Ansett International Limited v Davies
[1997] IRCA 94
•27 March 1997
DECISION NO:94/97
CATCHWORDS
INDUSTRIAL LAW - interpretation of AWARD - Review of decision of Chief Industrial Magistrate - provision in award for employees to be paid meal allowance - time relevant to calculation of entitlement to allowance - whether provision of meal by employer in lieu of payment of allowance must relate to a particular time
Industrial Relations Act 1988 (Cth) ss179, 422
Flight Attendant (Ansett International) Award 1994
Re Clothes Trading Award (1950) 68 CAR 597
Ansett International Limited v Diane Davies
NI 1717 of 1996
Before: MADGWICK J
Place: SYDNEY
Date: 27 MARCH 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 1717 of 1996
BETWEEN:
Ansett International Limited
Applicant
AND
Diane Davies
Respondent
BEFORE: MADGWICK J
PLACE: SYDNEY
DATE: 27 MARCH 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The appeal should be allowed.
The order of the learned magistrate is quashed.
The respondent’s application is dismissed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 1717 of 1996
BETWEEN:
Ansett International Limited
Applicant
AND
Diane Davies
Respondent
BEFORE: MADGWICK J
PLACE: SYDNEY
DATE: 27 MARCH 1997
REASONS FOR DECISION
This appeal concerns the meaning of clause 10(b)(i) of the Flight Attendant (Ansett International) Award 1994 (“the award”). The clause sets out the entitlement of flight attendants employed by the appellant to a meal allowance on the day of arrival and the day of departure from an overseas airport:
"10.(b) An allowance to cover meals and other incidental expenses shall be paid to a Flight Attendant for each stopover away from home base of ten hours or more and shall be paid on the basis of one such allowance for any stopover, and one allowance for each further absence of 24 hours or pro-rata for any part thereof. This payment shall commence at the sign off time at the first stopover point.
(i)The amount of overseas meal allowance that a Flight Attendant is entitled to be paid for meals for the day of arrival or departure from an overseas slip port is to be the amount that the Flight Attendant would be entitled to be paid for a complete day multiplied by the percentage rate specified, provided that the meal concerned is not supplied on board-
(1)In the case of arrival, column 1 in the table below;
(2)In the case of departure, column 2 in the table below;
Time of arrival or departure
(local time)Column 1
Rate for day of
arrivalColumn 2
Rate for day of
departure
% % Before 7.00 100 nil 7.00 to 1300 75 25 1301 to 1900 50 50 After 1900 nil 100 (ii)The amount of incidental allowance that a Flight Attendant is entitled to be paid on the day of arrival or departure from an overseas slip port is:
(1)arrival before 1200 or departure after 1200 (local time) - the complete day;
(2)in any other case - half the amount.
(iii)Consistent with the provisions of this clause, allowances within Australia shall be paid on an hourly basis whilst in a port other than home base. The Flight Attendant shall be paid the allowance from 30 minutes after arrival in the Australian port until one hour prior to departure in the port. The allowance shall be an amount of $3.23 per hour."
According to the agreed facts, the respondent flight attendant arrived in Osaka, Japan (an “overseas slip port” within the meaning of the clause) on 12 November 1995 and signed on for duty the following day at 6:30pm, departing from the airport at 7:45pm (local time). The respondent also had a meal on board the aircraft between 10 and 11pm. The respondent received 50% of the meal allowance for 13 November, in accordance with the appellant’s interpretation of the effect of clause 10(b)(i).
Based on these agreed facts, the issue to be decided is the quantum of overseas meal allowance to which the respondent is entitled on 13 November 1995.
The proceedings at first instance
The respondent brought an action under s179 Industrial Relations Act 1988 (Cth) in the NSW Chief Industrial Magistrate’s court on the grounds that she was entitled to 100% of the allowance for that day. The Chief Industrial Magistrate found for the respondent and awarded her the difference in the amount plus interest. The appellant appeals against that decision.
The award provides a different percentage of the daily overseas meal allowance depending upon a flight attendant’s “time of arrival or departure”. The determination of the issue before the Chief Industrial Magistrate depended upon the proper construction of this phrase. The respondent to these proceedings submitted that the natural and ordinary meaning of the words “time of arrival or departure” relates to the time at which the aircraft arrives or departs from the airport, rather than (as the appellant claimed) to the time at which a flight attendant signs off or on for duty. The learned magistrate rejected the appellant’s submission that it was appropriate to interpret “time of arrival” as referring to the time at which a flight attendant signs off duty, and “time of departure” as referring to when a flight attendant signs on for duty, on the basis that the award makes a clear distinction between sign off/sign on times and arrival/departure times. Accordingly, the court found that the respondent was entitled to 100% of the daily overseas meal allowance, having departed from Osaka airport after 7:00pm (local time).
