1
Fair Work Act 2009
s.739 - Application to deal with a dispute
Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia)
v
Australian Federation of Air Pilots
(C2016/1167)
COMMISSIONER CLOGHAN PERTH, 4 JULY 2016
Dispute about any matters arising under the enterprise agreement.
[1] This is an application to the Fair Work Commission (Commission) by Lloyd
Helicopters Pty Ltd trading as CHC Helicopters (Australia) (Employer or CHC) to deal with
a dispute pursuant to s.739 of the Fair Work Act 2009 (FW Act).
[2] CHC is in dispute with the Australian Federation of Air Pilots (AFAP).
[3] The dispute is referred to the Commission pursuant to the dispute settlement procedure
(DSP) in the CHC Helicopters (Australia) Pilots Enterprise Agreement 2013-2016 (CHC
Pilots Agreement).
[4] The application was the subject of a conference on 30 May 2016 but remained
unresolved. The application was the subject of a hearing on 21 June 2016 and written closing
submissions which were completed on 30 June 2016.
[5] At the hearing, CHC was represented by Mr S Bakewell, Agent and evidence given on
behalf of the Employer by:
Mr L Tantum, Manager Flight Operations and Chief Pilot;
Mr S Edwards, Manager Flight Operations (Oil and Gas); and
Mr N Speed, Commercial Director-Asia Pacific.
[6] The AFAP was represented by Mr A Molnar, Legal Counsel, AFAP.
[7] This is my decision and reasons for decision.
RELEVANT BACKGROUND
[8] The dispute between CHC and AFAP focuses around two separate and discrete set of
circumstances. The two events which have come into existence are as follows.
[2016] FWC 4232 [Note: An appeal pursuant to s.604 (C2016/4586) was
lodged against this decision - refer to Full Bench decision dated 26 October
2016 [[2016] FWCFB 7720] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB7720.htm
[2016] FWC 4232
2
Shell Contract
[9] CHC provides a transport service to Shell employees to and from oil production
facilities and exploration oil rigs off the North West coast of Western Australia.
[10] CHC’s contract will Shell involves approximately 36 pilots flying the following
aircraft: EC225 and S92, and a search and rescue aircraft (SAR). Approximately 12 pilots are
allocated to the EC225, 12 pilots to the S92 and another 12 pilots allocated to the SAR
aircraft.
[11] CHC’s contract with Shell commenced in 2012 and contemplated CHC supporting
Shell transport needs throughout the exploration and production phases of the Prelude Project.
[12] Shell made a decision in May 2016 to defer the production phase of the Prelude
Project. The exploration phase is now largely complete.
[13] The commencement of the production phase of the Prelude Project is now scheduled
for April 2017. CHC has been informed of Shell’s decision.
[14] The decision by Shell has consequence for CHC having very little work for its Prelude
Project pilots over a 10 month period to April 2017. Shell’s required level of aircraft
coverage has yet to be finalised.
[15] I now turn to the second event.
EC225 crash in Norway
[16] On 29 April 2016, an EC225 aircraft flown by CHC Helicopters Services crashed in
Norway killing all 13 people on board. The cause of the accident is unknown and an
investigation is ongoing.
[17] Immediately following the incident, CHC and its clients in Australia decided not to
use the EC225 aircraft, and to use the SAR aircraft (also an EC225), only for life and death
situations.
[18] On 1 June 2016, the Accident Investigation Board of Norway published a preliminary
report into the crash and issued a safety recommendation that that European Aviation Safety
Agency (EASA) take immediate action to review the safety of the EC225 aircraft.
[19] While the regulatory authorities in the United Kingdom and Norway have suspended
use of the EC225 aircraft until further notice, the relevant Australian regulator has not made
the same direction.
[20] On 30 April 2016, all CHC crew operating the EC225 aircraft were stood down.
[21] CHC affected clients as a result of the decision to ground the EC225 aircraft are: Shell,
Woodside and Conoco Philips.
