholds set in the FRMS, and while the rosters represented fatigue levels seen in Network rostering from time to time, they did not exceed acceptable limits.401 [2025] FWCFB 176 82 [370] We are not persuaded that the imposition of the operational restriction sought is required as part of fatigue management and consider that Network have made multiple concessions in respect of the inclusion of ‘measures’ which provide beneficial rostering practices and lifestyle benefits to the pilots:402 [371] We are of the view that more likely than not, inclusion of the restriction sought would require Network to reconsider is FTE requirements and in turn may be causative of an increase in the company’s operating costs where additional FTE were required to be hired. [372] That the workplace determination include a restriction on pre-0400hrs sign on times, strikes, in our view, the right balance between pilots not being required to meet the earliest daily sign on time (0300hrs), and ensuring that Network can continue to meet its operational requirements. [373] We are satisfied that Network’s proposed clause 20.1.4 of Network’s draft determination is an appropriate term to deal with this matter, and that the AFAP’s claim should be rejected. 5.3 Business class duty travel [374] Essentially, the AFAP seeks the inclusion of a term which provides that when undertaking duty, pilots will travel either in first class or business class, whatever is the highest class available - albeit having no entitlement to a specific seat within those classes. Where business class and first class are unavailable on an all-economy service, the pilot will be allocated a seat in the highest-class seat fitted to the aircraft, or where only economy class seats are fitted, every reasonable and practicable effort must be made to allocate the pilot to an emergency exit row or bulkhead row. [375] Neither the TWU nor the AIPA pressed submissions in respect of the issue, and we observe that the Award is silent on the subject matter. [376] The 2016 Agreement provides for duty travel for pilots at no expense to them, but with no specification as to the class of travel. Network submitted that its practice is to book its pilots a (non-standby) economy seat.403 This, said Network, is consistent with the entitlement provided by what it considers to be its main competitor, VARA,404 albeit whilst we accept VARA is a competitor to Network, we are unpersuaded that its operations align to those of Network. [377] Network further submitted that its fleet did not have a business class cabin, nor business class seats.405 Therefore, it was unclear to Network how the claim was meant to work, unless it was interpreted as requiring Network to procure a business class seat on another airline. Network added that the procurement of another seat was not possible because Network flew to several locations where there were no airlines with business class cabins flying to or from these locations.406 [378] The AFAP pressed that several Qantas Group enterprise agreements provide pilots with business class travel where possible, including the enterprise agreements for Eastern, Sunstate, [2025] FWCFB 176 83 Jetstar, and Qantas. The AFAP considered that the Commission should grant the AFAP’s position as to do so would align the arrangements of Network pilots with their colleagues at other Qantas Group employers. [379] An argument premised on equivalency of entitlement when the operations within the Qantas Group are not equivalent and differ in several respects, is unpersuasive. This is particularly so when one considers the limited availability of business class that Network has on many of its flights. [380] The current duty travel clause remains an appropriate and workable entitlement, and we are of the view that it should therefore be maintained (see the workplace determination, clause 9.27.1). We consider the AFAP’s claim is absent merit and is rejected. [2025] FWCFB 176 84 5.4 DHA rate and Low Experience First Officer Rate [381] We have decided to address the DHA rate and the Low Experience First Officer Rate together given that the rate of pay for a Low Experience First Officer appears to have been borne from the provision of a DHA rate within the 22 December Proposed Agreement. Whilst we will traverse the impetus for the inclusion of a DHA within the workplace determination shortly, prior to doing so it is appropriate to record what each party seeks in respect of a DHA. [382] The DHA is said to be common in the aviation industry and is contained in enterprise agreements of other regional operators. The TWU pointed particularly to Eastern and Sunstate, which one will recall form part of the Qantas Group and, according to the TWU, perform work equivalent to Network.407 However, as will be now evident, we were not necessarily persuaded as to the equivalence of the three operations, and it appears uncontroversial that in terms of Network's flying overall, it is true to say that pilots generally perform lower flying hours than most other airline operators,408and lower duty hours.409 [383] A DHA is an allowance that is paid for all time worked and is not limited to flying hours.410 [384] In the Network draft determination, the DHA is set out in clause 10.6 as follows: 10.6 Duty Hour Allowance Pilots shall be entitled to a Duty Hour Allowance (DHA) as set out in Schedule 1 from the first full pay period after the commencement of this Determination. DHA is payable to Pilots for all Duty Hours. For the purposes of this clause, Duty Hours are defined as the period between sign-on and sign-off in any port on any day. DHA will be treated as a wage-related allowance and will be adjusted from time to time in accordance with any changes to applicable Pilot salaries. [385] Schedule 1 of the Network determination in respect of the DHA provides: F100/E190 FO F100/E190 Capt A319/A320 FO A319/A320 Capt Allowance Rate Duty Hour Allowance (Hourly Rate) Determination Commencement $7.32 $11.26 $7.32 $11.26 15 October 2025 $7.54 $11.60 $7.54 $11.60 15 October 2026 $7.77 $11.94 $7.77 $11.94 [386] The AFAP seeks the inclusion of the following terms in respect of the DHA in the determination: 10.3 Duty Hour Allowance Pilots shall be entitled to a Duty Hour Allowance (DHA) as set out in Schedule 1 from the first full pay period after the commencement of this Workplace Determination. [2025] FWCFB 176 85 DHA is payable to Pilots for all Duty Hours. For the purposes of this clause, Duty Hours are defined as the period between sign-on and sign-off in any port on any day. DHA will be treated as a wage-related allowance and will be adjusted from time to time in accordance with any changes to applicable Pilot salaries. [387] Schedule 1 of the AFAP determination in respect of the DHA provides: F100/E190 FO F100/E190 Capt A319/A320 FO A319/A320 Capt Allowance Rate Duty Hour Allowance (Hourly Rate) Determination Commencement $10.73 $16.50 $10.73 $16.50 15 October 2025 $11.05 $17.00 $11.05 $17.00 15 October 2026 $11.38 $17.50 $11.38 $17.50 [388] Generally, the Unions and Network are at issue as to the quantum of any past and future wage increases under the workplace determination. In respect of the DHA rate, the AIPA has not made submissions specific to this allowance although its submissions regarding wage rates are comprehensive, and it takes issue with the Low Experience First Officer Rate. The TWU has, however, pressed for a DHA rate equivalent to that provided in the enterprise agreements for Eastern and Sunstate. It notes that Network recognised the imperative for a DHA by including this allowance in the 22 December Proposed Agreement. [389] Regarding Sunstate, clause 30.7 of the Sunstate Airlines (Qld) Pilots Enterprise Agreement 2023 provides the following in respect of a DHA: DHA From FFPP on or after 1 January 2023 From FFPP on or after 1 January 2024 From FFPP on or after 1 January 2025 From FFPP on or after 1 January 2026 Captain $10.93 $16.50 $17.00 $17.51 First Officer $7.11 $10.73 $11.06 $11.39 [390] Clause 40.10 of the Eastern Australia Airlines Pilots Enterprise Agreement 2023 provides the same DHA rates as the Sunstate Airlines (Qld) Pilots Enterprise Agreement 2023. We observe that the rates are not far removed from those advanced by the AFAP. In respect to enterprise agreements for VARA, Alliance Airline and Airnorth, a DHA is not included within those agreements. National Jet Express provides a Duty Time Allowance payable only for hours in excess of 135 duty hours in a monthly roster period.411 [391] The DHA was a matter that developed throughout the course of bargaining. Originally, no DHA was included in proposed agreements. After the unsuccessful ballot in September/October 2023 and the subsequent s 240 conferences, the bargaining representatives agreed to a ‘FIFO operations allowance’, being fixed payments of $7,500 for Captains and $4,875 for First Officers. According to Network, this allowance would have cost Network an estimated $1.5m (excluding superannuation and tax). It was included in the proposed agreement put to ballot in November 2023, which was agreed to by all bargaining representatives.412 [2025] FWCFB 176 86 [392] When the November 2023 ballot was unsuccessful, the AFAP proposed that a ‘DHA’, which would be an allowance paid for all duty hours, be included in the place of the FIFO operations allowance. The AFAP’s claim was that the DHA be paid at a rate of $10.93 per hour for Captains and $7.11 for First Officers.413 One will observe that the rate equates to that provided in 2023 for the Captain and First Officer respectively, under the Sunstate Airlines (Qld) Pilots Enterprise Agreement 2023. [393] At the bargaining meeting on 15 December 2023, all bargaining representatives agreed to this, and that the DHA would be indexed at 3% annually (and would not increase at the rate provided to pilots employed by Sunstate).414 Network said that the estimated annual cost of the DHA is $2.2 million (excluding superannuation and tax).415 As a consequence, Network proposed to offset some of that increased cost by reducing the base salary for ‘low experience’ First Officers (being those with less than 1500 flying hours), which was agreed to by the AFAP and TWU, but not the AIPA.416 [394] Network claims that the DHA now pursued by the AFAP would amount to a cost of $3.9 million per annum. It holds the view that the position it adopted and was initially agreed to by all the Unions as at the time of the 22 December Proposed Agreement, provides generous and reasonable compensation to pilots for their hours of duty. Further, it advances that it far exceeds the existing status quo and leaves room for future bargaining. [395] The AFAP submitted that the Commission should grant the AFAP’s position on the DHA for the reason that the remuneration received by Network’s pilots is manifestly inadequate. To support its contention the AFAP placed reliance on the evidence of Katie Bateman,417 Clayton Bateman,418 Atkinson,419 Hace,420 Schofield,421 Elias422 and Crain423 in which they each explain the financial pressure they are under. The AFAP further relied upon the evidence of Sheldon and Royce.424 [396] We are of the view that the DHA should be representative of the agreement reached between Network and the Unions when the November 2023 ballot was unsuccessful. The AFAP’s claim was that the DHA be paid at a rate of $10.93 per hour for Captains and $7.11 for First Officers,425 and that it would be indexed at 3% annually – this was agreed to by all parties at this time. With the amounts of $10.93 and $7.11 being indexed at 3% (given the time that has passed) this results in First Officers and Captains receiving a DHA on the commencement of the workplace determination equalling $11.26 for the Captains and $7.32 for First Officers. It will be indexed thereafter at the rate of 3%. [397] Schedule 1 of the Network draft workplace determination in respect of the DHA is therefore adopted in full as is clause 10.6 F100/E190 FO F100/E190 Capt A319/A320 FO A319/A320 Capt Allowance Rate Duty Hour Allowance (Hourly Rate) Determination Commencement $7.32 $11.26 $7.32 $11.26 15 October 2025 $7.54 $11.60 $7.54 $11.60 15 October 2026 $7.77 $11.94 $7.77 $11.94 [2025] FWCFB 176 87 [398] Our decision on this point is based on several reasons. [399] First, the 2016 Agreement was absent a clause providing for a DHA. During bargaining the bargaining representatives themselves saw fit to include some form of remuneration to compensate pilots who, whilst on duty, were not flying. At first a ‘FIFO operations allowance’ was brokered and thereafter the AFAP’s proposition was adopted in relation to the DHA. The inclusion of the DHA in the workplace determination honours what was already agreed between the bargaining representatives conceptually and was included in the 22 December Proposed Agreement (and latterly in the February 2024 Proposed Agreement).426 In such circumstances, we hold the view that the introduction of this new allowance has merit. [400] Second, the development from an enterprise agreement absent any form of compensation for all time worked (not limited to flying hours) to a workplace determination inclusive of a DHA, is significant. We are appreciative of the cost imposition this places upon Network (approximately $2.2 million per annum based on duty hours in 2023),427 whilst at the same time, being acutely appreciative of the importance to pilots to award them a commensurate allowance for work undertaken when not flying. Whilst we understand that the DHA in, for example, enterprise agreements within the Qantas Group may be higher, there are, in our view, operational differences between, for example, Sunstate and Eastern. The inclusion of a DHA with hourly rates as prescribed in this iteration of a workplace determination, provides a solid basis from which to bargain going forward and consequently forms an incentive to bargain at a later time. [401] Third, contemplating the inclusion of the proposed AFAP DHA or that of the TWU, has been made all the more challenging given our conclusion that the inclusion of a Low Experience First Officer Rate is simply unwarranted. We turn to this issue now. 5.5 Low Hour First Officer Rate [402] Regarding the Low Hour First Officer rate, the AIPA submits that the nomenclature is not a term of art, it is simply a term that refers to a First Officer who has less than 1500 flying hours recorded, which, in practice, will be a newer, almost certainly younger, First Officer. The AIPA noted that it was a concept introduced by Network as one of its claims, and the AIPA opposed it. The AIPA’s opposition to the proposition is premised upon there being no work value reason to justify the claim – a First Officer who is qualified to fly a particular aircraft is qualified to fly it anywhere (subject to unrelated route qualifications).428 [403] By way of observation only and in the context where the Unions, understandably, have sought to draw comparisons to Network’s ‘competitors’ and affiliate airlines within the Qantas Group, the AIPA has levelled criticism of the Low Hour First Officer Rate albeit that the registered organisation is covered by the Eastern Australia Airlines Pilots Enterprise Agreement 2023, which includes a Low Hour First Officer rate. [404] The Low Hour First Officer rate (applicable to those First Officers with less than 1500 flying hours) was a measure, which one may recall, was introduced by Network to specifically offset the cost to Network of the agreed DHA in December 2023. The rates proposed by Network from commencement of the workplace determination (see clauses 10.3 and 10.4 of Network’s draft determination which refer to ‘Low Hour First Officers’) are: (a) $125,812.26 [2025] FWCFB 176 88 for low experience First Officers on F100/E190 aircraft; and (b) $130,704.14 for low experience First Officers on A319/A320 aircraft. [405] These rates (which do not include payable allowances, such as the DHA) are, respectively, $7,342.77 and $15,261.33 less than proposed annual salary rates of their non-low hour counterparts (or 5.5% and 10.5% respectively). Bartlett gave evidence as to the two-fold rationale for the reduced rate: namely that low hour First Officers require more training (which brings with it a time and cost impost on Network) and that they have operational restrictions, such as not being able to complete narrow runway operations or conduct approaches and landings in certain weather conditions. They also cannot fly the A319 aircraft.429 [406] Network contends that it is logical and reasonable that First Officers, for the temporary period that they fall into the low experience category, would receive a lower rate of pay than their counterparts who have attained the requisite 1500 flying hours. The company considers that the proposal is sensible and has enabled Network to be able to offer the DHA to all pilots (including low experience First Officers) at the rate agreed in December 2023. It also encourages employment for low experience First Officers, somewhat like junior rates in awards, submitted Network. [407] Whilst we found Bartlett’s evidence about the rationale for the rate of pay compelling, we formed the same view in respect to the evidence of Lucas. [408] One will recall that Lucas, AIPA President, is also a full-time A330 Check and Training Captain employed by QAL. Lucas noted that Bartlett had justified the rates for the low hour First Officers on the basis of their increased training requirements and operational restrictions. Lucas gave evidence that that it was common for all First Officers to have restrictions on approaches or landings in terms of cross wind, visibility and cloud base as opposed to a Captain, who has different responsibilities on the aircraft.430 He continued that the restrictions on First Officers were self-imposed by Network and/or the Qantas Group and were not CASA, licencing or endorsement restrictions.431 It was Lucas’ view that First Officers did not necessarily require any greater training than a more experienced First Officer and they were required to demonstrate the same level of competence as a more experienced peer.432 [409] Bartlett has commented on more than one occasion that the flying hours of Network pilots are typically low.433 Lucas acknowledged that whilst flying hours have increased due to what he says is an increase in regular public transport, flying hours are less than mainline pilots given the regional nature of the operation and the shorter distances flown.434 These factors combined with a lower rate of pay for low flight hours, have caused Lucas to become concerned about the potential for low experienced First Officers to fly when fatigued or otherwise unfit, just to reach the hours threshold to be paid the higher rates within a shorter period.435 [410] It has become apparent through the prior proceedings on the Agreed Terms and these proceedings, that Network had set costs parameters in which it was willing to operate for the purpose of bargaining. Colloquially referred to as the ‘costs envelope’, we have referred to the issue in greater detail when considering s 275 of the Act. We are, of course, not bound by Network’s cost envelope albeit we are charged with delivering a workplace determination where the outcome arrived ‘is fair in all the circumstances and that appropriately balances the interests of the parties’.436 [2025] FWCFB 176 89 [411] On balance, we are not persuaded that the inclusion of a different rate of pay for a First Officer with lower flight hours is justifiable. In our view, there is insufficient evidence before us to substantiate a claim that the work value of a low hour First Officer is distinguishable from a First Officer who has flight hours of 1500 hours and up. This is notwithstanding what has been purported about the training requirements of the low hour First Officers (acknowledging that the necessity to undertake additional training can be illustrative of an increased level of skill required due to the change in the nature of the work),437 but in our view we found Lucas’ evidence overall more compelling. It follows that the imposition of the term appears to be nothing more than a cost offsetting exercise cloaked in a pretence that the work value of the low experienced First Officer is less than that of her or his more experienced colleagues. 