Aircraft Maintenance Services Australia Pty Ltd T/A AMSA v Australian Licenced Aircraft Engineers Association, The

[2014] FWC 5776

[2014] FWC 5776

FAIR WORK COMMISSION

OPINION

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

Aircraft Maintenance Services Australia Pty Ltd T/A AMSA
v
Australian Licenced Aircraft Engineers Association, The
(C2014/5723)

COMMISSIONER SIMPSON BRISBANE, 22 AUGUST 2014

Alleged dispute about matters arising under the modern award and the NES - Airline Operations-Ground Staff Award 2010.

[1] This opinion arises from a dispute notification lodged by Aircraft Maintenance Services Australia Pty Ltd (AMSA) pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’). The Fair Work Commission (the ‘Commission’) convened a conference of the parties on 21 August 2014.

[2] The application named the Australian Licensed Aircraft Engineers Association (ALAEA) as the Respondent. The Applicant said the dispute related to clauses 34 and 35 of the Airline Operations Ground Staff Award 2010 (the Award) which relate to Annual Leave and Personal/carer’s and compassionate leave.

[3] The application set out that ASMA is currently considering altering the method of administration of leave deductions for shift workers. It was said a review of the current practice of administering leave had disclosed some inconsistencies due to the varied rostered hours of work and is particularly evident when calculating minimum average ordinary hours.

[4] AMSA said it proposed to introduce a method of deducting leave based on the actual number of rostered hours the employee would have otherwise worked. AMSA said this would not change leave entitlements and is in accordance with the National Employment Standards (NES).

[5] AMSA said the current practice (that they wish to change) is that if an employee takes a day of leave they are paid 7.6 hours of leave per day regardless of the length of the shift that they would otherwise have worked. The following example was provided:

(a) An employee is rostered to work 4 x 8hr shifts in week 1, and 4 x 11 hours shifts in week 2, a total of 8 days working and 76 normal hours in a fortnight.

(b) The employee takes 2 days leave in week 1 and 2 days leave in week 2; all paid at 7.6 hours of leave per day.

[6] AMSA said in the above example the result is a shortfall of paid hours; often meaning an employee has to take additional hours of leave in order for them to be paid the required 76 hours per fortnight.

[7] AMSA provided the following example for how it proposed leave would be administered:

(a) An employee is rostered to work an 8 hour shift on day 1 and an 11 hour shift on day 2.

(b) The employee takes leave on both days.

[8] AMSA said in this case an employee would be paid for 8 hours of leave on day 1 and 11 hours of leave on day 2. It was said the result is that the employee will always receive a full 76 ordinary hours of pay when leave is taken, and the proposed method conforms with the NES entitlement.

[9] The Award clauses pertaining to annual leave and personal/carer’s leave refer to the NES. The NES at s.90(1) of the Act with regard to annual leave, and s.99 with regard to personal/carer’s leave provides that if an employee takes such leave the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

[10] AMSA draws attention to the Award provision for 38 ordinary hours of work per week being able to be averaged out over a 4 week period of 152 hours over 28 days, or other rosters as agreed.

[11] AMSA brought to my attention a decision of the Commission in Australian Workers’ Union v BP (Bulwer Island) Pty Ltd  1 where it was held that;

● Paid leave in the NES must be considered in the context of the maximum weekly hours under the NES or the actual maximum ordinary weekly hours worked by an employee under a modern award or agreement; at [73]

● An averaging system can involve employee’s working days or shifts of varying duration in a cycle. When employees take leave, the amount of leave deducted is equal to the ordinary hours the employee would have worked on that day; at [75]

● The Commission does not accept that the NES requires that paid personal leave accrues at the rate it is taken. The NES requires that leave accrues on the basis of the average ordinary hours of an employee so that the total of such accrual is equivalent to the ordinary hours of the employee in a 10 day period; at [82].

[12] Mr Amos representing members of the ALAEA has advised there is opposition to AMSA’s proposal within the workforce. The Application attached a copy of a petition signed by employees of the AMSA based in Sydney, expressing a preference to remain with the current method of leave deduction.

[13] In the course of the conference I proposed to the parties that I express an opinion regarding the matter in order to assist in resolving the issue. I also suggested to the parties that following the issuing of an opinion from the Commission it would be appropriate for representatives of both AMSA and the ALAEA to have direct discussions with employees of AMSA based in Sydney regarding the matters that are the subject of this dispute.

[14] I would agree with the view expressed by the AMSA that the circumstances in this case are sufficiently similar to those that were considered by DP Asbury the AWU v BP (Bulwer Island) matter, that it is likely if the matter were to be tested that it would be found what is proposed by AMSA is consistent with the terms of the Award and the NES.

[15] I would go further and add that it would appear what is proposed better reflects what is intended to be the entitlement afforded to employees under the NES, then at least one example in particular given of the current practice involving additional leave being required to be taken in order that an employee be paid 76 hours in a fortnight.

[16] It is not surprising that the current practice may have led to “consternation among employees” as was claimed by AMSA as the existing method must inevitably lead to some inconsistency in outcomes depending on the length of a particular shift or shifts that happen to coincide with a period of annual leave or personal/carer’s leave.

[17] At the same time it should be recognised employees have expressed opposition to the proposal, no doubt based out of a genuine concern they may suffer a disadvantage out of its implementation.

[18] The appropriate course, given my view that the proposal is consistent with the Award and the NES, is that the proposed new method be implemented on a trial basis over a suitable period of time, and an agreement reached between AMSA and employee representatives including the ALAEA to meet and confer at the end of that trial to address any concerns of employees that may arise out of the trial.

COMMISSIONER

 1   Australian Workers’ Union v BP (Bulwer Island) Pty Ltd [2012] FWA 1197

Printed by authority of the Commonwealth Government Printer

<Price code A, PR554572>