[22] CHC has to now find replacement aircraft and train aircraft crew for its affected
clients.
[2016] FWC 4232
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[23] As a consequence of both set of circumstances, the total number of affected EC225
pilots is 53.1
[24] CHC is now in the process of workforce planning for pilots post these two events.
The transitioning includes: forecasting work requirements, training and transitioning pilots to
other aircraft, leave (including forced leave) and the subsequent determination of the number
and identity, of pilots who will be excess to positions required.
[25] Broadly, the transition plan starts with approximately 53 EC225 pilots without useful
work to perform.
[26] At this early stage, CHC has identified that it will have a surplus of eight (8) pilots in
July and this number will rise in August and September as leave by employees is expended.
The Employer’s best estimate is that there will be 20 surplus pilots in August 2016. It is
expected that this will be an approximate plateau, and subsequently, a decrease as excess
pilots are absorbed into training for other types of aircraft.
[27] As a consequence of the above two events, CHC is in dispute with AFAP. A dispute
which has been reduced to three (3) questions which are set out below.
RELEVANT LEGISLATIVE FRAMEWORK
[28] There is no dispute between the parties that the application has been properly made in
accordance with sections 595, 738 and 739 of the FW Act.
RELEVANT PROVISIONS OF THE CHC PILOTS AGREEMENT
[29] There is no dispute between the parties that the application has been properly made in
accordance with Clause 13 of the CHC Pilots Agreement.
[30] The dispute directly relates to Clauses 14, 20 and 21 of the CHC Pilots Agreement.
INTERPRETATION OF ENTERPRISE AGREEMENTS
[31] The Full Bench of the Commission, in The Australian Meat Industry Employees Union
v Golden Cockerel Pty Limited [2014] FWCFB 7447 (Golden Cockerel), summarised the
principles to be applied in the construction of an enterprise agreement. I intend to follow the
principles adopted in the Full Bench Decision.
[32] With respect to the second principle in Golden Cockerel, it is necessary to determine
whether subclauses 19.1, 20.1 and 24.2.4 of the CHC Pilots Agreement have a plain meaning
or contain uncertainty; I am satisfied that the words in the subclauses are not plain and are
capable of more than one meaning, as evidenced by the respective submissions of the parties.
1 Exhibit A2 (36)
[2016] FWC 4232
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RELEVANT QUESTIONS TO BE DETERMINED PURSUANT TO CLAUSE 13 OF
THE CHC PILOTS AGREEMENT
Is CHC, in light of the circumstances presently before the Commission, entitled to stand
down EC225 pilots pursuant to Clause 19 of the CHC Pilots Agreement?
[33] Clause 19 is entitled “Stand Down”. Subclause 19.1 reads:
“Despite anything elsewhere contained in this Agreement, the company may deduct
payments from the Week’s Pay that would have been due to the Employee for any
days the Employee cannot be usefully employed because of any strike, stoppage or
other limitation of work for which the Company cannot be reasonably be held
responsible…”
[34] As a consequence of Shell deferring the production phase of the Prelude Project until
April 2017, there is a reduced need for CHC’s services pursuant to its contract with Shell.
This situation impacts on the requirement for pilots in accordance with the Shell/CHC service
contract.
[35] Further, as a result of the crash of the EC225 in Norway, CHC’s parent company has
directed CHC in Australia to “ground” its EC225 aircraft until unresolved safety issues are
addressed. Further, and notwithstanding CHC’s parent company’s directive, CHC’s
discussions with its clients demonstrated that they did not want the EC225 aircraft to service
their transport needs.
[36] CHC submit that a number of its EC225 pilots are unable to be usefully employed, for
reasons which it cannot reasonably be held responsible, and is entitled to stand down these
employees.
[37] The AFAP submit that the limitation of work arising from the grounding of the EC225
aircraft, is within the reasonable responsibility of CHC and it is not entitled to stand down
employees.
