1
Fair Work Act
2009
s.739—Dispute resolution
Australian Federation of Air Pilots
v
HNZ Global [Helicopters (Australia)] Pty Ltd
(C2014/1571)
Airline operations
DEPUTY PRESIDENT HAMILTON MELBOURNE, 23 DECEMBER 2014
Alleged dispute concerning annual leave, compensation for employees working overtime and
a reduction in employees’ rostered days off - Employer able to direct a change to new ‘equal
time’ 21 days ‘on’ 21 days ‘off’ rosters, and to direct the taking of annual leave within those
rosters.
[1] In 2014 the employer requested a number of helicopter pilots to change their rosters,
and as part of the new rosters to take annual leave at various times during the year. The
proposed ‘equal time’ rosters and the taking of leave on a proportionate basis are said by the
employer to be ‘a regular feature of enterprise agreements in the maritime industry and in the
mining industry’1.
[2] The Australian Federation of Air Pilots (AFAP) seeks a number of orders2 to
determine whether or not employees are able to refuse the employer’s request to take annual
leave as part of new clause 14.2.1 ‘equal time’ rosters of blocks of 42 days, with 21 days on
and 21 days off. The 21 off days are 18.3 days rostered days off, and 2.7 days annual leave3. It
also seeks orders relating to compensation for work performed on a rostered day off, and to
maintain rostering arrangements and entitlements.
[3] The orders are sought pursuant to the dispute settlement procedure in the agreement,
clause 21. The employer agrees that the Commission has jurisdiction under that clause to
arbitrate or determine the dispute, including those aspects relating to the contracts of
employment4.
1 PN1338
2 Exhibit AFAP 1, paragraphs 152-153
3 Exhibit AFAP 1, paragraphs 4-10.
4 PN792
[2014] FWC 8678 [Note: An appeal pursuant to s.604 (C2015/1204) was
lodged against this decision - refer to Full Bench decision dated 18 May
2015 [[2015] FWCFB 3124] for result of appeal.]
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB3124.htm
[2014] FWC 8678
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[4] The applicant has made this application and has also made an application to the
Federal Court with respect to the employer’s alleged ‘failure to consult in respect of roster
changes’ and other matters5. The AFAP considered that this was the only means of dealing
with the issues6. The employer showed some limited flexibility about the form of the roster,
and said for example that the issue of blocks of annual leave could be ‘thrashed out in the
consultations which we say clause 22.6 envisions’7. Some greater flexibility from each side,
perhaps shown during consultation under the consultation clause, may be the means of
resolving this matter. The parties have the solution to this matter in their own hands, and an
agreement clause which they claim to be committed to which has the objective of assisting
them in their efforts to resolve the disagreement.
[5] A stay order was issued8 and extended in this matter9.
Submissions
[6] Mr.Reitano appeared for the AFAP, and Mr.Wade for the employer. The AFAP
submissions dealt with the specific circumstances of each of the five employees, overtime
provisions of the agreement and Act, annual leave provisions of the agreement and Act, the
history of rostering, roster change and annual leave, sections 55-56, ss.87-88 and 344 of the
Act, contracts of employment, avoidance of terms of the agreement, and the outcome sought.
Characterising the Dispute
[7] The AFAP submits that the matter relates to the issues raised in its application. These
were the ‘acquittal of employees’ annual leave, compensation for employees working
‘overtime’, and a reduction in employees’ rostered days off’10. It submits that the question of
whether or not the employer may direct an employee to work an equal time roster under
clause 14.2.1 is not part of the matter, although the issue of ‘acquittal’ of annual leave arises
from an employer decision that employees work the equal time roster, in which annual leave
is taken during the year as part of the touring days off.
[8] This submission requires me to characterise the dispute before exercising any powers
under clause 21.
[9] The applicant seeks to have the Commission exercise power pursuant to ss.738-739 of
the Fair Work Act 2009 (the Act). Those sections enable me to exercise arbitration powers ‘in
accordance with the term’ in the enterprise agreement, and require me not to exercise any
powers limited by the term in the enterprise agreement. Section 739 of the Act does not
confine the jurisdiction of the Commission to agreement clauses, and clause 21 expressly
extends the Commission’s jurisdiction to ‘any other matter pertaining to the employer-
employee relationship’ (clause 21.1.1), or ‘any other work related matter’ (clause 21.2).
5 Exhibit AFAP1, paragraph 10, Federal Court proceedings VID 525/2014
6 PN1204-1205
7 PN1342
8 AE408463 PR556157
9 AE408463 PR557100
10 Form F10, paragraph 4
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[10] In AMWU v Holden Limited11 a Full Bench of the Commission said:
‘[45] A dispute referred to the Commission must be properly characterised before
powers conferred by a dispute settlement provision in a certified agreement are
exercised. This is necessary in order to determine whether the dispute is ‘over the
application of the agreement’ within the meaning of s.170LW of the WR Act. As noted
by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this
expression has not been judicially considered. The majority went on to observe that:
“A relationship between the provisions of the relevant agreement and the
subject matters in dispute would appear to be an essential element in the
identification of any dispute over the application of the agreement. ...”
[46] We adopt these observations. Further, in our view the expression should not be
narrowly construed. In this context we agree with the observation of the Full Bench in
Shop, Distributive and Allied Employees Association v Big W Discount Department
Stores that:
“...what comprises a dispute over the application of the agreement should not
be narrowly construed; to do so would be contrary to the notion that certified
agreements are intended to facilitate the harmonious working relationship of
the parties during the operation of the agreement.”
[47] In characterising the nature of the dispute in this matter the Commission is not
confined to the dispute notification document. The entire factual background is
relevant, including matters such as the submissions advanced. In this context we note
that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in
determining whether an application calls on the Commission to exercise judicial, as
opposed to arbitral, power ‘a court should review the entire factual background to
properly characterise the claim and the power sought to be invoked.’