5.6 Additional hourly payment [412] It is uncontroversial that the 2016 Agreement contains a single trigger for ‘additional hourly payments’ set at 65 flying hours and that the flight hours for Network pilots are typically low.438 Flying hours above that in a 28-day roster period receive an additional payment of $120.00 per hour for Captains and $73.80 per hour for First Officers. According to Bartlett, this makes up approximately $100,00.00 of Network’s $48 million annual pilots’ wages bill.439 [413] It is relevant to observe that the additional hourly payment is not ‘overtime’ per se but compensation for additional hours flown. [414] Whilst we have first detailed what each draft workplace determination from the parties includes in respect to this issue, in summary the difference between the clauses advanced by the Unions when compared to that of Network, is that only one tier is referenced – the additional hourly payment triggered at 59 hours and the rates for the payment are substantially higher (the AFAP and the TWU having adopted Network’s Tier 2 rates that would otherwise be applicable when hours flown exceed 75 hours and the AIPA having adopted a ‘ordinary hours rate’ based on a pilot’s annual salary being divided by 767 – a concept we explain further). [415] Network has included the following ‘Additional Hourly Payment’ clause in its draft workplace determination at clause 10.8.5, which reads: Additional Hourly Payment Where a Pilot achieves more than 59 flying hours in a roster period, the Pilot will be entitled to receive an hourly payment. For each hour flown in excess of 59 hours in a roster period, a Pilot will be entitled an hourly payment at the Additional Hourly Payment – Tier 1 rate set out in Schedule 1. For each hour flown in excess of 75 hours in a roster period, a Pilot will be entitled an hourly payment at the Additional Hourly Payment – Tier 2 rate set out in Schedule 1. The Additional Hourly Payment – Tier 2 rate is paid to the exclusion of the Additional Hourly Payment – Tier 1 rate. For the purpose of calculating the flying hours in a roster period for this clause: [2025] FWCFB 176 90 i) a Pilot will receive a credit of one flight hour for each flight simulator duty hour worked, to a maximum of four hours per simulator duty; ii) a Pilot will receive a credit of one flight hour for each company-approved administrative ground duty hour worked, to a maximum of two hours per day; and iii) a Pilot on annual leave will receive a reduction to the flying hours prorated for the period of annual leave taken during the roster period. Hours accrued for the period a Pilot is undergoing a type rating do not contribute to the flying hour thresholds for an Additional Hourly Payment. For part hours in excess of the flying hour thresholds, the payment will be pro-rated. Until the Company provides notice otherwise, the Pilot must submit a claim for an Additional Hourly Payment to receive payment. [416] Schedule 1, as referred to in clause 10.8.5 of Network’s draft determination, provides as follows: [417] In its draft workplace determination, the AFAP has sought the inclusion of the following term at clause 10.5.5: Additional Hourly Payment Where a Pilot achieves more than 59 flying hours in a roster period, the Pilot will be entitled to receive an hourly payment. For each hour flown in excess of 59 hours in a roster period, a Pilot will be entitled an hourly payment at the Additional Hourly Payment rate set out in Schedule 1. For the purpose of calculating the flying hours in a roster period for this clause: (iv) a Pilot will receive a credit of one flight hour for each flight simulator duty hour worked, to a maximum of four hours per simulator duty; (v) a Pilot will receive a credit of one flight hour for each company-approved administrative ground duty hour worked, to a maximum of two hours per day; and Allowance Rate F100/E190 FO F100/E190 Capt A319/A320 FO A319/A3 20 Capt Additional Hourly Payment – Tier 1 (Hourly Rate) Determination Commencement $89.12 $143.22 $97.60 $159.14 15-Oct-25 $91.79 $147.52 $100.53 $163.91 15-Oct-26 $94.54 $151.94 $103.55 $168.83 Additional Hourly Payment – Tier 2 (Hourly Rate) Determination Commencement $160.41 $257.80 $175.69 $286.44 15-Oct-25 $165.22 $265.53 $180.96 $295.04 15-Oct-26 $170.18 $273.50 $186.38 $303.89 [2025] FWCFB 176 91 (vi) a Pilot on annual leave will receive a reduction to the flying hours prorated for the period of annual leave taken during the roster period. Hours accrued for the period a Pilot is undergoing a type rating do not contribute to the flying hour thresholds for an Additional Hourly Payment. For part hours in excess of the flying hour thresholds, the payment will be prorated. Until the Company provides notice otherwise, the Pilot must submit a claim for an Additional Hourly Payment to receive payment. [Note: For the purposes of passing the Better off overall test as required by s 272(4), we submit that this clause should have the following added to it “Where a Pilot achieves more than 76 hours of duty in a 14 day period, the Pilot will be entitled to receive an hourly payment for each hour of duty over 76 hours at the Additional Hourly Payment rate set out in Schedule 1. ”] [418] Schedule One of the AFAP draft workplace determination provides the following in respect of the hourly rate of the Additional Hourly Payment: [419] Evidence was provided by Smith on behalf of the AFAP, that the low salary rates proposed by Network meant that remuneration earned by working overtime was critical.440 He expressed that one of the main sources of supplemental income flight crew were able to access was through additional hourly payments.441 Smith’s opposition to Network’s draft clause related not only to the quantum of the hourly rate, but also to the inclusion of a tiered hourly system, which he observed differed to the rest of the Qanas Group, and, in his view, created the perception that the Network flight crew perform less valued or critical work.442 [420] Aikens gave evidence that the reduction in the overtime trigger to 59 hours was considerably less than that enjoyed by a Qantas Shorthaul Pilot.443 Aikens explained that a Network pilot could fly a similar aircraft (deemed as equivalent in the Award), on a similar route, with a passenger purchasing a ‘Qantas ticket’ for a ‘Qantas flight’ yet only receive an overtime rate ‘rarely after 59 hours, whereas the Qantas Shorthaul pilot will receive an overtime trigger after 53.24 hours, at over double the rate to be paid to a Network pilot ($324 compared to $154 for a Captain).444 [421] The TWU seeks the inclusion of an additional hourly rate provision which provides for an hourly rate commensurate to the Tier 2 rate proposed by Network in the 22 December Proposed Agreement for all flying hours worked in excess of 59 in a roster period. The Tier 2 amount is an appropriate loading to compensate for overtime flying hours, according to the Additional Hourly Payment F100/E190 FO F100/E190 CAPT A319/A320 FO A319/A320 CAPT (Hourly Rate) Workplace Determination $155.74 $250.29 $170.57 $278.10 15-Oct-24 $160.41 $257.80 $175.69 $286.44 15-Oct-25 $165.22 $265.53 $180.96 $295.04 [2025] FWCFB 176 92 TWU. The TWU advances that if its position is not accepted, it seeks, in the alternative, that the two-tiered system proposed by Network in December 2023, be reflected in the workplace determination. [422] One may recall that one of the issues that the AIPA had advanced to ‘get the proposed EA over the line’ had been the removal of the Tier 1 Additional Hourly Payment, so that all hours flown in excess of 59 hours attracted the higher Tier 2 rate.445 [423] The AIPA submitted that the proposed additional hourly rates needed to be considered in a context where Network’s operations had significantly shifted from predominately closed charter services for resources industry clients to RPT, the latter now representing approximately 65% of the work, according to the AIPA.446 The AIPA continued that as the rate of growth continued, the airline would closer align to business operations of commercial airlines within and outside the Qantas Group. It further noted that seasonal demand for RPT also dictated the number of flights for pilots. [424] We simply observe at this juncture that Network’s evidence on the amount of RPT and closed charter differs to that of the AIPA – and, in addition, that whilst flights may be considered RPT they often consist of seats booked by Network’s resources clients. In the background to this matter, we outlined Bartlett’s evidence that approximately 60% of Network’s operations are closed charter services for the resources industry and its FIFO workforces.447 The remaining 40% of its air transport services are RPT, however a significant portion of this capacity is filled by other private clients booking seats for their FIFO workforces.448 Based on the evidence given, we consider this is right. [425] Notwithstanding, according to the AIPA there were work value and broader practical and productivity based justifications for the overtime rates sought by the AIPA, and it observed that Network was in the unique position of having the resources of the Qantas Group to facilitate the cost, which provided the airline with a competitive advantage of some of its competitors who do not have the same economies of scale. [426] The AIPA considered that the entitlement was plainly directed at a form of overtime, but that the difficulty was its inadequacy. According to the AIPA, it left pilots being paid significantly less per hour than their ordinary time, and essentially Network had adopted an arbitrary figure which was inconsistent with industry standards.449 [427] The AIPA said it sought the following alterations to the clause proposed by Network. First, the threshold would be lowered from 65 to 59 hours per bid period, in line with regional competitors. Second, and perhaps more significantly, the rate of pay would be the pilot’s actual hourly rate based on ordinary flying hours of 59 per bid period. The AIPA considered the proposal fair and reasonable given that no overtime loading was imposed. At clause 11.6.5 of AIPA’s draft workplace determination the ‘Additional Hourly Payment’ clause provides: 11.6.5 Additional Hourly Payment Where a Pilot achieves more than 59 flying hours in a roster period, the Pilot will be entitled to receive an hourly payment. For each hour flown in excess of 59 hours in a roster period, a Pilot will be entitled to an [2025] FWCFB 176 93 hourly payment calculated at the rate of their salary divided by 767 (59 hours multiplied by 13 bid periods per year). For the purpose of calculating the flying hours in a roster period for this clause: (i) a Pilot will receive a credit of one flight hour for each flight simulator duty hour worked, to a maximum of four hours per simulator duty; (ii) a Pilot will receive a credit of one flight hour for each company-approved administrative ground duty hour worked, to a maximum of two hours per day; and (iii) a Pilot on annual leave will receive a reduction to the flying hours prorated for the period of annual leave taken during the roster period. Hours accrued for the period a Pilot is undergoing a type rating do not contribute to the flying hour thresholds for the additional hourly payment. For part hours in excess of the flying hour thresholds, the payment will be prorated. Until the Company provides notice otherwise, the Pilot must submit a claim for the additional hourly payment to receive payment. [428] Bartlett gave evidence that Network’s additional hourly payment trigger and rates, reflected those in the 22 December Proposed Agreement (and February 2024 Proposed Agreement).450 He stated that the first trigger of 59 hours had been agreed with the Unions since March 2023, and that Network had agreed to concessions resulting in more duties counting as ‘flying hours’ for the purpose of the payment.451 In respect to the concessions made, in addition to ‘flight hours’ the following would be included for the purpose of the additional hourly payment: (a) a credit of one flight hour for each flight simulator duty hour worked (to a maximum of four hours per simulator duty); (b) a credit of one flight hour for each company-approved administrative ground duty hour worked, to a maximum of two hours per day’; and (c) whilst on annual leave a pilot would receive a reduction to the flying hours, prorated for the period of annual leave taken during the roster period. 452 [429] Bartlett said that in practical terms the trigger for receiving the additional hourly payments would be reduced, the trigger would be easier to achieve because a greater range of duties would be considered, and the additional hourly rate would be increased.453 The estimated cost of Network agreeing to this term was said to be an increase of roughly $230,000 per annum. [430] The second tier of payment arose from the bargaining meeting held on 15 December 2023. Network agreed to include a second tier of flying hours over 75 hours per roster period, at rates nearly double that of the 59-hour trigger. Network is said to have agreed to these higher rates in response to concerns by the Unions that pilots would not be adequately compensated if they performed excessive flying hours in a roster period. Again, said Network, it relented, and the following rates were included in the 22 December Proposed Agreement:454 Additional hourly payment 1 (59 flight hours) (a) E190/F100 First Officer: $86.52; (b) E190/F100 Captain: $139.05; (c) A319/A320 First Officer: $94.76; and (d) A319/A320 Captain: $150.00. [2025] FWCFB 176 94 Additional hourly payment 2 (75 flight hours) (a) E190/F100 First Officer: $155.74; (b) E190/F100 Captain: $250.29; (c) A319/A320 First Officer: $170.57; and (d) A319/A320 Captain: $278.10. [431] Turning to the Unions’ claims, Network submitted that the only union which had provided any substantive rationale for the claim of an additional hourly rate (beyond a claim for more money) was the AIPA. Network stated, however, that the AIPA’s submissions hinged on a false premise that, because the additional hourly payments resemble overtime (remembering however that the relevant measure is not additional hours worked, but rather additional hours flown), they should be calculated in the way that overtime usually is (i.e. as a multiple of employees’ ordinary hourly pay), rather than as an ‘arbitrary figure.’455 [432] Network argued that the rates of the additional hourly payments contained in its draft workplace determination were not arbitrary –but were the product of a compromise between Network and the Unions, as to a fair and reasonable additional compensation for pilots who are required in a given roster period to fly higher than usual hours, in the context of Network’s operations and an already general overall package. Network further noted that up until late January/early February 2024, each of the Unions agreed that the rates provided such compensation. [433] The claim pressed by the AIPA has a historical basis albeit arising, in part, from a claim pressed by the AFAP. One will recall that between 13 September 2022 and 27 March 2023 there were ten bargaining meetings which culminated in Network and the Unions reaching an in-principle agreement, in respect of the terms of the proposed agreement.456 Bartlett gave evidence that whilst the Unions agreed to endorse the proposal and recommend its support, Aikens advised him that the AFAP was seeking to canvass the views of its members and would advise Network further in relation to their future position.457 [434] Bartlett noted that Aikens subsequently advised him that due to changed circumstances, including the Qantas Group’s profit announcement, recent modern award increases and an increasing AFAP member base, the AFAP would no longer be recommending the proposed deal to its membership.458 On 28 July 2023, the AFAP provided Network with a revised position with respect to its claims for the proposed agreement.459 [435] We observe that the revised position, which was articulated in the AFAP’s Proposal – July 2023 – a proposal that was to be submitted to Network Aviation and all pilots, the following was stated: Additional Hour Payment The current additional hour payment, as well as the previously proposed amounts, have been acknowledged as the lowest in the industry. Given this recognition, it is imperative that significant improvements be made to ensure fair compensation for pilots. To address this issue, Network Aviation Pilots propose adopting a formula utilized by identical equipment within the Qantas Group. This formula calculates the additional hour payment based on the pilot’s salary divided by 787. [2025] FWCFB 176 95 Under the revised framework, the additional hour payment will be applicable to all duties, including simulator sessions, paxing duties and ground courses. Additionally, in the case of reserve activation, a minimum credit of four hours will be provided. Moreover, to ensure a more equitable approach to overtime compensation, the overtime threshold will be reduced to 59 hours. This adjustment reflects the need for improved working conditions and fair remuneration for pilots. By implementing these changes, Network Aviation can align its additional hour payment with industry standards and provide pilots with a more reasonable and competitive compensation structure. The utilisation of the formula employed by the Qantas Group for identical equipment demonstrates the feasibility and effectiveness of this approach.460 [436] Whilst appreciative that following the AFAP’s Proposal – July 2023 several proposed agreements were put to the vote and that the Unions had endorsed or otherwise supported those proposed agreements (including the 22 December Proposed Agreement the terms of which were agreed by all the Unions with the exception of the AIPA regarding the Low Experience First Officer rate), the AIPA’s proposal that the