[38] The AFAP examine Shell’s delay on the Prelude Project, and the grounding of the
EC225 aircraft, from two different perspectives.
[39] In relation to the Prelude Project, the AFAP submit that the contract between Shell and
CHC was voluntarily entered into. In doing so, CHC agreed to two provisions in the contract
which enable Shell to suspend CHC’s services and also demand a change in the type of
aircraft to service the contract.2
[40] The AFAP submit that CHC, in negotiating such contractual terms which enable Shell
to suspend services and changing aircraft type, should have been reasonably foreseen. Shell
has exercised those contractual terms. In such circumstances, CHC is reasonably responsible
for the action of Shell in suspending its required services, and the change of aircraft type.
[41] With respect to the grounding of the EC225 aircraft, the AFAP submit that the Civil
Aviation Safety Authority (CASA) has not issued any directive to ground the EC225 aircraft
2 AFAP Final Submissions (15)
[2016] FWC 4232
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in Australia. CASA is empowered to ground aircraft. Accordingly, the decision to ground
aircraft “falls within the responsibility of the Applicant”.3
[42] The AFAP submit that, unlike Norway and the United Kingdom where the relevant
regulatory authorities issued directives to ground the EC225 aircraft, no such direction was
issued by CASA. Consequently, CHC had the discretion not to comply with its parent
company’s directive, to ground the EC225 aircraft. Secondly, in relation to CHC’s clients not
wishing the EC225 aircraft to service its transport needs, the AFAP refer to and adopt its
arguments in relation to the Shell contract; that is, non-utilisation of the EC225 aircraft was
by way of contractual entitlement or agreement with CHC.
[43] The meaning and application of subclause 19.1 of the Agreement can be appreciated
by reducing the term to the following:
is there a stoppage or limitation of work?;
as a consequence of that stoppage or limitation of work, are there employee(s) who
“cannot be usefully employed”; and
can CHC “reasonably be held responsible” for the stoppage or limitation of work.
[44] It appears that the AFAP is not challenging that there is a “stoppage” or “limitation of
work” and, as a consequence, some employees “cannot be usefully employed”. The answer to
the question, for the AFAP, turns on whether CHC is “reasonably responsible” for the
stoppage or limitation of work which has led to the proposed “stand down”.
[45] The AFAP are right to be concerned that any stand down provision is not abused.
However, in my view, there are differences between a stoppage or limitation of work due to a
lack of energy, breakdown of an aircraft or lack of spare parts and the circumstances of this
application. Whether an employer can be held reasonably responsible for a stoppage, or
limitation of work, is dependent on the individual circumstances.
[46] The burden of demonstrating that the Applicant “cannot reasonably be held
responsible” for the stoppage or limitation of work, lies with the Applicant.
[47] The “nub” of the AFAP submission is that the consequences of CHC’s contract with
Shell should have been reasonably foreseen by CHC. CHC should have reasonably foreseen
that Shell could suspend the contract and also require CHC to change aircraft type.
[48] The AFAP does not argue that such contractual terms between CHC and Shell, are
unreasonable but that the consequences of having to stand down employees, should have been
reasonably foreseen by CHC. The motive of expressing this contention, or for that matter a
contrary position, is self evident.
[49] To say that contractual terms which provide for suspension of services or change of
aircraft, does not explain why such provisions were invoked by Shell.
3 AFAP Final Submissions (22)
[2016] FWC 4232
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[50] To state that an employer is reasonably responsible for a stoppage or limitation of
work as result of the contractual terms of a contract is, in my view, inappropriate and a
misapplication of the contractual terms. The search for the cause of a stoppage or limitation
of work should not begin, or end, with the commercial contract.
[51] I do not think it can be argued that the real cause of the stoppage, or limitation of
work, is Shell’s decision to defer production on the Prelude Project until April 2017. There is
no evidence to say that this was not a decision of Shell alone. Put alternatively, I have no
evidence to say that this decision was some sort of co-determination between Shell and CHC.