[11] In Maritime Union of Australia v Australian Plant Services Pty Ltd12 Lacy SDP said:
“An important limitation on the Commission’s powers under s 170LW is the kind of
disputes that may be subject to resolution by the Commission. Parliament has
authorised the Commission to exercise powers under an agreement “to settle disputes
over the application of the agreement” and, accordingly, its powers are limited to
disputes of that kind. Therefore it is necessary for the Commission, in each case where
it is asked to deal with a matter arising under the dispute settling procedure in an
agreement, to ascertain the character of the dispute that is before it in order determine
whether the matter is a dispute over the application of the agreement. And,
importantly, the character of the dispute is distinguishable from the orders that may be
made in settlement of the dispute.” [Citations omitted]
11 PR940366, Ross VP, Acton SDP and Hingley C, 10 November 2003
12 PR908236
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[12] In UFU v. MFESB13 a Full Bench of the Commission adopted these observations, and
also said:
‘[14] The UFU placed emphasis on the fact that the Commissioner had, in his 2003
decision, characterised the dispute notified to the Commission as a dispute over the
application of the agreement. In Re PKIU; Ex parte Vista Paper Products Pty Ltd
Gaudron J (with whom Brennan, Dawson and Toohey JJ relevantly agreed) noted that:
“…an industrial dispute is not necessarily fixed and definite, either in terms of
its subject-matter or in terms of the parties to it; a dispute “may be diminished
or ended or enlarged or altered during ... proceedings in the Commission” (R v
Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, per
Murphy J at p 168) or, for that matter, at any stage during the course of the
dispute itself”
[15] Although that comment was made in the context of an “industrial dispute” within
the meaning of s.4 of the Industrial Relations Act 1988, it is equally applicable to a
dispute notified pursuant to a dispute settlement procedure in a certified agreement.’
[Footnotes omitted]
[13] In Hay Point Services Pty Ltd v. CFMEU14 a Full Bench of the Commission said:
‘To seek to dissect the dispute into several components is highly artificial and, in our
view, untenable. Given that the dispute, or at least part of it, relates to a matter arising
under the Agreement, the disputes resolution process in clause 22 is enlivened. That
process allows the parties to refer the dispute to Fair Work Australia if the parties have
been unable to resolve their differences.
...
We see no jurisdictional impediment to the matter progressing to the first stage.
During that stage the nature of the dispute might change as agreement is reached on
some aspects or other aspects are clarified or restated, as is typically what occurs
during conciliation or mediation. As was said, albeit in relation to different legislation,
‘if the functions of an industrial conciliator were circumscribed by the ambit of a
prospective or actual dispute, they would lack the flexibility and sophistication
exhibited even by the conciliation processes of primitive tribal societies.’
[14] The question of annual leave acquittal arises out of an employer decision that
employees work an equal time roster under clause 14.2.1, which consists of time on and time
off, part of time off being annual leave. In my view I have jurisdiction to make a
determination regarding roster decisions which include annual leave acquittal.
13 PR973884
14 [2012] FWAFB 9173
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Authorities on Interpretation of Agreements
[15] In Amcor Limited v Construction Forestry Mining and Energy Union15 Gleeson CJ
and McHugh J said in a joint judgement:
“The issue in these appeals is whether, following a corporate reorganisation
described as a demerger, certain employees became entitled to redundancy payments
under the provisions of an industrial agreement. The employees worked in the same
jobs, under the same terms and conditions, following the demerger, but, in
consequence of the corporate restructuring, their employer changed.
The resolution of the issue turns upon the language of the particular agreement,
understood in the light of its industrial context and purpose, and the nature of the
particular reorganisation. There is nothing inherent in the idea of redundancy that
justifies an expectation either that redundancy payments will, or that they will not,
become payable in the event of a reconstruction, merger, or takeover. Similarly, there
is nothing inherent in the nature of a corporate reconstruction that justifies an
expectation either of continuity of a legal entity, or of succession, or of discontinuity.
Thus, depending upon the legal regime under which it takes place, a merger between
two companies might or might not put an end to the merging entities. The effects
upon their pre-existing rights and obligations, and the question of succession to these
rights and obligations, will require examination of the relevant legal (usually
statutory) framework.”
[16] In that decision, Kirby J said:
“The nature of the document, the manner of its expression, the context in which it
operated and the industrial purpose it served combine to suggest that the construction
to be given to cl 55.1.1 should not be a strict one but one that contributes to a
sensible industrial outcome such as should be attributed to the parties who negotiated
and executed the Agreement. Approaching the interpretation of the clause in that way
accords with the proper way, adopted by this Court, of interpreting industrial
instruments and especially certified agreements. I agree with the following passage
in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:
‘It is trite that narrow or pedantic approaches to the interpretation of an award
are misplaced. The search is for the meaning intended by the framer(s) of the
document, bearing in mind that such framer(s) were likely of a practical bent of
mind: they may well have been more concerned with expressing an intention in
ways likely to have been understood in the context of the relevant industry and
industrial relations environment than with legal niceties or jargon. Thus, for
example, it is justifiable to read the award to give effect to its evident purposes,
having regard to such context, despite mere inconsistencies or infelicities of
expression which might tend to some other reading. And meanings which avoid
inconvenience or injustice may reasonably be strained for. For reasons such as
15 [2005] 222 CLR 241
[2014] FWC 8678
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these, expressions which have been held in the case of other instruments to
have been used to mean particular things may sensibly and properly be held to
mean something else in the document at hand’.” 16
Decision
Direction to take annual leave
AFAP Question
[17] The first question posed by the AFAP is whether or not the employees are required to
accede to the employer request or direction that they accrue, acquit and take annual leave in a
manner determined by the employer and to which they do not consent17.
[18] This question relates to employer requests that employees take leave in blocks of 2.7
days per roster period comprising a 42 day block of 21 ‘on’ and 21 ‘off’ days. The applicant
described the request as ‘the Respondent’s request that they be directed to accrue, acquit and
take annual leave in a manner determined by the Respondent and to which they do not
consent’18.
Request to Employees
[19] The AFAP says that the employer seeks to direct Ms.Gorlin, Mr.Duncombe,
Mr.Casparis, and Mr.Saunders to acquit their annual leave entitlement of 42 days at the rate,
or in blocks of, 2.7 days per roster period comprising a 42 day block of 21 ‘on’ and 21 ‘off’
days19. I am prepared to adopt the AFAP terminology. In each case the employee is aware that
the employer seeks that the employee work such a roster. In each case the employee refuses to
do so.
