Aircraft Logistics Engineers Group v Aircraft Logistics Pty Ltd T/A Airnorth Engineering - [2021] FWC 6532

[2021] FWC 6532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Aircraft Logistics Engineers Group
v
Aircraft Logistics Pty Ltd T/A Airnorth Engineering
(C2020/7387)

COMMISSIONER SPENCER

BRISBANE, 6 DECEMBER 2021

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

INTRODUCTION

[1] An application to the Fair Work Commission (the Commission) pursuant to s.739 of the Fair Work Act (the Act) was made by Aircraft Logistics Engineers Group (the Applicant) in relation to a dispute (arising under the Aircraft Logistics Pty Ltd Engineers' Collective Agreement 2014 (the Engineers Agreement), 1) with Aircraft Logistics Pty Ltd T/A Airnorth Engineering (the Respondent). The matter was subject to a series of conciliation conferences, but was unable to be resolved. The parties after a period, elected to have the matter arbitrated.

[2] The dispute arose following a memorandum to engineering staff being distributed to engineering staff. The memorandum from the General Manager Engineering, Mr Mark Dunn, regarding time changes to the afternoon evening shift roster, set out as follows:

“…

Due to operational requirements and in an effort for us to get some additional hands on maintenance time, the following changes to afternoon/evening shift start and finish times will apply:

START TIME; 1500 local time.
FINISH TIME; 0200 local time.

[3] Mr Dunn further set out in the memorandum:

“This timing change has come about to give additional maintenance opportunities as during the Jet heavy maintenance period we will be reduced to 3 aircraft as seen lately on SWO.

The timing change is of a temporary nature for a 10-week period beginning Oct until 14 Dec.

This change is made IAW the ALEG Collective Agreement clause 13.1.2.3 and notice given IAW clause 13.2.2.

Your support of this temporary change is appreciated.”

[4] Following Directions for the Arbitration being set, the parties provided the following Agreed Statement of Facts in relation to the dispute that included a series of points:

1. The Aircraft Logistics Pty Ltd Engineers' Collective Agreement 2014 applied to the dispute.

2. The change to work was an 11 hourly shift commencing at 1500 hours for an approximately 10 week period.

3. In the toolbox meeting prior to commencement, the Company stated that there would be no additional remuneration, nor additional compensation for these shift changes.

4. The Company further stated that the shift change times must be followed, or disciplinary processes would be initiated for employees not following the direction. The Respondent did not agree with this statement and stated that employees were advised by the General Manager Engineering that Failure to comply with a reasonable and lawful directive will result in a formal disciplinary meeting and that he could not determine the outcome of such a meeting.

5. The Applicant stated that for the past 6 plus years, engineers rostered to work between 2400 and 0400 have been paid pursuant to clause 13.3.4 in the 2014 Enterprise Agreement. The Respondent objected to this statement, and provided the following revision:

• Engineers have been paid overtime on occasions when there shift has exceeded ordinary hours in accordance with the overtime rate in 13.3.3 of the Aircraft Logistics Pty Ltd Engineers' Collective Agreement 2014.

[5] In the Form F10 – Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, the Applicant contended that by working the changed hours specified in the memorandum, engineers should be entitled to overtime under clauses 13.3.1 and 13.3.4 of the Agreement or alternatively that the shift should be reduced to a 9-hour shift under clause 13.3.4 of the Agreement.

[6] The Respondent stated that the change is temporary in nature and was made in accordance with clause 13.1.2.3 of the Agreement. The Respondent’s position is that the Agreement does not require them to pay overtime rates or to reduce the shift length to 9 hours. The employees are frustrated with the particular alteration of their working hours, without additional payment for such.

[7] This matter was heard at the Fair Work Commission in Darwin. The Applicant was represented by Mr Lucio Matarazzo, of Lucio Matarazzo Pty Ltd and Mr Steve Hatton, consultant of Hatton Enterprises. The Respondent was represented by Mr Troy Spence, of counsel, instructed by Ms Joanna Leveridge, Senior Associate of DLA Piper. Both representatives were granted permission to appear, pursuant to s.596(2)(a) of the Act.

QUESTIONS FOR ARBITRATION

[8] The following questions for arbitration were set by consent of the parties in relation to this matter:

“1. Does the memorandum issued on 28 September 2020 from Mr Mark Dunn, General Manager of Engineering of Aircraft Logistics Pty Ltd trading as Airnorth Engineering vary shift hours to account for changes in the Company Base schedule such that clause 13.3.4 of the Aircraft Logistics Pty Ltd Engineers’ Collective Agreement 2014 applies, and if so, has the provision been complied with?; and

2. In addition, in undertaking this (as set out in question 1), has the Respondent complied with Clause 9 of the Agreement?”

JURISDICTION TO DEAL WITH DISPUTE

[9] Section 739 of the Act states:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

(My emphasis)

[10] The dispute resolution procedure at clause 2 of the Agreement sets out the procedure to settle a dispute arising under the agreement. Clauses 2.2, 2.3 and 2.4 state:

“…2.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this term.”

“2.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.”

“2.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to Fair Work Australia.”

[11] Section 55 of the Act states as follows:

“55 Interaction between the National Employment Standards and a modern award or enterprise agreement

National Employment Standards must not be excluded

(1) A modern award or enterprise agreement must not exclude the National Employment Standards or any provision of the National Employment Standards.

Terms expressly permitted by Part 2 2 or regulations may be included

(2) A modern award or enterprise agreement may include any terms that the award or agreement is expressly permitted to include:

(a) by a provision of Part 2 2 (which deals with the National Employment Standards); or

(b) by regulations made for the purposes of section 127.

Note: In determining what is permitted to be included in a modern award or enterprise agreement by a provision referred to in paragraph (a), any regulations made for the purpose of section 127 that expressly prohibit certain terms must be taken into account.

(3) The National Employment Standards have effect subject to terms included in a modern award or enterprise agreement as referred to in subsection (2).

Note: See also the note to section 63 (which deals with the effect of averaging arrangements).

Ancillary and supplementary terms may be included

(4) A modern award or enterprise agreement may also include the following kinds of terms:

(a) terms that are ancillary or incidental to the operation of an entitlement of an employee under the National Employment Standards;

(b) terms that supplement the National Employment Standards;

but only to the extent that the effect of those terms is not detrimental to an employee in any respect, when compared to the National Employment Standards.

Note 1: Ancillary or incidental terms permitted by paragraph (a) include (for example) terms:

(a) under which, instead of taking paid annual leave at the rate of pay required by section 90, an employee may take twice as much leave at half that rate of pay; or

(b) that specify when payment under section 90 for paid annual leave must be made.

Note 2: Supplementary terms permitted by paragraph (b) include (for example) terms:

(a) that increase the amount of paid annual leave to which an employee is entitled beyond the number of weeks that applies under section 87; or

(b) that provide for an employee to be paid for taking a period of paid annual leave or paid/personal carer’s leave at a rate of pay that is higher than the employee’s base rate of pay (which is the rate required by sections 90 and 99).

Note 3: Terms that would not be permitted by paragraph (a) or (b) include (for example) terms requiring an employee to give more notice of the taking of unpaid parental leave than is required by section 74.

Enterprise agreements may include terms that have the same effect as provisions of the National Employment Standards.

(5) An enterprise agreement may include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards, whether or not ancillary or supplementary terms are included as referred to in subsection (4).

Effect of terms that give an employee the same entitlement as under the National Employment Standards

(6) To avoid doubt, if a modern award includes terms permitted by subsection (4), or an enterprise agreement includes terms permitted by subsection (4) or (5), then, to the extent that the terms give an employee an entitlement (the award or agreement entitlement) that is the same as an entitlement (the NES entitlement) of the employee under the National Employment Standards:

(a) those terms operate in parallel with the employee’s NES entitlement, but not so as to give the employee a double benefit; and

(b) the provisions of the National Employment Standards relating to the NES entitlement apply, as a minimum standard, to the award or agreement entitlement.

Note: For example, if the award or agreement entitlement is to 6 weeks of paid annual leave per year, the provisions of the National Employment Standards relating to the accrual and taking of paid annual leave will apply, as a minimum standard, to 4 weeks of that leave.

Terms permitted by subsection (4) or (5) do not contravene subsection (1)

(7) To the extent that a term of a modern award or enterprise agreement is permitted by subsection (4) or (5), the term does not contravene subsection (1).

Note: A term of a modern award has no effect to the extent that it contravenes this section (see section 56). An enterprise agreement that includes a term that contravenes this section must not be approved (see section 186) and a term of an enterprise agreement has no effect to the extent that it contravenes this section (see section 56).”

[12] Section 56 of the Act further states:

“Terms of a modern award or enterprise agreement contravening section 55 have no effect

A term of a modern award or enterprise agreement has no effect to the extent that it contravenes section 55.”

[13] The Form F10 annexed copies of email correspondence detailing attempts to resolve the dispute at the workplace level, which proved unsuccessful. The Applicant subsequently made an application for the Commission to deal with the dispute. No objection to the Commission’s jurisdiction to arbitrate the matter was raised by the Respondent.

RELEVANT PROVISIONS OF THE AGREEMENT

[14] Clause 13.1.2 deals with shift rosters. Clause 13.1.2.3 states as follows:

“13.1.2.3 From time to time it may be necessary for the Employer to roster the Employee to perform work, travel or training that is outside of the shift hours detailed in clause 13.1.3. At all times the Employer will endeavor to ensure that the Employee does not work more than the hours for which they would have otherwise worked in any fortnight if they had remained on their shift roster”

[15] Clause 13.1.3 defines shift rosters as follows:

“13.1.3.1 "Early morning shift" means a shift of 11 hours between the times of 0400 and 1600. For normal operations shift will start at 0500 and finish at 1600 however if operationally required, 2 engineers will commence at 0400 and finish at 1500.”

“13.1.3.2 "Day shift" means a shift which commences at 0730 and concludes at 1600 and is rostered five (5} days a week, Monday to Friday.”

“13.1.3.3 "Afternoon shift" means a shift which commences at 1300 and concludes at 2400”

[16] Clause 13.3 of the Agreement set out the overtime provisions, stating:

“13.3 OVERTIME

13.3.1 Overtime Definitions

• Recall/Call out - minimum 4 hours paid at double time.

• Ordinary overtime - applicable when worked outside ordinary day and shift hours and paid at time and a half.

