DECISION

Fair Work Act 2009
s.156—4 yearly review of modern awards

4 yearly review of modern awards – Proposed Helicopter Aircrew Award
(AM2016/3)

Proposed Helicopter Aircrew Award.

Introduction

[1] In a decision issued on 8 July 2019 1 as part of the 4 yearly review of modern awards (2019 decision), we dealt with a claim advanced by the Australian Manufacturing Workers’ Union (AMWU) that a new modern award should be established for helicopter aircrew. In the 2019 decision, we found that helicopter aircrew were currently covered by the Miscellaneous Award 20102 and that the modern awards objective in s 134(1) of the Fair Work Act 2009 (FW Act) was not met in respect of this coverage.3 In expressing this conclusion, we made it clear that this did not imply an endorsement of all the features of the award proposed by the AMWU, and provisionally identified that the provisions of the AMWU’s proposed award concerning service increments, allowances, hours of work and leave entitlements may not be appropriate for inclusion into a modern award.4 Pursuant to the requirement in s 163(2) of the FW Act that a new modern award must not be made to cover certain employer or employees unless the Commission has first considered whether it should instead vary an existing modern award to cover them, we then gave consideration as to whether any existing award could appropriately cover helicopter aircrew and expressed the provisional view that they might appropriately be covered by the Air Pilots Award 2010.5 In this respect we said:

“[69] We consider however that it may be appropriate for the Air Pilots Award to cover helicopter aircrew, notwithstanding its current occupational focus. Helicopter pilots are covered by this award, and Schedule E, Sector Specific Conditions – Helicopter Operations contains conditions specifically applicable to various types of helicopter operations including for all on-shore operations including cattle mustering and police operations, and off-shore operations including hydrocarbons and gas operations, marine pilot transfer and search and rescue. The hours of work provisions are adapted to the needs of such operations (although they take into account regulatory requirements applicable only to pilots), and deal with helicopter operations which involve home base duties, multiple day tours and travelling and working away from home base. The annual leave and personal carer’s leave entitlements (including the entitlement to additional URTI leave) are substantially similar to those contained in the AMWU’s proposed award.

[70] It is a statement of the obvious to say that helicopter aircrew work together operationally with the pilots with whom they fly, and for that reason share the same employer as such pilots, work the same or similar patterns of hours, operate from the same locations, and suffer the same or similar disabilities. The evidence of Mr Mason made this explicit for at least touring aircrew and pilots, and it is implicit in the evidence of all the AMWU’s witness who described the extent to which they work in close collaboration with pilots. For that reason, there is much to be said for the proposition that helicopter aircrew and pilots should be covered by a single modern award, particularly as it is apparent that many of the conditions currently applying to helicopter pilots under the Air Pilots Award could equally, perhaps with some minor modifications, apply to helicopter aircrew…”.

[2] Following the 2019 decision, and as foreshadowed in the last paragraph of that decision, a conference of interested parties was conducted by the presiding member of this bench on 26 August 2019 to identify whether a consensus could be reached as to what existing provisions of the Air Pilots Award might appropriately apply to helicopter aircrew and what modifications to that award might be necessary in order for that award to cover helicopter aircrew in a way that achieved the modern awards objective. At the conference, the Australian Federation of Air Pilots (AFAP) appeared and indicated that it wished to adduce evidence and make submissions in opposition to our provisional view that helicopter aircrew be included in the coverage of the Air Pilots Award (AFAP objection). The other parties present agreed to engage in direct discussions concerning possible variations to the Air Pilots Award to accommodate helicopter flight crew. Following the conference, directions were made for the filing of evidence and submissions concerning the AFAP objection, and a further hearing was listed for 5 and 6 December 2019. Parties which did not oppose the provisional view expressed in the 2019 decision were directed to confer as to appropriate variations to the Air Pilots Award.

[3] A report back was conducted by the presiding member on 20 November 2019. At this report back, it was agreed by the AFAP, the AMWU and other interested parties that the AFAP objection could be determined on the papers, and accordingly the December 2019 hearing was cancelled. In respect of the discussions concerning variations to the Air Pilots Award, the AMWU and other parties participating were directed to file a document setting out the variations they sought or were prepared to consent to.

[4] In respect to the AFAP objection, evidence and submissions were received from the AFAP, the AMWU and Cobham SAR Services Pty Ltd (Cobham SAR). In relation to possible variations to the Air Pilots Award, draft variations were received from the AMWU; Babcock Mission Critical Services (Babcock) and CHC Helicopters (CHC); and the Northern NSW Rescue Helicopter Service, Australian Business Industrial and the NSW Business Chamber (collectively ABI).

[5] It is first necessary for us to consider and determine the AFAP objection. If the AFAP objection is rejected, it will then be necessary for us to consider the various proposals to vary the Air Pilots Award so that it covers helicopter aircrew.