additional hourly payment would be the pilot’s actual hourly rate based on ordinary flying hours of 59 per bid period is premised on a position previously articulated to Network and is therefore not new in that sense. [437] When considering the hours worked by First Officers and Captains, we are mindful of the evidence provided by Network. Annexure EB-11 of the Bartlett’s reply statement, this was a ‘KPI Productivity Report’ for the roster period ‘10 20243 to roster period 10 2024’ (which concluded on 6 October 2024), revealed that in respect of the A320 the Captains with the highest levels of flight hours, they were performing approximately 70 flight hours per month (average of 3.5 flight hours per day with 8 RDOs). The average flight hours for a Captain and a First Officer were approximately 35 per month (average of 1.75 per day), and First Officers with the highest levels of flight hours were performing approximately 60 flight hours per month (average 3 flight hours per day with 8 RDOS).461 [438] That same report identified that in respect to the F100, Captains with the highest levels of flight hours were performing approximately 65 flight hours per month (average 3.25 flight hours per day), and the average flight hours for a Captain were approximately 35 per month (average 1.75 per day). First Officers with the highest levels of flight hours were performing approximately 50 flight hours per month (average 2.5 flight hours per day) and the average flight hours for a First Officer were approximately 30 per month (average of 1.5 per day).462 [439] The ‘overtime trigger’ for VARA is 57.5 hours,463 for National Jet Express is 60 hours,464 for Alliance Airlines is 57 flight hours,465 and Airnorth is 50 hours in the form of productivity pay.466 [440] As was noted by the AIPA, notwithstanding that the ‘overtime’ trigger is directed at compensating pilots for flying additional hours, what was sought by the AIPA was a rate of pay that would not result in the pilots’ rate of pay going backwards once pilots triggered an entitlement to ‘overtime’. [441] We consider the AIPA’s proposal sound in respect of the rate of pay being premised upon an hourly payment calculated at the rate of a pilot’s salary divided by 767 (59 hours [2025] FWCFB 176 96 multiplied by 13 bid periods per year). It sets out a rational basis for payment for flights hours in excess of a certain threshold. In addition to this being an improvement to the pilots’ remuneration (and we note in this respect and as will be traversed shortly, the balanced approach the Full Bench has adopted to rates of pay and back pay - being mindful of the necessity to provide a fair overall package and being appreciative that Network’s evidence is the cost of flying is substantially higher on a per flight hour rate compared to other airlines in the Qantas Group),467 it would, in our view, serve a protective purpose by incentivising Network to appropriately manage the rostering of flight time in excess of the prescribed threshold. [442] We consider a single overtime trigger is appropriate and in light of the evidence that threshold figure will be 59 hours, as bargained for. This single overtime trigger and single set of overtime rates is justified given Bartlett’s concession that Network’s proposed second overtime trigger of 75 hours would not be met very often at all – which is demonstrated by the further evidence that Bartlett gave. We have reviewed, in this respect, the evidence on flight hours, appreciating that duty hours exceed flight hours, and that on average Network pilots typically have flight hours around an average of nine stick hours a week,468 (in comparison to the Qantas Group airlines, the pilots at Network have lower average annual flight hours).469 [443] Furthermore, we have already acknowledged the dissimilarity between Network and other airlines and are not therefore persuaded that simply adopting the threshold trigger of another airline is warranted. Notwithstanding, the 59 hours threshold is only minimally higher than that of other airlines for the most part and is teamed with a higher rate of pay for the reasons explained. 5.7 10 RDOs per roster period [444] The 2016 Agreement does not prescribe any minimum number of RDOs for pilots. [445] We have previously acknowledged that in respect of the CASA Regulations, the minimum RDOs in a 28-day roster period are six days and Network currently has a minimum of eight, 470 with a recent move to nine RDOs for some people in accordance with the FRMS (which accorded with fatigue management standards).471 [446] It is important to observe that while reference is made to RDOs, that is, ‘rostered days off’, the days are not part of a time-accruing RDO system that the term might otherwise invoke. They are better understood as guaranteed periods free of duty in a bid period. This is illustrated by the definition at 21.1.3 of Network’s draft determination, which states that an RDO is 36 hours for the first RDO and 24 hours for any subsequent (i.e. consecutive) RDO. [447] The dispute between Network and the Unions is whether nine or ten RDOs should be provided for. [448] Network submitted that its draft workplace determination included the Agreed Term to the effect that hours of work will be determined in accordance with the FRMS (see clause 9.1.2(c) of Network’s draft workplace determination)). [2025] FWCFB 176 97 [449] Network further submitted that it agreed with each of the Unions to increase (and mandate) the provision of RDOs to nine per 28-day roster period, as part of the 22 December Proposed Agreement. This, said Network, was a significant concession. [450] Network continued that it was also agreed, in addition to (and on the basis of) nine RDOs, that: (a) the period of an RDO (as a single) would be increased from 24 to 36 hours; (b) eight of the RDOs would be arranged as four pairs, with one arranged as single day (this was a concession made by Network for inclusion in the December 2023 Proposed Agreement, whereas the parties had previously agreed to the RDOs being arranged as three pairs); and (c) in the event an employee takes seven or more consecutive days of annual leave, he or she will not be rostered to sign on earlier than 0800hrs the following day.472 [451] Network added that after the ballot for the 22 December Proposed Agreement was unsuccessful, the Unions again changed their position, and claimed that, in addition to the above, there should be 10 RDOs in a roster period. It was on that basis, said Network, that it withdrew its agreement to the RDO-related terms referred to above. However, Network now maintains the position that the Commission should include those terms in the draft determination on the condition that the amount of RDOs is nine (see clauses 20.1.1, 20.1.3 and 20.2.2 of the Draft Determination). [452] Insofar as the inclusion of nine RDOs gives rise to financial, operational and resourcing impositions upon Network, Bartlett gave detailed evidence on the point, as follows. [453] Network’s intended concessions as detailed in paragraphs [344] and [346] of these reasons are said to already pose a substantial operational impact, because they would have the effect of increasing the number of rostered hours off for pilots and reducing the number of pilots available for a 0400 start, therefore creating greater pressure on Network to resource its flight schedule.473 [454] The current number of RDOs (eight) for pilots, and their duration of 24 hours, provides pilots with 192 hours rostered off per roster period (8x24).474 Network’s RDO concessions in the 22 December Proposed Agreement (and the February 2024 Proposed Agreement) would increase that number of rostered off hours to at least 264 and up to 276 (eight paired RDOS is 240 hours (4 x 60), plus a single RDO at 36 hours).475 According to Bartlett, that is an increase of 37.5% - 43.75%,476 and if the Union’s position was accepted, the number of rostered off hours would equal 300 and 312 hours (dependent on how they were rostered.477 That is an increase from 56% to 62.5%.478 [455] Network’s fight schedule as of 6 September 2024, which is set out in several tables that follow, includes the number of flying duties on each day of the week (noting that two pilots are required for each flying duty), and the number of pilots that can be on an RDO on each day of the week in order to resource the flying schedule. A320 Duties No. pilots required RDO FTE % [2025] FWCFB 176 98 Monday 29 58 6 8% Tuesday 32 64 3 4% Wednesday 30 60 5 6% Thursday 30 60 5 6% Friday 22 44 13 16% Saturday 10 20 25 31% Sunday 12 24 23 29% Weekly Total 165 - 80 100% FTE 35 70 F100 Duties No. pilots required RDO FTE % Monday 22 44 4 5% Tuesday 23 46 3 4% Wednesday 22 44 4 5% Thursday 26 52 0 0% Friday 23 46 3 4% Saturday 3 6 23 29% Sunday 3 6 23 29% Weekly Total 122 - 60 100% FTE 26 52 [456] Whilst the above tables detail rostering requirements in respect of flying duties, they do not include the resourcing required for rostering pilots for reserve (Network currently rosters nine pilots on reserve during the week and six on weekend for the A320, and six on reserve during the week and four on the weekends for the F100).479 Further, they do not incorporate resourcing for ground duties, leave coverage and recurrent training.480 [457] Having had Network’s RDO-related concessions costed and having had workforce planning undertaken, Bartlett was positioned to speak further to the impact of RDO claims. Bartlett stated that: (a) the increase from eight to nine RDOs results in an increase in FTE requirements of approximately 14 pilots; and (b) an increase from nine to ten RDOs would result in a further increase in FTE requirements of 16 pilots (i.e. approximately 30 additional pilots above current establishment numbers). This also takes account of the agreed increase to single RDOs being 36 hours.481 [458] The increase in FTE requirements would result in a cost to Network (of the extra (i.e. 10th) RDO only) of approximately $4.5 million per year, on current establishment numbers. This figure reflected the wages bill for an additional 16 pilots.482 [459] Bartlett gave evidence that Network had estimated that introducing 10 RDOs would, given the need for an increased number of pilots and the limited pool of appropriately qualified pilots available, result in a shortage of pilots for a period which, based on recent recruitment activity, would be a minimum of six month and potentially significantly longer.483 [2025] FWCFB 176 99 [460] Regarding the recruitment and training of Network pilots, Bartlett commented that it was a lengthy process that came at a significant cost.484 [461] In respect of recruitment, Bartlett noted that Network had been actively recruiting over the last 12 months and was conducting, on average, three recruitment centres every month, at which pilots were assessed.485 Most recent recruitment centres (total of three) involved 12 pilots, and only five of the pilots were successful.486 [462] Training of the successful candidates (including those from other Qantas Group entities) involved: (a) ground training/induction; (b) technical ground training; (c) simulator training; and (d) line training.487 Simulator training in and of itself required two weeks and line training, where the training pilot embarks on a series of flights with a Line Training Captain, could take six to twelve weeks.488 [463] Bartlett said that assuming there are no disruptions to the training schedule, training a new recruit (including a pilot transferring from another Qantas Group airline) would take anywhere between 12 and 24 weeks to complete, and pilots need to obtain a type-rating, at a cost to Network of approximately $60,000.00.489 [464] The AFAP drew attention to the provision of RDOs in the Award, within some Qantas Group enterprise agreements and the agreements of Network’s competitors. The AFAP’s claim initially focused on the provision of 12 RDOs.490 It is difficult to conceive the justification for the claim of 12 days, given the industry standards that the AFAP draws support from – one enterprise agreement providing 12 RDOs. However, as observed, the AFAP’s proposal reduced with time to 10 RDOs. [465] The Award, at clause 15.7, provides: The weekly duty period will normally consist of 5 days’ duty and 2 consecutive days free from all duty. By mutual agreement between the employee and the employer one day free of duty can be deferred. Where a day has been deferred a substitute day will be granted and taken within 28 days unless further deferred by mutual agreement in writing. For the purpose of rotating the roster one 2 day period may be reduced to single days in each 28 day cycle. [466] The AFAP focused on the following Qantas Group enterprise agreements, which provided pilots with 10 days off per roster period: (a) Eastern Airlines EA at clause 41: (b) Sunstate EA at clause 37.17; (c) National Jet EA at clause 23 of schedule 4A; (d) Jetstar EA at clause 46; and (e) Qantas EA at clause 33. [467] The competitor operations referred to by the AFAP were National Jet Express who, under its enterprise agreement at clause 25.29, provides pilots with either 9 or 10 days per roster period, depending on the number of consecutive RDOs, and the VARA enterprise agreement (clause 102), that provides 12 RDOs (described as DDOs) per roster period. [2025] FWCFB 176 100 [468] The AFAP submitted that the Commission should grant the AFAP’s position because it would result in the workplace determination being consistent with the prevailing industry standard for RDOS, and there was uncontested evidence from pilots491 about the hardship caused by the status quo, and Williamson had given evidence about the fatigue management benefits. [469] The issue of fatigue management was raised squarely at the hearing, and we think it correct to remark that the AFAP’s argument for an additional RDO, in part, has been premised upon it being a fatigue management issue. That argument, if premised within a safety framework, does not sit comfortably for us for several reasons. [470] First, Network’s responsibilities in respect of fatigue management are not primarily found within an industrial instrument, such as a workplace determination. We have heard evidence that Network has responsibilities for fatigue management as a holder of an AOC492 and that Network has an FRMS, which is approved by CASA493 and reflects the CAO. As acknowledged, CAO 48.1 requires AOC holders to operate in accordance with one or more appendices to CAO 48.1 and pursuant to Appendix 7 of CAO 48.1, an AOC holder can apply to CASA for approval of an FRMS.494 As noted in the evidence of Hosegood, Network’s FRMS is in a trial period.495 However, it is not apparent at the time of writing, that fatigue management is considered problematic within Network from the perspective of the regulator, or that a clause in an industrial instrument is the appropriate mechanism in these particular circumstances to address such an issue if there was one. [471] Second, Network’s FRMS was developed in consultation with CASA.496 That development was said to have taken into account the Appendix 7 requirements, and the specific fatigue-related risks for Network, in light of the nature of its operations and flying.497 [472] Third, to the extent that fatigue management is a critical ongoing safety obligation within the Qantas Group, it is apparent that the Qantas Group use a ‘BMM tool to proactively assess rosters’ and each airline within the Qantas Group uses thresholds or triggers that have been determined in their FRMS.498 Hosegood specifically noted that overall the Network BMM results showed lower predicted fatigue levels when compared with other Group airlines, such as Eastern and Sunstate.499 We have no reason to doubt that Network’s FRMS provides protections to manage fatigue, including limitations on the number of sectors and hours worked,500 and that Network’s rosters are built to have 100% compliance with any ‘hard rule’ contained in the FRMS or an industrial instrument.501 [473] Fourth, Network, understandably, requires flexibility in its day-to-day operations in respect of unplanned circumstances, such as delays, cancellations and crew illness. We understand from the evidence, that it is the FRMS that has built within it flexibility to enable the operations to be safely completed with permissible extensions to hours of duty.502 [474] Fifth, we are appreciative that Network adopts a layered approach to its fatigue management. We have previously cited Hosegood’s evidence that the FRMS contains the fatigue management aspects and then there may be additional layers of restrictions placed above that, either through soft rules which are either incorporated within the FRMS or can be layered on top, and then industrial rules after that.503 In our view, the workplace determination is not the fundamental mechanism in this context for ensuring within the organisation the appropriate [2025] FWCFB 176 101 and lawful safety management of workplace fatigue. That is not to say that as part of a layered approach, a workplace determination cannot broach the subject matter and impose upon those covered by it obligations or responsibilities, or grant entitlements. However, where a workplace determination forms part of that layered fatigue management approach, the inclusion of an entitlement to an employee on that basis, requires cogent evidence to support its inclusion. [475] We do not discount the evidence of Williamson or, for that matter, the pilots who have spoken to the difficulties encountered regarding fatigue. However, in respect of Williamson’s evidence, we make a few observations. Notwithstanding the attempts in cross-examination to draw attention to Williamson having undertaken work predominantly in the field of transportation over that in aviation, we accept Williamson had previously undertaken work pertaining to CASA concerning involvement on, or at least advising, a committee in or around 2017/2018 about a change to CAO 48.1,504 and that an area of her focus has been the consideration of fatigue and hours for pilots.505 [476] However, Williamson spoke of an additional two RDOs as having ‘some benefits for fatigue management’ (italics our emphasis) rather than the one RDO,506 and as noted, in part by Hosegood, we were not directed to specific evidence which supported Williamson's view that ‘[t]he AFAP proposal that an additional two RDO's, rather than one, be added to each 28- day roster will have some benefits for fatigue management’.507 Whilst levelling no criticism toward Williamson, it was apparent that Williamson was unaware of the content of Network’s FRMS,508 was unable to comment on whether the FRMS adequately minimised fatigue within acceptable limits as approved by the CASA,509 and was unaware of the average flight hours for a pilot and the duty hours.510 Whilst Williamson provided a detailed analysis about the rosters she was provided with by the AFAP, it appears that the rosters were limited to rosters over one roster period for a limited number of pilots (that is less than four pilots). [477] The TWU submitted that 10 RDOs should be included