• On call - hourly rate while off-site (refer also to 13.5).

• Training Overtime - In the event the Engineer is required to attend training out of hours; 7 days' notice (where possible) will be given by the Employer; the engineer will be paid at ordinary overtime rates for all hours worked and a minimum of 2 hours paid overtime will apply.

13.3.2 'Day Shift' Overtime Rates

Overtime rates are calculated on the Annual Salary listed above (excluding Superannuation) divided by 26 fortnights, divided by 80 hours and multiplied by ordinary overtime rate.

13.3.3 'Shift' Overtime Rates

Overtime rates are calculated on the Annual Salary listed above (excluding Superannuation) divided by 26 fortnights; divided by 77 hours and multiplied by ordinary overtime rate.

13.3.4 Shift hours may vary to account for changes in the Company Base schedule, which in turn, may see aircraft departing/arriving outside shift hours i.e. between 12 midnight and 4:00 am. On such occasions the eleven (11) hour shift will reduce to 9 hours. If the 9 hours is exceeded those hours over 9 hours are to be paid at double time.

13.3.5 Rest period after overtime

13.3.5.1 An Employee who has worked overtime will be given a break of at least 10 consecutive hours between the time of finishing work and the time when the Employee next commences ordinary work. Subsequently, there will be no loss of pay for ordinary working time occurring during such absence on the following day.

13.3.5.2 If the Employee is required to resume or continue work without having a break of 10 consecutive hours, the Employee will be paid at double time until the Employee is released from duty.”

[17] In relation to the employer’s obligation to consult, the Applicant relied on clause 9 of the Agreement, which sets out:

“CONSULTATION-MAJOR WORKPLACE CHANGE

9.1 THIS TERM APPLIES IF:

9.1.1 The Employer has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise; and

9.1.2 The change is likely to have a significant effect on employees of the enterprise.

9.2 The Employer must notify the relevant employees of the decision to introduce the major change.

9.3 The relevant Employees may appoint a representative for the purposes of the procedures in this term.

9.4 IF:

9.4.1 A relevant Employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

9.4.2 The Employee or Employees advise the employer of the identity of the representative;

9.4.3 The Employer must recognise the representative.

9.5 AS SOON AS PRACTICABLE AFTER MAKING ITS DECISION, THE EMPLOYER MUST:

9.5.1 Discuss with the relevant employees:

9.5.1.1 The introduction of the change; and

9.5.1.2 The effect the change is likely to have on the employees; and

9.5.1.3 Measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

9.6 FOR THE PURPOSES OF THE DISCUSSION - PROVIDE, IN WRITING, TO THE RELEVANT EMPLOYEES:

9.6.1 All relevant information about the change including the nature of the change proposed; and

9.6.2 Information about the expected effects of the change on the employees; and

9.6.3 Any other matters likely to affect the employees.

9.7 However, the employer is not required to disclose confidential or commercially sensitive information to the relevant employees.

9.8 The employer must give prompt and genuine consideration to matters raised about the major change by the relevant employees.

9.9 If a term in the enterprise agreement provides for a major change to production, program, organization, structure or technology in relation to the enterprise of the employer, the requirements set out in sub-clauses (2), (3) and (5) are taken not to apply.

9.10 In this term, a major change is likely to have a significant effect on employees if it results in:

9.10.1 The termination of the employment of employees; or

9.10.2 Major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or

9.10.3 The elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

9.10.4 The alteration of hours of work; or

9.10.5 The need to retrain employees; or

9.10.6 The need to relocate employees to another workplace; or

9.10.7 The restructuring of jobs.

9.10.8 ln this term, relevant employees mean the employees who may be affected by the major change.”

SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE

[18] The Applicant stated that the principles to be applied were those established by the Full Bench of the Commission in Australian Mean Industry Employees Union v Golden Cockerel Pty Ltd (Golden Cockerel). With reference to the principles set out in that decision, the Applicant submitted that Clause 13.1.3 – Shift hours, had an unambiguous and plain meaning.

[19] The Applicant stated that the overtime provisions at Clause 13.3 were enlivened when work is performed outside ordinary hours. With reference to Clause 13.3.4, the Applicant stated that it is the performance of work between midnight and 4:00am which enlivens overtime payment rather than aircraft movement.

[20] The Applicant submitted that it is not a question of discretion, to arrange hours of work without compensation, with regard to when the hours are worked. The Applicant submitted that whilst the employer may direct hours of work, directing employees to work hours between midnight and 4:00am attracted special compensation pursuant to clauses 13.1.3.3 and 13.3.4. the Applicant in remedy for this change of hours sought compensation for night shift hours.

Witness statement of Mr Kurt Adam Barber

[21] Mr Barber, a Licensed Aircraft Maintenance Engineer, provided a witness statement in support of the Applicant’s case. Mr Barber is a full-time employee that has worked for the Respondent for eight years and nine months.

[22] Mr Barber gave evidence that in his employment, he has worked morning and afternoon shifts in accordance with the Agreement. Mr Barber stated that prior to April 2020, his normal shift consisted of four days on and four days off. Mr Barber’s shift days on were two morning shifts, from 5:00am – 4:00pm and two afternoon shifts, from 1:00pm – midnight. Mr Barber gave evidence that that his shifts between April 2020 and September 2020 were the same as prior to April 2020.

[23] Mr Barber gave evidence that as of 5 October 2020, his shift hours were changed to two morning shifts, from 5:00am – 4:00pm and two night shifts, from 3:00pm – 2:00am.

[24] Mr Barber stated that on multiple occasions, aircraft had been arriving between midnight and 4:00am. He provided examples of this as follows:

• TL183 VH-ANO arrived 01:29am on 19 October 2020;

• TL4003 VH-ANV arrived at 03:37am on 8 October 2020;

• TL183 VH-SWO arrived at 00:l0am on 29 September 2020;

• TL183 VH ANV arrived at 00:13am on 22 September 2020;

• TL183 VH-ANV arrived at 00:18am on 15 September 2020;

• TL l71 VH-ANV arrived at 00:56am on 13 September 2020;

• TL183 VH ANV arrived at 01:54am on 8 September 2020; and

• TL161 VH-ANO arrived at 00:28am on 24 August 2020.

[25] Mr Barber stated that he had seen future estimated aircraft arrivals between midnight and 4:00am. This included:

• TL183 VHANO scheduled to arrive at 01:20am on 27 October 2020;

• TL183 VH-ANO scheduled to arrive at 01:20am on 3 November 2020;

• TL183 VH-ANO scheduled to arrive at 01:20am on 10 November 2020;

• TLl 83 VH-ANO scheduled to arrive at 01:20am on 17 November 2020;

• TL183 VH-ANO scheduled to arrive at 01:20am on 24 November 2020;

• TL183 VH-ANO scheduled to arrive at 01:20am on 1 December 2020; and

• TLl83 VH-ANO scheduled to arrive at 01:20am on 8 December 2020.

[26] Mr Barber gave evidence that he maintains the serviceability of aircraft in line and heavy maintenance environments. Mr Barber stated that he prepares aircraft before flying and checks aircraft in after flying, by carrying out rectifications of any defects that have occurred, as well as performing work to a schedule.

[27] Mr Barber submitted that from 5 October 2020, the changed flying schedule has changed scheduled maintenance slots to occur between midnight and 4:00am. Mr Barber gave evidence that when parts have arrived later in a working day and were required to be fitted for the serviceability of an aircraft, engineers had been asked to start later in the day and work between midnight and 4:00am. He stated that in which case, engineers had been paid in accordance with clause 13.3.4 of the Agreement.

Witness statement of Mr Peter Andrew Campbell

[28] Mr Campbell, an Engineering shift supervisor and Licensed Aircraft Maintenance Engineer, provided a witness statement in support of the Applicant’s case. Mr Campbell is a full-time employee that commenced his employment with the Respondent in April 2001.

[29] Mr Campbell gave evidence that from approximately 2005 to 5 October 2020, he has been working a four day on, four day off roster. It consisted of two 11 hour early shifts from 5:00am – 4:00pm that was followed by two 11 hour late afternoon shifts from 1:00pm – midnight. He then would have four days off.

[30] Mr Campbell stated that over the years, there had been times where aircraft had maintenance requirements falling outside of these hours and in response, at the request/consultation with management, staff changed their hours for a couple of days to accommodate the events. Mr Campbell submitted that for example, this has occurred when aircraft were broken and awaiting parts. Mr Campbell stated that due to the nature of the industry, engineers have been requested by the Respondent to stay late/come in early to collect and install incoming parts in order to try and achieve the aircrafts expected departure and arrival times.

[31] Mr Campbell gave evidence that where an employee was rostered to work between midnight and 4:00am, usually more than 24 hours prior to ordinary shift start, the engineer would be rostered for a 9 hour shift and paid for 11 hours, as per clause 13.3.4 of the Agreement. Evidence, was also given that on occasions where aircraft were not finished by midnight, staff members shifts were extended to complete the job. It is submitted that staff were paid overtime for the hours worked.

[32] Mr Campbell submitted that following the introduction of the Agreement, the Respondent negotiated, via a letter of understanding that was signed by both parties, to have major workplace change for the period of heavy maintenance checks, whilst short an aircraft. During this time, Mr Campbell stated that staff were paid per clause 13.3.4 of the Agreement, if they were rostered to work between midnight and 4:00am.

Witness statement of Mr Dean Macdonald

[33] Mr Macdonald, a Licensed Aircraft Maintenance Engineer and shift second in command, provided a witness statement in support of the Applicant’s case. Mr Campbell is a full-time employee that has worked for the Respondent from 2005 to 2012 and subsequently from 2013 to the present. He stated his work involves servicing and maintenance on the Respondent’s aircraft, as well as carrying out supervision roles.

[34] Mr Macdonald gave evidence that during his employment, he has worked early morning shifts and afternoon shifts. Prior to April 2020, Mr Macdonald stated that his usual hours of work consisted of two early morning shifts, usually between 5:00am and 4:00pm, and two afternoon shifts from 1:00pm until midnight. This was on a 4 day on, 4 day off rotation.

[35] He gave evidence that between April 2020 and September 2020, his usual shift hours were as stated above, except for the period between 20 April 2020 and 13 July 2020 where due to COVID-19 cost cutting measures, engineers' hours were reduced from 11 hours to 10 hours per rostered day. Mr Macdonald stated that from 5 October 2020, his early morning shift hours have remained the same, however his afternoon shifts now commence at 3:00pm and finish at 2:00am.