AFAP objection

AFAP submissions

[6] The AFAP submitted that while it agreed that helicopter aircrew had specialist characteristics and needed to be covered by an award other than the Miscellaneous Award, it did not agree with our conclusions in the 2019 decision concerning purported similarities between the between helicopter pilots and aircrew. It submitted that there were significant differences in respect of training, licensing, regulatory oversight, fatigue management, rostering, duties and responsibilities between the two groups which justified a reconsideration of the provisional conclusion reached in the 2019 decision. It further submitted that:

•  the Air Pilots Award had been established expressly as an occupational award by the Australian Industrial Relations Commission (AIRC) during the award modernisation process;

•  there were other categories of aircrew that performed work similar to that of helicopter aircrew, and also an array of other personnel akin to aircrew who worked in rotary and fixed wing aircraft;

•  the exclusion of other types of aircrew in fixed wing operations could result in aircrew being covered by differing awards, and the approach of arbitrarily limiting the scope of the proposed variation to helicopter aircrew ran directly contrary to the long-established rationale of the Air Pilots Award covering the entire cohort of a distinct occupationally-based group of workers;

•  the inclusion of a separate part-occupational group which is unaligned historically with pilots and are fundamentally different in all major aspects of their relative duties will not only complicate and confuse the current understanding and application of the Air Pilots Award but will also unravel the historical understandings behind it;

•  the specific conditions of the AMWU’s proposed award which were identified as not suitable for a modern award are basic elements of the Air Pilots Award;

•  pilots are at risk of having their unique terms and conditions of employment undermined if any aviation-related occupational classification not covered by an award is included in the Air Pilots Award for convenience reasons; and

•  the movement from an occupational award to include another part-occupation may undermine the clear understanding and consensus amongst those currently party to the Air Pilots Award, and such parties could reasonably question the rationale for moving from an occupation-specific award and attempt to simplify and unify enterprise bargaining agreements , leading to pilot-specific terms being placed in jeopardy.

[7] The AFAP also articulated in its submissions why it considered that the inclusion of helicopter aircrew in the Air Pilots Award would not meet the modern awards objectives in s 134(1) having regard to the matters required to be taken into account by that provision.

[8] The AFAP filed four witness statements in support of its position, the content of which are summarised below.

David Croal

[9] David Croal has been employed as a helicopter pilot by CHC for 30 years, and currently works on offshore operations out of Karratha in Western Australia. He has 20 years of check and training experience with CHC and has worked in search and rescue (SAR) and emergency medical services (EMS) operations. Prior to this he worked for three years for the National Safety Council, where he worked in SAR, EMS and fire-bombing operations. Mr Croal said he had read the 2019 decision and considered that the listed similarities in paragraph [70] of that decision were inaccurate. He referred to the following features of employment as a helicopter pilot:

•  helicopter pilots usually take at least 12 months to obtain a commercial helicopter licence involving a minimum of 105 hours of flying time and seven commercial exams, and would require further experience, training and exams over the following 3-10 years before moving into a co-pilot position on a multi-engine instrument flight rules helicopter;

•  a pilot would expect to have enough experience to be the single pilot in EMS operations after 10-15 years of flying experience and would have their commercial licence, completed airline transport helicopter exams, instrument rating and night vision goggles accreditation, and would have done initially annual flight checks and then an average of five flight checks per annum after attaining a multi-engine operations endorsement;

•  pilots had to pass an annual crew medical, and any illness that precluded flying for more than seven days required a medical clearance before any return to work; and

•  pilots had to be rostered within the flight and duty requirement of Civil Aviation Order (CAO) 48.1, which generally meant that pilots’ rosters were set around 12 hour periods (2 days – 2 night on and 4 off) to meet duty and fatigue requirements, with financial penalties applying for any breach of this order.

[10] Mr Croal contrasted this with the following features of employment as a helicopter crewperson:

•  aircrewpersons have no formal licencing requirements, and the Civil Aviation Safety Authority (CASA) expects each operator to provide a syllabus of training with prerequisites to meet prior to being cleared for the respective roles of Rescue, SAR and EMS;

•  an aircrewperson requires a medical, but not an aviation medical, nor do they have to be cleared for work after any illness;

•  an aircrewperson will have a basic overview of the GPS navigation system, radio tuning and the checklist procedure to assist the pilot, but it is not guaranteed that they will be highly proficient in some of the non-flying duties carried out by a second pilot, and a pilot cannot handover control of a helicopter to an aircrewperson in order to make navigational inputs as the pilot could with a second pilot;

•  aircrewpersons are rostered for convenience and smoother operations, and regularly work a roster involving 24-hour periods and accept overtime beyond the flight and duty limits set for pilots;

•  aircrewpersons have specific roles dependent on the type of operation; and

•  aircrewpersons in the front seat do not have “must know” knowledge of systems; at best they can read the checklist, change aviation radio frequencies, enter flight plans and other navigational inputs, monitor flight performance and provide visual clearance on the left side, but may only be able to do no more than operate the radio and give visual clearance on the left side.