in the workplace determination, because Network was now performing an increased number of RPT with charter flying now representing 35% of Network flights and pilots were now working longer days.511 This, submitted the TWU, had the potential to adversely impact pilot work life balances as well as increase the likelihood of fatigue being experienced. Again, we observe that Network’s evidence on the amount of RPT and closed charter differs to that provided on this occasion by the TWU– and, in addition, whilst flights may be considered RPT they often consist of seats booked by Network’s resources clients. As we have previously stated, we accept the evidence of Network as to the composition of chartered and RPT flights – and the composition of RPT flights. [478] The TWU noted that if the claim to increase RDOs to 10 was not accepted then a term providing for nine RDOs over a bid period should be included. [479] The AIPA contends that the workplace determination should be inclusive of 10 RDOs on the basis that: a) Network’s rosters are highly volatile, particularly the change in shifts that pilots experience, which creates both a fatigue management issue and a problem with maintaining acceptable work/life balance, which is addressed by additional duty- free time; and [2025] FWCFB 176 102 b) the practice is consistent with industry minimums, including in regional airlines with similar operations (and is indeed on the lower side). [480] Based on the evidence before us, we are not persuaded it is necessary for the workplace determination to provide that there be 10 RDOS per 28-day period from the perspective of a safety imperative. Insofar as the provision of 10 RDOs may engender some form of fatigue management benefit – we are not disagreeable to the proposition, but we do appreciate that the provision of one additional RDO is essentially a claim that sits within the scope of a lifestyle benefit, and we consider that Network had already made multiple concessions that conferred lifestyle benefits when it put the 22 December Proposed Agreement to the vote. [481] As we have observed, Network has in place a comprehensive framework to manage fatigue. Further, Network agreed that, in addition to the provision of nine RDOs, that the period of an RDO (as a single) would be increased from 24 to 36 hours and eight of the RDOs would be arranged as four pairs, with one arranged as single day. 512 Further, if a pilot takes seven or more consecutive days of annual leave, she or he will not be rostered to sign on earlier than 0800hrs the following day.513 The provision of nine RDOs in addition to the aforementioned entitlements are a stepped improvement on the status quo (noting that whilst the 2016 Agreement is silent in respect of RDOs, Network had been providing eight RDOs per bid or roster period) and mitigate issues in respect of work life balance. [482] We have considered the practices of other employers, in this case, within the Qantas Group and Network’s competitors, and the terms and conditions which apply to their employees. Such information may be capable of being relevant to the fairness of particular terms as well as the appropriateness of the package of benefits in a highly competitive environment. However, we are mindful in the context of this application of the differences between the airlines (as noted), and that the provision of nine RDOs instead of ten would leave on the table a claim that may be pursued at a later date, when perhaps the context of Network’s operations differed – a particularly relevant consideration in light of s 275(h) of the Act. [483] As can be seen from the detailed evidence given by Bartlett, at this time, the financial, operational and resourcing impact of increasing the amount of RDOs to ten would not be appropriate.514 We agree with Bartlett’s proposition in respect of the appropriateness of the claim. Bartlett noted that the reduction in rostering capacity of an additional two (2) days (i.e. from eight under the current practice) would mean that Network would be unable to discharge its flight schedule with its current FTE quota - the additional (ninth) RDO would require 14 additional pilots to be recruited. A further additional (tenth) RDO would require a further 16 additional pilots to be recruited on top of that. As to cost, Barlett stated that the latter of these FTE increases alone would cost Network $4.5m per annum, increasing thereafter with wage and allowance increases. In light of the other benefits afforded to the pilots under our determination, an additional RDO is simply not warranted at this time. [484] To conclude this point, we draw from part of the evidence of Aikens in cross examination at [PN1698] to [PN1703]: PN1698 RDOs, you say again, that the number of RDOs was consistently raised as an important issue by the membership?---Yes. [2025] FWCFB 176 103 PN1699 You always thought, at least in this round of negotiations, given the base you were coming from, that 10 RDOs was a bridge too far?---We always knew it would be an important issue in the members deciding for or against. PN1700 Yes, and that's not the answer to my question. My question was you always thought that getting 10 RDOs now in this deal from where you were coming from was a bridge too far?---At the time. Yes. PN1701 Yes?---Yes. PN1702 And that a nine-RDO deal was a good deal to take now and maybe seek to expand to 10 at a later point in time?---Correct, and that's most negotiations. PN1703 Yes. And it follows from that that, at this particular point in time, nine RDOs was a reasonable compromise given from where you were coming from?---Correct. 5.8 Revised rostering provisions [485] On 5 March 2024, the AFAP wrote to Network.515 In that correspondence, the AFAP alleged that Network was not meeting the good faith bargaining requirements and, relevantly, advised it was: …in agreement on all of the terms of the proposed agreement other than the terms detailed within the attachment to this letter. You will note this sets out specifically the 7 points we had previously advised the Company of following the surveying of members.516 [486] According to Network the AFAP raised in that letter, for the first time, a series of additional claims regarding rostering (having said on 23 January 2024 that in respect of rostering, it sought to ‘spell out more clearly’, rostering protections).517 [487] Network submitted that the claims regarding rostering had not been included in any of the proposed agreements, and, by and large, the claims, had not been raised by any bargaining representative at all during bargaining.518 Network pressed that if ever there was a candidate for an incentive for future bargaining (in a properly articulated and negotiated manner), these claims were it. [488] An attachment to the letter of 5 March 2024 from the AFAP to Bartlett set out the ‘Items of Difference’ to, what was then, the currently proposed enterprise agreement. Included in those ‘Items of Difference’ were the following ‘revised rostering provisions’: 7. A revised rostering appendix to spell out more clearly rostering protections Company proposal Part F – items below are not currently contained within the Draft EA [2025] FWCFB 176 104 Union Proposal Additional Rostering Protections (Additional Clauses) A pilot activated from reserve will be issued with a shift start time, a destination (or destinations) and a shift finish time. In lieu of this information, the pilot will be released from duty. Each roster shall specify in detail each pilot’s designated days off, duty days and duty periods, reserve duty days and periods designated free of all duty and leave periods. A pilot will not be rostered greater than 38 hour of duty per week unless by agreement. For the purpose of this calculation, duty include all work required by the pilot to the employer inclusive of reserve in a Monday – Sunday period. Any known or anticipated delays in departure from home base, in excess of two hours, will be clearly communicated to the pilot at the earliest opportunity. When a reserve period commences before 0600 hours or terminates after 1700hrs, it shall not exceed 8 hours in duration. No pilot is to be contacted during a mandatory rest period which immediately precedes a tour of duty. The company will aim to reduce unwarranted or excessive reserve coverage. Data on reserve coverage, allocations and activations will be provided to the PWG with the goal of streamlining reserves. A pilot may fly privately provided this does not compromise their ability to fly for Network Aviation or impact compliance with its Fatigue Risk Management System. A pilot cannot fly for hire or reward unless they have obtained prior approval from Network Aviation. Where a pilot takes any leave approved in advance during a roster period, Days Off will be pro- rated in accordance with the following…519 [489] Network’s outline of submissions which were filed with its materials in chief on 8 September 2024, addressed the abovementioned ‘Additional Rostering Protections’. According to Network however, the AFAP sought to put in issue a range of additional rostering restrictions, as set out in clause 20 of its draft workplace determination. Network pressed that these claims were different to those which Network had understood to be pursued by the AFAP, and which, as noted, Network had commented on in its outline of submissions. [490] Network further submitted that these additional claims were contained in clause 20 of a draft proposed enterprise agreement that was first provided to Network by the AFAP on 22 March 2024, during the post-declaration negotiating period. Network observed that at that time Bartlett did not treat the document as genuinely reflecting the matters in issue because the document represented a further departure from a position previously agreed by the AFAP, and identified many areas as not agreed, when they were in fact agreed. [491] By email dated 22 March 2024,520 Aikens sent to Bartlett what was described as an attached ‘EA document’, with areas said to have been highlighted by the AFAP that had been [2025] FWCFB 176 105 altered to reflect its position. That ‘EA document’, however, was not attached to the covering email provided in evidence. [492] Attached to the Statement of Agreed Facts of 17 April 2024, were Attachments 17 and 18, which were emails from the TWU dated 26 March 2024 and the AIPA dated 27 March 2024 confirming the terms that they considered ‘agreed’ and those terms that they considered ‘unagreed terms’. In respect of ‘unagreed terms’, the two unions identified the ‘Revised Rostering Provisions’ noting ‘TWU (wording), AFAP’. It is unclear what the ‘TWU (wording)’ was, and the AIPA’s and the TWU’s evidence in this respect does not illuminate what was contended by the AFAP - as far as those revised rostering provisions were concerned. [493] At paragraph 78 of Aikens’ witness statement dated 6 September 2024, he stated that the AFAP’s ‘revised rostering provisions are contained in clause 20 of the AFAP’s draft workplace determination’:(see Attachment ‘CA-18’ to Aikens’ witness statement). Attachment ‘CA-18’ is an undated document, and it is not entirely clear whether this was the document, or at least the clause (clause 20), that Bartlett was referring to when giving evidence that on 22 March 2024 he received from the AFAP the further revised rostering provisions. [494] Network submitted that the claims in clause 20 (we consider this to mean those claims that are in addition to those that Network addressed in its outline of submissions of 8 September 2024) are not a matter at issue for the purposes of s 270(3) of the Act and therefore are not to be the subject of arbitration by the Commission in determining the workplace determination. Network stated that this was because the Act treats ‘matters at issue’ (which is undefined), as being the contradistinction of agreed terms. [495] Section 269 of the Act sets out when the Commission must make an intractable bargaining workplace determination and s 270 sets out the terms of an intractable bargaining workplace determination. In the Agreed Terms Decision, we, understandably, focused on the interpretation of s 274(3) and essentially provided the following reasoning. [496] Section 274(3) defines an agreed term as a term which the bargaining representatives had agreed should be included in a proposed enterprise agreement at any one of three times (the time of the making of an application for an intractable bargaining declaration under s 234, the time of the making of an intractable bargaining declaration under s 235, and the end of the post declaration negotiating period. The provision is phrased so as to operate cumulatively across each of those periods. Therefore, an agreed term will be a term which the bargaining representatives agreed to as at the time of making an application under s 234, whether or not that term is still agreed at the time the intractable bargaining declaration is made, or at the end of the post declaration negotiating period. [497] Network pressed that the matters at issue may therefore reduce between the different time periods (of making an application under s 234, the time the intractable bargaining declaration is made, or at the end of the post declaration negotiating period), but they cannot expand. [498] As we have noted previously in the Agreed Terms Decision, the previous s 274(3) (to the s 274(3) which was amended by the Closing Loopholes No 2 Act), provided that only one of two time points were relevant in determining whether there were ‘agreed terms’. Further, it [2025] FWCFB 176 106 is apparent that the predecessor section may have permitted a bargaining representative to resile from or retract agreements reached as to what terms should be included in a proposed agreement in a situation where bargaining had failed, and the Commission had made an intractable bargaining declaration. Arguably, bargaining representatives could resile from their agreement to terms: (a) at any time before a declaration under s 235(1) was made, including after an application for a declaration had been made and before the Commission made the declaration; and (b) if a s 235A post-declaration period was ordered, at any time before the conclusion of that period. [499] The mischief apparent from these hypothetical situations was that which Parliament sought to address by repealing and replacing s 274(3). As the Revised EM makes pellucid, the new s 274(3) is intended to ensure that once a term is an ‘agreed term’ according to any of subsections 274(3)(a) to (c), it remains an ‘agreed term’ and cannot later become a term dealing with a matter still at issue or be left out of the determination. This, in turn, means that the intent of the section is that a party cannot resile from terms agreed at each of the three points in time provided for in s 274(3). [500] As noted, each subsection requires ascertainment of terms which those bargaining representatives had agreed at the times stipulated in subsections (a), (b) and (c), should be included in the agreement. In our view, these subsections may operate cumulatively by virtue of the use of the adjunct ‘and’, and the phrase in s 274(3)(b) and (c) ‘any other term in addition to’ the terms mentioned, respectively, in either s 274(3)(a) or (3)(a)–(b). [501] In the Agreed Terms Decision, we observed that the circumstances before us did not necessitate consideration as to the accretion of terms at the temporal points referred to in s 274(3)(b) or (c), for it was evident on the material before us, and as agreed by the parties, no terms were ‘agreed’ as at the times referred to in s 247(3)(b) and (c). We therefore stated that while it might be the case that a party’s attempt to resile from its agreement to one or more ‘agreed terms’ after one of the times detailed will be inutile, for current purposes the only critical time is that when the application for the intractable bargaining declaration was made (s 274(3)(a)).521 [502] However, s 270 is not limited to prescribing only that an intractable bargaining workplace determination must include agreed terms. It identifies that it must also include terms dealing with the matters at issue. Section 270(3) states: Terms dealing with the matters at issue (3)The determination must include the terms that the FWC considers deal with the matters that were still at issue: (a) if there is a post-declaration negotiating period under section 235A for the declaration concerned—after the end of that period; or (b) otherwise—after making the declaration. Note: Any such terms must comply with section 270A. [503] It is uncontroversial that there was a post-declaration negotiation period as provided for in s 235A of the Act, which concluded on 28 March 2024. In our Agreed Terms Decision, we identified that clause 20 – the revised rostering provisions, was not an agreed term as at [2025] FWCFB 176 107 5 February 2024, and in light of our Agreed Terms Decision, it therefore follows that the revised rostering provisions were still at issue up until 28 March 2024. [504] Network’s proposition would essentially require us to interpret the phrase ‘matters that were still at issue’, as referred to in s 270(3), as being those matters that were not agreed terms as of 5 February 2024 - which we do not grapple with. However, Network’s proposition appears to extend beyond this, requiring that the word ‘matter’, as used in s 270(3), encompass the precise content, for example, of clause 20 or the subclauses / paragraphs of the same, so that as from 5 February 2024 there could be no revision, amendment or change to this particular matter in issue – insofar as the content of clause 20 was concerned. [505] We accept that as of 5 February 2024 there were eleven matters in issue as determined in the Agreed Terms Decision, and, at the end of the post declaration negotiating period that position had not changed and could not change under the Act. We do not, however, consider that the Act precludes the matters in issue evolving, as for example, suggested clauses are exchanged and considered about a matter in issue during the post declaration negotiating period, albeit this does not extend to adding further matters in issue, up until the temporal milestones set out in s 270(3) of the Act. As is evident from the correspondence between the parties in the March 2024 period (prior to 28 March 2024) the revised rostering provisions in clause 20 of the 22 December Proposed Agreement were still at issue at the end of the post declaration negotiating period. [506] If, however, we are wrong in our interpretation of the statutory provisions in this respect, it is of no consequence. That is because, if Attachment C-18 to Aikens’ witness statement dated 6 September 2024,522 represents clause 20 of the 22 December Proposed Agreement which was provided to Bartlett on 22 March 2024, marked up in red by the AFAP with the further amendments it was pursuing, we are not persuaded that such amendments are warranted in the workplace determination. Before explaining further why this is the case, we address first the position of the TWU and the AIPA regarding