Up in the air - which laws apply on air planes?

by Victoria Bruce15 Apr 2016
Qatar Airways recently made headlines for all the wrong reasons over its treatment of employees, including a policy to fire female staff who get pregnant.
The Qatar-based airline, which increased its flights into Australia last month, has been sanctioned by the International Labour Organisation over its policy to sack women employees when they become pregnant.

The Transport Workers Union has called upon the government to ensure all airlines operating in Australia abide by labour standards, yet Australian labour law itself falls short of covering foreign entities such as airlines.

“The Qatar Airways situation appears to be very clear – the employees are flight attendants who are not based in Australia and/or employed by an Australian Employer,” says Simon Clayer, Senior Associate with HopgoodGanim.
“As such the Fair Work Act (Act) would not apply to them.  The law of the country where the employer is based would apply as the employee effectively is only transiting in Australia,” Clayer says.

However, if an Australian airline seconded its workers to a foreign airline, such as through an alliance or code-sharing arrangement, those staff would be covered by the FWA as long as they remained employees of the Australian airline, he says.

Clayer says if an Australian carrier seconds or transfers an employee overseas, the FWA will still have coverage if during the overseas assignment:
  • the employee’s primary place of work remains in Australia; and
  • the employee does not enter into a new contract outside Australia to perform duties outside Australia.
"In this situation, the fact that the employee’s ordinary place of employment is outside of Australia does not affect the application of the FW Act during the course of the secondment," he says.

But if an employee is seconded to work overseas for a specified period exclusively for another company related to the employee’s Australian employer, and the overseas business has agreed to pay his or her wages, then the employee will be subject to the labour laws applicable in the country in which he or she is working.

TWU National Secretary Tony Sheldon says the government is putting aviation workers at risk.

“‘Open Skies’ policies allowing foreign airlines greater access to Australian routes are importing a culture of abuse and exploitation and threatening living standards for aviation workers,” Sheldon said in a statement.

“It is up to the Government to ensure Australian standards are upheld for all employees working here,” Sheldon says.
According to the TWU, Qatar Airways also prohibits employees from joining a union and demands a confidentiality agreement which stops them reporting abuses, even after they leave.

Clayer says the key issue is whether the employer is Australian owned or based in Australia or the employees are Australian-based. 
“If a corporation registered in Australia is the employer of an Australian citizen and the Australian citizen is located in Australia, either when an offer of employment is made or at the time that employment commences, the employee will be covered by the Act,” he says.
“Moreover, the Act may apply if the employee is performing any work on behalf of or related to a company’s Australian business, particularly where any work-related travel to Australia may be required.”
In these types of arrangements, the employee may be entitled to Australian benefits under the Act.
Qatar recently increased its flights into Australia from 14 to 21 per day with a new Doha – Sydney route and also flies to Perth and Melbourne.

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