[11] Mr Croal opined on the basis of the above that crewpersons “other than being in the same airframe on the same flight do not meet the context of similar role of a pilot that would logically place aircrewperson into the same professional award”. He also said that in his experience working on air ambulance contracts, they typically involved a single company pilot with a company aircrewperson in the front left pilot seat, with any other crewpersons typically being employed by the client.

Matthew Nielsen

[12] Matthew Nielson is a SAR pilot who is employed by a contractor to the RAAF. He was previously employed in the oil and gas industry for 15 years as a Limited Search and Rescue (LIMSAR) commander with the support of Technical Aircrewmen (TCMs). He is the Chairman of the Helicopter Committee of the AFAP. Mr Nielson said he had read the submissions of the AFAP and the AMWU, and rejected any suggestion made in the submissions of the AMWU as to “equivalence” between helicopter pilots and aircrewpersons in the duties they perform. He also sought to respond to paragraph [70] of the 2019 decision, and repeated much of the contrast sought to be made by Mr Croal between the training, regulation and duties of helicopter pilots as compared to aircrewpersons. He also made some additional points, including that pilots were liable for offences of strict liability under the Civil Aviation Act for breaches of the Civil Aviation Regulations (Regulations), but that the CASA had no equivalent level of oversight over TCMs given that are not bound by the responsibilities of a Flight Crew Licence. Mr Nielsen also noted that it had been suggested that TCMs may conduct non-flying pilot (NFP) duties, and said this was wrong because while TCMs may be trained in supporting licenced aircrew, they could not conduct NFP duties such as radio calls, checklist use, flight planning, flight management system programming and aircraft management and monitoring because they were not part of the flight crew. He also disagreed that TCMs can be endorsed under the Regulations, since any such endorsement related to the holding of a Flight Crew Licence. In respect of fatigue management and rostering, Mr Nielsen accepted that TSMs may be rostered on similar patterns of duty as air pilots, but this was for practical rather than regulatory purposes and “claims of equivalence in rostering and duties are incorrect”. TCMs, he said, would have hugely different roster patterns according to their various roles in emergency medical or surveillance activities.

David Stephens

[13] David Stephens is the AFAP’s Senior Industrial Officer and has been assigned the Helicopter Committee as part of his work portfolio. He said he had carriage of the process leading to the making of the Air Pilots Award during the award modernisation process conducted by the AIRC, and that the award was made by consent as an occupational award. Mr Stephens explained the prior history whereby there were a number of awards applicable to pilots in various areas of the aviation industry, including the Helicopter Pilots (General Aviation) Award 1999, and neither the AMWU nor any helicopter operator was involved or sought to be heard in the award modernisation process in relation to the making of the Air Pilots Award. The only exception to the consensus that there should be a single occupational award for air pilots was Cobham Aviation Services (Cobham), which at one stage proposed that there should be a modern award covering both pilots and cabin crew, but later recanted this position.

[14] Mr Stephens said that the AFAP was aware of aircrew employed throughout the aviation sector who undertake a range of duties that are closely associated in terms of skills, training and conditions of employment to helicopter aircrew. These included:

•  Observers (visual and electronic);

•  Mission Coordinators (including Electronic Coordinators);

•  Drop Masters operating in SAR and surveillance operations;

•  Calibrators/Flight Inspectors;

•  Aerial Surveying;

•  Aerial Photography:

•  Loadmasters;

•  Fire and Shark Spotters; and

•  System Operators such as Magnatometer Operators, Aerial Surveying, Aerial Photography, Loadmasters and others.

[15] Mr Stephens gave evidence that Observers, Mission Coordinators and Drop Masters were employed largely by Cobham in respect of its Border Force and Australian Marine Safety Authority contracts, and were about 110-120 in number. Calibrators and Flight Inspectors were employed by Pearl Aviation on its Flight Operations contract and were about six in number. Cobham and Pearl Aviation operated only fixed wing aircraft, not helicopters. Additionally, there were medical and nurse paramedic personnel employed by the Royal Flying Doctor Service in helicopters and fixed wing aircraft which were covered by the Medical Practitioners Award 2010 and the Nurses Award 2010 respectively, and police air service employees performing various roles including surveillance and SAR in both helicopters and fixed wing aircraft. As a result, the inclusion of a cohort of helicopter aircrew in the Air Pilots Award could lead to aircrew generally being covered by a number of awards. This, Mr Stephens said, led to a concern in the AFAP that this would conflict with the long-established rationale of the Air Pilots Award as covering a distinct occupationally-based professional group. In particular, the AFAP was concerned that the Air Pilots Award would be recast as an industry award that would include any aviation-related occupational group that was not covered by another modern award, with the result that pilots would be exposed to the risk of having their unique terms and conditions undermined.