clause 20 and or the additional rostering protections that were referred to in Aikens’ correspondence to Bartlett on 5 March 2024. [507] Under the heading of ‘Rostering provisions’, the TWU submitted that Captains and First Officers were regularly required to perform duties on the ground, including at mining camps, when between flights.523 In respect of those duties, there were no minimum standards for rest facilities notwithstanding that other enterprise agreements in the Qantas group contained provisions for rest facilities to have minimum features where a break of four or more hours between successive flights occurred. The TWU stated that the inclusion of provisions such as those in other Qantas Group agreements, where facilities allow pilots horizontal rest and are required to be close to the airfield, was imperative. The TWU does not appear to have broached specifically the roster provisions advanced by AFAP. [508] The AIPA, whilst focused on the number of RDOs, did not in turn make specific comment regarding the additional rostering protections advanced by the AFAP. [509] The 2016 Agreement provides at clause 8.9 the following: Rosters will be compiled and will be managed in accordance with the Network Aviation Rostering Protocol that has been agreed between the Company and the pilots. The Rostering Protocol does not form part of this Agreement. However, the parties agree that if any dispute [2025] FWCFB 176 108 arises under the Rostering Protocol then the dispute settlement procedures set out in this Agreement will apply to the dispute.524 [510] The draft workplace determination provided by Network sets out some five pages of ‘Rostering Practices’, much of which seems to have been previously supported by the parties given its inclusion in the 22 December Proposed Agreement. We note that in cross examination Bartlett gave evidence that a meeting was held where the roster protocol document was reviewed. Present were individual members from the AFAP, the TWU and the AIPA, and agreed elements came out – to the point where, during bargaining, there was an understanding that ‘these elements would be included’.525 [511] We note that clause 20 of Network’s draft workplace determination under Part F – Rostering, acknowledges that the ‘Part’ includes some matters previously contained in the Company’s Rostering Protocol Matters, and we observe that it is inclusive of clause 20.1.8 and 20.8.5 (the latter of which addresses the requirement for a pilot to be contactable during a ‘Reserve Period’). On any objective level, the inclusion of clause 20 as provided in the Network draft workplace determination, is a marked improvement from the 2016 Agreement, with rostering practices moving from policy to being enshrined in an industrial instrument. [512] We appreciate that the evidence of Maughan and Leavy, both of whom are pilot representatives on the RWG, details the challenges of addressing rostering issues through the RWG,526 and in respect of Maughan’s evidence, he addresses why certain rostering protections are sought by the AFAP.527 We consider it manifestly obvious from the evidence of these two witnesses and the submissions of the AFAP, that there is a high level of dissatisfaction with regard to the content of clause 20 as provided in the 22 December Proposed Agreement – by these pilots, notwithstanding the AFAP’s endorsement of the 22 December Proposed Agreement. [513] Ultimately, however, we accept Bartlett’s evidence in response to the ‘Items of Difference’ outlined in AFAP’s correspondence to Bartlett on 5 March 2024. Bartlett gave detailed evidence in respect of each of those proposed rostering provisions.528 [514] We have summarised Network’s position in respect of the merit of provisions (of 5 March 2024) and have provided our comments where we have considered necessary: (a) A pilot activated from reserve will be issued with a shift start time, a destination (or destinations) and a shift finish time. In lieu of this information, the pilot will be released from duty. [515] Network pressed that the first sentence of this claim is consistent with Network’s existing practice,529 and that the import and effect of the second sentence is unclear.530 Network added that it was unnecessary to include it in the workplace determination, and it should therefore be rejected. [516] We accept this proposition and add, an activation from reserve may take place with limited notice (whether 90 minutes or two hours). As we have noted for other provisions advanced by the AFAP in respect of rostering provisions, rostering provisions that descend into minutiae such as that proposed by this term, are in our view, currently best placed within policy or procedure, rather than in an industrial instrument, the breach of which can have significant ramifications for Network and may prove unworkable. [2025] FWCFB 176 109 (b) Each roster shall specify in detail each pilot’s designated days off, duty days and duty periods, reserve duty days and periods designated free of all duty and leave periods. [517] Network contended that this claim was consistent with Network’s existing practice and that it was unnecessary to include it, subject to civil penalties for deviation (which in an airline, is always possible), in the workplace determination, and it should therefore be rejected. [518] We accept this proposition and add, as we have for other provisions advanced by the AFAP in respect of rostering provisions, that at this time, rostering provisions that descend into minutiae, are in our view, best placed within policy or procedure, rather than in an industrial instrument, the breach of which can have significant ramifications. The potential sanction available if the term were included in the determination, would be disproportionate if, for example, an error was made during what might otherwise be characterised as an administrative task in respect of publishing a roster. (c) A pilot will not be rostered greater than 38 hours of duty per week unless by agreement. For the purpose of this calculation, duty includes all work required by the pilot to the employer, inclusive of reserve in a Monday – Sunday period. [519] As to the proposed maximum weekly hours, each proposed agreement put to vote by Network, including the 22 December Proposed Agreement (agreed to in full by the AFAP), included terms that: ‘9.1.3 The ordinary hours of work are seventy six (76) hours per fortnight, when averaged over a twelve (12) month period.”; and “9.1.4 The ordinary hours of work may be worked within a twenty four (24) hour period spread over seven (7) days, Monday to Sunday inclusive.’ This is consistent with Network’s long-standing practice for rostering, due to the nature of its operations, in which demand can fluctuate depending on flying activity. The AFAP’s claim therefore amounts to a radical departure from existing practice and prior agreement. [520] Given Network’s operations and the flexibility required to cater for its market – with two waves of flights during the course of the day and the necessity to have an AOG, we have considered it appropriate for the workplace determination to include an averaging provision in respect of the ordinary hours of work. Whilst appreciative of what was said by the Full Court in Corporate Air about the averaging of ordinary hours in the context of the Award, we are not precluded from including a period over which hours of work will be averaged in the workplace determination. We therefore consider adopting a term which is aligned with Network’s long- standing practice for rostering, and, in addition, formed part of the 22 December Proposed Agreement, which of course was endorsed by the AFAP, is appropriate. [521] Network specifically referred to the AFAP’s contention that that reserve hours would constitute ‘duty’ for the purposes of the aforementioned maximum weekly hours, or for the accounting of any hours of duty, noting that this claim was out-of-step not only with organisational practice, but also industry practice.531 Network added that the claim was inconsistent with the FRMS and unworkable in light of Network’s business and rostering practices.532 We refer to our reasons in respect of the BOOT assessment regarding the reserve period. [2025] FWCFB 176 110 (d) Any known or anticipated delays in departure from home base, in excess of two hours, will be clearly communicated to the pilot at the earliest opportunity. [522] Network addressed this claim by again noting its consistency with its existing practice.533 Network stated that it was unworkable in a civil penalty context and unnecessary to be included in the workplace determination. [523] In the current context, we accept Network’s objection to the term and again add that we agree that rostering provisions that descend into minutiae, are in our view, best placed within policy or procedure, rather than in an industrial instrument, the breach of which can have significant ramifications. (e) When a reserve period commences before 0600 hours or terminates after 1700 hours, it shall not exceed 8 hours in duration. [524] Network submitted that this claim was restrictive and inconsistent with Network’s existing rostering practices (which, at the request of the Unions, had been included as terms of the proposed agreements and also the Network draft determination (see Part F)). Network explained that those practices currently provide that the maximum duration of reserve is 12 hours, which was necessary to ensure operational coverage throughout the day, remembering that Network’s operations include morning and afternoon flying. Network stated that if the AFAP’s claim was to be implemented, it would mean that Network would need to roster more pilots on reserve (albeit for shorter periods), which would be inconsistent with claims the Unions pursued in bargaining.534 We do not intend to deviate from the term that the maximum duration of reserve is 12 hours and that the periods are limited to seven for the purpose of the roster. This has been contemplated in our modelling and should the parties wish to bargain for a change of this approach in future rounds, it is open to them to do so. (f) No pilot is to be contacted during a mandatory rest period which immediately precedes a tour of duty. [525] Bartlett gave evidence that this claim is operationally feasible, subject to contact with pilots being permitted in emergency circumstances and by text message in the event of operational changes to an upcoming shift (with a corresponding obligation on the pilot to read the message ahead of his or her shift).535 Network pressed that the claim should be rejected unless it is made expressly subject to those two exceptions. [526] We observe that neither Attachment CA-18 nor the AFAP’s draft workplace determination dated 8 October 2024 included these exception. At this time, we consider it appropriate to decline the inclusion of the term and are of the view that it may prove to be an item of interest that can be pursued in future negotiations. (g) The company will aim to reduce unwarranted or excessive reserve coverage. Data on reserve coverage, allocations and activations will be provided to the PWG with the goal of streamlining reserves. [527] According to Network, this claim is unduly aspirational, vague and ambiguous for inclusion in workplace determination. Network stated that it was not appropriate for inclusion [2025] FWCFB 176 111 in the workplace determination for that reason alone,536 and, in any event, the sentiment in the claim is appropriately reflected in the Agreed Term that Network may only require a maximum of seven reserve periods to be rostered in a given roster period (see clause 20.8.1 of the Draft Determination). [528] We agree with Network’s observation concerning the aspirational nature of the first sentence and are of the view that to reduce ambiguity and to create a level of certainty in the terms of the workplace determination, the preference, in this context, is to prescribe the number of reserve periods permitted in a bid. (h) A Pilot may fly privately provided this does not compromise their ability to fly for Network Aviation or impact compliance with its Fatigue Risk Management system. A Pilot cannot fly for hire or reward unless they have obtained prior approval from Network Aviation. [529] Network has identified that this claim is inconsistent with Network’s ‘FRMS73’, as well as with existing practice within Network, which is that private flying (whether for hire or reward, or not), is not permitted, without approval.537 [530] We are surprised by the inclusion of this proposed term by the AFAP, given its focus on informing us that pilots were either fatigued or their lifestyle impinged upon by the circumstances of their employment. [531] Network makes an important observation that to include this term in an workplace determination is inappropriate, as it purports to leave to pilots the obligation of assessing their fitness for work in terms of fatigue management and may therefore run into conflict with Network’s regulatory and common law duties as an employer who needs to provide a workplace which is safe and without risks to health. We accept that the term is inappropriate for inclusion in light of evidence before us. [532] In summary, some of the rostering provisions that are sought by the AFAP are consistent with Network’s existing practice, and we understand are addressed by Network’s roster protocol. We acknowledge that issues about these aforementioned roster provisions are able to be raised with Network’s RWG and the pilots’ working group, but raising an issue in these forums may not necessarily result in a resolution of the issue. We further appreciate that the terms of the roster protocol are not locked in and could be changed during the term of the workplace determination. [533] However, we hold concerns that the inclusion of the revised rostering provisions as sought by the AFAP whether in the 5 March 2024 correspondence or the correspondence of 2 March 2024, will impact Network’s operations in some circumstances, by being overly prescriptive and neutering flexibility. Further, the inclusion of these aforementioned provisions appears to be a step too far when such significant changes to the 2016 Agreement have already been countenanced and may dampen an incentive to bargain in the future. [534] On that latter point, we observe that Network submitted that to the extent that the Unions’ further claims, in general, amount to additional items that a certain portion of the pilot cohort may have wished for to ‘sweeten the deal’ at the ‘heel of the hunt’, the employees will be incentivised to bargain for those matters on the next occasion if they are not included in the workplace determination. Network expresses that in circumstances where the bargaining [2025] FWCFB 176 112 representatives of those employees agreed (on the last occasion) in December 2023 to a generous deal that did not include those items, the Commission ought to be satisfied that it is not necessary to include those additional claims in order ‘to provide for an appropriate workplace determination to apply to the operations concerned until the parties replace the determination with a new enterprise agreement’, as is the Commission’s task.538 We accept this proposition and adopt it. [535] We hold the view that clause 20 as provided in the draft workplace determination provided by Network, is appropriate for inclusion within the workplace determination. 5.9 Salary rates and backpay [536] Any increase in salary rates to be included in the workplace determination should ‘depend upon a consideration of all the relevant circumstances, including the other aspects of the determination’.539 As previously quoted, the Commission’s task is to ‘to arrive at an outcome which is fair in all the circumstances and that appropriately balances the interests of the parties.’540 [537] The last wage increase afforded to the pilots under an enterprise agreement was in October 2019. Therefore, it is unsurprising that the Unions and Network had much to say about salary rates. [538] There is evidence that the pilots are struggling to meet the costs of living in the face of, what is said to be, significant inflation. Consequently, the salary tables or salary propositions provided by the parties for inclusion in the workplace determination, for the most part, are also inclusive of backpay. The exception, in respect to the provision of backpay, is the table provided by Network. [539] Therefore, we have decided to address the issues of salary rates and backpay together. This is because, ultimately, notwithstanding the protestations of Network, and whilst appreciative that the company has made interim payments to the pilots, we have considered the provision of back pay an appropriate and necessary inclusion in the workplace determination. We have also considered it necessary to provide a summary of each of the party’s arguments and then our consideration interposed by sub-headings. [540] However, before addressing the arguments of each of the parties regarding salary rates and backpay, the broader economic context warrants examination. In the time between the pilots’ last pay increase and the provision of this workplace determination, Australia has faced a pandemic and there have been changes in the economic environment. [541] In TWU v Cleanaway No. 1,541 a decision of the Full Bench that dates back to June 2024, the following observation was made in circumstances where employees had not received a pay increase since 23 September 2021: …Since the last pay rise, the living cost index (LCI) has increased by 16.3% to December 2023, the consumer price index (CPI) has increased by 14.7% to March 2024, and the wage price index (WPI) has increased by 9.3% to March 2024. The Reserve Bank forecasts CPI inflation in June 2024 to be 3.8% and December 2024 to be 3.8%. CPI inflation in the June 2025 quarter is forecast to be 3.2% and in December 2025 to be 2.8%. By June 2026, it is anticipated to be [2025] FWCFB 176 113 2.6%. WPI is forecast to increase 3.6% from July 2024 to June 2025; and a further 3.2% from July 2025 to June 2026. The TWU rely upon CPI and LCI increases since 23 September 2021 to support its claim for 6% pay rises each year from September 2022-September 2025.542 [542] Whilst the employees in question in TWU v Cleanaway No. 1543 were drivers, not pilots, the figures cited in the decision remain reflective of the economic context over the last couple of years. That general economic context was again aptly described in the Annual Wage Review 2023-2024 (Annual Wage Review)544 at paragraphs [44] – [50]. At paragraph [45] of the Annual Wage Review, the Reserve Bank of Australia forecasts were stated in the following terms: Year ended June 2024 Dec 2024 Jun 2025 Dec 2025 Dec 2026 CPI Inflation (previous) 3.8 (3.3) 3.8 (3.2) 3.2 (3.1) 2.8 (2.8) 2.6 (2.6) Trimmed mean inflation (previous) 3.8 (3.6) 3.4 (3.1) 3.1 (3.0) 2.8 (2.8) 2.6 (2.6) [543] When examining past CPI figures in more detail, with a particular focus on Perth, the following is evident: CPI Numbers 2020 - 2024 12 Months Ended Perth 8 Capitals Sep-20 1.3% 0.7% Sep-21 3.2% 3.0% Sep-22 6.0% 7.3% Sep-23 5.8% 5.4% Sep-24 3.8% 2.8% CPI Change Sep 2019 - Sep 2024 Perth 8 Capitals 21.7% 20.5% CPI Change Sep 2019 - Dec 2024 Perth 8 Capitals 22.5% 20.8% [544] In terms of the movement in Average Weekly Earnings, the Australian Bureau of Statistics reports:545 [2025] FWCFB 176 114 Average Weekly Earnings (Full Time Adult) 12 Months Ended Movement Nov-20 3.2% Nov-21 2.1% Nov-22 3.4% Nov-23 4.5% Nov-24 4.6% AWE Change Nov 2019 - Nov 2024 19.1% [545] Against that economic backdrop sits the profitability of Network and the broader Qantas Group. In cross examination, Bartlett was taken to information about the Qantas Group within the public domain. The Captain responded to the questions asked: Yes. So dealing with the information that's in the public domain you're aware that in the most recent financial report, being a report for the year ended 30 June 2024, that the underlying profit before tax of the Group was recorded to be 2.78 billion; are you aware of that?