[20] The request or direction is in each case part of the introduction of new rosters for
Messrs. Saunders, Duncombe, and ‘perhaps’ Casparis20 pursuant to clause 14.2.1 of the
agreement. Mr.Saunders was advised that ‘we are moving all pilots to a 21/21 touring
roster’21. Mr.Duncombe was advised that the employer was reviewing work rosters and in
particular the 15/13 roster pattern. He responded that the AFAP had been appointed to act on
his behalf regarding the proposed change of rosters, and said that he did not consent to a
change to a 21/21 roster22. Mr.Casparis commenced work on a 15/13 touring roster by
agreement from 23 January 201423. He was advised that the employer was moving away from
15/13 rosters and was advised to ‘discuss the 21/21 roster pattern with those pilots who are
16 Ibid, paragraph 96
17 Exhibit AFAP1, paragraph 4
18 Exhibit AFAP1, paragraph 4
19 Exhibit AFAP1, paragraph 6
20 Exhibit H1, paragraph 17; Exhibit AFAP2, Attachments GD2-3; Exhibit AFAP5, Attachments NS2-4
21 Exhibit AFAP5, Attachment NS4
22 Exhibit AFAP2, paragraphs13-16
23 Exhibit AFAP6, paragraph 13
[2014] FWC 8678
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currently working it and get their thoughts as you make your decision’24. He was later advised
that ‘The only Touring position we have available is the 21/21 touring position. If you wish to
accept this, please let me know by the end of Friday 25th July...’25 The full chain of employer
email or conversation and employee response, through the AFAP or otherwise, is set out in
the employee witness statements and it is not necessary to set them out further.
[21] Clause 14.2.1 provides for what are termed ‘equal time’ rosters in which annual leave
is taken during the year as part of the touring days off. The 2.7 days annual leave per roster
period is only one form of such a roster, and the employer for example raised the possibility
of annual leave being taken in larger blocks.
[22] The employer considers that clause 14.2.1 enables it to direct touring pilots to work an
equal time roster, and direct the taking of annual leave. This right to direct is not express in
the clause. The clause simply states that ‘a tour will on the basis of either’ the rosters in (a) or
(b).
The Agreement Consultation Clause
[23] However, the agreement contains a consultation clause commonly included in awards
and agreements since the 1984 Termination, Change and Redundancy decisions26. As
required by recent amendments to the Act (s.205), the consultation clause now also applies to
roster changes.
[24] Section 205(1)(a)(ii) of the Act provides that an agreement must include a consultation
term that requires the employer to consult the employees about:
‘(ii) a change to their regular roster or ordinary hours of work;’
[25] Clause 22.6 of the agreement provides that subclauses 22.7-22.11 of the consultation
clause applies:
‘For a change [to their/the?] regular roster or ordinary hours of work’27
[26] The consultation clause expressly provides for the employer to make the decision on
introducing roster or other changes. The Company is to notify if it has ‘made a definite
decision to introduce major changes’ (clause 22.1.1). A Workplace Consultative Group must
meet as required ‘when major change has been definitely decided and the details of the
implementation are being planned’ (clause 22.12.2). The Group meets to facilitate
consultation ‘on all major workplace changes that the Company has definitely decided to
implement’.
[27] Only clauses 22.7-22.11 expressly apply to ‘Change to regular roster or ordinary hours
of work’. The employer is required to notify the relevant employees of the proposed (regular
24 Exhibit AFAP6, Attachment RC4
25 Exhibit AFAP6, Attachment RC6
26 (1984) 8 IR 34; (1984) 9 IR 115
27 Words added to give the sentence effect.
[2014] FWC 8678
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roster) changes, and then the employer must engage in the consultation provided in those
subclauses. ‘As soon as practicable after proposing to introduce the change, the employer
must’ discuss with employees and provide them with information, and invite them to give
their views about the impact of the change (clause 22.9). The employer must ‘give prompt and
genuine consideration to matters raised about the change by the relevant employees’ (clause
22.11). This is a requirement to give consideration to whatever it is that employees raise.
[28] An enterprise agreement must include a consultation clause of this kind, and if it does
not the model clause is taken to be term of the agreement (s.205). However, it is possible to
add additional consultation requirements and even a requirement of employee agreement.
This clause however seems to be the usual consultation clause in which the employer makes
the decision to implement change rather than a clause that operates on the basis of employee
agreement. Subparagraphs 22.7-22.1 are identical to the provisions of the model clause, which
provide for consultation not employee agreement over roster changes.
[29] I also note that various clauses in the agreement refer to different types of ‘roster’,
some work cycles, and some the immediate roster in effect on the notice board setting out the
detailed hours of work. The roster referred to in clause 22.6 is of the general kind, reflecting
the requirements and it appears the actual language of s.205(1)(a)(ii). If it was not of that kind
the requirements of s.205 would not be met, or could easily be avoided. It is odd that the
employer refuses to concede this28. If it does not concede this then it is submitting that the
requirements of s.205 were not met.
[30] The AFAP submits that clause 14.2.1(b) rosters may only be introduced by the consent
of the employee or employees29. However, the plain and ordinary language of the change
clause is that a roster change is one that the employer consults about, and then makes a
decision to introduce or not. There is little or nothing by way of context which would lead me
to depart from the ordinary meaning. This is not an unusual or harsh interpretation. It is what
one would expect from a roster change consultation provision introduced into the agreement
as required by s.205(1)(a)(ii) of the Act. It is consistent with the ‘model’ consultation clause
provided for in the Act, and with the 1984 award decisions.
[31] The AFAP quite properly drew my attention to the personal circumstances of each
employee, and the effect that the employer direction has on their personal circumstances. A
roster change can be a difficult thing for many employees. The consultation clause, and s.205
requirements generally, are a means of enabling such issues to be discussed by employer and
employee and worked through: the employer is to ‘invite the relevant employees to give their
views about the impact of the change (including any impact in relation to their family or
caring responsibilities), and must give ‘prompt and genuine consideration to matters raised’
[clause 22.9(c)-22.11]. I see no reason to believe that the employer will not comply with its
obligations under clause 22 to consult and give weight to issues raised with it by employees.