[52] If I was to ask, what was the “trigger” for Shell to invoke the terms of its contract to
suspend CHC services and change aircraft type, it would be readily understood to be the
deferring of production on the Prelude Project and the EC225 crash in Norway - and not
because terms existed in its commercial contract with the CHC which enabled it to do so.
[53] I am satisfied, on the evidence, that the decision of Shell was imposed on CHC.
Whether Shell’s decision was reasonable or not, is not the issue. Shell’s decision was not an
invitation for CHC to consider something but a direction with respect to what was to happen
going forward under the commercial contract.
[54] There may be cases where CHC can be held to be reasonably responsible for a
stoppage or limitation of work, but to “cloak” such circumstances in a commercial contract is
neither satisfactory nor helpful. It is almost to say that CHC agreed to the terms in the Shell
contract, to facilitate “stand downs” in the CHC Pilots Agreement; I do not accept such a
proposition.
[55] In conclusion, I am satisfied that the condition necessary for the stoppage and
limitation of work in subclause 19.1 of the Agreement were decisions made by Shell, and that
CHC cannot be reasonably held responsible for such decisions, even though such decisions
were provided for in CHC’s contract with Shell.
[56] The AFAP submit that should the circumstances justify a stand down, it be given the
opportunity to make a further application to the Commission regarding clarity of the proposed
stand down notices. Currently, there are no stand down notices. In my view, it would be
inappropriate to provide comment on a dispute which may or may not arise regarding the
content of proposed stand down notices.
Is the effect of subclause 20.1 of the CHC Pilots Agreement that a pilot selected for
redundancy must be taken from across the pilot group, but only in relation to the
specific group of pilots whose job is redundant?
[57] Clause 20 is entitled “Redundancy”. The relevant introduction to the clause and
subclause 20.1 is as follows:
“Redundancy” in this Agreement means the loss of employment due to the Company no
longer requiring the job the Employee has been performing to be performed by
anyone…
[2016] FWC 4232
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20.1 Redundancy of employees shall be taken from the whole Pilot group of the
Company and will be affected in the order determined by the merit system at
Appendix 2” (my emphasis).
[58] Appendix 2 is a “Merit System for Redundancy” and is divided into qualifications and
experience.
[59] The starting premise, for any consideration of the question for determination, is that it
is the “job” which is made redundant. The position is made redundant, and not the person.
[60] Consequently, when the positions occupied by EC225 aircraft pilots are abolished,
those persons immediately affected are the employees occupying and performing the duties of
the position(s).
[61] Having defined which employees are immediately affected by the abolition of the
positions in the preamble to Clause 20, subclause 20.1 turns its attention to the, “redundancy
of employees” and the manner in which those employees will be affected.
[62] In subclause 20.1 of the CHC Pilots Agreement, there is no direct nexus between the
abolition of a position and loss of employment of the person who has been performing that
position. The loss of employment by employees, “shall be taken from the whole Pilot group
of the Company”.
[63] The words “shall be taken from” and “Company” are not contentious. Hence, it is
necessary to turn attention to the words “the whole Pilot group”.
[64] The AFAP submit that:
“The choice of pilots to be made redundant should be taken from the entire pilot group
of the Applicant, not just those pilots in a group defined by aircraft type/contract and
operational stream”4 (my emphasis).
[65] CHC submit that a pilot’s job, whether required to be performed or abolished, does not
exist as some sort of amorphous group. Pilots exist within a number of groups within the
CHC Pilots Agreement and it is to these whole groups that “redundancy of employees…shall
be taken from”. Put differently, CHC submit that the CHC Pilots Agreement does not provide
for a generic group of pilots, and consequently, “there is nothing that lends itself to this
[AFAP all pilots] interpretation”.5
[66] Accordingly, the Commission is faced with words in subclause 20.1 that are capable
of more than one meaning and contain uncertainty.