---Of the Group. I will take the figure as spoken. I don't have the report in front of me, but that does sound right. Yes. You would accept that the Qantas Group is currently in a healthy financial position?---Yes.546 [546] Returning first to the issue of backpay. It is uncontroversial that the Commission has power to include in a workplace determination a provision requiring the payment of a wage rate from a time earlier than the date on which the workplace determination operates.547 Under s 276(1) of the Act, there is an express provision stating that the workplace determination commences operation from the date it is made. However, this does not preclude the inclusion within a workplace determination of a requirement to give effect to a wage increase from an earlier date, which has legal effect once a workplace determination comes into operation.548 In this sense, s 276(1) is no different in effect than s 54(1) of the Act, which specifies the date from which an enterprise agreement operates.549 [547] In Qantas Pilots Determination550 the Full Bench stated the following in respect of ‘backpay’: It can be noted, both in respect of power and merit, that the Fair Work Commission, in making workplace determinations, has either awarded a retrospective wage increase551 or “front loaded” the first increase,552 to compensate employees for the delay since their last wage increase. In one case, The Australian Licenced Aircraft Engineers Association v Qantas Airways Limited,553 the Full Bench included, in the workplace determination operating from the first pay period on or after 23 January 2012, wage increases commencing from 1 January 2011 and from the first pay period on or after 1 January 2012,554 reflecting a position agreed between Qantas and the union in that case and found by the Full Bench to be appropriate for adoption in the workplace determination.555 [2025] FWCFB 176 115 [548] More recently in Transport Workers’ Union of Australia v Cleanaway No. 1556 the Full Bench received submissions from the TWU that it sought pay increases of 6% backpay from 23 September 2022 to the commencement of the determination and 6% backpay from 23 September 2023 to commencement of the determination. The Commission observed that Cleanaway had asked employees to vote for an agreement toward the end of 2023, which provided for 4% with backpay from 23 September 2022.557 The Commission ultimately made a workplace determination where the initial pay rise was from 1 July 2023, with a further pay rise payable six month from that date from 1 January 2024.558 Those periods/dates evidently predated the operation of the workplace determination. 5.9.1 Network [549] Network’s omission of backpay from the workplace determination, notwithstanding its inclusion in the 22 December Proposed Agreement, is premised on several factors. However, before turning to backpay and those factors, we traverse some observations made by Counsel for Network during the hearing. [550] Network first submitted that the pilots are comparatively very high earners compared to every other employee in Australia or the median employee. Second, all references to profits and record profits of the Qantas Group need to be seen in the context that: (a) it is a group, not Network; and (b) in any case the Qantas Group went through a calamity of unseen proportions for over two years. Third, assuming that a workplace determination was made and commences before the new year, 6 January 2025, employees would have received gratis $9,000.00 each in a retention payment, as made clear by Bartlett’s evidence,559 – which we will touch on shortly. [551] Returning to backpay, Network acknowledged that at various stages in bargaining, the bargaining representatives agreed that pilots would receive some backpay. The agreement in March 2023 was that backpay would be paid from the first full pay period after 15 October 2022. That agreement was enshrined in the proposed agreement put to vote on in September 2023 (with salary increases from 15 October 2023), which was voted down. When the proposed agreement was again unsuccessfully put to vote in November and December 2023 and February 2024, it again included the same terms for backpay. Network noted that it agreed to include these backpay terms on each occasion in order to obtain pilot endorsement.560 Network stated that its agreement to do so was increasingly generous on each occasion (as time went by), and yet it was rebuffed on each occasion. Now it had formed the view that not only was it no longer appropriate, but it no longer agreed to backpay.561 [552] Explaining further, Network submitted that it was unreasonable that the pilots had refused to vote up the proposed agreements by majority, notwithstanding the objective generosity of the proposed agreements and the fact that the bargaining representatives of the pilots had approved and endorsed them. Network stated that this conduct had been a major cause for the delay in replacing the 2016 Agreement.562 [553] Network pressed that there were also other matters that supported the Commission finding, on the merits, that it was not appropriate to include a term for backpay in the workplace determination, including: (a) the interests of Network in maintaining a competitive costs position (and backpay carries a significant one-off financial investment); (b) Network’s broader [2025] FWCFB 176 116 Group-focussed outlook on employee entitlements (s 275(c)); and (c) the conduct of Network in bargaining, as compared with the conduct of the Unions (and pilots) - in particular the conduct of the AFAP, which contributed to the delay in replacing the 2016 Agreement (s 275(f)). [554] Regarding interim payments, Network stated that it announced in May 2024 that it would begin making quarterly payments of $4,500 to the pilots (plus further additional payments for Training and Check Pilots) until an intractable bargaining declaration was made, as a good faith measure and symbol of the value of the pilots’ contribution to the business. [555] Network submitted that the first payment was made in June 2024, with another scheduled to be made in September 2024. It explained that if a payment was made in December 2024 (i.e. if there is not workplace determination before then), the measure would have cost Network an estimated $3.5m (not including the cost of the additional payments to Training and Check Pilots).563 Network clarified that the payments had only been made due to the fact that none of the proposed agreements had been voted up,564 and in part to account for the delay since the pilots last received a pay increase. Therefore, the pilots would have already received compensation for part of the period that would otherwise be compensated by backpay. [556] For the purpose of the workplace determination, Network provided the following salary tables: Captains (F100/E190) Pilot’s length of service with the Company Annual Salary from 15 October 2019 as per 2016 EBA % Increase from current proposed salaries on commencement Annual Salary from the FFPP after determination commencement Annual Salary from the FFPP on or after 15 October 2025 (3%) Annual Salary from the FFPP on or after 15 October 2026 (3%) Commencement $175,096.23 17% $204,420.08 $210,552.69 $216,869.27 3 years $180,349.11 17% $210,552.69 $216,869.27 $223,375.35 5 years $185,759.59 17% $216,869.27 $223,375.35 $230,076.61 7 years N/A 20.25% $223,375.35 $230,076.61 $236,978.90 10 years N/A 23.86% $230,076.61 $236,978.90 $244,088.27 First Officers (F100/E190) Pilot’s length of service with the Company Annual Salary from 15 October 2019 as per 2016 EBA % Increase from current proposed salaries on commencement Annual Salary from the FFPP after determination commencement Annual Salary from the FFPP on or after 15 October 2025 (3%) Annual Salary from the FFPP on or after 15 October 2026 (3%) Commencement $107,751.17 24% $133,155.07 $137,149.72 $141,264.21 3 years $110,983.71 24% $137,149.72 $141,264.21 $145,502.14 5 years $114,313.22 24% $141,264.21 $145,502.14 $149,867.20 Captains (F319/A320) Pilot’s length of service with the Company Annual Salary from 15 October 2019 as per 2016 EBA % Increase from current proposed salaries on commencement Annual Salary from the FFPP after determination commencement Annual Salary from the FFPP on or after 15 October 2025 (3%) Annual Salary from the FFPP on or after 15 October 2026 (3%) [2025] FWCFB 176 117 Commencement $175,096.23 16% $225,234.86 $231,991.91 $238,951.66 3 years $180,349.11 16% $231,991.91 $238,951.66 $246,120.21 5 years $185,759.59 16% $238,951.66 $246,120.21 $253,503.82 7 years N/A 19.49% $246,120.21 $253,503.82 $261,108.94 10 years N/A 23..08% $253,503.82 $261,108.94 $268,942.20 First Officers (F100/E190) Pilot’s length of service with the Company Annual Salary from 15 October 2019 as per 2016 EBA % Increase from current proposed salaries on commencement Annual Salary from the FFPP after determination commencement Annual Salary from the FFPP on or after 15 October 2025 (3%) Annual Salary from the FFPP on or after 15 October 2026 (3%) Commencement $119,474.50 22% $145,965.47 $150,344.43 $154,854.76 3 years $123,058.73 22% $150,344.43 $154,854.76 $159,500.41 5 years $126,750.49 22% $154,854.76 $159,500.41 $164,285.42 7 years N/A 25.84% $159,500.41 $164,285.42 $169,213.98 5.9.2 AFAP [557] The AFAP’s primary position was that the remuneration received by Network’s pilots was manifestly inadequate, as was evidenced by the financial strain reported by the pilots. AFAP submitted that the financial strain that the pilots were under was unsurprising given that their salaries had not increased for almost half a decade whilst the cost of living has continued to increase. On the issue of cost-of-living increases, the AFAP submitted that since the last wage increase, the consumer price index in Perth had increased by 21.2 per cent and had been noted by the Commission in the annual wage review in the period since 23 September 2021, that it has been one of notoriously high periods of inflation.565 [558] In contrast to the financial situation of the pilots, the AFAP referred to the Qantas Group's financial success during the wage-freeze period, noting that it had been nothing short of remarkable, given an underlying profit before tax of $2.465 billion for the financial year ending 30 June 2023, and that same figure for the year of 30 June 2024 was $2.0781 billion. The AFAP highlighted that in Bartlett’s cross examination, he had appropriately accepted that both Network and the Group was in a healthy financial state and that was the basis on which the Commission should proceed. [559] The AFAP submitted that in respect of the issue of backpay, it was both necessary and justified given, again, the prolonged period in which pilots had not received any wage increase, a period where there have been substantial increases in the cost of living. The AFAP pressed that consistent with the approach taken by the Commission in TWU v Cleanaway No. 1 the Commission should award back pay in the circumstances. [560] Regarding Network’s argument that backpay should not be awarded because employees voted down its proposed agreement and this constituted unreasonable conduct,566 the AFAP pressed that the submission must be rejected. The AFAP contended that it cannot be unreasonable conduct for employees to exercise their workplace rights to reject a proposed agreement. The AFAP pressed that the Commission should not countenance withholding backpay as some sort of punitive act against employees, and that in the circumstances, there was no reasonable justification to withhold backpay and granting backpay would be fair and reasonable given the prolonged period that employees had languished without a salary increase. [2025] FWCFB 176 118 [561] The AFAP proposed for inclusion in the workplace determination salary tables as detailed at Annexure 3 to these reasons. We have included them there as an annexure due to them being too expansive to include in the body of these reasons. 5.9.3 AIPA [562] The AIPA seeks wage increases based on the rates set out in the 22 December Proposed Agreement with the rate proposed from the commencement of that Proposed Agreement applying from 15 October 2022 and then 3% from: (a) 15 October 2022; (b) 15 October 2023; (c) the date of the workplace determination; (d) 15 October 2024; (e) 15 October 2025; and (f) 15 October 2026. [563] The AIPA submitted that since the last wage increase received by pilots in 2019, the real value of their wages had eroded by 21.7%,567 largely due to significant periods of inflation in 2021 to 2023. It is in that context that the AIPA consider that the wage increase sought is extremely modest – particularly when it involved the acceptance of a two-year wage freeze during the critical pandemic years. In respect of Qantas Group’s capacity to pay the wage increase, the AIPA stated that it cannot be seriously suggested that the Group is absent such capacity. [564] In cross examination, Lucas was asked questions in cross examination about the AIPA’s reasons for its proposed salary increases for the purpose of the workplace determination, Lucas gave the following responses: The CPI figures and the record 2023 profit of Qantas – I'll withdraw the 'record' – the Qantas 2023 profit, as significant as it was, they were not reasons to not support two-year wage freeze and 3 per cent pay increases in the November and December proposed agreements, were they?---You could've left the word 'record' in there, because it was a record profit. I think the profit of the airline had nothing to do with the claims that AIPA was making in terms of the negotiation. Our concerns have always been around cost of living. Do I take it from that answer that from your organisation's perspective you don't share the mantra of sharing the wealth?---I think Qantas can always do better in that respect. I think over the last decade-and-a-half they've shown pretty well that they don't share the wealth particularly well with their workforce. Based on those wage rates and the percentage increases that went into those two votes, knowing what you know about what COVID had done to the airline, and indeed its employees, and what other work groups were getting, that those salaries were a fair and reasonable compromise at that point in time?---I think those salaries having been conciliated was the best outcome that could be achieved, yes. A fair and reasonable one?---Not necessarily. [2025] FWCFB 176 119 So you would support a deal that you didn't think was fair and reasonable simply because you thought it was the best you could achieve?---We thought it – at that stage we thought it was the best we could achieve, also understanding the processes like this, which place significant hardship on pilots, who haven't had an increase in remuneration for a considerable amount of time. But normally if the deal is not fair and reasonable, but it's the best you think you can get, you might use industrial leverage to obtain more, such as protected industrial action? Correct?---Yes, it's certainly a tool available to a union to use. And you didn't use that on this occasion?---No. And that's because not only did you think the deal was the best you could get, you also thought it was fair and reasonable?---No, it's because we felt that we didn't want to burn our members' money on protected industrial action that was unlikely to move Qantas, when if the likely outcome of that protected industrial action was an intractable bargaining determination such as this, we were likely to end up here without wasting our members' money on industrial action. Do you remember I asked you earlier whether you thought the overall package, as an experienced negotiator, was a fair and reasonable compromise, and you said yes, but the members disagreed?---Yes. So do you want to change the earlier answer, or do you want to change the answer you just gave to me now as to whether you thought the overall package was fair and reasonable?