[32] The basis of an equal time roster is one ‘in which annual leave is taken during the year
as part of the touring days off’, and the employer direction to introduce such a roster includes
a direction regarding days off including the taking of annual leave.
28 See Exhibit H1, paragraph 5
29 Exhibit AFAP 1, paragraph 4(i).
[2014] FWC 8678
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Agreement Annual Leave Clauses and other Clauses
[33] When annual leave clauses of the agreement are examined, clause 13.1.2(a) provides
for leave to be taken in ‘one 28 day block immediately after one block of 13 Touring Days
Off’, which is a reference to one type of roster only, clause 14.2.1(a) work cycles. These are
the work cycles which provide for ‘13 Days off duty’. Equal time rosters in 14.2.1(b) do not
provide for 13 days off duty and are not affected by the requirement. In any event clause
14.2.1(b) expressly provides for leave to be taken ‘during the year as part of the touring days
off’, not as a block.
[34] In my view no clear contrary interpretation arises from other provisions of the
agreement, including other requirements to take annual leave. Clause 14.2.3 relates to the
‘normal roster cycle’ and allows such a cycle to be altered by mutual consent. In the context
of this clause this refers to the details of the cycle ‘promulgated’ in writing seven days prior to
the commencement of the roster period (clause 14.2.3(a)), ie. in effect the roster on the notice
board, not different work cycles under clause 14.2.1.
[35] There is an express employer right to alter rosters under clause 14.1.3, and normal
rosters may be altered by mutual consent under clause 14.2.3(c). However, these clauses
appear to relate not to the general roster structure but to particular rosters set for each
employee seven days in writing beforehand under clauses 14.1.1 and 14.2.3(a). Clause 14.3
allows alternate arrangements to be agreed to meet the operational requirements of the
Company, and does not take the matter any further.
[36] The applicant claims that the employer actions are a contrivance to avoid the operation
of the agreement in relation to annual leave and overtime30. However, the employer is simply
seeking to implement new ‘equal time’ rosters under a provision of the agreement expressly
providing for them. There is no substance in this.
The Act
[37] Turning to deal with the Act, there are a number of statutory restrictions on any
purported employer right to direct the taking of annual leave under an enterprise agreement
contained in ss.55-56, and ss.87-94 of the Act. The Act provides for an employee entitlement
to annual leave, and provides for the taking of annual leave. It also provides for enterprise
agreements to include terms requiring an employee, or allowing for an employee to be
required, to take paid annual leave in particular circumstances, but only if the requirement is
reasonable (s.93). The applicant refers to the provisions of the Act referring to annual leave
and claims that each of them is breached, including ss.87-88, 92-93.
[38] The agreement requires consultation with employees about the equal time rosters,
including details such as days off. The employees receive the essential rest and recreation
contemplated by annual leave: Canavan Building Pty Ltd31; PATEFA v. PIEU32; Three Weeks
30 Exhibit AFAP1, paragraphs 139-151
31 [2014] FWCFB 3202, Full Bench, 29 May 2014
32 (1936)( 36 CAR 738
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Annual Leave Inquiry 196333; Oil Companies Case 197034; Annual Leave Cases 197135. It
would clearly be the case that equal time rosters which confined the taking of annual leave to
one or more of the 42 day blocks would meet the requirements of the Act, simply by
describing a period of absence as annual leave rather than rostered days off. It would be odd if
the Act required a change in terminology and no change at all in substance of the roster. This
would be distinction made on the basis of language rather than any issue which affected the
employee’s rest and recreation.
[39] Having regard to the needs of both the employee and the employer’s business, and the
other factors raised by the applicant36, in my view clause 14.2.1 meets the requirements of the
Act (including s.93), as does any employer direction under it. There is no detriment to
employees within s.55(4), and no undue influence or pressure under s.344. The arrangement is
consistent with the Act and other legislation, agreement and contract of employment, and is
not otherwise harsh.
[40] In the alternative, the employer was willing to allow employees to nominate which 21
days block would be annual leave, and to have them choose another seven days in another
duty cycle, for the taking of annual leave. It would consult with employees about such issues.
This arrangement is in my view consistent with the Act, agreement, and contract of
employment, and is not otherwise harsh37.
The contract of employment
[41] I also note that in each case the employee is employed under a written contract of
employment, with somewhat similar terms. Mr.Duncombe’s contract of employment provides
that:
‘You will nominally work a 15 days on 13 days off roster. Travel will be on your own
time. As this is a 24 hour operation your actual hours will vary depending upon the
roster and client requirements, with due consideration for Fatigue Management
Guidelines.’38
[42] Ms.Gorlin’s contract of employment contains a clause to the same effect39, as does the
contract of Mr.Saunders40. Mr.Casparis’ contract provides:
‘You will work a Live on Site roster to be determined by your Base Manager. As this
is a 24 hour operation your actual hours will vary depending upon the roster and client
33 (1963) 103 CAR 637
34 (1970) AILR Rep 465
35 (1971) AILR Rep 839
36 Exhibit AFAP1, paragraphs 70-103
37 PN1342
38 Exhibit AFAP2, Attachment GD1, p.3
39 Exhibit AFAP3, Attachment IG1, p.3
40 Exhibit AFAP5, Attachment NS1, p.3
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requirements, with due consideration for Fatigue Management Guidelines. The
number of working days per year will be 221.’41
[43] In each case the contract provides that it may only be ‘significantly varied by written
agreement’, and there are other similarities.
[44] In my view nothing in the contracts of employment prevent an employer directing a
roster different to the ‘nominally’ provided roster and which is provided for in the enterprise
agreement. The roster is in each case not fixed as a central term of the contract but is a
nominal roster. With respect to Mr.Casparis, the contract does not refer to a nominal roster.
However, the position is the same with respect to him. He requested to ‘tour’ from Perth to
Karatha in place of his LOS roster42.