[67] I wish to start my consideration of this uncertainty with Clause 7: Parties Bound and
Coverage of the Agreement. The parties are CHC, AFAP and “all Employees employed by
the Company who are engaged in rotary wing operations within the classification structure
contained in this Agreement…(“Pilots”).
4 AFAP Final Submissions (32)
5 Exhibit A1 (43)
[2016] FWC 4232
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[68] The scheme of the CHC Pilots Agreement is that employees are employed within a
classification structure. This classification structure is reflected in a number of ways within
the Agreement.
[69] Further, Part 1 of the Agreement deals with the “Application and Operation” of the
Agreement. The definition clause sets out the meaning of “Check and Training Pilot”, “Chief
Pilot”, “Line Training Pilot”, “Offshore Pilot”, “Onshore Pilot” and “Senior Base Pilot”. I
consider it fair to say that, in the context of the Agreement, a pilot exists within a
classification scheme and various operational nomenclatures. Simply put, there are various
categories of “pilot group(s)”.
[70] Further, Mr Tantum’s uncontested evidence is relevant. His evidence is:
“CHC provides aviation helicopter support in Australia in the following streams:
Off-shore oil and gas support (“O&G”);
Off-shore oil and gas search and rescue (“Offshore SAR”);
RAAF search and rescue (“SAR”); and
Emergency medical services (“EMS”).
…
The Pilots that we employ are employed initially to fly on a particular aircraft type
within a particular operational stream.
…
Once a pilot is appointed to a position they cannot be forcibly transferred to another
position. A Pilot will only change positions through the standing bid system. I cannot
recall any occasion that a pilot has been forcibly moved to another position.
…
Where the new position involves a different aircraft endorsement to the one the pilot
currently has, the Pilot will ordinarily need to attend a simulator and undergo ground
school and line training with a CHC instructor before they can be “cleared to line”.
…
Once the pilot has completed and passed all of the necessary training he/she will be
ready to commence work in the position. A pilot does not always pass the required
training.
…
In simple terms the AFAP advised CHC that it did not matter what position a pilot
held when determining who would be selected for redundancy. The pilot selected
would be the pilot with the lowest score on the redundancy matrix across the whole of
CHC.
If the pilot selected was in a position that was not redundant that did not matter.
I have used an example below to demonstrate what CHC understands the AFAP
position to be.
I have assumed that in this case our client Shell no longer requires the EC225 SAR
aircraft. This would mean that 12 offshore pilot EC225 positions (captains and first
officers) are no longer required.
[2016] FWC 4232
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Based on the AFAPs interpretation, CHC would go to the 12 lowest scoring pilots
(based on the point score system in the agreement) across the entire CHC Pilot group.
CHC has prepared these scores which are attached and marked LT 7.
The 12 lowest scoring pilots can be identified on the list.
Based on this process, there is no EC225 pilot selected for redundancy.
This creates vacancies in those positions [in the positions of the 12 lowest scoring
pilots] as they are ongoing.
…
The consequence of this is that vacancies are created in positions that are not
redundant, and CHC may or may not be able to fill those vacancies in the short term,
leaving the contract in jeopardy. Where training is required, significant retraining costs
are incurred to fill the vacancy as well as disruption across the wider pilot group. If
standing bids are also enforced there is a multiplier effect on the number of vacancies
that arise and the cost and disruption associated with the management of it.
Equally under this process, CHC would have to carry the cost of the excess numbers
until all of the required training is completed.
The scenario is impractical, cost prohibitive and unworkable.”6
[71] Mr Tantum sets out CHC’s interpretation of the Agreement and:
it commences with identifying the redundant position(s);
in a narrow sense, it is the “offshore touring pilots who are EC225 qualified” who
would be considered for redundancy;
in a broader sense, it is “offshore touring pilots regardless of their current flying
role”, who would be considered for redundancy;
irrespective of whether CHC adopt a narrow or broad approach, the pilots would be
ranked against a matrix in which the employees with the lowest scores would be
matched against the number of redundant positions; and
if the broader approach of “offshore touring pilots regardless of their current flying
role” is adopted, it is possible that pilots flying aircraft other than the EC225 would
be made redundant and EC225 pilots would have to be retrained onto other aircraft.