---Again I come back and say that having conciliated it through the process that it was fair and reasonable to recommend and endorse that to the members. Whether or not that makes it a fair and reasonable deal is a different question I think.568 5.9.4 TWU [565] The TWU set out that the principal basis for Network’s opposition to a term providing for backpay was that the employee voting group had acted unreasonably in not acceding to the agreements proposed by Network. In the TWU’s view that conduct was not unreasonable conduct and that the agreements were voted down because they did not contain terms that the employees, on the whole, considered appropriate and fair. The TWU stated that the principal cause of the delay in finalising the matter was Network’s conduct on 2 February 2024, in ‘un- agreeing’ otherwise agreed terms including on backpay. [566] Reference was made by the TWU to the selfless wage freeze acceded to by employees in 2020-2021 whilst Network and other companies in the Qantas Group were navigating the COVID-19 pandemic and associated government restrictions on travel. The TWU submitted that the agreed wage freezes were of significant benefit to Network and the Qantas Group generally and could not be swept aside as irrelevant or inconsequential. The TWU further submitted that it ill behoved Network and the Qantas Group to seek to further suppress wages and salaries in circumstances where it was momentously profitable. [567] Regarding the quarterly payments that Network had made to the pilots, the TWU considered that they did not greatly assist Network – as the incentive scheme provided for quarterly payments backdated to 16 March 2024 only.569 And, insofar as Network had argued that backpay would adversely impact Network’s competitiveness, the TWU argued that in the context of the profitability of the Qantas Group, Network’s argument was untenable. [2025] FWCFB 176 120 5.9.5 Consideration [568] The figures in the following table are the average annual increases provided for in private sector enterprise agreements approved in the September quarter in each of the years shown. The figures are drawn from the Trends in Federal Enterprise Bargaining Report: Department of Employment and Workplace Relations - September Quarter in each of the relevant years. In each report the figures are presented in Table 1. Year Increases Sep-20 2.7% Sep-21 2.7% Sep-22 2.9% Sep-23 3.9% Sep-24 3.9% Total Increases 17.2% [569] Note that the total increase figure shows the compounded increase. [570] Having considered these average increases and their compound effect over the period in question, in addition to data concerning CPI and the general economic context as detailed, we are satisfied that the figures proposed by Network Aviation for F100 / E190 Captains represent an appropriate increase. Those figures provide a compounded increase of 16.75% over essentially the same period, being October 2020 to October 2024. Although in the case of this workplace determination, the pay increase proposed by Network to apply from October 2024 will be delayed until the commencement of the determination, we have also elected to provide an amount of backpay, as will discussed further below. [571] We note that Network proposed a slightly lower increase of 16.01% for A319 / A320 Captains. Under the previous agreement, the pay relativity of A319 / A320 Captains to F100 / E190 Captains was 110.9%. This is the same pay relativity of A319 / A320 First Officers to F100 / E190 First Officers under that agreement. We do not propose to change that relativity and so we have also awarded A319 / A320 Captains an initial increase of 16.75%. [572] With respect to First Officers, Network had proposed higher increases in both instances, being 23.58% for F100 / E190 First Officers and 22.17% for A319 / A320 First Officers. We note that the higher percentage increase for First Officers was a feature of the rejected 22 December Proposed Agreement. It was also supported by the submissions of the AIPA and the TWU who both base their claims on the 22 December Proposed Agreement’s commencement figures. The AFAP propose a different set of figures whereby there are different percentage increases for different experience levels of Captain and First Officer. However, in most cases, the increases for First Officers are similar to those proposed by Network. [573] As with Captains, we have elected to maintain the relativity between the two classes of First Officer and so all First Officers have been awarded an initial increase of 23.58%. For all employees, we have elected to apply a further three percent increase from 15 October 2025 and [2025] FWCFB 176 121 another three percent increase on 15 October 2026. While the 22 December Proposed Agreement did not contain an increase for October 2026, Network, the AIPA and the TWU all proposed a three percent increase for 15 October 2026. While the AFAP did not propose any increase for 2026, we think that the timing of the commencement of this workplace determination is such that it is appropriate to provide an increase for October 2026. [574] With respect to the number of levels of experience within each grade for Captains, we note that the previous agreement had three levels, being commencement, three years and five years. The 22 December Proposed Agreement expanded this to add in seven years and ten years. It would appear that the AIPA and the TWU accept this model as they have not made any submissions to the contrary. The AFAP has proposed a model where there are increments every year for the first ten years. We have not adopted this model and have instead retained the model from the 22 December Proposed Agreement. Consistent with this model, each level of experience represents a three percent increase on the level below it. [575] The 22 December Proposed Agreement maintained the three experience levels for F100 / E190 First Officers, while adding one additional level – at seven years – for A319 / A320 First Officers. We have decided to retain this structure for our workplace determination. As with Captains, the relativities are such that each level of experience represents a three percent increase on the level below it. The pay schedules for all roles and levels are as follows: Captains (F100/E190) Pilot’s length of service with the Company Annual Salary from 15 October 2019 as per 2016 EBA % Increase from current to proposed salaries on commencement Annual Salary from the FFPP on or after Determination commencement Annual Salary from the FFPP on or after 15 October 2025 (3%) Annual Salary from the FFPP on or after 15 October 2026 (3%) Commencement $ 175,096.23 16.75% $204,424.85 $210,557.59 $216,874.32 3 years $ 180,349.11 16.75% $210,557.59 $216,874.31 $223,380.54 5 years $ 185,759.59 16.75% $216,874.32 $223,380.55 $230,081.97 7 years N/A N/A $223,380.55 $230,081.97 $236,984.43 10 years N/A N/A $230,081.97 $236,984.43 $244,093.96 Captains (A319/A320) Pilot’s length of service with the Company Annual Salary from 15 October 2019 as per 2016 EBA % Increase from current to proposed salaries on commencement Annual Salary from the FFPP on or after Determination commencement Annual Salary from the FFPP on or after 15 October 2025 (3%) Annual Salary from the FFPP on or after 15 October 2026 (3%) Commencement $ 194,144.70 16.75% $226,663.94 $233,463.86 $240,467.77 3 years $ 199,969.97 16.75% $233,464.94 $240,468.89 $247,682.95 5 years $ 205,968.11 16.75% $240,467.77 $247,681.80 $255,112.26 7 years N/A N/A $247,681.80 $255,112.26 $262,765.62 [2025] FWCFB 176 122 10 years N/A N/A $255,112.26 $262,765.62 $270,648.59 First Officers (F100 / E190) Pilot’s length of service with the Company Annual Salary from 15 October 2019 as per 2016 EBA % Increase from current to proposed salaries on commencement Annual Salary from the FFPP on or after Determination commencement Annual Salary from the FFPP on or after 15 October 2025 (3%) Annual Salary from the FFPP on or after 15 October 2026 (3%) Commencement $ 107,751.17 23.58% $133,158.90 $137,153.66 $141,268.27 3 years $ 110,983.71 23.58% $137,153.67 $141,268.28 $145,506.33 5 years $ 114,313.22 23.58% $141,268.28 $145,506.33 $149,871.52 First Officers (A319/A320) Pilot’s length of service with the Company Annual Salary from 15 October 2019 as per 2016 EBA % Increase from current to proposed salaries on commencement Annual Salary from the FFPP on or after Determination commencement Annual Salary from the FFPP on or after 15 October 2025 (3%) Annual Salary from the FFPP on or after 15 October 2026 (3%) Commencement $ 119,474.50 23.58% $147,646.59 $152,075.98 $156,638.26 3 years $ 123,058.73 23.58% $152,075.98 $156,638.26 $161,337.41 5 years $ 126,750.49 23.58% $156,638.26 $161,337.40 $166,177.53 7 years N/A N/A $161,337.40 $166,177.53 $171,162.85 [576] With respect to backpay, we have rejected Network’s claim that there should be no backpay. However, we do regard the quarterly payments that the Network has made as being such that they should be taken into account when assessing an appropriate level of backpay. We have therefore decided that each pilot should receive an amount of twelve months’ worth of back payment, being the difference between their annual salary immediately prior to the operation of this workplace determination and the commencement annual salaries contained within it (at clauses 10.1.2 and 10.2.1 of the determination). Network may offset any quarterly payments it has made against the amount of backpay calculated. [577] As should be evident from our earlier consideration of s 275 of the Act, we reject Network’s assertion that the conduct of the pilots warranted a total rejection of the provision of backpay. The protracted nature of the bargaining and the ultimate impasse that was reached, arose from a multitude of factors. That is not to say that the conduct of the pilots was beyond reproach – they were evidently advised by their Unions that the 22 December Proposed Agreement was worthy of a ‘yes’ vote (save the Low Experience First Officers rate – AIPA). However, in balancing the interests of the parties, we have considered that 12 months back pay suffices in the manner so described. 6 Disposition [2025] FWCFB 176 123 [578] A draft workplace determination to give effect to our decision, based upon the draft workplace determination that was provided by Network and which we have subsequently amended, will be provided to the parties. [579] Network and the Unions are directed to confer in relation to the draft workplace determination, and to file any submissions (jointly or separately) identifying any typographical errors or omissions or other inadvertent drafting difficulties in the draft determination on or before 18 August 2025. [580] We will make the final determination shortly thereafter. DEPUTY PRESIDENT Appearances: M Follett of Counsel for the Applicant M Garozzo of Counsel for the Applicant Y Bakri of Counsel for the Australian Federation of Air Pilots J Martin of Counsel for the Australian and International Pilots Association N Gaubbay-Nemes of the Transport Workers’ Union of Australia P Boncardo of Counsel for the Transport Workers’ Union of Australia Hearing details: Before the Full Bench 2025. Perth (and by Video via Microsoft Teams): 23 June. Before the Full Bench 2024. [2025] FWCFB 176 124 Perth: 1–3 October. Final written submissions: 30 June 2025. Printed by authority of the Commonwealth Government Printer <PR790580> [2025] FWCFB 176 125 Annexure 1 – Network Aviation’s proposed Network Aviation Pilots Workplace Determination 2024 Annexure 1 on following page. [2025] FWCFB 176 126 [2025] FWCFB 176 127 [2025] FWCFB 176 128 [2025] FWCFB 176 129 [2025] FWCFB 176 130 [2025] FWCFB 176 131 [2025] FWCFB 176 132 [2025] FWCFB 176 133 [2025] FWCFB 176 134 [2025] FWCFB 176 135 [2025] FWCFB 176 136 [2025] FWCFB 176 137 [2025] FWCFB 176 138 [2025] FWCFB 176 139 [2025] FWCFB 176 140 [2025] FWCFB 176 141 [2025] FWCFB 176 142 [2025] FWCFB 176 143 [2025] FWCFB 176 144 [2025] FWCFB 176 145 [2025] FWCFB 176 146 [2025] FWCFB 176 147 [2025] FWCFB 176 148 [2025] FWCFB 176 149 [2025] FWCFB 176 150 [2025] FWCFB 176 151 [2025] FWCFB 176 152 [2025] FWCFB 176 153 [2025] FWCFB 176 154 [2025] FWCFB 176 155 [2025] FWCFB 176 156 [2025] FWCFB 176 157 [2025] FWCFB 176 158 [2025] FWCFB 176 159 [2025] FWCFB 176 160 [2025] FWCFB 176 161 [2025] FWCFB 176 162 [2025] FWCFB 176 163 [2025] FWCFB 176 164 [2025] FWCFB 176 165 [2025] FWCFB 176 166 Annexure 2 –Workplace Determination 2025 Annexure 2 on following page. [2025] FWCFB 176 167 [2025] FWCFB 176 168 [2025] FWCFB 176 169 [2025] FWCFB 176 170 [2025] FWCFB 176 171 [2025] FWCFB 176 172 [2025] FWCFB 176 173 [2025] FWCFB 176 174 [2025] FWCFB 176 175 [2025] FWCFB 176 176 [2025] FWCFB 176 177 [2025] FWCFB 176 178 [2025] FWCFB 176 179 [2025] FWCFB 176 180 [2025] FWCFB 176 181 [2025] FWCFB 176 182 [2025] FWCFB 176 183 [2025] FWCFB 176 184 [2025] FWCFB 176 185 [2025] FWCFB 176 186 [2025] FWCFB 176 187 [2025] FWCFB 176 188 [2025] FWCFB 176 189 [2025] FWCFB 176 190 [2025] FWCFB 176 191 [2025] FWCFB 176 192 [2025] FWCFB 176 193 [2025] FWCFB 176 194 [2025] FWCFB 176 195 [2025] FWCFB 176 196 [2025] FWCFB 176 197 [2025] FWCFB 176 198 [2025] FWCFB 176 199 [2025] FWCFB 176 200 [2025] FWCFB 176 201 [2025] FWCFB 176 202 [2025] FWCFB 176 203 [2025] FWCFB 176 204 [2025] FWCFB 176 205 [2025] FWCFB 176 206 Annexure 3 – Salaries Tables F100/E190 Captain Years of Service Salary from 15 October 2019 as per 2016 EBA % Increase applied on 15 Oct 2020 Salary from 15 Oct 2020 % Increase applied on 1 Oct 2023 Salary from 1 Oct 2023 % Increase applied on 1 Oct 2024 Salary from 1 Oct 2024 % Increase applied on 1 Oct 2025 Salary from 1 Oct 2025 F100 Captain - Year 1 175,096.23 17.61% 205,937.36 3.00% 212,115.48 3.00% 218,478.94 3.00% 225,033.31 F100 Captain - Year 2 175,096.23 18.79% 207,996.73 3.00% 214,236.63 3.00% 220,663.73 3.00% 227,283.65 F100 Captain - Year 3 180,349.11 16.48% 210,076.70 3.00% 216,379.00 3.00% 222,870.37 3.00% 229,556.48 F100 Captain - Year 4 180,349.11 17.65% 212,177.47 3.00% 218,542.79 3.00% 225,099.07 3.00% 231,852.05 F100 Captain - Year 5 185,759.59 15.36% 214,299.24 3.00% 220,728.22 3.00% 227,350.07 3.00% 234,170.57 F100 Captain - Year 6 185,759.59 16.52% 216,442.23 3.00% 222,935.50 3.00% 229,623.57 3.00% 236,512.27 F100 Captain - Year 7 185,759.59 17.68% 218,606.66 3.00% 225,164.86 3.00% 231,919.80 3.00% 238,877.40 F100 Captain - Year 8 185,759.59 18.86% 220,792.72 3.00% 227,416.50 3.00% 234,239.00 3.00% 241,266.17 F100 Captain - Year 9 185,759.59 20.05% 223,000.65 3.00% 229,690.67 3.00% 236,581.39 3.00% 243,678.83 F100 Captain - Year 10 185,759.59 21.25% 225,230.66 3.00% 231,987.58 3.00% 238,947.20 3.00% 246,115.62 F100/E190 First Officer Years of Service Salary from 15 October 2019 as per 2016 EBA % Increase applied on 15 Oct 2020 Salary from 15 Oct 2020 % Increase applied on 1 Oct 2023 Salary from 1 Oct 2023 % Increase applied on 1 Oct 2024 Salary from 1 Oct 2024 % Increase applied on 1 Oct 2025 Salary from 1 Oct 2025 F100 FO - Year 1 107,751.17 17.62% 126,733.85 3.00% 130,535.87 3.00% 134,451.94 3.00% 138,485.50 F100 FO - Year 2 107,751.17 18.79% 128,001.19 3.00% 131,841.23 3.00% 135,796.46 3.00% 139,870.36 [2025] FWCFB 176 207 F100 FO - Year 3 110,983.70 16.49% 129,281.20 3.00% 133,159.64 3.00% 137,154.43 3.00% 141,269.06 F100 FO - Year 4 110,983.70 17.65% 130,574.01 3.00% 134,491.23 3.00% 138,525.97 3.00% 142,681.75 F100 FO - Year 5 114,313.21 15.37% 131,879.75 3.00% 135,836.15 3.00% 139,911.23 3.00% 144,108.57 F100 FO - Year 6 114,313.21 16.52% 133,198.55 3.00% 137,194.51 3.00% 141,310.34 3.00% 145,549.65 F100 FO - Year 7 114,313.21 17.69% 134,530.54 3.00% 138,566.45 3.00% 142,723.45 3.00% 147,005.15 F100 FO - Year 8 114,313.21 18.86% 135,875.84 3.00% 139,952.12 3.00% 144,150.68 3.00% 148,475.20 F100 FO - Year 9 114,313.21 20.05% 137,234.60 3.00% 141,351.64 3.00% 145,592.19 3.00% 149,959.95 F100 FO - Year 10 114,313.21 21.25% 138,606.95 3.00% 142,765.15 3.00% 147,048.11 3.00% 151,459.55 A319/A320 Captain Years of Service Salary from 15 October 2019 as per 2016 EBA plus 10.8% for the applied Airbus allowance % Increase applied on 15 Oct 2020 Salary from 15 Oct 2020 % Increase applied on 1 Oct 2023 Salary from 1 Oct 2023 % Increase applied on 1 Oct 2024 Salary from 1 Oct 2024 % Increase applied on 1 Oct 2025 Salary from 1 Oct 2025 A320 Captain - Year 1 194,006.62 17.70% 228,343.34 3.00% 235,193.64 3.00% 242,249.45 3.00% 249,516.94 A320 Captain - Year 2 194,006.62 18.88% 230,626.78 3.00% 237,545.58 3.00% 244,671.95 3.00% 252,012.11 A320 Captain - Year 3 199,826.81 16.57% 232,933.05 3.00% 239,921.04 3.00% 247,118.67 3.00% 254,532.23 A320 Captain - Year 4 199,826.81 17.73% 235,262.38 3.00% 242,320.25 3.00% 249,589.85 3.00% 257,077.55 A320 Captain - Year 5 205,821.63 15.45% 237,615.00 3.00% 244,743.45 3.00% 252,085.75 3.00% 259,648.33 A320 Captain - Year 6 205,821.63 16.60% 239,991.15 3.00% 247,190.88 3.00% 254,606.61 3.00% 262,244.81 A320 Captain - Year 7 205,821.63 17.77% 242,391.06 3.00% 249,662.79 3.00% 257,152.68 3.00% 264,867.26 [2025] FWCFB 176 208 A320 Captain - Year 8 205,821.63 18.95% 244,814.97 3.00% 252,159.42 3.00% 259,724.20 3.00% 267,515.93 A320 Captain - Year 9 205,821.63 20.13% 247,263.12 3.00% 254,681.01 3.00% 262,321.45 3.00% 270,191.09 A320 Captain - Year 10 205,821.63 21.34% 249,735.75 3.00% 257,227.82 3.00% 264,944.66 3.00% 272,893.00 A319/A320 First Officer Years of Service Salary from 15 October 2019 as per 2016 EBA plus 10.8% for the applied Airbus allowance % Increase applied on 15 Oct 2020 Salary from 15 Oct 2020 % Increase applied on 1 Oct 2023 Salary from 1 Oct 2023 % Increase applied on 1 Oct 2024 Salary from 1 Oct 2024 % Increase applied on 1 Oct 2025 Salary from 1 Oct 2025 A320 FO - Year 1 119,388.30 17.70% 140,522.49 3.00% 144,738.17 3.00% 149,080.31 3.00% 153,552.72 A320 FO - Year 2 119,388.30 18.88% 141,927.72 3.00% 146,185.55 3.00% 150,571.12 3.00% 155,088.25 A320 FO - Year 3 122,969.94 16.57% 143,347.00 3.00% 147,647.41 3.00% 152,076.83 3.00% 156,639.13 A320 FO - Year 4 122,969.94 17.74% 144,780.47 3.00% 149,123.88 3.00% 153,597.60 3.00% 158,205.52 A320 FO - Year 5 126,659.04 15.45% 146,228.27 3.00% 150,615.12 3.00% 155,133.57 3.00% 159,787.58 A320 FO - Year 6 126,659.04 16.60% 147,690.55 3.00% 152,121.27 3.00% 156,684.91 3.00% 161,385.46 A320 FO - Year 7 126,659.04 17.77% 149,167.46 3.00% 153,642.48 3.00% 158,251.76 3.00% 162,999.31 A320 FO - Year 8 126,659.04 18.95% 150,659.13 3.00% 155,178.91 3.00% 159,834.27 3.00% 164,629.30 A320 FO - Year 9 126,659.04 20.14% 152,165.72 3.00% 156,730.70 3.00% 161,432.62 3.00% 166,275.60 A320 FO - Year 10 126,659.04 21.34% 153,687.38 3.00% 158,298.00 3.00% 163,046.94 3.00% 167,938.35 1 Exhibit A1 - Statement of Agreed Facts dated 23 February 2024, [1] (‘Exhibit A1’). 2 Ibid [3]–[4]. 3 Exhibit A3 - Witness Statement of Evan Wayne Bartlett dated 23 February 2024, [8] (‘Exhibit A3’). [2025] FWCFB 176 209 4 Transcript of Proceedings, Network Aviation Pty Ltd as Trustee for The Network Trust v Australian Federation of Air Pilots, Australian and International Pilots Association & Transport Workers’ Union of Australia (Fair Work Commission, B2024/91, Beaumont DP, O’Keeffe DP and Lim C, 1 – 3 October 2024, 23 June 2025), [PN579] (‘Transcript’). 5 Exhibit A3 (n 3) [8]. 6 Ibid. 7 Ibid. 8 Ibid [9]. 9 Ibid. 10 Transcript (n 4) [PN567]. 11 Ibid [PN569]. 12 Network Aviation v Australian Federation of Air Pilots, Australian and International Pilots Association & Transport Workers’ Union of Australia [2024] FWC 685 (‘Declaration Decision’). 13 Fair Work Act 2009 (Cth) s 235(A)(2) (‘FW Act’). 14 Ibid s 270(1)(b). 15 Ibid s 270(1)(c). 16 Ibid s 270(3). 17 Ibid s 270(2). 18 Network Aviation Australia Pty Ltd v Australian Federation of Air Pilots, Australian and International Pilots Association, Transport Workers’ Union of Australia [2024] FWCFB 308 (‘Agreed Terms Decision’). 19 See for example National Jet Systems Pty Ltd v Australian Federation of Air Pilots [2021] FWC 6197. 20 Ibid; Exhibit A14 - Network Aviation’s Draft Network Aviation Pilots Workplace Determination 2024, cl 5.1(4), (6) (‘Exhibit A14’). 21 [2025] FCAFC 45 (‘Corporate Air’). 22 MA000046. 23 Corporate Air (n 21) [49]. 24 Ibid [62]. 25 Transcript (n 4) [PN2627]–[PN2629]. 26 Exhibit A3 (n 3) [5]. 27 Exhibit A11 - Witness Statement of Ian Charles Verner dated 23 September 2024, [4] (‘Exhibit A11’). 28 Exhibit A3 (n 3) [72]. 29 Transcript (n 4) [PN599]. 30 Transcript (n 4) [PN600]. 31 Ibid [PN600]–[601]. 32 Exhibit RAFAP5 - Witness Statement of Stephen Maughan dated 6 September 2024, [3]–[4] (‘Exhibit RAFAP5’). 33 Exhibit RAFAP6 - Second Witness Statement of Stephen Maughan dated 23 September 2024 [5] (‘Exhibit RAFAP6’). 34 Ibid [4]. 35 Transcript (n 4) [PN598]. 36 Exhibit A7 – Witness Statement of Evan Wayne Bartlett dated 23 September 2024, [64] (‘Exhibit A7’). 37 Exhibit A7 (n 36) [65]. 38 Ibid [62]. 39 Ibid [63]. 40 Ibid. 41 Transcript (n 4) [PN605]. 42 Ibid [PN605]. [2025] FWCFB 176 210 43 Ibid [PN606]. 44 Ibid [PN611]. 45 Ibid [PN617]. 46 Ibid [PN619]–[PN620]. 47 Ibid [PN622]. 48 Transcript (n 4) [PN623]. 49 Ibid [PN624]. 50 Ibid [PN631]. 51 Ibid [PN632]. 52 Exhibit A3 (n 3) [73]. 53 Ibid. 54 Ibid. 55 Exhibit A6 – Witness Statement of Evan Wayne Bartlett dated 6 September 2024, [40] (‘Exhibit A6’). 