Peter Julian Smibert

[16] Peter Julian Smibert is employed as a Safety and Technical Officer by the AFAP, and was previously employed by the CASA as a Flying Operations Inspector specialising in helicopters from 1996 until 2012. Mr Smibert described the statutory licence, endorsement, rating and medical certification regime enforced by the CASA for pilots, and compared this to helicopter aircrew who, while they might perform a mission-critical role, were not licensed, rated or endorsed by the CASA. He said that some might hold approvals from the regulator or a certificate of competency from an approved person, but these were generally operator specific and not transferable between employers with the exception of the Aeronautical Radio Operator Certificate of Proficiency. In this respect, Mr Smibert said, helicopter aircrew were similar to flight attendants, in that both groups were highly trained and certified to perform mission critical aviation safety functions but neither of which held CASA-issued licences as such.

[17] Mr Smibert also said that the flight and duty parameters of pilots are set out in CAO 48.1, which expressed to be applicable to pilots and flight engineers but not helicopter aircrew. He said however that many operators chose to apply these rules to aircrew’s rosters for convenience and safety reasons. Failure to comply with the operator’s instructions in this respect could render the crewperson liable to a penalty under the Regulations.

AMWU submissions

[18] In relation to the AFAP objection, the AMWU emphasised that its objective in this proceeding had always been to obtain appropriate award coverage for helicopter aircrew, and although the suggestion that such coverage might appropriately be obtained through a variation to the Air Pilots Award was first made by a member of the bench, it considered that this could occur in a way which achieved the modern awards objective. The AMWU submitted that it did not cavil with much of the witness evidence adduced by the AFAP insofar as it was concerned with facts rather than the expression of opinions, and it accepted that there were significant differences between helicopter aircrew particularly as to training and licensing. However the differences generally were of limited relevance and were overstated, and the evidence established that:

•  operational hours are the same for aircrew and pilots working on the same helicopter;

•  while helicopter aircrew are not strictly speaking subject to CASA regulation, in reality operators applied the same fatigue risk management standards;

•  flight and duty hours are necessarily the same for aircrew and pilots, and this means that rostering is identical;

•  at many bases pilots and aircrew fly together with a fixed crew of pilot, aircrew and rescue crew attached to a helicopter; and

•  while there are significant distinctions in the training that is required, the currency and recency standards are similar for both occupations.

[19] The AMWU submitted that the fact that the Air Pilots Award was of little significance in terms of the relevant provisions of the FW Act, which did not distinguish between occupational and industry awards, and the AFAP had not explained how the inclusion of helicopter aircrew would jeopardise the interests of pilots and their current award conditions. In respect of aircrew on fixed wing aircraft, such employees did not fall within the AMWU’s coverage and was consequently not part of its application; however the fact such aircrew might fall under a different award was not a reason of itself not to vary the Air Pilots Award to include helicopter aircrew. In conclusion, it submitted that the AFAP objection was mostly based on its organisational preference for the Air Pilots Award to cover only pilots and speculation about what might happen in the future should helicopter aircrew be included in the award’s coverage. Nothing in the material advanced by the AFAP would prevent the Commission making a determination to vary the Air Pilots Award as foreshadowed in the 2019 decision, or at least continuing to consider such a variation.

[20] The AMWU filed two witness statements in support of its submissions in response to the AFAP objection, which are summarised below.

Richard Wing

[21] Richard Wing is employed by Babcock as an Aircrew Officer in respect of its contract with Ambulance Victoria. He previously worked as a Helicopter Load Master with the Royal New Zealand Air Force, which position was essentially the same as that of an aircrew officer but with a wider scope of duties including battlefield support, search and rescue and counter-terrorism. He said that he currently works a 10/14 roster (2 x 10 hour days then 2 x 14-hour night) followed by 4 days off. He works in a crew of three together with a pilot and a paramedic, and the pilot and the aircrew are rostered to work the same roster pattern and hours. He disagreed with Mr Croal that helicopter aircrew regularly worked 24-hour periods and overtime. In his experience aircrew and pilots worked the same roster, and he understood that 10/14 roster was fairly standard across the industry including by Babcock’s aircrew officers at Rockhampton and Mackay in Queensland. He said that Babcock uses a Flight Risk Management System to monitor the fatigue levels of both its pilots and aircrew, and applies the concept of duty time and flying time in exactly the same way to pilots and aircrew.

[22] Mr Wing accepted that aircrew are not licensed, but he said that they do get endorsements such as the CAO 29.11 winch endorsement in order to perform the duties of a rescue hoist operator and the CAO 82.6 night vision goggles endorsement. While aircrew do not, technically, have licenses to be endorsed, the training and tests are the same as for pilots. Aircrew also perform post-qualification training similar to pilots, such as proficiency checks, recency training, static winch training and winch malfunction training. The main difference is that aircrew training is driven by company and contractual requirements whereas pilots also have to meet CASA requirements. Mr Wing said that 90 percent of his duties involved front left seat duties next to the pilot, and he assisted the pilot with navigation, the radio, and liaising between the pilot and the paramedic. Although it was up to the pilot what functions the aircrewperson performed, it was best practice for aircrew to be utilised in non-flying duties so that pilots were able to concentrate on flying the aircraft and safely managing the completion of the task. Mr Wing did not agree with Mr Nielsen that aircrew did not conduct non-flying pilot duties, since he ran checklists, monitored systems, provided clearance information and generally backed up the pilot. He agreed with Mr Nielsen that it was a company and not a CASA requirement for aircrew to pass medicals, but it was an industry standard that aircrew were required to pass a CASA class 2 medical as a minimum, and some contracts required that they pass a CASA class 1 medical. If an individual held a CASA class 2 medical, then they were assessed in accordance with CASA class 2 medical guidelines, and required medical clearances to return to work after certain illnesses. Mr Wing knew of at least one Babcock aircrew employee who had lost their job because they could not keep a class 2 medical.