The application also concerned the effect of the expression “provided that the meal concerned is not supplied on board” contained in the clause. The appellant submitted that, if it had a prima facie obligation to pay the respondent 100% of the daily overseas meal allowance, this obligation was avoided on the basis that the respondent was provided with a meal on board between 10 and 11pm. However, the learned magistrate agreed with the respondent that a meal provided between 10 and 11pm was not “the meal concerned”, in the sense that it is not within an acceptable period of time usually associated with an evening meal. For the proviso to apply, the evening meal would have to be provided on board either immediately or within one hour after take-off to equate with the usual time of consuming the evening meal. Otherwise, the effect of the respondent’s argument (in particular, that by providing a meal at 11pm or later, a flight attendant would not be entitled to an overseas meal allowance for breakfast or lunch on that day) would be unfair and contrary to the welfare of the respondent.
The grounds of appeal
Each of the two conclusions referred to above was challenged in this appeal. The grounds are:
the court below wrongly concluded that the expression “time of arrival or departure (local time)” referred to aircraft arrival and departure times rather than to a flight attendant’s sign off time after aircraft arrival and sign on time prior to aircraft departure; and
the court erred in holding that the expression “provided that the meal concerned is not supplied on board” does not apply to the evening meal unless such meal is supplied on board an aircraft within one hour of 7:00pm.
The meaning of “time of arrival and departure”
The appellant relied on the opening paragraph of clause 10(b), which provides that payment of a meal allowance on the day of arrival at a stopover point shall commence from “sign off time”, to demonstrate that “time of arrival” means the time that a flight attendant signs off from duty. The appellant submitted that, for the sake of consistency, the logical inference to be drawn is that the expression “time of departure or arrival” contained in clause 10(b)(i) refers to sign on time as “time of departure” and to sign off time as “time of arrival”. A literal construction of the phrase “time of arrival” or “time of departure” does not give effect to the overall intention of the award, in which other provisions relating to periods of duty are defined by “sign on” and “sign off” times (for example clauses 4, 22(b) and 28 of the award).
The respondent submitted that simply because clause 10(b) refers to the payment of an allowance by reference to “sign off” time, it does not follow that “time of departure” should be interpreted to mean the time at which the flight attendant signed on for duty. Practical considerations must be taken into account; in particular, a distinction ought to be made between “sign on time” and “time of departure” because of the potential for injustice to the flight attendant if take-off time was delayed. The award recognises that “sign off time” does not have the same potential for injustice as treating "sign on time" as the time of departure, for the aircraft must have actually arrived at the airport for the flight attendant to be able to sign off. Since the terms “sign on” and “sign off” were within the contemplation of the parties at the time the award was negotiated, the omission of a reference to “sign on” in the context of clause 10(b) supports the view that “time of departure” should be interpreted according to its natural and ordinary meaning, that is, relating to the actual time of departure of the aircraft.
The respondent also submitted that the terms “arrival” and “departure” are used in different contexts throughout subclauses 10(b)(i), (ii) and (iii). For example, clause 10(b)(iii) provides that when a flight attendant is in an Australian port other than his or her home base, an allowance is payable from 30 minutes after arrival until one hour prior to departure. In this context “arrival” and “departure” do not refer to sign on or sign off times because the allowance is payable regardless of when the flight attendant commenced or finished his or her shift. The variable usage of the words “arrival” and “departure”, it is submitted, suggests that the inference made by the appellant would be internally inconsistent.
The starting point in interpreting a provision of an award is to consider the natural and ordinary meaning of the words contained therein: Re Clothes Trading Award (1950) 68 CAR 597. Given that flight attendants start work before departure and continue it after arrival, the words “time of arrival or departure” would not ordinarily be understood as referring to the time at which staff members of the airline commence and finish their duties. Furthermore, there is nothing in the evidence to suggest that the words were used in any special, technical or industry-specific sense such as to require that these expressions should be interpreted any differently from their common usage.
This view is supported by the fact that the award defines the terms “sign on” and “sign off” times in clause 4 of the award. It is reasonable to conclude that, had the representatives negotiating the award intended to determine a flight attendant’s entitlement to overseas meal allowance according to “sign on” and “sign off” times, this intention would have been evinced by a consistent use of the terms as expressly defined in the award. The fact that the last sentence in clause 10(b) specifically refers to one type of allowance commencing at “sign off time”, and the subsequent clauses 10(b)(i), (ii) and (iii) refer to another basis for determining entitlement to the overseas meal allowance, suggests that on the proper construction of the entire clause, “time of arrival” is to be distinguished from what is meant by “sign on time”.
Looking to the practical results which would follow from the appellant’s interpretation, I agree that it would be unjust if a flight attendant signed on at the airport for duty prior to the times listed in clause 10(b)(i) as limiting entitlements, but would not be entitled to the allowance if the departure of the aircraft was unavoidably delayed for a significant period of time. However, the appellant asserted without objection that, in such situations of long delays, the established practice is to provide staff with sandwiches or to allow flight attendants to “sign off” and return to the airport when the flight is ready to depart. The appellant was able to show that the interpretation contended for by the respondent would also give rise to anomalies, which I need not set out here. To my mind, all the examples of supposed anomaly merely show that there may be as many injustices in departing from the natural meaning of the phrase “time of arrival or departure” (unless expressly mandated by the award itself) as in adhering to such natural meaning. As is not uncommon in industrial prescriptions, there is an element of arbitrariness at the margins of entitlements. Before the natural meaning of words should be departed from on account of supposed anomaly, one would need to feel that there is a clear balance of justice in so doing. That is not the case here.