[45] In the alternative, the terms of each contract do not override clause 14.2.1. The reverse
is the case. As the employer submits, the enterprise agreement permits the new equal time
rosters to be worked. Further, the contracts of Casparis, Duncombe, Saunders and Gorlin
expressly indicate an intention that the agreement and contract be read and operate together in
stating that ‘This Contract and the Agreement forms the entire agreement between you and
the Company ....’ which would mean that the agreement prevailed43.
[46] The employer has not established any ‘custom and practice’44 of relevance to the
present matter: Con-Stan Industries of Australia Pty Ltd v. Norwich Winterthur Insurance
(Australia) Ltd45 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ, referred to with
approval in Byrne v. Frew (1995)46 by McHugh and Gummow JJ.
Determination
[47] The applicant seeks orders that Messrs. Quayle, Saunders, Duncombe, Gorlin and
Casparis continue to be employed on their existing rosters. Messrs. Saunders, Duncombe and
Casparis are or were on 15/13 touring rosters. Ms.Gorlin is or was on a 28 days on/24 days
off/4 days annual leave touring roster under a 30 January 2013 Individual Flexibility
agreement47. Special issues arise with respect to Mr.Quayle, who is apparently covered by an
Australian Workplace Agreement, and Ms.Gorlin, party to an Individual Flexibility
Agreement. They are dealt with below.
[48] The working arrangements were established under previous agreements. However, the
2014 agreement it appears governs what the employer does now by way of directions. The
employer appears to concede that the new duty cycles have not yet commenced48. As
previously discussed, the employer both accepts that clause 22.6 applies for the purpose of the
41 Exhibit AFAP6, Attachment RC1, p.3
42 Exhibit AFAP6, paragraph 11
43 Exhibit H1, paragraph 44
44 Exhibit AFAP1, paragraphs 104-118
45 (1985-1986) 160 CLR 226 at 236-237
46 (1995) 185 CLR 410 at 440
47 Exhibit AFAP 1, paragraph 153
48 Exhibit H1, paragraph 5
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present proceedings, without formally conceding that it does. I have already commented on
that part concession.
[49] In my view the employer must comply with the relevant provisions of the consultation
clause before the requests or directions to change rosters take effect.
[50] Having regard to the needs of both the employee and the employer’s business, and the
other factors raised by the applicant49, in my view clause 14.2.1 meets the requirements of the
Act (including s.93), as does any employer direction under it. There is no detriment to
employees within s.55(4), and no undue influence or pressure under s.344. The arrangement is
consistent with the Act and other legislation, agreement and contract of employment, and is
not otherwise harsh.
[51] In the alternative, the employer was willing to allow employees to nominate which 21
days block would be annual leave, and to have them choose another seven days in another
duty cycle, for the taking of annual leave. It would consult with employees about such issues.
This arrangement is in my view consistent with the Act, agreement, and contract of
employment, and is not otherwise harsh50.
[52] Mr.Quayle is an LOS employee who is or was on a 15 days on/13 days off roster.
Mr.Quayle was on an Australian Workplace Agreement. I asked the parties to provide a
submission on the status of that agreement, and they provided contradictory information51.
There is no Commission record of approval of termination under transitional items52. Given
that I refrain from making a determination with respect to him at this stage, including in
relation to what was described by the applicant as compensation for work performed on a
rostered day off53. A separate application should be made if necessary to deal with his
particular circumstances.
[53] Ms.Gorlin was on an individual flexibility agreement in 2013 pursuant to what appears
to be the predecessor to clause 23 of the agreement. It appears to provide for termination on 4
weeks’ notice by the employer (clause 5.1). Such notice appears to have been given by email
dated 4 August 201454. It would appear that such notice can be given without a need to
engage in consultation under clause 23, however it would be highly desirable that such
consultation occur. In any event once the individual flexibility agreement is terminated, then
the employer must establish a new roster by agreement or by direction. If there is a change to
the regular roster then the roster consultation clauses apply.
49 Exhibit AFAP1, paragraphs 70-103
50 PN1342
51 Submission Regarding Status of Mark Quayle Australian Workplace Agreement, 12 December 2014
52 Items 17-19 of Schedule 3, Part 3, of the Fair Work (TPCA) Act 2009
53 Exhibit AFAP 1, paragraphs 64-69
54 Exhibit AFAP3, paragraph 21, Attachment IG6
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Stay Order
[54] The stay order is discharged.
DEPUTY PRESIDENT
Appearances:
Mr Reitano for the applicant
Mr Wade for the respondent
Hearing details:
2014
Melbourne
2 December
Printed by authority of the Commonwealth Government Printer
Price code C, AE408463 PR558501
THE IT WORKS FAIR COMMISSION AUSTRALIA. CAL THE SEAL OF THE
[2014] FWC 8678
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Appendix A:
Extracts from the HNZ Australia Pty Ltd (Helicopter Pilots - Australian Operations)
Enterprise Agreement 201355
Clause 8.6 Call Out LOS Pilots (Pilbara MPT)
A Pilot who is called out to work on a rostered Day Off will receive a replacement
Day in lieu or be paid an amount, for each Day worked, equal to 1.6 times the Daily
Rate (Salary I 261 ). It always remains the Pilot’s right, without prejudice, to reject a
call out.
Clause 13 LEAVE
13.1 Annual Leave
Annual leave is provided for in the NES. This clause provides occupational specific
data.
13.1.1 A LOS or Resident Pilot on full -time employment shall be entitled to
forty-two (42) Days annual leave inclusive of Saturdays, Sundays and public
holidays on full salary for each completed 12 months of continuous service.
This entitlement accrues on an hourly basis. Full salary for the purposes of this
clause means gross Annual Salary plus any applicable area allowance. Pilots
may be rostered to work on public holidays.
13.1.2 A Touring Pilot is entitled to forty-two (42) days off per annum, which
shall include;
(a) Twenty eight (28) Days annual leave inclusive of Saturdays,
Sundays and public holidays on full salary for each completed 12
months of continuous service. A Touring Pilot will take annual leave in
one 28 day block immediately after one block of 13 Touring Days Off,
being a total of 41 continuous days off duty.
(b) One additional day of annual leave will accrue for each completed
year of service and, so as not to upset the normal touring cycle, may be
acquitted in exceptional circumstances (such as a bereavement or other
unplanned urgent family need) upon application to, and consent by the
Company, or if not taken as annual leave during the course of the
Pilot’s employment, the accrued days will be paid out in full upon
termination of employment.