Charles McGregor-Shaw

[23] Charles McGregor-Shaw is employed as an aircrewperson by CHC. He commenced employment with CHC in 2004 and, prior to this, he was a Loadmaster in the Australian Army. He has worked for CHC since 2004 except for an 18-month period commencing in 2016 when he worked for CareFlight in its EME operations. He is currently based at RAAF’s Tindal base in the Northern Territory, where CHC conducts SAR operations under contract. He is the Senior Crewman and Base Manager there and has toured CHC’s other bases in Australia which conduct EMS, onshore and offshore activities. Mr McGregor-Shaw said that in his experience, aircrew and pilots worked together in the same fatiguing environment in helicopters, work the same hours, operate in the same conditions and are exposed to the same stresses as each other each day they are at work together. At CHC, both pilots and aircrew work in accordance with their employment agreements and CHC’s operations manual. A common approved fatigue risk management system applies to both pilots and aircrew and as a result generally work the same rostered shift and the same hours. Mr McGregor-Shaw said that when he was rostered to work on a SAR base, he generally worked a roster under which he works 10 days out of 14 with a maximum of 11 hours in a day, and the same applied to pilots. He disagreed with Mr Croal’s evidence that aircrew worked hours in excess of those worked by pilots, since both pilots and aircrew had to work within the common limits established by CHC’s fatigue risk management system. He said that the non-pilot flying duties performed by aircrew included monitoring the aircraft’s flight path, completing checklists, performing air traffic control radio calls and other radio communications, checking aircraft systems, passenger briefings, flight administrative duties and bringing any operational concerns to the pilot’s attention. Mr McGregor-Shaw accepted that there were significant differences between pilots and aircrew in relation to training to become qualified, but once qualified there were important similarities in terms of recencies, competencies and annual testing.

Submission by Cobham SAR

[24] Cobham SAR provides search and rescue services under long-term contracts with the Australian Government and is a related entity to Cobham. It agreed with the AFAP that it did not employ any helicopter aircrew, and that it did employ Observers and Mission Coordinators on fixed wing aircraft. These employees performed similar roles to that of Surveillance Aircrewpersons and Surveillance Mission Coordinators as defined in the AMWU’s draft award of 19 July 2018. Its employees and those of related entities were covered by enterprise agreements, and the AFAP had been the bargaining representative of pilots and the Transport Workers’ Union had been the bargaining representative of non-pilot aircrew in relation to such agreements. Cobham SAR agreed with the AFAP that if helicopter aircrew were included in the coverage of the Air Pilots Award, it would be reasonable to predict that this might provide impetus and a precedent for the inclusion of fixed wing aircrew in the award. Cobham asked that the Full Bench take this into account and avoid confusion in award coverage. Cobham’s submissions were supported by a witness statement which is summarised below.

Russell Dyer

[25] Russell Dyer is employed by Cobham SAR in the role of Vice President Special Mission. He has responsibility for Cobham SAR’s search and rescue operations. He said that Cobham employed over 200 pilot and non-pilot employees on such operations, of which about 100 are non-pilot aircrew. All were employed on specially equipped fixed wing aircraft, and none were employed on helicopters. He confirmed that the position descriptions for Surveillance Aircrewpersons and Surveillance Mission Coordinators in the AMWU’s draft Award of 19 July 2018 were substantially similar if not identical to the roles of employees classified in Cobham SAR’s enterprise agreements as Visual Observer, Electronic Observed and Electronic Mission Coordinator. Mr Dyer noted that Cobham SAR had historically negotiated enterprise agreements to include both pilots and non-pilot aircrew for reasons of internal efficiency, even though the two groups had different award safety nets. Mr Dyer said that because Cobhams SAR’s contracts were long term in nature, he was concerned that if the Air Pilots Award was varied to cover helicopter aircrew, fixed wing aircrew would seek the same coverage as well and result in irrecoverable employment costs being incurred which might affect the business’s viability.