56 Exhibit A3 (n 3) [74]; Exhibit A6 (n 55) [52]. 57 Exhibit A6 (n 55) [52]. 58 Exhibit A3 (n 3) [75]. 59 Exhibit A3 (n 3) [75]. 60 Exhibit A6 (n 55) [41]. 61 Ibid [51]. 62 Ibid [43]. 63 Ibid; Exhibit A7 (n 36) [78]. 64 Exhibit A6 (n 55) [43(c)–(d)]. 65 Exhibit RAFAP24 – Witness Statement of Louie Elias dated 6 September 2024, [15] (‘Exhibit RAFAP24’). 66 Ibid. 67 Exhibit A7 (n 36) [115]. 68 Ibid [116]. 69 Exhibit A7 (n 36) [117]. 70 Ibid [118]. 71 Ibid [120]. 72 Ibid[122]. 73 Ibid. 74 Ibid [123]. 75 Ibid [78]. 76 Ibid. 77 Ibid. 78 Ibid. 79 Ibid. 80Exhibit A7 (n 36) [78]. 81 Ibid. 82 Exhibit A6 (n 55) [44]. 83 Ibid [46]. 84 Ibid [47], [EB-6]. 85 Exhibit A7 (n 36) [69]. 86 [69(a)]. [2025] FWCFB 176 211 87 Ibid [69(b)]. 88 Ibid [70]. 89 Ibid [76]; [EB-11]. 90 Ibid. 91 Exhibit A7 (n 36) [72(a)]. 92 Ibid [72(b)]. 93 Ibid [86]. 94 Exhibit A6 (n 55) [80]. 95 Exhibit A7 (n 36) [87]. 96 Ibid [88]. 97 Ibid. 98 Ibid. 99 Exhibit A7 (n 36) [89]. 100 Ibid. 101 Exhibit A7 (n 36) [91]. 102 Ibid. 103 Ibid. 104 Ibid [92]. 105 Ibid [92]–[93]. 106 Exhibit A6 (n 55) [155]. 107 Ibid [80]. 108 Ibid [157]. 109 Ibid [158]. 110 Ibid. 111 Exhibit A6 (n 55) [159]. 112 Exhibit A7 (n 36) [74]. 113 Exhibit A6 (n 55) [45]. 114 Ibid [54]. 115 Transcript (n 4) [PN626]. 116 Exhibit A6 (n 55) [54]. 117 Virgin Australia Regional Airlines Pilots’ Enterprise Agreement 2022 [2024] FWCA 352, AE523300, 24 January 2024, app 2 (‘VARA EA’). 118 National Jet Express Pty Ltd Pilot Enterprise Agreement 2022-2026 [2023] FWCA 3875, AE522364, 20 November 2023, sch 1, including CPI increase at 3.8% for 1 July 2024, read with undertaking (‘National Jet EA’). 119 Alliance Airlines Pilots’ (Perth) Enterprise Agreement 2020 [2020] FWCA 5007, AE509052, 24 September 2020, app A (‘Alliance EA’). 120 Airnorth Pilots’ Enterprise Agreement 2024 [2024] FWCA 2448, AE525274, 2 July 2024, sch A (‘Airnorth EA’). 121 VARA EA (n 117) cl 57.4. 122 National Jet EA (n 118) cl 25.29. 123 Alliance EA (n 119) cl 12.3. 124 Airnorth EA (n120) cl 18.8. 125 VARA EA (n 117) cl 68. 126 National Jet EA (n 118) cl 25.6. 127 Alliance EA (n 119) app A. 128 Airnorth EA (n 120) cl 18.4(b). [2025] FWCFB 176 212 129 National Jet EA (n 118) cl 30.14. 130 VARA EA (n 117). 131 Exhibit A7 (n 36) [80]. 132 Exhibit A7 (n 36) [95]–[98]. 133 Ibid [100]. 134 Exhibit A12 – Witness Statement of Ian Michael Hosegood dated 20 September 2024, [3] (‘Exhibit A12’). 135 Ibid [6]–[13]. 136 Ibid [15]. 137 Ibid. 138 Ibid [16]. 139 Ibid. 140 Exhibit A12 (n 134) [18]. 141 Ibid [23]. 142 Ibid. 143 Ibid [27]. 144 Exhibit A12 (n 134) [27]–[31]. 145 Ibid [35]. 146 Ibid [36]. 147 Ibid [40]. 148 Exhibit A12 (n 134) [40]. 149 Ibid. 150 Ibid. 151 Ibid [42]. 152 Ibid. 153 Ibid. 154 Ibid [44]. 155 Ibid. 156 Transcript (n 4) [PN875]. 157 Exhibit A12 (n 134) [44]. 158 Ibid. 159 Exhibit RAFAP7 – Report by Professor Ann Williamson dated 1 September 2024, [8.3] (‘Exhibit RAFAP7’). 160 Exhibit A12 (n 134) [55]. 161 Ibid [59]. 162 Exhibit A12 (n 134) [59]. 163 Ibid [60]. 164 Transcript (n 4) [PN877]. 165 Ibid [PN878]. 166 Ibid [PN879]. 167 Exhibit A12 (n 134) [46]. 168 Exhibit A11 (n 27) [4]. 169 Ibid [7]. 170 Exhibit A11 (n 27) [8]. 171 Ibid. 172 Ibid. [2025] FWCFB 176 213 173 Ibid [9]. 174 Exhibit A11 (n 27) [10]. 175 Ibid. 176 Ibid [11]. 177 Ibid [13]. 178 Ibid [15]. 179 Exhibit A11 (n 27) [16]. 180 Ibid [17]–[19]. 181 Ibid [20]. 182 Ibid. 183 Ibid [21]. 184 Ibid. 185 Exhibit AIP1 – Witness Statement of Anthony Lucas dated 5 September 2024, [6]–[7] (‘Exhibit AIP1’); Exhibit AIP2 – Witness Statement of Anthony Lucas in Reply dated 23 September 2024, [3]–[5] (‘Exhibit AIP2’). 186 Exhibit AIP1 (n 185) [13]–[31]. 187 Ibid [32]–[44]; Exhibit AIP2 (n 185) [8]–[10]. 188 Exhibit AIP1 (n 185) [45]–[56]. 189 Ibid [57]–[73]. 190 Exhibit AIP2 (n 185) [15]. 191 Exhibit RT1 – Witness Statement of Edward Nell dated 17 April 2024. 192 Exhibit RT2 – Witness Statement of Robert Rousset dated 6 September 2024 (‘Exhibit RT2’). 193 Ibid [2]. 194 Ibid [43]–[70]. 195 Ibid [68]. 196 Exhibit RAFAP7 (n 159) [6]. 197 Ibid [7]. 198 Ibid [7.4]. 199 Ibid. 200 Ibid [7.5]. 201 Exhibit RAFAP7 (n 159) [7.5]. 202 Ibid. 203 See also FW Act (n 13) s 274(3). 204 Ibid s 270(3). 205 Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd [2024] FWCFB 305, [135] (‘TWU v Cleanaway No. 2’). 206 Ibid [136]; FW Act (n 13) s 270A(1). 207 TWU v Cleanaway No. 2 (n 205) [137]. 208 TWU v Cleanaway No. 2 (n 205) [137]. 209 Ibid [138]. 210 FW Act (n 13) s 272(2). 211 Ibid s 273(2). 212 Ibid s 273(4). 213 Ibid s 273(5). 214 Ibid s 273(6)–(7). 215 FW Act (n 13) s 274(3)(a)–(c). [2025] FWCFB 176 214 216 Ibid s 12 (definition of ‘permitted matters’). 217 (1986) 162 CLR 24 (‘Peko-Wallsend’); see also Griffiths v The Queen (1989) 167 CLR 372, 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388, [23]–[26], cited in Hasim v Attorney-General (Cth) (2013) 218 FCR 25, 41 [65]. 218 Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice (1999) 94 FCR 561; National Retail Association v Fair Work Commission (2014) 255 FCR 154. 219 Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167, 184, cited with approval by Hely J in Elias v Federal Commissioner of Taxation (2002) 123 FCR 499, 512 [62] and by Katzmann J in Construction, Forestry, Mining and Energy Union v Hamberger and Another (2011) 195 FCR 74, 95 [103]. 220 Peko-Wallsend (n 217) 41 [15]. 221 Parks Victoria v Australian Workers’ Union [2013] FWCFB 950, [46] (‘Parks Victoria’). 222 Ibid. 223 Transport Workers’ Union of Australia v Qantas Airways Limited; Q Catering Limited [2012] FWAFB 6612, [29] (‘Q Catering’). 224 Ibid. 225 Q Catering (n 223). 226 Ibid [34]–[37]. 227 TWU v Cleanaway No. 2 (n 205) [127(b)]. 228 Exhibit A6 (n 55) [38]–[55]. 229 Exhibit A6 (n 55) [43]. 230 Australian Rail, Tram and Bus Industry Union, Australian Municipal, Administrative, Clerical and Services Union v Australian Rail Track Corporation Limited [2024] FWCFB 152, [105]. 231 Parks Victoria (n 221) [51]. 232 Ibid [50]. 233 Ibid [49]. 234 Schweppes Australia Pty Ltd v United Voice – Victoria Branch [2012] FWAFB 7858, [38]–[45] (‘Schweppes’). 235 Schweppes (n 234) [42]. 236 Schweppes (n 234) [46]–[49]. 237 Commonwealth as represented by Department of Home Affairs [2019] FWCFB 143, [36] citing Q Catering (n 223) [45] and CFMEU v Curragh Queensland Mining Ltd PRQ4464. 238 NSW Electricity Networks Operations Pty Ltd as Trustee for NSW Electricity Networks Operations Trust v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Service Union of Australia [2025] FWCFB 73 (‘NSW Electricity Networks’). 239 Exhibit A1 (n 1) [42]–[44]. 240 Ibid [attachment 13]. 241 Exhibit A1 (n 1) [attachment 14]. 242 United Firefighters’ Union of Australia v Fire and Rescue Victoria [2024] FWCFB 43, [172]. 243 Exhibit A1 (n 1) [attachment 14]. 244 Australian Federation of Air Pilots, ‘AFAP’s Outline of Submissions in Reply on the Preliminary Issue’, Submission in B2024/91 – Application by Network Aviation Pty Ltd, 26 April 2024, [13]. 245 Exhibit A1 (n 1) [attachment 14]. 246 Ibid. 247 Ibid. 248 Declaration Decision (n 12). 249 Exhibit A3 (n 3) [39]. 250 Ibid [40]. [2025] FWCFB 176 215 251 Exhibit RAFAP9 – Witness Statement of Simon Lutton dated 6 September 2024 [SL-3]. 252 Exhibit A1 (n 1) [11]. 253 Ibid [14]. 254 Ibid [16]. 255 Ibid[17]. 256 Exhibit A1 (n 1) [21]. 257 Ibid [39]. 258 Ibid [40]. 259 Exhibit A1 (n 1) [41]. 260 Ibid. 261 Network Aviation Pty Ltd, ‘Applicant’s Outline of Submissions on Intractable Bargaining Workplace Determination’, submission in B2024/91 – Application by Network Aviation Pty Ltd, 6 September 2024, [129] (‘Network’s 6 September 2024 Submissions’). 262 NSW Electricity Networks (n 238) [60(g)]. 263 Specialist Diagnostic Services Pty Ltd Workplace Determination [2018] FWCFB 4228, [90] 264 Exhibit A6 (n 55) [196]. 265 Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd [2024] FWCFB 287, [162] (‘TWU v Cleanaway No. 1’), citing Q Catering (n 223), [29]. 266 Ibid. 267 Transcript (n 4) [PN692], [PN695]–[PN696]. 268 Exhibit A6 (n 55) [57]. 269 Ibid [59]. 270 Ibid [62]. 271 Ibid. 272 Ibid. 273 Ibid. 274 Exhibit A6 (n 55) [63]. 275 Exhibit RAFAP21 – Witness Statement of Sean Schofield (‘Exhibit RAFAP21’), [19]. 276 Exhibit RAFAP18 – Witness Statement of Matthew Atkinson (‘Exhibit RAFAP18’), [22]. 277 Exhibit RAFAP22 – Witness Statement of Justin Royce (‘Exhibit RAFAP22’), [16]. 278 Exhibit RAFAP11 – Witness Statement of Ben Reid (‘Exhibit RAFAP11’), [14]. 279 Exhibit RAFAP21 (n 275) [19]. 280 Exhibit RAFAP18 (n 276) [22]. 281 Exhibit RAFAP22 (n 277) [16]. 282 Exhibit RAFAP11 (n 278) [14]. 283 Transcript (n 4) [PN1125]. 284 Ibid. 285 Transcript (n 4) [PN1126]–[PN1127]. 286 Ibid [PN1130]–[PN1131]. 287 Exhibit RT2 (n 192) [25(e)]. 288 Ibid [27]. 289 Exhibit A6 (n 55) [60]. 290 Exhibit RAFAP21 (n 275) [18]–[19]. 291 Exhibit RAFAP18 (n 269) [21]–[24]. 292 Exhibit RAFAP22 (n 277) [15]–[17]. [2025] FWCFB 176 216 293 Exhibit RAFAP11 (n 278) [14]. 294 Transcript (n 4) [PN599]–[PN632]. 295 Ibid [PN838]–[PN847]. 296 Exhibit A11 (n 27) [9]–[10]. 297 Ibid [10]. 298 Transcript (n 4) [PN2781]. 299 Ibid [PN2774]. 300 Corporate Air (n 21) [2025] FCAFC 45. 301 Australian Federation of Air Pilots v Corporate Air Charter Pty Ltd [2023] SAET 63 (‘AFAP v Corporate No. 1’). 302 [2024] SAET 36 (‘AFAP v Corporate No. 3’). 303 [2024] SAET 23. 304 AFAP v Corporate No. 1 (n 301). 305 Ibid [6]. 306 Award cl 15.8(r). 307 AFAP v Corporate No. 3 (n 302) [2], discussing AFAP v Corporate No. 1 (n 301). 308 Corporate Air (n 21) [1]. 309 Corporate Air (n 21) [49]. 310 Ibid [53]. 311 Corporate Air (n 21) [56]. 312 Ibid [59]. 313 Ibid. 314 Ibid. 315 Ibid [62]. 316 Agreed Terms Decision (n 18) [197], [attachment A [46, 52, 67]]. 317 FW Act (n 13), s 270(2). 318 AFAP v Corporate No. 1 (n 301). 319 Transcript (n 4) [PN2713]–[PN2714]. 320 Exhibit A1-2025 – Witness Statement of Evan Bartlett dated 5 May 2025 (‘Exhibit A1-2025’), [10], [14(c)-(d)]. 321 Ibid [14(e)]. 322 Ibid [14(b)]. 323 Ibid [14(c)]. 324 Exhibit A6 (n 55) [152]–[153]. 325 Exhibit A1-2025 (n 320) [13], [EB-16]. 326 Exhibit A1-2025 (n 320) [8]. 327 Ibid. 328 Ibid. 329 Ibid [10]. 330 Ibid [13]. 331 Exhibit RAFAP3-2025 – Witness Statement of Stephen Maughan dated 5 May 2025 (‘Exhibit RAFAP3-2025’). 332 Exhibit RAFAP1-2025 – Witness Statement of Chris Aikens dated 5 May 2025 (‘Exhibit RAFAP1-2025’). 333 Exhibit RAFAP3-2025 (n 331) [6]. 334 Ibid [12]. 335 Ibid. 336 Exhibit RAFAP3-2025 (n 331) [12]. [2025] FWCFB 176 217 337 Ibid [19]. 338 Exhibit A2-2025 – Witness Statement of Evan Bartlett dated 23 May 2025, [8] (‘Exhibit A2-2025’). 339 Ibid [8]. 340 Ibid [9]. 341 Ibid [10]. 342 Ibid. 343 Exhibit RAFAP3-2025 (n 331) [22]. 344 Exhibit A14 (n 20) cl 10.5.2. 345 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v DDP Electrical Services Pty Ltd [2020] FWCFB18, [50]–[53]. 346 Re Loaded Rates Agreements [2018] FWCFB 3610 [107]. 347 Transcript (n 4) [PN2974]. 348 Ibid [PN2980]. 349 Ibid [PN2981]. 350 Ibid [PN2985]. 351 Exhibit A1-2025 (n 320) [13]. 352 Exhibit A14 (n 20) cl 5.1(4). 353 Ibid cl 5.1(9). 354 Ibid cl 9.1.3. 355 Ibid cl 10.8.5. 356 Corporate Air (n 21) [59]. 357 Exhibit RAFAP5 (n 32) [19]. 358 Unless where the pilot was rostered to work until 2300 prior to the RDO, in that situation the pilot must not be rostered prior to 0700 on the first day back (see clause 36.10). 359 Exhibit A11 (n 27) [10]. 360 Ibid. 361 Ibid [11]. 362 Transcript (n 4) [PN838]. 363 Exhibit A6 (n 55) [35]. 364 Ibid. 365 Ibid [71]. 366 Ibid [36]. 367 Exhibit A6 (n 55) [62]. 368 Ibid. 369 Ibid. 370 Ibid [73]. 371 Ibid. 372 Ibid [74(a)]. 373 Ibid. 374 Exhibit A6 (n 55) [76]. 375 Ibid. 376 Exhibit RAFAP6 (n 33) [13]. 377 Transcript (n 4) [PN646]. 378 Ibid. 379 Ibid. [2025] FWCFB 176 218 380 Transcript (n 4) [PN884]. 381 Ibid [PN886]. 382 Ibid [PN887]. 383 Ibid [PN903]–[PN908]. 384 Exhibit RAFAP7 (n 159) [7.5]. 385 Exhibit RAFAP7 (n 159) [7.5]. 386 Exhibit RAFAP8 – Supplementary Report of Professor Ann Williamson dated 25 September 2025 (‘Exhibit RAFAP8’). 387 Ibid [11]. 388 Ibid. 389 Exhibit RAFAP8 (n 386) [12]. 390 Transcript (n 4) [PN892]. 391 Ibid [PN893]. 392 Ibid [PN893]. 393 Ibid [PN893]–[PN894]. 394 Ibid [PN895]. 395 Exhibit A6 (n 55) [62]. 396 Exhibit A11 (n 27) [10]. 397 Exhibit A11 (n 27) [10]. 398 Ibid [11]. 399 Ibid (n 27) [15]. 400 Transcript (n 4) [PN632]. 401 Exhibit A12 (n 134) [46]. 402 Exhibit A6 (n 55) [35]. 403 Exhibit A6 (n 55) [103]. 404 Ibid [104]. 405 Ibid [107]. 406 Ibid [108]. 407 Transport Workers’ Union of Australia, ‘Outline of Submissions’, Submission in B2024/91 – Application by Network Aviation Pty Ltd, 8 September 2024, [33]–[37] (TWU’s Submissions). 408 Transcript (n 4) [PN1260]. 409 Ibid [PN1262]. 410 Exhibit RT2 (n 192) [44]. 411 National Jet EA (n 118) cl 30.14. 412 Exhibit A6 (n 55) [114], [124]. 413 Ibid [117]–[119]. 414 Ibid [119]. 415 Ibid [121]. 416 Ibid [115]. 417 Exhibit RAFAP16 – Witness Statement of Katie Bateman, [26]–[37] (‘Exhibit RAFAP16’). 418 Exhibit RAFAP17 – Witness Statement of Clayton Bateman, [26]–[43] (‘Exhibit RAFAP17’). 419 Exhibit RAFAP18 (n 279) [25]–[31]. 420 Exhibit RAFAP19 – Witness Statement of Miha Hace, [6]–[15] (‘Exhibit RAFAP19’). 421 Exhibit RAFAP21 (n 278) [5]–[9]. 422 Exhibit RAFAP24 (n 65) [8]–[14]. [2025] FWCFB 176 219 423 Exhibit RAFAP23 – Witness Statement of Michael Crain, [7]–[13] (‘Exhibit RAFAP23’). 424 Exhibit RAFAP15 – Witness Statement of Joshua Sheldon, [7]–[17] (‘RAFAP15’); Exhibit RAFAP22 (n 280) [9]–[14]. 425 Exhibit A6 (n 55) [117]–[119]. 426 Ibid [120]. 427 Ibid [121]. 428 Australian and International Pilots Association, ‘Outline of Submission’, Submission in B2024/91 – Application by Network Aviation Pty Ltd, 8 September 2024, [30] (‘AIPA’s 23 September 2024 Submissions’). 429 Exhibit A6 (n 55) [129]. 430 Exhibit AIP2 (n 185) [13]. 431 Ibid. 432 Ibid. 433 Exhibit A6 (n 55) [47], [131]. 434 Exhibit AIP2 (n 185) [14]. 435 Ibid. 436 Schweppes (n 234) [115]; Parks Victoria (n 221) [178]. 437 Re Australian Liquor, Hospitality and Miscellaneous Workers Union (Australian Industrial Relations Commission, Ross VP, Marsh SDP, and Deegan C, 13 January 2005) PR954938, [190]. 438 Exhibit A6 (n 55) [131]. 439 Ibid. 440 Exhibit RAFAP14 – Witness Statement of Jackson Smith dated 6 September 2024, [5]. 441 Ibid [6]. 442 Ibid [7]. 443 Exhibit RAFAP3 – Witness Statement of Chris Aikens dated 23 September 2024, [27]. 444 Ibid. 445 Exhibit A1 (n 1), [attachment 13]. 446 Exhibit AIP2 (n 185) [3]. 447 Exhibit A3 (n 3) [8]. 448 Ibid. 449 Exhibit AIP1 (n 185) [16]–[18]. 450 Exhibit A6 (n 55) [143]. 451 Ibid [136]. 452 Ibid. 453 Ibid [137]. 454 Exhibit A6 (n 55) [140]–[141]. 455 Network Aviation Pty Ltd, ‘Applicant’s Outline of Reply Submission on Intractable Bargaining Workplace Determination’, Submission in B2024/91 – Application by Network Aviation Pty Ltd, 23 September 2024, [30], discussing AIPA’s 8 September 2024 Submissions (n 428) [20]. 456 Exhibit A6 (n 55) [18]. 457 Ibid [20]. 458 Exhibit A6 (n 55) [20]. 459 Ibid [25]. 460 Ibid [EB-4]. 461 Exhibit A7 (n 36) [72(a)]. 462 Ibid [72(b)]. 463 VARA EA (n 117) cl 68. [2025] FWCFB 176 220 464 National Jet Express EA (n 118) cl 25.6. 465 Alliance EA (n 119) app A. 466 Airnorth EA (n 120) cl 35.2, sch B. 467 Exhibit A6 (n 55) [43]. 468 Ibid [46]; Exhibit A3 (n 3) [69]. 469 Exhibit A3 (n 3) [70]. 470 Exhibit A6 (n 55) [80]–[81]. 471 Transcript (n 4) [PN903]–[PN908]. 472 Exhibit A6 (n 55) [83]. 473 Ibid [85]. 474 Ibid [86]. 475 Ibid. 476 Ibid. 477 Ibid. 478 Ibid. 479 Exhibit A6 (n 55) [89]. 480 Ibid. 481 Ibid [91]. 482 Ibid [92]. 483 Exhibit A6 (n 55) [94]. 484 Ibid [95]. 485 Ibid [93]. 486 Ibid. 487 Ibid [95]. 488 Ibid [98]–[99]. 489 Ibid [100]. 490 Transcript (n 4) [PN654]–[PN656]. 491 Exhibit RAFAP11 (n 278) [15]–[17]; Exhibit RAFAP12 – Witness Statement of Sasha Leavy dated 6 September 2024, [18]; Exhibit RAFAP22 (n 277) [26]; Exhibit RAFAP14 (n 440) [10]–[12]; Exhibit RAFAP16 (n 417) [7]–[18]; Exhibit RAFAP17 (n 418) [8]–[18]; Exhibit RAFAP18 (n 276) [4]–[10]; Exhibit RAFAP19 (n 420) [16]–[19]; Exhibit RAFAP20 - Witness Statement of Andrew Kehoe dated 6 September 2024 [4]–[16]; Exhibit RAFAP21 (n 278) [10]–[14]. 492 Exhibit A7 (n 36) [86]. 493 Exhibit A6 (n 55) [80]. 494 Exhibit A7 (n 36) [87]. 495 Ibid [88]. 496 Ibid. 497 Ibid. 498 Exhibit A12 (n 135) [42]. 499 Ibid. 500 Exhibit A7 (n 36) [115]. 501 Exhibit A12 (n 134) [44]. 502 Ibid. 503 Transcript (n 4) [PN875]. 504 Ibid [PN2097]–[PN2100]. 505 Ibid [PN2097]. [2025] FWCFB 176 221 506 Exhibit RAFAP7 (n 159). 507 Exhibit A12 (n 134) [55]. 508 Transcript (n 4) [PN2114]. 509 Ibid [PN2115]. 510 Ibid [PN2128]–[PN2130]. 511 TWU’s Submissions (n 407) [57]–[58], Exhibit RT2 (n 192) [60]. 512 Exhibit A6 (n 55) [83]. 513 Ibid. 514 Ibid [85]–[100]. 515 Exhibit A2 – Statement of Agreed Facts dated 17 April 2024, [33] (‘Exhibit A2’). 516 Ibid [attachment 14]. 517 Ibid [attachment 8]. 518 Exhibit A6 (n 55) [146], [149], [151], [161], [166], [168], [171]. 519 Exhibit A6 (n 55) [attachment 14[7]]. 520 Exhibit RAFAP2 – Witness Statement of Chris Aikens dated 6 September 2024, [CA-17] (‘Exhibit RAFAP2’). 521 Transcript (n 4) [PN85]–[PN92]; Exhibit A2 (n 515) [31]-[39]. 522 Exhibit RAFAP2 (n 520) [CA-18]. 523 Exhibit RT2 (n 192) [57]. 524 Exhibit A1 (n 1) [attachment 1 [cl 8.9]]. 525 Transcript (n 4) [PN719]. 526 Exhibit RAFAP5 (n 32) [10]–[14]; Exhibit RAFAP12 (n 491) [4]–[17]. 527 Exhibit RAFAP5 (n 32) [15]–[33]. 528 Exhibit A6 (n 55) [145]–[175]. 529 Exhibit A6 (n 55) [148]. 530 Ibid. 531 Exhibit A6 (n 55) [154]–[155], [158]–[159]. 532 Ibid [155]. 533 Ibid [161]. 534 Ibid [164]–[165]. 535 Exhibit A6 (n 55) [167]. 536 Network’s 6 September 2024 Submissions (n 261) [95(g)], citing Q Catering (n 224) [143]–[145]. 537Ibid [172]. 538 Q Catering (n 223) [29]. 539 Schweppes (n 234) [115]; Parks Victoria (n 221) [178]. 540 Schweppes (n 234) [115]; Parks Victoria (n 221) at [178]. 541 (n 265). 542 Ibid [219]. 543 (n 265). 544 [2024] FWCFB 3500 (‘Annual Wage Review’). 545 Australian Bureau of Statistics, Average Weekly Earnings, Australia, November 2024 | Australian Bureau of Statistics (20 February 2025). 546 Transcript (n 4) [PN571]–[PN572]. 547 Australian and International Pilots Association v Qantas Airways Limited [2013] FWCFB 317. 548 Ibid [329]. [2025] FWCFB 176 222 549 Ibid. 550 Ibid [330]. 551 Q Catering (n 224) [96]; Australian Licenced Aircraft Engineers Association v Qantas Airways Limited [2012] FWAFB 236, [26] (‘Aircraft Engineers’); Licenced Aircraft Engineers (Qantas Airways Limited) Workplace Determination 2012, AG891046, 23 January 2012, app B. 552 Schweppes (n 234) [153]. 553 Aircraft Engineers (n 551) [26]. 554 Ibid. 555 Ibid. 556 (n 265). 557 Ibid [228]. 558 Ibid [230]. 559 Transcript (n 4) [PN727]–[PN732]. 560 Exhibit A6 (n 55) [186]–[188]. 561 Ibid [192]. 562 C.f. Parks Victoria (n 221) [164]. The other delay (the COVID-19 bargaining hiatus) was consensual and agreed. 563 Exhibit A6 (n 55) [193]. 564 Ibid [194]. 565 Annual Wage Review (n 544) [76]. 566 Network’s 6 September 2025 Submissions (n 261) [104]. 567 Exhibit AIP1 (n 185) [5]. 568 Transcript (n 4) [PN1396]–[PN1405]. 569 Exhibit RT3 – Witness Statement of Robert Rousset dated 23 September 2024, [10], [attachment A].