13.1.3 Any period of authorised unpaid leave or unauthorised leave does not
count as service for the purposes of determining a completed year of service.
55 AE408463, HNZ Australia Pty Ltd (Helicopter Pilots - Australian Operations) Enterprise Agreement 2013
[2014] FWC 8678
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13.1.4 Touring Pilots may apply, and leave may be granted at the Company’s
discretion provided the leave is accrued, at any time within the year. However;
a leave embargo may be held over the months of June/July and over the
Christmas holiday period for the purpose of rostering alternate Christmas tour
breaks. To facilitate this, the June/July rosters may, subject to the Fatigue Risk
Management System, be amended to incorporate 22 Days on and 20 Days off
touring cycle in order to provide alternating Christmas roster periods.
Accordingly, leave over the Christmas period may normally not be approved
other than in exceptional circumstances. Applications for leave over the
summer holiday period must be submitted in April or earlier and the successful
applicants advised in September of each year. Applications for summer leave
will be assessed on the applicant’s duty in previous years and primarily upon
whether the applicant spent the previous Christmas and New Year away from
their family.
13.1.5 Leave applications should be made using the appropriate form. Once the
Pilot has submitted their leave application, the Company will respond to their
request within five working days. The Pilot will receive notification of
approved leave prior to the requested leave and are not authorised to take the
leave until they have received approval. Where Pilots require urgent notice of
approval this may be requested at any time by phone or email to the Operations
Manager or Operations Coordinator or in their absence, the Chief Pilot
followed up by the submission of the form within three (3) working days.
13.1.6 Once granted, annual leave shall not be altered except by mutual
agreement, or in the case of a Pilot’s change of status, equipment or base, the
Company is unable to crew existing schedules, in which case amended leave
shall be mutually agreed between the Company and the Pilot. The Company
will not be entitled to recall a Pilot from annual leave except by mutual
agreement between the Company and the Pilot.
13.1. 7 Effective from the date of this agreement, a Pilot will be paid a leave
loading equivalent to 17.5 per cent of four weeks of the Pilot’s Annual Salary
when taking his or her annual leave each year.
For transition purposes, a Pilot who, under a previous agreement, has been paid
annual leave loading on their anniversary date, even though leave was not
taken, will only be entitled to payment of leave loading on annual leave that
has accrued since their last anniversary date. The Company will advise each
Pilot of their leave loading balance and situation when the change occurs.
13.1.8 On termination of employment a Pilot shall be paid fully in lieu of
annual leave not taken and shall be paid, on a pro rata basis the entitlement
described in the preceding subclause subject to the retention of any outstanding
training bond debt.
13.1.9 A Pilot who is sick and;
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(a) Who has exhausted his/her sick leave; and
(b) Who has un-taken annual or long service leave entitlements
may apply in writing to be granted annual or long service leave at 25% of the
normal Daily Rate of pay provided that the Pilot does not cash out more than 2
weeks annual leave each year.
During this period annual leave will accrue on the same basis as the proposed
acquittal.
13.1.10 A Pilot who is sick whilst on annual leave may on presentation of the
appropriate medical certificate transfer annual leave into sick leave and have
his/her annual leave credited with the sick days covered by the medical
certificate.
13.1.11 The Company may grant annual leave in advance to the Pilot. Where a
Pilot is granted annual leave in advance and the Pilot is terminated or resigns
prior to the leave in advance having been accrued, the Pilot authorises the
Company to adjust the Pilot’s final salary payment to the extent of the leave
granted.
13.1.12 Pilots must apply to use their annual leave to ensure that they should
not have more than 28 days accrued. Pilots may request to cash out accrued
excess annual leave and it will be paid at the rate of pay at the time the annual
leave is taken, provided that a minimum of twenty eight (28) days accrued
annual leave remains. This request must be in writing and if approved by the
Company will be confirmed in writing.
Clause 14 HOURS OF WORK
Hours of work is provided for in the NES. This clause provides occupational specific
data.
14.1 Rosters (Resident and LOS Pilots).
14.1.1 Rosters will be compiled to cover a period of 14 Days and, whenever
possible, will be promulgated in writing seven Days prior to the
commencement of the roster period.
14.1.2 Where practicable, rosters will be compiled to cover longer periods of
time. Rosters will nominate duty periods on each Day, reserve or standby
time/duty Days, known flying, leave and Days off.
14.1.3 Notwithstanding clause 14.1.1, rosters may be altered, by the Company,
to meet the operational requirements of the business.
14.1.4 A Pilot will be rostered for a minimum of four Days free from all duties
in every 14 Day period.
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14.2 Touring Pilots
14.2.1 General
A tour will be on the basis of either:
(a) thirteen 28 Day cycles per year, each cycle consisting of 15 Days (or
part thereof) on duty and 13 Days off duty with the thirteenth cycle
being annual leave or
(b) an equal time roster in which annual leave is taken during the year
as part of the touring days off. Additional days annual leave will be
provided so that pilots on an equal time roster are on par with 15/13
pilots.
If the Pilot is not fully utilised during the duty period this will not have
any impact on the Pilots future duty Days or roster cycles.
14.2.2 Duty Period
(a) A duty period shall consist of 15 continuous Days and 14 nights at
the operating base. Travel shall be arranged to enable Pilots to arrive on
site at their place of work on Day one of their tour. Travel home shall
commence on Day 15.
(b) Travel shall be booked in order for Pilots to arrive at the operating
base on Day one of their tour and depart on Day 15 on completion of
the required duty periods and after the arrival of their replacement Pilot,
unless otherwise released by the Company.
(c) Where a Pilot has worked the fourteenth night and is not able to fly
on the fifteenth day, the Company will release them before their
replacement Pilot arrives subject to there being no requirement by the
client contract for there to be a certain number of Pilots on the base.
14.2.3 Rosters
(a) Rosters will be compiled to cover a period of 14 days and, whenever
possible, will be promulgated in writing seven days prior to the
commencement of the roster period.
(b) Rosters will nominate travel Days and duty periods.