Consideration

[26] The stated premise of the AFAP objection is that the AFAP does not agree with the provisional conclusion expressed by us in paragraphs [69] and [70] of the 2019 decision, which it characterised as setting out “similarities” between pilots and aircrew. However it has not demonstrated that any aspect of those paragraphs was factually incorrect. In summary, we said that:

•  Schedule E of the Air Pilots Award contains provisions, including hours of work provisions, which are specifically adapted to the types of specialist onshore and offshore operations which the evidence before us demonstrated were engaged in by helicopter aircrew as well as pilots;

•  the annual leave and personal carer’s leave provisions in Schedule E are the same as were sought by the AMWU in its proposed award for helicopter aircrew;

•  helicopter aircrew work together operationally with the pilots with whom they fly;

•  helicopter aircrew and pilots share the same employer;

•  helicopter aircrew and pilots work the same or similar patterns of hours; and

•  helicopter aircrew and pilots operate from the same locations and suffer the same or similar disabilities.

[27] We do not detect any challenge by the AFAP to the first, second, third or last of the above propositions. In respect of the fourth proposition, we note that Mr Croal said that for work on air ambulance contracts, the pilot and the aircrew person in the front left seat would both be employed the helicopter company, while any crew sitting behind would be employed by the client. This does not diminish the correctness of the proposition. The person sitting behind would presumably be a nurse or paramedic covered by another modern award applicable to those occupations. Mr Croal’s evidence, we consider, confirms the correctness of the fourth proposition rather than otherwise.

[28] In respect of the fifth proposition, Mr Croal implied a difference between the hours of work and rosters of pilots, which are regulated under CAO 48.1, and those of aircrew, who he said were rostered “for convenience and smoother operations” and regularly worked 24-hour periods and accepted overtime beyond the limits set for pilots. Beyond the fact that the hours of work of pilots are the subject of direct statutory regulation while those of aircrew are not, we consider that the evidence before us clearly establishes that, for the most part, helicopter pilots and aircrew work the same hours of work and roster patterns and are the subject of common fatigue management systems. That was the effect of the evidence of Martin Mason, the Head of Operations at Babcock, that is referred to in paragraph [48] of the 2019 decision, as well as the evidence of Mr Wing and Mr McGregor-Shaw in this stage of the proceedings. We accept that evidence.

[29] The AFAP’s submissions and evidence sought to raise a number of other matters which it contended were demonstrative of differences between pilots and aircrew – principally in relation to training, licensing, specific duties and statutory regulation. However in this respect the AFAP appears to have misconceived the tenor of the conclusions we stated in the 2019 decision. It is obvious that there are important occupational differences between pilots and aircrew, and we were fully aware of those matters at the time of the 2019 decision. We did not intend to, nor did we, conclude that the duties, responsibilities and qualifications of pilots and aircrew were either the same or highly similar. The context of our consideration was whether, for the purpose of s 163(2), it would be appropriate for the Air Pilots Award to be varied to cover aircrew. In that respect, we identified aspects of the work of helicopter pilots and aircrew relevant to their industrial regulation, including their work environment, their hours of work, their rostering and their disabilities that were the same or highly comparable. The working conditions established by Schedule E of the Air Pilots Award are clearly tailored for these aspects of the work of helicopter pilots, and for that reason are readily adaptable to the work of helicopter aircrew. If we made a separate modern award for helicopter aircrew, its terms and conditions (apart from classifications and pay rates) would likely be very similar to Schedule E of the Air Pilots Award, which is demonstrative as to why such an approach appears to us to be unnecessary.

[30] The AFAP is correct to say that the variation of the Air Pilots Award to encompass helicopter flight crew would, in a fairly minor way, alter its current occupational focus. However we do not consider that it has articulated any detriment that this would cause its members. There is no basis to consider that any variation to the Air Pilots Award that we might make to expand its coverage would have any relevant effect upon the existing conditions of pilots covered by the award, and any suggestion that any determination of what the conditions of aircrew should be under the award might in some sense serve as a future precedent against the interests of pilots is purely speculative. We note that no employer of pilots, apart from Cobham, has appeared in these proceedings to express any concern about the proposed change to the occupational focus of the Air Pilots Award, nor has any of the other registered organisations which represent pilots (namely, the Australian and International Pilots Association, the VIPA or the Australian Aircrew Officers Association). This causes us to place lesser weight on the concerns raised by the AFAP. Additionally, we consider that it has overstated the significance of the occupational focus of the award. As the evidence of Mr Stephens demonstrated, the Air Pilots Award brought together diverse groups of pilots who had previously been regulated by a number of different awards, and the structure of the award whereby there are a number of schedules to the award which contain wages and conditions specific to certain aviation sectors is illustrative of this diversity. We consider that helicopter pilots are more likely to have industrial interests in common with the aircrew with whom they fly than, for example, with a Captain flying an international passenger service.