[36] Mr Macdonald stated that according to the Respondent’s Flight and Maintenance scheduling program, every Monday until approximately the end of 2020, there will be an aircraft arriving after midnight.

[37] Mr Macdonald submitted that from 5 October 2020, both the maintenance schedule and flight schedule have somewhat changed due to one of the four largest aircraft not being in use due to a heavy maintenance check. It was stated that due to this, the flight schedules of four aircraft have been compacted into three aircraft. As such, Mr Macdonald submitted that the maintenance schedule has been altered to fit this new flight schedule.

[38] Mr Macdonald gave evidence that in the past, clause 13.3.4 of the Agreement has been used by the employer for late arrivals or early departures of aircraft, as well as for maintenance. Mr Macdonald provided an example that occurred in September/October of 2019, where clause 13.3.4 was used multiple times to facilitate maintenance at irregular times, in order for the flight schedule to be somewhat maintained, while extensive repairs/upgrades were carried out on the fleet's engines. Mr Macdonald stated that he participated in one of these events and has a timecard as evidence.

Witness statement of Mr David Parrington

[39] Mr Parrington, an Engineer, provided a witness statement in support of the Applicant’s case. Mr Parrington is a full-time employee that has been employed by the Respondent for four and a half years. During his employment, Mr Parrington has worked early morning shifts and afternoon shifts in accordance with the Agreement.

[40] Mr Parrington stated that prior to April 2020, his usual morning shift hours were from 5:00am – 4:00pm and his afternoon shifts were from 1:00pm – midnight. His roster consisted of a 4 days on, 4 days off rotation, that included 2 morning shifts and then two afternoon shifts.

[41] It was submitted that between April 2020 and September 2020, his usual hours were changed temporarily; 5:00am – 3:00pm for his morning shift and 2:00pm – midnight for his afternoon shift in order to support the Respondent during COVID-19. Before September 2020, it was submitted his hours were then changed back to his regular hours.

[42] Mr Parrington gave evidence that from 5 October 2020, he was informed by the Respondent that his morning shifts hours would remain the same but his afternoon shift hours were changed to 3:00pm to 2:00am.

[43] Mr Parrington stated that in the past three months, he has seen aircraft arriving or departing between midnight and 4:00am. He performs work in an aircraft hanger maintenance and flight line maintenance and works to a maintenance schedule that is determined by the flight schedule. Mr Parrington submitted that between April 2020 and September 2020, the schedule was not between midnight and 4:00am. He submitted it has now changed to operate and maintain aircraft between midnight and 4:00am.

[44] Mr Parrington stated that in his experience working between midnight and 4:00am, that he was additionally compensated in accordance with clause 13.3.4 of the Agreement. Mr Parrington provided an example in 2019 where there were multiple engine changes required to be carried out on the ERJl 70. It was submitted that in order for this to occur, as well as the flight schedule to be completed each day, he was requested by his employer to be flexible and work into the night to finish between midnight and 4:00am, which he did.

Witness statement of Mr Micah William Fuller

[45] Mr Fuller, a Licensed Aircraft Maintenance Engineer, provided a witness statement in support of the Applicant’s case. Mr Fuller is a full-time employee that has been employed by the Respondent for over 9 years and 9 months.

[46] Mr Fuller gave evidence that prior to 5 October 2020, his ordinary shift roster consisted of the hours outlined in clause 13.1.3 of the Agreement, on a 4 days on, 4 days off roster. Mr Fuller stated that from 5 October 2020, he was directed by the Respondent that his hours of work would be starting at 3:00pm and ending at 2:00am for a period of 10 weeks.

[47] Mr Fuller submitted that he has witnessed multiple occurrences of the Respondent’s aircraft, for example at 1:30am on 20 October 2020 and at 3:30am on 9 October 2020, being scheduled to arrive at the Darwin base between the hours of midnight and 4:00am.

[48] Mr Fuller gave evidence that over the next three months, he is aware of multiple occurrences of the Respondent’s aircraft being scheduled to arrive at the Darwin base between midnight and 4:00am, for example at 1:20am on 27 October 2020 and on 3 November 2020.

[49] Mr Fuller submitted that from 5 October 2020, his work schedule has changed to maintenance being carried out till 2:00am, which is different to his work schedule prior to 5 October 2020. He stated that prior to this time, the work schedule required the performance of ordinary maintenance no later than midnight per clause 13.1.3 of the Agreement.

[50] According to Mr Fuller, in the past he has been witness to and participated in working between the hours of midnight and 4:00am. On these occasions, Mr Fuller stated that himself and others have been additionally compensated in accordance with clause 13.3.4 of the Agreement. For example, Mr Fuller submitted that he received this additional compensation on the 13 September 2019.

Witness statement of Mr Robert Pask

[51] Mr Pask, a Licensed Aircraft Maintenance Engineer, provided a witness statement in support of the Applicant’s case. Mr Pask is a full-time employee that has been employed by the Respondent since 2 January 2012, having worked early morning shifts and afternoon shifts in accordance with the Agreement.

[52] Mr Pask gave evidence that during his employment, there have been instances where maintenance has been conducted outside of ordinary hours. Mr Pask submitted that on 13 September 2019, he was requested to work an afternoon shift from 4:00pm to 3:00am. Mr Pask stated that in accordance with clause 13.3.4 of the Agreement, his shift hours were reduced 9hours and the hours thereafter were paid at double time, and was approved on this timesheet.

Summary of the Applicant’s submissions and evidence in reply

[53] In reply submissions, the Applicant submitted that the Respondent’s material failed to identify, or acknowledge, the questions for arbitration filed by the Applicant and as specifically addressed by the Applicant in its submissions.

[54] Further the Applicant submitted that ‘management prerogative to arrange hours of work’ was not disputed. 2

[55] The Applicant noted that the Respondent has used the term ‘temporary Roster Change’ to describe the change to the regular roster. The Applicant noted that the change is the subject of the employer's memo as set out. The Applicant submitted that a meeting regarding the memo were held; and relied here on reply witness statements filed, regarding the issue of whether or not the roster change would cease upon 10 weeks.

[56] The Applicant submitted that the Respondent has used the term ‘consultation meeting’ to describe the second meeting; and in this regard, the Applicant also relied on their reply witness statements in relation to their evidence of this meeting.

[57] The Applicant submitted that where the employer has not given genuine consideration to matters raised by employees about the change, including the use of options to avert or mitigate the adverse effect of the change on the employees “(eg, options provided by the applicable enterprise agreement or administered in parallel)”, consultation has not occurred.

[58] The Applicant restated that management prerogative to arrange hours of work is not disputed.

[59] The Applicant submitted the fact that this dispute concerns the application of clause 13.3.4 of the Agreement is not disputed.

[60] The Applicant disputed the Respondent’s interpretation of clause 13.3.4. It submitted that the coverage of the arrival and departure of aircraft between midnight and 0400 is not the required precedent for application of the clause. The Applicant submitted that the aircraft departing/arriving is a non-exhaustive illustration of the result of change to schedule “(inclusive of maintenance work)”. The Applicant submitted that clause 13.3.4 does not state that only a particular type of maintenance work attracts the benefit of the clause. It stated that the requirement to perform work between midnight and 0400 attracts the benefit at clause 13.3.4.

[61] The Applicant submitted that a finding in this matter that only a particular type of maintenance work attracts the benefit of clause 13.3.4 may amount to a variation of the Agreement without the Applicant’s consent.

[62] The Applicant further submitted that all types of work required to be performed by the

Applicant cohort between midnight and 0400 are ‘logistically inherently related to the need to maintain aircraft,’ which may depart/arrive outside shift hours. The Applicant stated that following the decision in CFMMEU v Broadspectrum Australia Pty Ltd, 3 where the Full Bench stated that:

“[98] It is necessary, then, to turn to principle 9 espoused in Golden Cockerel. This principle provides thatthe common intention of the parties can be identified by reference to that which a reasonable person would understand by the language the parties have used to express their agreement. If Broadspectrum’s submissions are accepted, employees can be forced to attend training outside of ordinary hours without overtime remuneration, even though the Agreement does not provide that training is excluded from the overtime provision. Broadspectrum acknowledged in oral submissions that on this interpretation of the Agreement, Broadspectrum could have required an employee to undertake training and not pay them at all, since training is not “work” for the purposes of clause 16. 36 We are not persuaded that a reasonable person would identify this to be the common intention of the parties.

[99] The training that Mr Crawford engaged in was critical to the operations of Broadspectrum. In circumstances such as this, and where the relevant Agreement does not explicitly distinguish work from training, we are of the view that a reasonable person would understand the common intention of the parties to be to entitle an employee who attends compulsory training in overtime hours to be entitled to overtime remuneration.” 4

[63] The Applicant submitted that the work that the Applicant cohort is performing after midnight is critical to the operations of the employer and is compulsory, and the Applicant cohort is entitled to overtime remuneration for the work they undertake outside of ordinary shift hours.

[64] The Applicant submitted that compensation for prescribed shifts, and for the performance of work outside prescribed shift hours, was negotiated and agreed during bargaining for the Agreement. It submitted that the issue of how the Agreement is intended to compensate work performed between midnight and 0400 is dealt with in the witness statement accompanying this Submission in Reply.

[65] The Applicant said that following Darwin City Council v Tracey Allen-Shaw & Robert Keely 5, an employer is entitled to direct employees to attend work (and disciplinary sessions) outside their agreed hours. This is not disputed by the Applicant. The Applicant submitted that the issue is what rate of pay is to be afforded to the employees. The Applicant submitted that the cohort is entitled to be paid at overtime rates for roster changes (temporary and or recurring from time to time) where they occur outside their agreed (prescribed) shift hours.

APPLICANT’S SUBMISSIONS IN REPLY

Applicant’s response to the two questions

[66] The Applicant submitted that the answers to the questions are:

• To question (1): yes, and that the Respondent has not complied with the provisions of clause 13.3.4.

2. In addition, in undertaking this (as set out in question 1), has the Respondent complied with Clause 9 of the Agreement?”

• To question (2): no.

[67] However, the Applicant argued that if the FWC determined that the answer to question (a) was no, and accepts the Respondent's submission that clause 13.3.4 only applies to situations when they are required to work to service aircraft because scheduled flights are "departing/arriving outside shift hours i.e. between midnight and 4:am", then the Applicant submitted that it is open to the FWC to decide that the Respondent has introduced a night shift, albeit temporarily, and therefore the Respondent had an obligation to consult with the Applicant in accordance with undertakings given during the Agreement negotiations.