(c) The normal roster cycle may be altered by mutual consent. The
Chief Pilot may alter the roster over the Christmas/New Year break to
ensure duties over the festive season are shared
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14.2.4 Rostered Irregular Touring Cycles
In unusual circumstances, such as the start-up of an operation where tours of 28
Days may be varied to meet operational necessity and where a Pilot works less
than 15 Days in a 28 Day cycle, where no leave has been taken, the situation
will be treated as follows;
(a) A Pilot will be entitled to Days off as per a 13/15 ratio applied to the
Days they have worked in the 28 Day cycle. (For example; if a Pilot
works 10 Days in a 28 Day cycle they will be entitled to; 10 x 13/15 =
8.6 Days)
(b) The Days that are not ‘Days worked’ or ‘Days off’ will be recorded
as negative Days owed to the Company and deducted from any Days
accrued in an ‘extension of tours of duty’ (For example, If a Pilot
worked 10 ‘Days on’ and then was entitled to ‘8.6 Days off’ he would
therefore have 9.4 Days recorded as Days owed to the Company or
deducted from any overtime accrued [28- (10+8.6) =9.4].
14.3 Variation to Hours of Work and Rosters
14.3.1 Nothing in this Agreement shall preclude the parties agreeing to
alternate arrangements for hours of work or rosters to meet the operational
requirements of the Company provided that the Company’s approved Flight
and Duty system is adhered to.
14.3.2 The Company may agree to a pilot working part-time or in a job share
arrangement without reducing the overall pilot complement, provided the
operational requirements are met.
14.4 Hours of Work- Field Tours
14.4.1 The provisions of clause 14.2 shall not apply when a Pilot is on a tour of
duty away from Home Base (Field tour), when taking Field Leave immediately
following a period of duty away from Home Base or when taking Field Leave
which has been deferred. The following conditions apply in lieu:
14.4.2 A period of duty away from Home Base will be up to 30 Days duration
inclusive of travel provided, however, the tour may be extended a further 14
Days by mutual agreement.
14.4.3 Where a Pilot is on duty away from Home Base, the Pilot will be
entitled to accrue time free of duty in accordance with the provisions of clause
13.9, Field Leave. The Pilot will on return to Home Base, immediately receive
such time free of duty, provided however, that he/she may request to defer duty
free Days in excess of those duty free Days referred to in the Company’s
approved Flight and Duty system. The Company may agree to defer the Pilot’s
duty free Days in accordance with clause 13.9.2.
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14.5 Hours of Work - Pilbara LOS Pilots
14.5.1 Duty time and flight time will be carried out in accordance with the provisions
of the Company’s approved Flight and Duty system.
Clause 21 Disputes And Grievance Procedure
21.1 Preamble and Principles of the Disputes Resolution Process (DRP)
21.1.1 In the event of a disagreement regarding the interpretation or application
of the terms of this agreement, the NES or any other matter pertaining to the
employer-employee relationship that the following Disputes Resolution
Process (DRP) be followed.
21.1.2 The parties agree to participate in the DRP in good faith and in
recognition that the satisfactory resolution of any dispute is in the interests of
all parties to this agreement.
21.1.3 A person subject to this agreement may initiate a dispute concerning the
interpretation or application of this agreement at any time.
21.1.4 A person(s) initiating a dispute may appoint and be accompanied and
represented at any stage by another person, organisation or association,
including a Union representative or Company association in relation to the
dispute. Ready access to Pilots shall be provided to the Pilot’s nominated
representative so that relevant information and instructions can be provided.
However not at a time such that it will impact with the Company’s normal
contracted operations.
21.1.5 Unless otherwise agreed, in the first instance a dispute will be dealt with
at a workplace level. If the dispute remains unresolved conciliation may occur
and in the event that the dispute remains unresolved, a party may seek
arbitration as a means of resolving the dispute.
21.2 Disputes Resolution Process
21.2.1 If a dispute arises about this Agreement, the NES (including subsections
65(5) or 76(4), or any other work related matter (including a dispute about
whether a workplace right has been breached), the parties to the dispute will
attempt to resolve the dispute at the workplace level.
21.2.2 Once a dispute has been initiated the parties shall, unless otherwise
agreed, meet and confer within seven (7) days at the local workplace level in
an attempt to resolve the dispute.
21.2.3 If a dispute in relation to a matter arising under the agreement is unable
to be resolved at the workplace, and all agreed steps for resolving it have been
[2014] FWC 8678
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taken, the dispute may be referred to FWA for resolution by mediation and/or
conciliation and, where the matter in dispute remains unresolved, arbitration. If
arbitration is necessary FWA may exercise the procedural powers in relation to
hearings, witnesses, evidence and submissions which are necessary to make the
arbitration effective.
21.2.4 It is a term of this agreement that while the dispute resolution procedure
is being conducted work shall continue normally unless an Pilot has a
reasonable concern about an imminent risk to his or her health or safety.
21.3 Appeal rights of the parties.
The decision of PNA will bind the parties, subject to either party exercising a right of
appeal against the decision to a Full Bench of PNA.
21.4 Powers of FWA
21.4.1 The parties agree that FWA shall have the power to do all such things as
are necessary for the just resolution of the dispute.
21.4.2 PNA shall be provided access to the workplace to inspect or view any
work, material, machinery, appliance, article, document or other thing or
interview any Pilot who is usually engaged in work at the workplace.
21.4.3 The parties agree that PNA may give all such directions and do all such
things as are necessary for the just resolution and determination of the dispute.
This includes but is not limited to mediation or conciliation or arbitration.
21.5 Alteration of Rights
The parties agree that to the extent that any decision of PN A alters the rights
and responsibilities of any of the parties to the agreement that those rights are
so altered and are enforceable in a court of competent jurisdiction.
22 CONSULTATION
22.1 Company to notify
22.1.1 Where the Company has made a definite decision to introduce major
changes in production, program, organisation, structure or technology that are
likely to have significant effects on Pilots, the Company must notify the Pilots
who may be affected by the proposed changes, and their representatives, if any.