[31] The AFAP (and Cobham) have raised a legitimate question about the position of aircrew on fixed wing non-passenger aircraft. On the limited information available to us, such employees would appear to be in the same current position as to award coverage as helicopter aircrew - that is, covered by the Miscellaneous Award. Prima facie, it would be anomalous for helicopter aircrew to be placed within the coverage of the Air Pilots Award but for fixed wing aircrew to remain under the Miscellaneous Award. However, the current proceedings do not concern the position of aircrew on fixed wing aircraft, and the evidence concerning them is not sufficient to reach any definitive conclusion about their position. However, having reached the conclusion that the coverage of helicopter aircrew under the Miscellaneous Award does not achieve the modern awards objective, we do not consider that the fact that fixed wing aircrew may remain covered by that award constitutes a reason for helicopter aircrew not to be included within the coverage of the Air Pilots Award. We accept the proposition advanced by Cobham that placing helicopter aircrew under the Air Pilots Award may prompt some future consideration concerning the award coverage of fixed wing aircrew, but the concerns it expressed about this leading to some increase in its employment costs at some future stage are too speculative and remote to be relevant to our current consideration of the position of helicopter aircrew.

[32] For the reasons above, we confirm our provisional conclusion that it is appropriate for helicopter aircrew to be placed within the coverage of the Air Pilots Award.

Terms of the variations to the Air Pilots Award

[33] As earlier stated, interested parties have filed drafts of the variations to the Air Pilots Award which they either seek, will consent to or at least do not oppose. We propose to address in this decision the main issues which have arisen in respect of those drafts either because of disagreement between the parties or because of concerns from our perspective. However it necessary at the outset to identify the three guiding principles by which we propose to resolve these issues:

(1) The purpose of the award variations, consistent with the modern awards objective in s 134(1) of the FW Act and other provisions, is to create a fair and relevant safety net of terms and conditions and national economic prosperity and social inclusion for all Australians, and other matters. Such a safety net is not appropriately established by cherry picking from bargained conditions of employment applying in respect of the largest employers.

(2) The conditions of employment of helicopter aircrew should, as far as possible, be the same as or harmonised with those applying to helicopter pilots in order to maximise the advantage of placing aircrew within the coverage of the Air Pilots Award.

(3) The variations should have the minimum impact possible on the existing provision of the Air Pilots Award applicable to pilots, so that no existing understanding of the award’s provisions for pilots is disturbed.

[34] The conclusions we express below should be understood to be provisional in nature, and we will afford interested parties with a further opportunity to make submissions in response before we make any determination varying the Air Pilots Award.

Title of the award

[35] The parties all propose that the title of the award be changed (either to “Air Pilots and Crew Award” or to “Air Pilots and Helicopter Aircrew Award”). We see no reason to change the title of the award merely because of a minor accretion in the scope of its coverage.

Coverage

[36] The parties propose that clause 4.1 of the award be varied to read “This award covers employers throughout Australia of air pilots and helicopter aircrew and those employees”. This is an appropriate way to express the expansion of coverage. The expression “helicopter aircrew” is proposed to be defined in clause 3.1 of the award, which is the definition and interpretation provision in the award, but the definition then cross-refers to another provision in the proposed new Schedule F of the award. Such cross-referencing does not assist the readability of the award. The definition to be inserted into clause 3.1 shall therefore read as follows:

helicopter aircrew or aircrewperson means an employee other than a pilot who is employed in helicopter operations as a Surveillance Aircrewperson, Rescue Aircrewperson, Surveillance Mission Coordinator, Aircrewperson, Line Training Aircrewperson or Check and Training Aircrewperson.

[37] It is also proposed that a new clause 4.3 be added to the coverage clause which excludes employees covered by the Medical Practitioners Award 2010 or the Airline Operations – Ground Staff Award 2010. This is appropriate but insufficient, since it does not address the concerns of the Health Services Union and the United Workers Union referred to in paragraph [16] of the 2019 decision. The new clause 4.3 will read:

4.3 This award does not cover employees who are covered by:

(a) the Medical Practitioners Award 2010;

(b) the Airline Operations – Ground Staff Award 2010;

(c) the Ambulance and Patient Transport Industry Award 2010.

Proposed Schedule F

[38] The parties have reached a consensus position that provisions specific to helicopter aircrew will be contained in a new Schedule F to the award. Although from one perspective it might be ideal for the provision pertaining to helicopter aircrew to be integrated with those applying to helicopter pilots in Schedule E, this would necessarily lead to a disturbance of the existing provisions applying to helicopter pilots and might have unintended consequences. Accordingly we accede to the approach proposed by the parties.

Salaries

[39] The parties propose that the new Schedule F should contain a wages structure which provides automatic increments based on years of service from the first to the ninth years of service. We stated in the 2019 decision that our provisional view was that such an incremental scale was not justified for work value reasons and should not be placed into the award. 6 Nothing further has been submitted which would cause us to change this view. It is not sufficient that bargained outcomes at major helicopter companies include wage structures of this nature, nor has any industrial relationship between the wage and overtime structures of helicopter crew and the current award salary structures of pilots been established. We emphasise that our conclusion to reject the proposed wages for helicopter aircrew has no implications for the existing salary structures for pilots in the award, which have a long and unique industrial history.