Other alternative meanings

[68] The Applicant stated that the Engineers Agreement is replete with examples where it is ambiguous or susceptible to more than one meaning, which then permits the admission of evidence of the surrounding circumstances. For example, there is no definition of ordinary hours anywhere in the Agreement, however, "ordinary" appears numerous times. Further, the combined effect of clause 13.1 (Rostering and hours of work) and clause 13 .3 (Overtime) is that rostered hours are regarded as ordinary hours. That is, ordinary hours for a day worker are 40 hours per week and the ordinary hours for a shift worker are 38.5 hours per week.

[69] In addition, it was submitted that overtime rates for Day Shift are effectively calculated on an 80-hour fortnight while Shift Overtime Rates are effectively calculated on a 77-hour fortnight. Both those clauses should be based on a 38-hour week. In particular the numbers 80 and 77 in those clauses should be changed to 76. The Applicant stated that as they currently stand, both contravene section 55 of the Fair Work Act 2009 and, under section 56 those terms should have no effect to the extent that they contravene section 55. Finally, the Applicant stated that throughout Schedule A the hourly rate prescribed is based on a 40-hour week. When the hourly rate in Schedule A is calculated by dividing the weekly salary by 40 (based on a 40-hour week) and this hourly rate is applied in the payroll system, the result is chaotic.

Post Agreement Conduct

[70] The Respondent has paid the Aircraft Engineers under clause 13.3.4 on a previous occasion [albeit 9 hrs normal time and 2 hours of double time]. The Applicant argued that this is evidence of admissible ''post-agreement conduct" in that there was a meeting of the minds.

[71] The Applicant noted that the Respondent had changed their excuse for making those payments. They previously said it was because GE (the contractor) was paying, and now they have submitted that "it was a business decision to pay engineers in accordance with 13.3.4 of the Agreement to keep them happy.” 6

[72] The Applicant submitted that the fact that engineers chose not to formally object to the interpretation of how payments were calculated for clause 13.3.4 payments, does not mean that they agreed with the interpretation.

[73] In the alternative, the Applicant submitted that if this is not evidence of Post Agreement Conduct, it corroborates the Applicant position that the working of hours between and midnight and 4:00 am was a topical issue.

Calculation of Payments Under Clause 13.3.4

[74] The applicant submitted that the Commission should determine how payment under clause 13.3.4 should be calculated. There is a dispute about how such payments are calculated and any assistance which the Commission can give in resolving this matter could potentially avoid another dispute.

Consultation

[75] The Respondent claimed that, if their position is accepted, they were under no obligation to engage in consultation under clause 9 of the Engineers Agreement, but if they were obliged to do so, they had but do not expand upon how they thus complied with their obligation. The Applicant reiterated that there was an obligation to consult and consultation did not occur.

SUMMARY OF THE APPLICANT’S CLOSING SUBMISSIONS

Summary of the dispute

[76] The Applicant submitted that in the Engineers Agreement, shift work is defined as "11 hours per shift day" [cl. 13.1.4.3] and Afternoon Shift is defined as "a shift which commences at 1300 and concludes at 2400" [cl. 13,1.3.3].

[77] It was submitted that the dispute was over the Respondent altering the start/finish times to the afternoon shift from 1300- 2400 hours to 1500 to 0200 hours for a ten (10) week period from 5 October 2020 to the 14 December 2020 without paying additional monies for the change to those hours.

[78] The Respondent claimed they were not required to provide additional remuneration for the change under the terms of the Engineers Agreement.

[79] The Applicant did not challenge the right of the Respondent to alter the start/finish times pursuant to cl. 13 .1.2.3 "to perform work, travel or training" that is outside the prescribed shift hours. However, the Applicant submitted that the said clause is not a licence for the Respondent to abrogate their responsibility to properly consult with the employees about the change nor is it a licence to avoid the payment of additional monies for any such change.

[80] Effectively, the Applicant submitted that what the Respondent did by altering the finish time from 2400 hours to 0200 hours was to introduce what in the Airline Operations Industry is a 'Night Shift', however, the Engineers Agreement does not contain provisions for working night shifts - or contain relevant shift payments for such shifts.

[81] The Applicant contended that clause 13.3.4 of the Engineers Agreement was the appropriate clause to identify the appropriate payments to employees when their shift hours have been changed such that they are required to work their shift hours between midnight and 4:00am.

[82] The Applicant stated that the Respondent claimed that this clause does not apply in these circumstances. The interpretation of this clause and the circumstances under which it should be applied was a fundamental matter in dispute requiring arbitration. However, consultation of the changes did occur.

The reasons for the change in shift hours

[83] The Applicant submitted that the reason for the change was because, as part of their aircraft fleet maintenance obligations, Airnorth Pty Ltd needed to take one (1) of its four (4) El 70 jet aircraft off-line for a period of approximately 10 weeks from on or about 5 October 2020 to undergo heavy maintenance in the Philippines.

[84] Notwithstanding the loss of one (1) aircraft, Airnorth Pty Ltd decided to maintain its full airline schedule during that period by allocating the flights which would normally be carried out by four (4) aircraft to be carried out by the remaining three (3) aircraft. This meant that the remaining three (3) aircraft would be carrying out increased flying hours over that time,

[85] To maintain the airworthiness of those three (3) aircraft, it became necessary to increase the maintenance of those aircraft, resulting in an increase in the aircraft maintenance schedule over the relevant 10 weeks, This increased maintenance program in the schedule was then referred to the Respondent company to carry out this increased maintenance program under the service agreement between the two (2) companies.

[86] The Applicant submitted that to perform this increased activity, the Chief Executive Officer ("CEO") asked (or perhaps, instructed) the General Manager -Engineering (Mark Dunn), the Engineering Manager (Nick Ljudjuraj) and the General Manager Corporate of Services (Maree Styles) to "come up with a plan to make better use of the teams' time and get more maintenance time with the aircraft while the jet fleet size is reduced".

[87] It was submitted on behalf of the Applicant that this was a significant issue because it arose from an instruction from the CEO and the outcome was that it would be necessary to extend the aircraft maintenance time from 20 hours per day to 22 hours per day, an increase of 10% for 10 weeks.

[88] Ms Styles advised that clause 13.1.2.3 of the Engineers Agreement could be utilised to move the afternoon shift hours by two (2) hours to complete the shift at 2:00am with no change in payment for that shift.

[89] It was further submitted that the above interpretation was accepted, and it was decided to move the afternoon shift by two (2) hours to commence at 3:00pm and finish at 2:00 am, thereby extending the touch time for maintenance by two (2) hours to 22 hours per day at no additional cost to the Respondent.

[90] The Applicant submitted that the changed hours were to be advised to employees on Monday the 28 September 2020 and it was further decided that there was no need to consult with the employees so it would not be done. One of the ALEG members, Mr John Stark became aware of the decision on Friday the 25 September 2020 and approached Mr Dunn about it on that day. While there is some dispute about the details of the conversation, it is agreed that there would be a meeting between ALEG and Mr Dunn to discuss the intended changes on Tuesday the 29 September 2020. There is no evidence that Mr Stark was advised that it was planned to announce the changes on Monday 28 September 2020.

[91] The Applicant stated that the announcement about the proposed changes in the hours of work was made at a "toolbox meeting". There was no prior advice to employees that this was anything other than a regular toolbox meeting and there was no prior advice that this proposed change was going to discussed. When Mr Dunn "read out" the memorandum there was surprise and anger from the engineers present.

[92] This meeting led to a series of email exchanges, commencing at 8:27pm on the 28 September 2020 through to the 1 October 2020.

[93] The Applicant submitted that it is clear from reading the email exchange, that at no time did ALEG or any of the engineers refuse to meet the employer's request to temporarily change the afternoon shift hours, but they objected to doing this without any compensation. They continually sought consultation and even suggested some alternative methods of payment for this work "outside shift hours". Throughout this email exchange Mr Dunn refused to vary his position anyway, until he finally conceded to a meeting at 1:00 pm on the 30 September 2020. The Applicant stated that meeting could not in any way be described as a consultation or negotiation, and it lasted only about 15 minutes, where the employer reiterated their position and the ALEG members put forward a series of options for consideration which were rejected summarily. The end result of this meeting was that the parties "agreed to disagree" and ALEG advised the Respondent their intention to register a dispute before the Commission. The Applicant said that from that moment forward the respondent refused to discuss the matter at all.

Corporate and Regulatory Structure

[94] The Applicant submitted that to understand the nature of the dispute, it is important to understand the respective corporate roles of the Airnoth Pty Ltd and the Respondent and the regulatory structure in the aviation industry.

Corporate roles

[95] The Applicant submitted that Airnorth Pty Ltd is an airline operator that provides over 220 scheduled weekly departures to 20 destinations across two (2) countries, together with ad hoc charter flights for a wide variety of companies undertaking mining, defence, and government activity.

[96] In conducting its airline operations, Airnorth determines the flight schedules and organises its available aircraft to meet the schedule services along with crewing and other activities associated with operating an airline.

[97] The Respondent is an aircraft maintenance organisation and provides aircraft maintenance services to Airnorth Pty Ltd (and some others) in accordance with a schedule determined by Airnorth Pty Ltd.

Regulatory structure

[98] The Applicant submitted that the airline industry is a highly regulated industry, particularly in respect to aviation safety. Aviation safety is regulated by the Civil Aviation Safety Authority (CASA) through the Civil Aviation Safety Regulations (CASR).

[99] The Applicant noted that of particular relevance to this matter was the regulatory requirements that require a separation between airline operations and aircraft maintenance. CASR Part 42 relates to the operator of aircraft (Air Operators Certificate holder) not a Maintenance Organisation ("AMO"). It includes continuing airworthiness management requirements for an aircraft to which it is applicable. It sets out continuing requirements for all aircraft used in public transport operations and outlines the requirements to become a continuing airworthiness management organisation for regular public transport.

[100] CASR 42 clearly separates the responsibilities of a continuing airworthiness management organisation and the conduct of maintenance (CASR Part 145 Approved Maintenance Organisation).

[101] Air North Pty Ltd, as the Air Operator's Certificate holder and CASR Part 42 holder, operates Regular Public Transport ("RPT") operations and air charter operations. It is also the Continuing Airworthiness Management Organisation (CAMO).