[72] While no consolation to the eventual displaced employees, CHC’s interpretation of
subclause 20.1 of the Agreement is intended to be targeted and not cause any dislocation to
employees greater than necessary.
[73] While I agree with the AFAP that it is not the role of the Commission to rewrite the
words of subclause 20.1, it is the role of the Commission to interpret the meaning and
6 Exhibit A4 (5),(7),(22),(27),(29),(39-47),(49-51)
[2016] FWC 4232
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application of the subclause within the context of the Agreement as a whole; this cannot be
done by ignoring or not appreciating the way the Agreement is constructed and works as a
complete document.
[74] Pursuant to the DSP provisions in Clause 13 of the Agreement, the Commission is
required to act in accordance with the terms of this Agreement and the FW Act.
[75] The Agreement has been approved pursuant to an application in accordance with s.185
of the FW Act. Consistent with the objects of Part 2-4 of the FW Act, enterprise agreements
are made to provide terms and conditions of employment that deliver productivity benefits
(s.171(a)).
[76] It is difficult to reconcile the AFAP’s interpretation of the meaning and application of
subclause 20.1 with such a widespread disconnection from the location of the redundancies
and its dislocation to employees, CHC and its clients and, at the same time, deliver
productivity benefits; such an approach, as suggested by the AFAP, appears to be the
antithesis of what is productive.
[77] Finally, pursuant to subclause 13.6.1, the parties to the Agreement agree that the
Commission has the powers to do such things as are necessary, “for the just resolution of the
dispute”.
[78] Applying the principle in Ockham’s razor, was it the intention of CHC and employees,
when reaching agreement on the redundancy provision in subclause 20.1, to have a situation
whereby:
when selected positions are abolished;
the persons who occupy those positions are not automatically considered to be
redundant employees; however,
a pilot whose position is not being made redundant and who is in a different
operational stream and who is flying a different aircraft, is considered for
redundancy; and further,
in the event of applying the above process, a pilot in an unrelated position to the
abolished position, is made redundant. Further, CHC is required to retrain the pilots
whose position has been abolished. Finally, the pilot may, or may not, complete the
training qualification.
[79] I consider it can be reasonably inferred that Clause 14 Consultation, in particular
subclause 14.5(a)(iii) and Clause 20 Redundancy, in particular subclause 20.8 are intended to
mitigate the adverse consequences upon employees when positions have been abolished.
Further, this is the same intention and purpose of s.398 of the FW Act. However, the AFAP’s
submission does not attempt to limit the adverse impact on a discrete group of employees but
to have widespread, intrusive, protracted and serious consequences for all pilots. Are these
consequences a proportionate and sound response to the circumstances which have led to the
abolition of discrete positions described above. I am satisfied that such a disproportionate
response is inconsistent with the confined, and minimal, intent of “group” in subclause 20.1
of the CHC Pilots Agreement.
[2016] FWC 4232
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[80] Faced with the conflicting meaning and application of subclause 20.1, should I adopt
the simplest explanation rather than rely on the AFAP submission of subclause 20.1 which
has more assumptions and appears contrary to the context of the scheme of the Agreement,
the FW Act and the operational practicalities? It is difficult to come to any conclusion other
than the simplest, that is, pilots should be selected from a group as defined by aircraft
type/contract or operational stream.
Is CHC obliged as a first priority to redeploy employees from a position that may be
redundant or affected by a stand down, and accordingly, not obliged to fill a permanent
vacancy through a standing bid in circumstances that will jeopardise the potential
redeployment of a pilot to that role?
[81] Clause 24 of the CHC Pilots Agreement is entitled “Filling of Vacancies”.
