Limitations on availability of overtime shifts for part time employees not discriminatory due to working patterns

On 10 June 2011, Commissioner Raffaelli approved the Qantas ASU Agreement, despite objections from two employee bargaining representatives that terms of the enterprise agreement were discriminatory and unlawful terms. The enterprise agreement includes limitations on hours of work for part time employees and gives preference for overtime shifts to full time employees. The employees argued this was indirectly discriminatory on the basis of sex, because overtime was (for many) a necessary addition to their income and the overwhelming number of part time employees were women. Qantas argued that indirect discrimination is not contemplated by the Fair Work Act 2009 and only direct discrimination was relevant to the approval of an agreement.

Commissioner Raffaelli dismissed the objections to approval. He did not express a firm view as to whether the Act proscribes indirect discrimination. However, the Commissioner considered whether the terms in question were either directly or indirectly discriminatory (following an earlier decision of his in relation to the Qantas Short Haul Pilots Agreement). Having concluded that there were more full time female employees than part time employees, and that on the evidence, part time employees worked more overtime hours than full time employees at the Brisbane terminal, he found that the enterprise agreement terms were not discriminatory in effect and therefore not unlawful.

Australian Services Union (Qantas Airways Limited) Agreement 9 [2011] FWA 3632– 10 June 2011