[102] It was further submitted by the Applicant that maintenance providers for regular public transport operators need to be approved as CASR 145 organisations - this applies to maintenance organisations located both in Australia and overseas.

[103] Aircraft Logistics Pty Ltd trading as Airnorth Engineering is the CASR Part 145 Approved Maintenance Organisation ("AMO"). (As a result of legislation made since the injection of the mandatory applicability of Part 42 to RPT operations, aircraft used in charter and aerial work may elect to have their aircraft maintained by a Part 145 AMO).

[104] To meet the regulatory requirements of CAMO, the aircraft operator compiles a schedule of maintenance requirements, commonly referred to as the aircraft maintenance schedule and then forwards that schedule to the AMO to carry out the required maintenance.

Principles of construing an Enterprise Agreement

[105] The Applicant agreed that the relevant principles of construing a single enterprise agreement were established by AMIEU v Golden Cockerel Pty Ltd 7 ("Golden Cockerel Case"); and AMWU v Berri Pty Ltd8 ("Berri Case").

[106] The Applicant accepted that the starting point in construing clause 13.3.4 of the Engineers Agreement is to consider its plain meaning considering the words used by the parties with an objective and not subjective approach. The task is not to rewrite the clause to produce an 'industrially fair solution ', Whilst regard can be had to extrinsic material to determine whether ambiguity exists, if the words used have a plain meaning, extrinsic material cannot be used to contradict the plain meaning of the clause.

[107] The Applicant contended that, whilst the words in clause 13.3.4, "Shift hours may vary to account for changes in the Company Base schedule, ... " might seem clear, they do not have a plain meaning as there is no definition of what is "the Company Base schedule" nor is there any definitions of the individual words making up the phrase ("Company", Base" or "schedule) in the Engineers Agreement.

[108] In relation to what constitutes ambiguity, the Applicant submitted that in Berri, the Full Bench observed that:

“The Deputy President was satisfied that the 2014 Agreement was ambiguous in that it did not specify how the laundry allowance referenced in Attachment 3 'is to be paid' and nor did it 'explain the basis of the payment' or 'who is entitled to it'.” 9

[109] Further, the Applicant stated that the Full Bench went on to say:

"We agree with the Deputy President's finding that the 2014 Agreement is ambiguous (see [28} above).” 10

[110] Accordingly, the Applicant submitted that the Berri decision established that ambiguity exists where something as simple as the payment of an allowance is not fully explained. In the current matter, there is no definition of what "the Company Base schedule" is, nor is there any definition of the individual words making up the phrase ("Company", Base" or "schedule) in the Engineers Agreement. Consequently, it was argued that the Engineers Agreement is ambiguous, which then permits extrinsic material to be considered.

Extrinsic material

[111] The Applicant argued that the Golden Cockerel and the Berri decisions clearly establish that if the disputed wording has a plain meaning, then extrinsic evidence cannot be used to contradict the plain meaning. It was submitted on behalf of the Applicant that clause 13.3.4 of the Engineers Agreement does not have a plain meaning. It is ambiguous for the reasons outlined above, and therefore, extrinsic evidence could be used.

[112] The Applicant submitted that principle 5 of the Golden Cockerel decision provided:

"If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement".

[113] Further, principle 6 of the Golden Cockerel decision provided:

“Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

[114] The fifteen (15) principles in the Berri modified the ten (10) principles established by the Golden Cockerel decision, in particular by adding a new Principle 11, which stated:

“The admissibility of evidence of' the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of' their actual intentions and expectations.”

[115] Principle 12 (the former Principle 6 in the Golden Cockerel decision) retained the exact wording of sub-paragraphs (a), (b) and (c) [albeit renumbering them as (i), (ii) and (iii)] but truncated the opening words of the principle to now read:

“Evidence of objective background facts will include:”

[116] The Applicant contended that extrinsic evidence of what was an industry practice at the time, was admissible, as it was:

• an objective background fact known to all parties and the subject matter of the agreement; or

• notorious facts of which knowledge is to be presumed;

• evidence of matters in common contemplation and constih1ting a common assumption.

Industry practice at the time the Engineers Agreement was approved

[117] The Engineers Agreement was approved on the 2 April 2014 and, at the time it was approved, the relevant Modem Award covering the Respondent and the Aircraft Engineers was the Airline Operations Ground Staff Award 2010 [MA000048] ("the MA000048 Award"), The 'Form F17 -Employer's statutory declaration in support of an application for approval of an enterprise agreement' filed in the FWC by the Respondent for the Engineers Agreement supports this fact.

[118] The industrial practice in relation to shift work is evidenced by the relevant clauses in the MA000048 Award (and replicated in the 2020 iteration).

[119] The MA000048 Award, at clause 30.3, provided:

“30.3 Shift loadings

For all shifts worked between midnight Sunday to midnight Friday the following loadings must be paid in addition to ordinary rates:

Shift type	Loading
Early morning shift	Commencing no earlier than 4:00am but prior to 7:00am	15%
Afternoon shift	Finishing after 6:00pm and at or before midnight	15%
Night shift	Finishing after midnight and at or before 8:00am	22.5%
Night shift	Commencing after midnight and before 4:00am	22.5%

[120] The Applicant submitted that as can be seen from the above, the airline industry had what might seem an unusual industrial practice in relation to night shift, in that a shift that finished after midnight and at or before 8.00 am or commenced after midnight and before 4:00am, attracted the maximum penalty rate of 122.5%.

[121] The Engineers Agreement does not contain provisions for a 'Night Shift', which it is arguable under industry custom and practice is, a shift finishing after midnight (2400 hours). These provisions are an "objective fact" or a "notorious fact".

[122] The Applicant submitted that the fact that the Engineers Agreement does not contain a "Night Shift" but contains a 'facilitation clause' to permit the intrusion of work into what would otherwise be a "Night Shift" without the industry standard penalty, was a matter of common contemplation and, on the evidence of John Stark, a matter of concern that was raised with Michael Bridge, the then Chief Executive Officer of the Respondent. Mr Stark stated that Mr Bridge assured the Aircraft Logistic Engineers Group ("ALEG") that the Respondent had no intention of introducing a night shift and the current overtime provisions and clause 13 .3 .4 would suffice.

[123] On the aspect of the clause being a facilitation clause, Mr Hatton asked Mr Bridge during cross-examination:

“The point I am making is that that is an alternative to paying a shift allowance?---Absolutely” 11

[124] Mr Hatton then asked:

“Paragraph 6 of your statement. Do you agree that neither party wanted to introduce a night shift? That is correct.” 12

[125] The Applicant submitted that Mr Bridge then demonstrated his knowledge of industry custom and practice by adding:

“Sorry, it needs to be -sir, can I clarify my answer? The intention at the time was always we were not going to go to 24 hour engineering. So the fact that it fell over an hour under the award would have been considered a night shift I think is somewhat relevant to the 2014 agreement or the 2007 agreement for that perspective.” 13

[126] The Applicant submitted that Mr Bridge further expanded upon what is/was a night shift in the industry in response to a question from the Commissioner, when he said:

“Just say that again, Mr Bridge, what you said. The fact that - --? My understanding under the award, the moment that you encompass the hours, I think it's I am to 4 am, it's automatically considered a night shift. Our reference to never wanting to go to a night shift was we weren't going to go to 24 hour maintenance. We weren't going to have someone start at 8 pm and finish at 7 am type thing, because of all the fatigue, the lack of lifestyle and all that type of thing. However, I don't think it's true to say that we weren't prepared to amend and change shifts which would extend an afternoon shift into, you know, say to I am or 2 am or start a morning shift earlier at 3 am or 4 am. Both of which under the award I believe constitutes a night shift terminology. Whereas that's -I don't believe is the appropriate reference here.” 14

[127] Mr Hatton then put the following to Mr Bridge:

“PN226: I put it to you that the comment was we don't intend to introduce a night shift? I'm sure it was but I also put it to you that the people that I was talking to were entirely aligned with my way o thinking that moving to a midnight or I am or 2 am under certain scenarios was certainly an option and something that the flexibility should be built into the agreement as opposed to what we were all considering, a 2 4/7 maintenance organisation.”

[128] Mr Hatton went on to ask:

“PN227: Because they wouldn't do it/or nothing, would they? No, no, and we wouldn't expect them to do it for nothing.”

[129] The Applicant submitted that Mr Bridge’s response supported the Applicant’s proposition that the Respondent did not want to introduce a night shift, they simply wanted some flexibility to intrude into the hours that would otherwise constitute a night shift. It was also argued that this also supported the proposition that those involved in the negotiating of the Engineers Agreement did not expect the employees to work for nothing after midnight.

[130] In relation to the overall philosophy of the Engineers Agreement, Mr Hatton put the following to Mr Bridge:

“Can I put to you philosophically the structure of -when the agreements were -you philosophically would prefer to have a simple, larger pay, lump sum pay for people and avoid all the nonsense of 10 pages of allowances in the Federal award and paying shift allowances up and down all over the place. It's much simpler to pay out more money and have a simpler, basically -almost like an annualised pay. Probably some adjustments for----? ---correct. Yes, that's true for the most part, however maintaining the ability of flexibility or maintaining flexibility as and when required.” 15

[131] Furthermore, the Applicant argued that the evidence of Phillip Hargrave, who, at the time the Engineers Agreement was approved, was the Respondent's Engineering General Manager, supportted the attitude to a night shift. He stated, amongst other things, that "night shift or shift variations" would constitute 'major change' and would trigger a Letter of Understanding, similar to the one dated 14 August 2015. The Applicant stated that his evidence on this aspect has not been damaged.

[132] In cross-examination by Mr Spence, Mr Hargrave also affirmed the industry custom and practice of night shift being hours worked after midnight. Mr Spence asked him:

“But in that clause I just took you to, there's no reference to "night shift", is there?! refer to the times, and the times where you work between 12 and 4 am, or any of those times, is where you have night shift.” 16

[133] In re-examination, Mr Hatton asked Mr Hargrave the following series of questions about payment:

“Anything over the nine hours was overtime? Yes. That is correct, exactly.

If it was overtime it was paid at double-time? If I could just be clear, Steve, so if you were rostered, if you were going to be doing that, you are rostered, you are coming to work for nine hours to be paid for 11. If you worked over the nine hours, you received time.