[40] There is a consensus that the classifications of Rescue Aircrewperson and Surveillance Crewperson should be aligned in terms of minimum weekly wages with classification C9 in the Manufacturing and Associated Industries and Occupations Award 2010 (Manufacturing Award) and those of Aircrewperson and Surveillance Mission Coordinator should be aligned with classification C7 in the same award. These alignments appear to us to be appropriate given that the former classifications have a qualification requirement of a Certificate III in Aviation (or equivalent), the Aircrewperson has a qualification requirement of a Certificate IV in Aviation (or equivalent), and the Surveillance Mission Coordinator has more advanced and senior duties that the Surveillance Crewperson. Accordingly the classification and wage structure shall be as follows:

Hours of work, rostering, leave and public holidays

[41] There is a limited disagreement between the AMWU and Babcock concerning hours of work, rostering, overtime, leave and public holidays. The AMWU’s draft, broadly speaking, adopts the general hours of work and rostering provisions applicable to helicopter pilots under Schedule E, but excludes certain provisions applicable to touring employees. It also applies to helicopter aircrew the general annual leave and personal carer’s leave provisions applicable to all pilots. The annual leave provision in clause 27.2 of the award gives an effective entitlement to six week’s leave, but this is taken to incorporate public holidays (see also clause 31.1). The personal/carer’s leave provision in clause 28 includes an additional entitlement to six days’ paid URTI leave.

[42] Babcock and CHC submitted that the provisions of the award concerning annual leave, public holidays and touring employees are inter-related and cannot be taken in isolation from each other. Accordingly, their position is that if helicopter aircrew are to have the benefit of what it characterised as the superior leave benefits of the award currently applicable to pilots, the full scheme of provisions for rostering of touring employees should also apply. ABI’s draft appears to be consistent with the position of Babcock and CHC.

[43] Although it does not appear to us, taking into account that the annual leave entitlement incorporates public holidays, that the leave entitlements are particularly more generous that the NES except in respect of the URTI leave entitlement, we nevertheless prefer the position of Babcock and CHC. Given that commonality of hours of work and rosters is a fundamental reason why we consider that helicopter aircrew should be covered by the Air Pilots Award, we consider that the provisions in this respect in the new Schedule F should be aligned so far as possible with those in Schedule E.

Overtime

[44] The AMWU draft also includes a provision for overtime which includes an entitlement to double time for overtime on a rostered day off. Babcock and CHC are prepared to consent to an overtime provision but oppose this double time entitlement. The AMWU has submitted that its proposal in respect of overtime on a rostered day off (which it calls an “overtime day”) is analogous to clause 37.5(d) of the Manufacturing Award. We doubt the correctness of the analogy: clause 37.5(d)(i) provides that an employee who works on a shift other than a rostered shift is to be paid double time for all hours worked only if they are a continuous shift worker; otherwise the rate is time and a half for the first three hours and double time thereafter. We consider that the appropriate course is to make the rate the same as the proposed standard overtime rate about which the parties appear to have a consensus, namely time and a half for the first two hours and double time thereafter.

Fitness allowance

[45] The AMWU proposes that helicopter aircrew be entitled to a fitness allowance – that is, an allowance which would compensate them for expenses such as gym membership, pool entry, fitness assessment and programs, and fitness shoes, fitness wear and swimming gear. Pilots have no such entitlement under the award, and we maintain the view expressed in the 2019 decision that no award entitlement of this nature is appropriate to be included in the award safety net. 7

Income protection insurance

[46] The AMWU’s draft of Schedule F would require the employer to obtain income protection insurance for helicopter aircrew at the rate of 75 percent of their ordinary wage for a period of five years. Pilots have no entitlement of this nature under the award. The AMWU submitted that the claimed entitlement was equivalent to the entitlement under clause 19.4 of the award whereby the employer is required to pay employees an annual allowance of up to $2,005 to “assist the pilot to hold adequate insurance against loss of licence”. We do not accept the equivalency. Helicopter aircrew are not licensed and therefore do not face the prospect of the complete loss of a specialised career if their licence cannot be renewed. As we said in the 2019 decision, income protection insurance is a benefit recently obtained by the AMWU through bargaining with a small number of companies and does not appear to be an industry standard. The claimed entitlement will not be contained in the new Schedule F.

Conclusion

[47] The next step we propose to take is for the presiding member to conduct a further conference of interested parties to endeavour to reach a consensus as to the variations to the Air Pilots Award necessary to accommodate coverage of helicopter aircrew. To that end, a draft of the award with such variations will shortly be published by the Commission for discussion purposes. That draft will be consistent with the provisional views stated in paragraphs [33]-[46] above and will contain other adjustments to the drafts provided by the AMWU, Babcock and CHC and ABI.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 4748

 2   Ibid at [50]-[54]

 3   Ibid at [60]-[66]

 4   Ibid at [67]

 5   Ibid at [69]-[71]

 6   Ibid at [67]

 7   Ibid at [67]