[82] Subclause 24.2.4 reads:
“Newly created permanent positions and current permanent positions that are vacated
will be filled from the list of applicants who have expressed interest in the position
using their standing bid, and who meet the criteria” (my emphasis).
[83] Pursuant to subclause 24.1.1, pilots are able to, “place a standing bid for Transfer to
any future permanent vacancies”.
[84] Permanent vacancies shall be filled in accordance with subclause 24.2.1.
[85] Subclause 24.2.5 provides criteria which pilots, who have a standing bid, are selected.
[86] The AFAP submit, that should subclause 24.2.5 not be appropriate for CHC, “the
mechanism in clause 24.2.9 can be used. Should pilots not agree with a proposal by the
Applicant, a conference must be convened”.7
[87] In the absence of a specific factual dispute, the AFAP also assert that CHC is seeking
an advisory opinion, and consequently, the Commission should not make any order.
[88] CHC submit that should it follow the process in subclause 24.2.9 and a pilot is
informed that the Employer intends to fill the vacancy by redeployment, it is open to the
“pilot to dispute any decision by the Applicant [CHC] via the dispute resolution procedure in
the EA”8; that is, dispute a redeployee being redeployed into the vacant position. In doing so,
CHC submit that such a process is contrary to “its oblgations to redeploy under the Act or to
mitigate the effects of significant change as provided for by the Agreement”.9
[89] I am inclined to agree with the AFAP that, in the absence of actual facts, CHC is
seeking an advisory opinion and no order should be made.
[90] However, I think it is necessary to state the following:
7 AFAP closing submission (56)
8 CHC closing submission (68)
9 CHC closing submission (70)
[2016] FWC 4232
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in my view, it is uncertain that subclause 24.2.9 is the “facilitative provision” both
parties consider it to be; and
the AFAP’s submission is premised on the view that “all current positions that are
vacated” in subclause 24.2.4 and “vacancies” in 24.2.1 are one and the same. This
premise may be false; and
it is arguable that CHC determines “vacancies” both from a management prerogative
perspective, and the inference in subclause 24.2.2 of the CHC Pilots Agreement.
[91] These statements may or may not assist the parties to reach a resolution of the question
to be determined. In the circumstances, I intend to make no order.
[92] If the AFAP maintain that, “there is no provision in the Agreement to hold open a
vacancy for the purpose of redeployment in the event of a potential redundancy”10, and Clause
24 of the CHC Pilots Agreement, is an exhaustive statement on how vacancies are to be filled
(standing bids), how is their position to be reconciled with CHC having to find employees
“comparable alternative employment” in Clause 20 Redundancy, and the obligation of CHC
to take measures to avert or mitigate the adverse effect of the change (redundancies) on
employees, in Clause 14 Consultation?
CONCLUSION
[93] In conclusion, I find as follows:
Q Is CHC, in light of the circumstances presently before the Commission, entitled to stand
down EC225 pilots pursuant to Clause 19 of the CHC Pilots Agreement?
A Yes.
Q Is the effect of subclause 20.1 of the CHC Pilots Agreement that a pilot selected for
redundancy must be taken from across the pilot group, but only in relation to the specific
group of pilots whose job is redundant?
A Yes.
Q Is CHC obliged as a first priority to redeploy employees from a position that may be
redundant or affected by a stand down, and accordingly, not obliged to fill a permanent
vacancy through a standing bid in circumstances that will jeopardise the potential
redeployment of a pilot to that role?
A On the facts, a determination of this question is not appropriate at this time.
COMMISSIONER
10 AFAP closing submission (51)
[2016] FWC 4232
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Appearances:
S Bakewell, Agent, on behalf CHC Helicopters.
A Molnar, counsel, AFAP.
Hearing details:
2016:
Perth,
21 June.
Final written submissions:
CHC: 29 June 2016.
AFAP: 24 and 30 June 2016.
Printed by authority of the Commonwealth Government Printer
Price code C, PR582139