Was that overtime beyond nine hours? Yes. Over the nine hours you were compensated by paying overtime, and I'll give you the scenario. The aircraft would arrive back at 2 am in the morning, so they would have been working nine hours. So they would see the aircraft; if the aircraft had defects that had to be rectified, the company agreed to compensate, by keeping the engineers there, by paying them overtime to ensure that aircraft was ready for the next day's flight by rectifying the aircraft. So that was why the incentive of overtime was put there.

What was the overtime rate being paid under 13.3.4?1 can't tell you what the rate was - - -

What was the overtime rate being paid under 13. 3.4? Doubletime.

So the ordinary time, they worked for nine hours and got paid for 11; then they worked overtime and got doubletime for any overtime they worked beyond nine hours? Sony?

In addition? Is that in addition to the 11 hours' pay? Correct.” 17

[134] Mr John Stark, an aircraft engineer and member of ALEG, provided a Statutory Declaration in support of the Applicant. Mr Stark's declaration was admitted without objection and he was not required for cross-examination. His evidence was:

"I discussed and helped draft the EA.

The EA does not prescribe a nightshift per se. In relation to whether a nightshift was contemplated, and how the EA was intended to compensate work between midnight and 4 am, I declare as follows

That the ALEG committee discussed with the then CEO, Michael Bridge the need for a possible nightshift arrangement. Phil Hargrave (Engineering Manage) and Leigh Greig HR Manager) were also present.

Michael Bridge replied that the current overtime provisions and section 13. 3.4 would suffice as the company had no intention of introducing a night shift. The reasons given being safety and quality concerns, fatigue management, recruitment and retention concerns, shift support and cost.”

[135] The Applicant argued that it is incongruous that the Aircraft Engineers, knowing what the industry standard was, were prepared to throw the entitlement to receive penalties for working night shift out the window in exchange for ordinary time.

[136] The Applicant submitted that the evidence strongly suggested that the use of Clause 13.3.4 was intended to be for ad hoc occasions and anything more than that was to be negotiated under a Letter of Understanding. It was argued that it is a nonsense to suggest that the clause was intended to require the Aircraft Engineers to work for extended periods without additional remuneration.

The Respondent’s argument

[137] The Respondent argued in their submissions that:

"Clause 13.3.4, in its plain meaning applies where:

a. There are changes in the Company Base schedule; and

b. (a), aircraft and departing outside the usual shift hours (ie between 12 midnight and 4 AM); and

c. because of (a) and (b) above, shift hours are varied.”

[138] Further stating:

"clause 13.3.4 must be read in context of the agreement itself"

[139] The Applicant submitted that critical to the interpretation of this clause is the assertion by the Respondent, without any supporting evidence, that the company base schedule refers to Airnorth's Flight Schedule only. The Applicant argued that this attitude is clearly demonstrated in paragraph 30 of their primary submission where they say:

"the phrase company base schedule has to be construed within the overall purpose of the activities of the group of which the respondent is a member, not only within the confines of the activities of the respondent carried out by the employees covered by the agreement. The purpose of the group and its activities is not to operate a business carrying out maintenance on aircraft at a base in Darwin but to operate an air transport business, flying aircraft to and from various locations. The activities of the respondent's workforce covered by the agreement are incidental to that activity. The phrase company base schedule ought to be construed on that basis as referring to the schedule flights operating routes to destinations out of the base of at Darwin by the group members i.e. the Flight Schedule. "

Interpretation dependent upon meaning of phrase

[140] The Applicant argued that for the Respondent's view to be accepted, the FWC must accept that the interpretation of "company base schedule" actually means Airnorth's flight schedule, even though there is no definition anywhere in the Engineers Agreement of the phrase "company base schedule" and Airnorth Pty Ltd is not a party to the Engineers Agreement.

[141] The Applicant further argued that in reality, the only relevant schedule to the Respondent is Airnorth's aircraft maintenance schedule, as this is the core activity of the company arising from its service agreement with Airnorth Pty Ltd, the airline operator.

Support for the Applicant’s position on meaning of phrase

[142] In relation to the correct interpretation to be applied to the meaning of "company base schedule", the Applicant submitted that the evidence of Mr Phillip Dunn, the Respondent’s General Manager was most significant, if not definitive:

PN588: "so you 're only interest is the maintenance schedule that you are required to carry out, is that correct?----Yes"

PN 874: "the only thing that directly affects aircraft logistics Pty LT D is the changes that occur in the maintenance schedule that causes you to readjust your workforce rostering. Is that correct?---Yes"

PN 877: "so the key document is the aircraft maintenance schedule for the operations of aircraft Logistics Pty LTD. It might be caused by using less planes in the same flight schedule but the only document that's relevant to you is the aircraft maintenance schedule. Correct?---Our job is to produce available aircraft to meet the flight schedule."

PN878: "you need to carry out the maintenance requirements under your service agreement with the airline operator is that correct?----Yes”

PN879: "and that is done by them providing you with an aircraft maintenance schedule. Is that correct?---Yes"

PN889 [In relation to the definition of "company base schedule"]: "but there is no definition of it, is there?---No, there is not to my knowledge"

[143] Further the Applicant noted the significance of the evidence of Ms Styles, where she stated:

PN1203: "so the point I'm making is that -I want to put this to you. The key issue/or aircraft Logistics was the increased maintenance schedule, increased maintenance requirements".

PN1205: "Yes".

[144] The Applicant also noted that during cross-examination by Mr Hatton, Mr Bridge, the former CEO, described 'Base Schedule' as follows:

PN203: Because the base schedule is a document which looked into the future and gave the opportunity for the company but also the employees to plan their life around.

PN204: Their life, yes? So it was changes to that base schedule which really determined when some of these clauses were applicable or not, as opposed to normal operations where an airplane might come in at 10 o'clock at night and might take half an hour to fix or it might take six hours to.fix. And that's when your normal day (indistinct) overtime provision generally would come into effect.

Consideration of the questions to be decided to resolve the dispute

[145] The first question to be decided was set out as follows:

"Does the memorandum issued on 28 September 2020 from Mr Mark Dunn, General Manager of Engineering of Aircraft Logistics Pty Ltd trading as Airnorth Engineering vary shift hours to account for changes in the Company Base schedule such that clause 13.3.4 of the Aircraft Logistics Pty Ltd Engineers' Collective Agreement 2014 applies, and if so, has the provision been complied with?

[146] In answering the first question, the Applicant argued that it is necessary to consider the meaning of the words "Company Base schedule" and the interpretation of the application of clause 13.3.4 of the Agreement.

[147] The Respondent asserted that clause 13.3.4 has a plain meaning and therefore evidence of surrounding circumstances is inadmissible to contradict the plain language of the agreement.

[148] The Applicant argued that clause 13.3.4 is ambiguous or susceptible of more than one meaning, and therefore evidence of surrounding circumstances may be used to establish objective background facts which were known to both parties which inform and subject matter of the agreement.

[149] The Applicant submitted that based on the evidence presented the Commission should determine, that the meaning of "Company Base schedule" is susceptible to more than one meaning and therefore evidence of surrounding circumstances may be used to establish objective background facts. Therefore, the objective background facts submitted in evidence in this case are admissible in determining the interpretation of clause 13.3.4 would be admissible for consideration by the Commission in determining the interpretation and application of clause 3 .3 .4 of the Agreement.

[150] The Applicant further stated that Mr Bridge and Mr Hargrave are the only witnesses who participated on the Respondent’s behalf in the negotiation of the Agreement. The Applicant submitted that they are the only witnesses who can give authoritative evidence on the negotiations and outcomes from the perspective of the Respondent

[151] It was also argued on behalf of the Applicant that the Commission should also take note of the previous application of clause 13.3.4 in 2019 for work other than that which the Respondent claims is a criterion for the clause's application. The Applicant submitted that the Commission should not accept the claim that this situation did not constitute acceptance of the application of the clause at that time, There is no evidence that this view was expressed at the time, It has only arisen, after this dispute arose and the reason has changed over the period of the dispute. It was also submitted that this excuse has no substance and should be ignored. The Commission is invited to accept this previous application has further evidence of the veracity of the applicant's argument in the interpretation clause 13.3.4.

Answer to Question 1

[152] The Applicant submitted that in the evidence presented in this matter, the Commission should determine that:

• the Company Base Schedule refers to Airnorth's Aircraft Maintenance schedule;

• Clause 13.3.4 is not limited to the situations described by the Respondent;

• clause 13.3.4 is designed to give flexibility to the Respondent employer in circumstances when the shift hours need to extend "Outside shift hours" when there is no other agreed alternative arrangement for that work;

• Given that there was no consultation, negotiation or agreement in the arrangements in activating the company's decision to change the afternoon shift hours as defined, to "night shift" hours that clause 13.3.4 of the Aircraft Logistics Pty Ltd Engineers' Collective Agreement 2014 applies;

• The provisions have not been complied with; and

• The respondent is ordered to comply with those provisions

Question 2

In addition, in undertaking this (as set out in question 1), has the Respondent complied with Clause 9 of the Agreement?"

[153] The Applicant argued that the answer to this second question should be ‘no’. The Applicant submitted that the Respondent appeared to harbour the view that they were not obliged to consult with the employees because they don't seem to believe that what they did constitutes a "major change", even though clause 9.10.4 prescribes that "The alteration of hours of work" is a major change, perhaps because they don't believe the change "is likely to have a significant effect on employees".

[154] The Applicant further submitted that the obligation to consult under clause 9 of the Engineers Agreement is not an obligation to seek the employee's permission to make changes to production, program, organisation, structure or technology. Rather, it is an obligation to:

9.5.1 Discuss with the relevant employees:

9.5.1.1 The introduction of the change; and

9.5.1.2 The effect the change is likely to have on the employees; and

9.5.1.3 Measures the employer is taking to avert or mitigate the adverse effect of the change on the employees; and

[155] Clause 9.6 requires the employer to provide information in writing to the employees. Clause 9.8 requires: The employer to give prompt and genuine consideration to matters raised about the major change by the relevant employees. The Applicant submitted that the only consideration they gave to the impact was to effectively threaten the employees with disciplinary action if they did not accept the change.

[156] Mr Hatton cross-examined Mr Dunn, the Respondent's General Manager -Engineering about consultation in relation to the change of hours. The Applicant argued that the following exchange demonstrated that there was no meaningful consultation:

PN602: Did you consult with the A League [sic] people?] had a brief consultation with Mr Stark.