22.1.2 Significant effects include termination of employment; major changes in
the composition, operation or size of the Company’s workforce or in the skills
required; the elimination or diminution of job opportunities, promotion
opportunities or job tenure; the alteration of hours of work; the need for
retraining or transfer of Pilots to other work or locations; and the restructuring
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of jobs. Provided that where this enterprise agreement makes provision for
alteration of any of these matters an alteration is deemed not to have significant
effect.
22.2 Company to discuss change
22.2.1 The Company must discuss with the Pilots affected and their
representatives, if any, the introduction of the changes referred to in clause
22.1, the effects the changes are likely to have on Pilots and measures to avert
or mitigate the adverse effects of such changes on Pilots and must give prompt
consideration to matters raised by the Pilots and/or their representatives in
relation to the changes.
22.2.2 The discussions must commence as early as practicable after a definite
decision has been made by the Company to make the changes referred to in
clause 22.1 .
22.2.3 For the purposes of such discussion, the Company must provide in
writing to the Pilots concerned and their representatives, if any, all relevant
information about the changes including the nature of the changes proposed,
the expected effects of the changes on Pilots and any other matters likely to
affect Pilots provided that the Company is not required to disclose confidential
information, the disclosure of which would be contrary to the Company’s
interests.
22.3 The employer must give prompt and genuine consideration to matters raised
about the major change by the relevant employees.
22.4 If a term in this agreement provides for a major change to production, program,
organisation, structure or technology in relation to the enterprise of the employer, the
requirements set out in paragraph 22.1.1 and subclauses 22.7 and 22.9 are taken not to
apply.
22.5 In this term, a major change is likely to have a significant effect on employees if it
results in:
(a) the termination of the employment of employees; or
(b) major change to the composition, operation or size of the employer’s
workforce or to the skills required of employees; or
(c) the elimination or diminution of job opportunities (including opportunities
for promotion or tenure); or
(d) the alteration of hours of work; or
(e) the need to retrain employees; or
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(f) the need to relocate employees to another workplace; or
(g) the restructuring of jobs.
22.6 Change to regular roster or ordinary hours of work
For a change regular roster or ordinary hours of work:
(a) the employer must notify the relevant employees of the proposed change;
and
(b) subclauses 22.7 to 22.11 apply.
22.7 The relevant employees may appoint a representative for the purposes of the
procedures in this term.
22.8 If:
(a) a relevant employee appoints, or relevant employees appoint, a
representative for the purposes of consultation; and
(b) the employee or employees advise the employer of the identity of the
representative;
the employer must recognise the representative.
22.9 As soon as practicable after proposing to introduce the change, the employer
must:
(a) discuss with the relevant employees the introduction of the change; and
(b) for the purposes of the discussion-provide to the relevant employees:
(i) all relevant information about the change, including the nature of the
change; and
(ii) information about what the employer reasonably believes will be the
effects of the change on the employees; and
(iii) information about any other matters that the employer reasonably
believes are likely to affect the employees; and
(c) invite the relevant employees to give their views about the impact of the
change (including any impact in relation to their family or caring
responsibilities).
22.10 However, the employer is not required to disclose confidential or commercially
sensitive information to the relevant employees.
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22.11 The employer must give prompt and genuine consideration to matters raised
about the change by the relevant employees.
22.12 Workplace Consultative Group
22.12.1 The Company shall establish and maintain a Workplace Consultative
Group (WCG) comprised of equal numbers (of no less than two each) of senior
management representatives and nominated (and where necessary elected)
Pilots representatives as the formal mechanism to facilitate consultation with
the Pilot group on all major workplace changes that the Company has
definitely decided to implement.
22.12.2 The WCG shall meet as required when major change has been
definitely decided and the details of the implementation of the change are being
planned.
22.13 Introduction of New Equipment
22.13.1 When new types of aircraft or special equipment (such as Night Vision
Goggles) are to be introduced the WCG shall enter into discussions on the
establishment of appropriate terms and conditions of employment in relation to such
aircraft or equipment.
22.13.2 1n the event of a delay in agreeing on the terms and conditions of
employment, any agreed changes shall be backdated to the date of introduction of the
new or special equipment.
22.13.3 The discussions shall occur in accordance with clause 22 of this Agreement
with disputed matters resolved in accordance with clause 21 of this Agreement.
Clause 23 Flexibility Clause
23.1 Notwithstanding any other provision of this agreement, the Company and an
individual Pilot may agree to vary the application of certain terms of this agreement to
meet the genuine individual needs of the Company and the individual employee. The
terms the Company and the individual employee may agree to vary the application of
are those concerning:
23.1.1 arrangements for when work is performed;
23.1.2 overtime rates;
23.1.3 penalty rates;
23.1.4 allowances;
23.1.5 leave loading; and
23.1.6 travel between home and touring bases.
23.2 The Company and the individual Pilot must have genuinely made the agreement
without coercion or duress.
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23.3 The agreement between the Company and the individual Pilot must:
23.3.1 be confined to a variation in the application of one or more of the terms
listed in clause 23.1; and
23.3.2 result in the Pilot being better off overall than the Pilot would have been
if no individual flexibility agreement had been agreed to.
23.4 The agreement between the Company and the individual Pilot must be in writing
and:
23.4.1 state each term of this Agreement that the Company and the individual
Pilot have agreed to vary;
23.4.2 detail how the application of each term has been varied by agreement
between the Company and the individual Pilot;
23.4.3 detail how the agreement results in the individual Pilot being better off
overall in relation to the individual Pilot’s terms and conditions of
employment; and
23.4.4 state the date the agreement commences to operate.
23.5 The Company must give the individual Pilot a copy of the agreement and keep
the agreement as a time and wages record.
23.6 The agreement must not require the approval or consent of a person other than the
Company and the individual Pilot.
23.7 The agreement may be terminated:
23.7.1 by the Company or the individual Pilot giving four weeks’ notice of
termination, in writing, to the other party and the agreement ceasing to operate
at the end of the notice period; or
23.7.2 at any time, by written agreement between the Company and the
individual Pilot.
23.7.3 The right to make an agreement pursuant to this clause is in addition to,
and is not intended to otherwise affect, any provision for an agreement between
the Company and an individual Pilot contained in any other term of this
Agreement.