PN603: When? On the day I wrote the memo -28 September,

PN604: I put it to you that you didn't have a meeting with Mr Stark that morning, The meeting was on Friday 25 September? If that's the case, that's my error.

PN619: Mr Dunn, I put it to you that Mr Stark approached you on the Friday and raised the issue of a proposed change of -your proposal to change the shift hours and sought a meeting the following Tuesday?] did speak with Mr Stark on the subject, yes. There was a meeting organised. I couldn't tell you whether it was Tuesday or Wednesday or what day of the week it was.

PN696: In other words, do you agree that if there was a major change which has a significant effect on employees of the enterprise, that this would activate the consultation clause? I agree with that.

PN702: It just refers to change of hours which may have a significant effect on employees because it changes their whole lifestyle, potentially, for a short period of time, doesn't it? Potentially? Yes, okay.

[157] The Applicant submitted that the Respondent completely ignored the ALEG, who are the very people that exist to initially discuss issues with.

APPLICANT’S CLOSING SUBMISSIONS IN REPLY

Alleged unfairness by the Applicant

[158] It was submitted that the Respondent claimed that the Applicant had sought to introduce new matters in their Closing Submissions, which were not raised in the original Submissions or at the hearing on the 20 April 2021. The Applicant stated that the Respondent claimed that they failed to put them on notice regarding these matters or to put those matters to the Respondent witnesses in cross examination, resulting in unfairness to them.

[159] The Applicant stated that the Respondent did not respond to these matters but invited the Commission to disregard that aspect of the Applicant’s submissions. These matters included:

• the identity of the Respondent;

• the parties to the industrial instrument; and

• the Respondent's corporate and Regulatory Structure.

[160] The Applicant argued that the Commission is not a Court, let alone a Court of Strict Pleadings nor does it require formal proof of all matters. Because parties in times past were generally not lawyers, the respective Governments of the day sought to grant the Commission and its previous iterations, powers to conduct proceedings informally. By way of example, the Applicant cited:

• s. 590 - Power to inform itself;

• s. 591 - Not bound by rules of evidence and procedure;

• s. 599 - Not required to determine an application in terms applied for.

[161] In relation to the matter of the identity of the Respondent, the Applicant submitted that this had never been an issue. The Applicant further stated that while there was no mention of Bristow Helicopters anywhere apart from a passing reference in their submissions, it was a minor technical point, and nothing turns on it.

[162] The Applicant submitted that with regard to the issue of the industrial instrument, it cannot be disputed and is in the Statement of Agreed Facts. The Applicant stated that their Closing Submissions simply repeat clause 1.2 of the Engineers Agreement, while the fact that the Engineers Agreement is a single industry agreement and not a multi-industry agreement is a matter of law as is the identity of the single Respondent a matter of law.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[246] In line with the initial principle for construing an Enterprise Agreement, the first criteria to be considered, is whether the words of the provision have a plain and ordinary meaning.

Interpretation of clause 13.3.4

[247] Primarily this matter requires an interpretation of the relevant provisions of the Agreement. The starting point in determining the matter is in construing clause 13.3.4 of the Agreement. This requires a consideration of the plain meaning of the words, used by the parties based on an objective and not subjective approach. The task is to interpret the words as they appear and not to rewrite the clause to produce an ‘industrially fair solution’.

[248] Regard can be had to extrinsic material if it is that ambiguity exists, on the words. If the words used have a plain meaning, extrinsic material cannot be used to contradict the plain meaning of the clause.

[249] Clause 13.3.4 of the Agreement sets out, (repeated here for convenience):

“13.3.4 Shift hours may vary to account for changes in the Company Base schedule, which in turn, may see aircraft departing/arriving outside shift hours i.e. between 12 midnight and 4:00 am. On such occasions the eleven (11) hour shift will reduce to 9 hours. If the 9 hours is exceeded those hours over 9 hours are to be paid at double time.”

[250] The Applicant contended that the words of clause 13.3.4 of the Agreement are ambiguous. This places an onus on the Applicant to demonstrate such ambiguity. The background facts which were known to both parties inform the subject matter of the dispute. As detailed, one plane was out of the fleet, which required greater flying time of the remaining planes and greater maintenance. Two of the Applicant’s witnesses documented planes arriving and departing outside shift hours. The Respondent did not provide significant challenge to this, predominantly because their submission was that there had not been changes to the flight times in the company base schedule.

[251] The Applicant’s argument was predominantly that clause 13.3.4 of the Agreement is ambiguous, as the term “Company Base Schedule” is susceptible to more than one meaning.

[252] The Respondent had put the Applicant on notice in the Respondent’s submissions, 24 that the Applicant had failed to provide any evidence of the ambiguity in relation to this term, specifically that there was no evidence from Mr Hargrave regarding what was meant by “Company Base Schedule” or why that phrase was included in the Agreement. However it was clear from the evidence of the Applicant’s witnesses regarding flight departure and arrival times during the critical window.

[253] The Respondent’s witness statements of Michael Bridge, who was the Chief Executive Officer of the Respondent from July 1996 to 4 August 2015, and Maree Styles, General Manager Corporate Service. All provided evidence regarding their interpretation of the meaning of the term ‘Company Base Schedule’.

[254] The Applicant filed no further reply witness evidence to address the issue of the ‘Company Base Schedule’ and no evidence was filed to contradict the evidence of Mr Bridge or Ms Styles, on this point. However, whilst this term was part of the Agreement, the Applicant did point to post Agreement conduct where the employer had paid for such additional hours.

[255] As previously set out, if regard is had to the history of negotiations the evidence brought by the Respondent, sheds light on when the clause was inserted, but does not provide for what the parties’ common intention was, when including the clause in the Agreement.

[256] The Applicant considered that the Respondent’s alteration of the hours was commensurate with the introduction of a ‘night shift’ or the working of additional overtime.

[257] It was submitted that the evidence of Mr John Stark and Mr Hargrave was to the effect that the general use of a night shift was not contemplated by the parties when the Agreement was made. The Respondent relied on the submissions made regarding Mr Stark’s evidence, that the general use of a ‘night shift’ was not contemplated by the parties. 25 It is clear that no formal particular consultation on the introduction of these hours as a night shift occurred on their introduction as changed hours otherwise. It appears the Respondent placed great weight on the temporary nature of the changes in hours.

Payments pursuant to clause 13.3.4

[258] The Respondent submitted that if the Commission determines that clause 13.3.4 of Agreement does apply to the alteration of hours pursuant to the Memorandum, the Respondent submits that employees should be remunerated in the following way:

a. If an employee works 9 hours – they would receive 11 hours pay;

b. If an employee workers 11 hours, they would receive 13 hours pay calculated in the following way:

i. 9 hours at ordinary time (9 hours);

ii. hours 10 and 11 would be paid at double time (4 hours).

[259] The Respondent stated that this is supported by Mr Bridge’s evidence which was not challenged by the Applicant during cross-examination.

[260] The Respondent submitted that Mr Bridge’s evidence was put to Mr Hargrave under-cross examination, and while Mr Hargrave disputed the evidence of Mr Bridge, he failed to provide any clear explanation about why Mr Bridge’s evidence was incorrect. On re-examination, the Applicant sought no further clarification from Mr Hargrave regarding this matter.

[261] The Respondent submitted that by reason of the agreed matters, the Applicant’s submissions regarding the industrial practice in relation to shift work, 26 as allegedly evidenced by the relevant clauses in the Airline Operations Ground Staff Award 2010 [MA000048], are not relevant for this proceeding.

[262] The Respondent submitted that while the Applicant seeks to import a “night shift” into the Agreement, the plain words of the Agreement do not provide for a “night shift”.

[263] The Respondent submitted that these submissions should be rejected because the Agreement on its plain reading does not include a “night shift”, therefore evidence of the surrounding circumstances should not be admitted to contradict the plain language of the Agreement. Further, that the task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded by the Applicant as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

[264] The Applicant however, in contest to the Respondent’s position has provided evidence that the use of “clause 13.3.4 was intended to be for ad hoc occasions and anything more than that was to be negotiated under a Letter of Understanding.”

[265] In terms of consultation obligations, the Respondent submitted that it complied with its consultation obligations pursuant to clause 9 of the Agreement because it was entitled to alter the hours of work pursuant to clause 13.1.2.3 of the Agreement, and therefore “the requirements set out in sub-clauses (2), (3) and (5) are not applicable to the circumstances of this dispute. However, the scope of the changes (in the current circumstances), into hours of work that are intrusive to employees and beyond those commonly worked, requires compensation as had been previously applied.

[266] Whilst it was conceded by both parties that there was no definition for the words ‘company base schedule’ individually or collectively in the Agreement. The Applicant argued that the ‘company base schedule’ was in reality it’s maintenance schedule.

[267] The Applicant submitted that this was the nature of the work undertaken by the company. Whereas the Respondent’s evidence was that the ‘Company Base Schedule’ clearly provides the schedule of flights to be undertaken.

[268] Ms Styles provided evidence that the Schedule was maintained, in terms of the flights, but the decrease in the number of planes, in the fleet, required the maintenance schedule to be changed. Ms Style’s response to questions on the Company Base Schedule stated:

“The flight operations schedule, which has rostered all the planes out, that goes into Envision, is that correct? No, the schedule is created in Oasis, which the Commercial Department use, which is uploaded into Envision.

Okay. So what is uploaded into Envision? Sorry?

What is uploaded from Oasis to Envision? The company based schedule created by the Commercial Department.

Which is the company flight operations schedule? No.

THE COMMISSIONER: What's the difference? So the company based schedule is put out by our Commercial Department. They plan it in accordance with, you know, high-yielding routes, those sorts of things. They plan it in advance and it is uploaded into Envision. And what happens in Envision is basically day of ops. So if there's cancellations or delayed flights, all those sorts of things, that's what's happening on the day.” 27

(emphasis added)

[269] Whilst the Respondents were credible in their evidence on the company base schedule, it remains that it was an issue of ambiguity between the parties.

[270] The Applicant argued that if the FWC determined that the answer to question (a) was no, and accepts the Respondent's submission that clause 13.3.4 only applies to situations when they are required to work to service aircraft because scheduled flights are "departing/arriving outside shift hours i.e. between midnight and 4:am", then the Applicant submitted that it is open to the FWC to decide that the Respondent has introduced a night shift, albeit temporarily, and therefore the Respondent had an obligation to consult with the Applicant in accordance with undertakings given during the Agreement negotiations, and it had not done so.

[271] The proposition that the Applicant was pursuing, based on their interpretation of clause 13.3.4 was not specifically put to Ms Styles.

[272] On the application of clause 13.3.4, Mr Bridge’s evidence was that:

“Can I take you to paragraph 10 of that statement, and I'll just get you to read that, not out loud; just read it to yourself?---Yes.

You would agree, wouldn't you, that how Mr Bridge has described employees should be paid under 13.3.4, that's correct, isn't it?---No, Mr Bridge's second sentence is not correct.

What's not correct about it?---He makes the statement that an engineer working an 11-hour shift, they would be given 11 ordinary hours. So he's saying if 13.3.4 of the agreement applies, which applies under that scenario that's referred to in 13.3.4, that if they worked 11 hours they'd be paid 11 ordinary hours, where 13.3.4 says if you're to work in that scenario you would be only working nine hours at ordinary, and any hours after nine hours would be paid at double-time.

So you agree then with the second sentence at paragraph 10?---No, the second sentence at paragraph 10 says they're going to get - if they work 11 hours they get 11 ordinary hours.

Yes?---And an additional two hours' pay.

Yes?---So they're saying two hours plus two hours.

Yes?---It's another way of describing double pay - double-time.

So you would agree that, under what Mr Bridge has said, that under the clause an employee was required to work only nine hours but would get 11 hours' pay, is that correct?---That is correct.

But if - - -?---No, they would get nine hours. They would get 11 hours' pay if they worked 11 hours, plus an extra two hours.

Right. So - - -?---So nine hours plus (indistinct) two hours.

So that's then 13 hours' pay?---To that effect, yes.” 28

[273] This evidence was put to Mr Hargrave, however he did not counter Mr Bridge’s evidence.

[274] It is recognised that the Applicant refers to the Industry practice, (as per the Award, as evidence of standard practice when the Agreement was approved) in terms of shift work and the night shift. The evidence of Mr Hargrave and Mr Stark in this regard has been summarised. The Applicant argued that:

“It is incongruous that the Aircraft Engineers, knowing what the industry standard was, were prepared to throw the entitlement to receive penalties for working night shift out the window in exchange for ordinary time.

The evidence strongly suggests that the use of Clause 13.3.4 was intended to be for ad hoc occasions and anything more than that was to be negotiated under a Letter of Understanding. It is a nonsense to suggest that the clause was intended to require the Aircraft Engineers to work for extended periods without additional remuneration!” 29

[275] The Applicant’s argument emphasising fairness to employees in recognising the particular changes to the work hours of this group of employees for the 10 week period is considered. The additional rostered hours being undertaken are at intrusive or unsociable times. The case conducted by the employer is recognised and very much arguable in terms of the submissions made by counsel on behalf of the employer. Whilst the evidence of the witnesses on behalf of the employer was resolute in relation to their understanding of the company base schedule, and it is acknowledged that some matters were not put before them on this, it is clear that there is some ambiguity over this particular term and that it is not a term used commonly, with common meaning between the employer and employees at the workplace. In circumstances where ambiguity is found in terms of the term that invokes the application of clause 13.3.4, it is noted that the Agreement in the current dispute is being used for circumstances not also strictly contemplated by the parties to the application of the current Agreement.

[276] The circumstances of less planes for more flying and therefore increased maintenance does fall arguably within changes to the company base schedule. On that interpretation clause 13.3 .4 would be applicable to the temporary introduction of these hours. In support of this consideration, is the reliance on cl13.3. in past practice in relation to this clause. However, on those bases what is clear, is the manner in which payments pursuant to clause 13.3.4 should be made. In that regard the final submissions of counsel are adopted as follows:

1. If the Commission determines that clause 13.3.4 of Agreement does apply to the alteration of hours pursuant to the Memorandum, the Respondent submits that employees should be remunerated in the following way:

a. If an employee works 9 hours – they would receive 11 hours pay;

b. If an employee workers 11 hours, they would receive 13 hours pay calculated in the following way:

i. 9 hours at ordinary time (9 hours);

ii. hours 10 and 11 would be paid at double time (4 hours).

2. This is supported by Mr Bridge’s evidence 30 which was not challenged by the Applicant during cross-examination.

3. Mr Bridge’s evidence was put to Mr Hargrave under-cross examination, and while Mr Hargrave disputed the evidence of Mr Bridge, he failed to provide any clear explanation about why Mr Bridge’s evidence was incorrect. 31’

4. On re-examination, the Applicant sought no further clarification from Mr Hargrave regarding this matter.

5. It is submitted that Mr Bridge’s evidence should be preferred regarding this matter. It is further submitted that Mr Bridge’s evidence is supported by the plain language of clause 13.3.4 of the Agreement.

[277] Accordingly, in regard to question one, is that payment as set out in clause 13.3.4 of the Agreement applies and the provision for payment should be complied with by applying it, as set out above, in terms of the Respondent’s interpretation. Further the consultation argument by counsel for the Respondent in the closing submissions is adopted.

[278] The Respondent submitted that it complied with its consultation obligations pursuant to clause 9 of the Agreement. That is the workplace meetings and memorandum were evidence of such consolation.

[279] It is recognised that the Respondent states in lieu of clause 13.3.4 it was entitled to alter the hours of work pursuant to clause 13.1.2.3 of the Agreement, and therefore “the requirements set out in sub-clauses (2), (3) and (5) are taken not to apply.”

[280] The Applicant does not challenge that the Respondent had the right to alter the hours of work pursuant to clause 13.1.2.3 of the Agreement. 32 Therefore by reason of clause 9.9 of the Agreement, the Respondent was not required to:

a. Notify the relevant employees of the decision to introduce the major change pursuant to clause 9.2 of the Agreement; or

b. Discuss with the relevant employees pursuant to clause 9.5:

“9.5.1.1 The introduction of the change; and

9.5.1.2 The effect the change is likely to have on the employees; and

9.5.1.3 Measures the employer is taking to avert or mitigate the adverse effect of the change on the employees”

[281] However, in the alternative, evidence of consolation was set out.

[282] The Respondent discharged the changed hours as follows:

c. In compliance with clause 9.1.1 of the Agreement, on 28 September 2020, after the Respondent had made a definite decision to alter the hours of work, the relevant employees were notified of the decision pursuant to clause 9.2 of the Agreement and were given a copy of the Memorandum.

d. Pursuant to clause 9.5 of the Agreement, the contents and effect of the Memorandum were “Tool Boxed” and discussed with the relevant employees; 33

e. Pursuant to clause 9.3 of the Agreement the appointed representatives of employees, the ALEG committee, requested a “formal” meeting with the Respondent;

f. Pursuant to clause 9.4 of the Agreement, the Respondent recognised the ALEG committee as the appointed representatives of the employees. On 30 September 2020, a “formal” meeting was scheduled as a consequence of a request by members of the ALEG;

g. Discussions were held with the ALEG committee pursuant to clause 9.5 of the Agreement, where Mr Dunn and Mr Ljudjuraj of the Respondent discussed the contents of Memorandum and its effects on relevant employees with the ALEG committee; 34

h. Despite Mr Dunn asking ALEG committee members whether they had any suggestions about the alteration of hours, a member of the ALEG committee said words to the following effect: 35

"It is up to you to come up with a better way to make things work."

Conclusion regarding Question 2

6. For the reasons set out above, it is submitted that the answer to Question 2 is:

a. By reason of clause 9.9 of the Agreement, the requirements of clause 9(2), (3) and (5) were not required to be met; or

b. In the alternative, if clause 9.9 of the Agreement does not apply, the answer to Question 2 is yes because of the evidence set out.

[283] Accordingly, interpretation of the payments to be made in resolution of the dispute, pursuant to 13.3.4 as set out above should be applied to the hours, as per the examples. 36 The employer should confirm the amounts to those employees working during the applicable period and the payment of such should be made within a three week period.

[284] I Order accordingly.

[285] It is noted that the temporary changed scenario of the work of the engineers that forms the basis of this dispute was not specifically contemplated between the parties on the provisions of this Agreement when negotiated. The conclusion has been informed by the evidence of the parties, which clearly references ambiguity on the applicable provisions, but also past applicable payment for such. The Respondent’s submissions refer to a separately applicable accepted default position as explained in the Respondent’s closing submissions in resolution of the matter as an indication of fairness. The need for increased maintenance or changed flying hours clearly requires specific negotiations and clarity on provisions in the next Enterprise Agreement. The conclusion reached however is clearly available on the evidence and submissions of the parties.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 AE407504

2 Paragraph 11 and 17B of the Applicant's 29 October Submission.

3 [2017] FWCFB 269

4 Ibid at [98] to [99].

5 [2010] FWA 4204 at [29] – [32].

6 Witness statement of Nick LJUDJURAJ 26 Match 2021 at paragraph 19.

7 [2014] FWCFB 7447.

8 [2017] FWCFB 3005.

9 Ibid, at [28].

10 Ibid, at [98].

11 PN182 of the Transcript.

12 PN218 of the Transcript.

13 PN219 of the Transcript.

14 PN220 of the Transcript.

15 PN202 of the Transcript.

16 PN359 of the Transcript.

17 PN382 to PN388 of the Transcript.

18 ‘Attachment A’.

19 ‘Attachment B’.

20 [2018] FWCFB 2279.

21 [2015] WAIRComm 986.

22 Ibid [116].

23 [2017] FWCFB 3005.

24 Paragraph [17(b)] Respondent’s Submissions filed on 26 March 2021.

25 Paragraph [17(c)] Respondent’s Submissions filed on 26 March 2021.

26 Paragraph [3.3] of the Applicant’s submissions.

27 PN [1160] to [1164] of the transcript.

28 PN [364] to [374] of the transcript.

29 Paragraph [77] of the Respondent’s closing submissions, dated 25 May 2021.

30 Bridge Ex. 1 [10].

31 TRANSCRIPT OF PROCEEDINGS, PN364 -PN374.

32 ASF [6.2]; SA [9]; ACS [21].

33 Dunn Ex. 15 [24] – [26].

34 Dunn Ex. 15 [29] – [48]; Ljudjuraj Ex.14 [26] – [30].

35 Dunn Ex. 15 [35] – [36].

36 Paragraph [258] of this decision.