“Provided that the meal concerned is not supplied on board”
The appellant submitted that, contrary to the finding of the Chief Industrial Magistrate, the phrase “the meal concerned” is not related to a fixed period of time in which meals are to be provided. Rather, it is implicit from the way the industry operates that flight attendants will necessarily take meals on board at unconventional hours. As the award gives no guidance as to when meals should be provided, an inference that the times governing allowance entitlements also relate to the time of providing meals on board would introduce arbitrary standards not likely to have been contemplated by the parties at the time the award was made. In the absence of specification as to what times meals are to be taken on board, it must be concluded that the parties to the award agreed to leave the provision to operate in a flexible way, having regard to the nature of the work involved and the provision for rest breaks.
The respondent relied on the word “concerned” to demonstrate that the award provides for not just any meal, but a meal which has some relevance to the times at which most Australians would normally eat. The respondent’s position is that the times set out in clause 10(b)(i) should be regarded as the starting point as to what is meant by “the meal concerned”. Thus, the parties have agreed that 7pm is a proper recognition of the time for the evening meal to reflect Australian cultural standards. If 7pm is considered close enough to the usual time for the evening meal, a meal provided at 10 or 11pm is not the “meal concerned”, that is, is not the evening meal.
The question, in my opinion, comes down to this: should there be a close proximity to normal meal times, having regard to what is reasonably feasible on an aeroplane? Although the respondent’s submission has some merit on its face, such an approach would be impractical. For example, the Chief Industrial Magistrate recognised that, in this instance, the respondent would have to be provided with a meal immediately after take-off or within one hour of take-off in order to be the "evening meal". Many passengers have expectations of when they will eat (which airlines have possibly helped to inculcate) and airline operators (including the appellant) are astute to try to satisfy those expectations. Flight attendants and their union know this very well. It would be strange if flight attendants were, practically speaking, required to be provided with meals before the passengers, or if attending to passenger’s needs had to be interrupted by a requirement for the crew to be fed during a certain time. The effect might well be that some passengers would not be provided with a meal during those periods of time normally associated in Australia with breakfast, lunch and dinner. It is thus unrealistic to expect that the employer would, on pain of payment of an allowance, be obliged to afford flight attendants an entitlement to eat at what might be called the centre of the spectrum of normal meal times. This may be especially so on account of Australia’s geographical location: lengthy flights and flights across time zones are quite common.
Some disruption to the ordinary eating patterns of flight attendants, especially while on board an aeroplane, can be regarded as an unavoidable incident of their employment. It is thus reasonable to infer that, in accordance with usual principles of wage-fixation, merely moderate and unavoidable inconvenience has been taken into account in the fixing of the ordinary wage rate. Thus, the prospect of a merely moderate degree of discomfort and disruption to flight attendants' eating habits is unlikely to have moved the parties to agree that, on account thereof, a meal allowance ought to be paid in addition to the ordinary wage rates. On the other hand, the award should not be interpreted so as to leave uncompensated real hardship for flight attendants. In my opinion, if a meal is provided sufficiently close to the times stated in the award (which are evidently regarded as common Australian meal times) such that, in all the circumstances, no unreasonable hardship in the way of deprivation of sustenance or disruption of eating habits occurs, then it may be said that the "meal concerned" has been provided.
In this case it is relevant, as one may infer, that settling the passengers in, taking the food orders (where applicable), getting out the food and drink appropriate to an international flight, retrieving the used crockery and cutlery, packing the gear away, and so on, would necessarily have taken some considerable time. One may also infer that, practically speaking, all the flight attendants could not eat at once as some would need to be available to attend to passengers' needs and wishes. On the agreed facts, the respondent may have eaten by, say, 10.15pm, that is, within two and a half hours of the plane leaving the ground. There is, of course, an unavoidable element of subjectivity about these matters but such a delay does not strike me as unreasonable, nor has there been any suggestion that this was an unusual delay. Upon that basis, the respondent would have commenced a meal intended as her "evening meal" within three and a quarter hours of the time accepted by the award as the usual time for such a meal in Australia. It was accepted that the employer had provided sandwiches, which flight attendants (including the respondent) might have consumed at the airport from sign-on time, an hour and a quarter before the departure. There is even more subjectivity about this matter, but in all the circumstances of the case, a delay of, say, three and a quarter hours does not in the end strike me as unreasonable to the respondent, although the delay is at the outer limit of what is reasonable. The hardship is not significantly greater to my mind than taking a snack between 6.30 and 7.45pm and eating at 10.15pm after having attended on entertainment, even bearing in mind that the respondent was working and not being entertained and that she had no choice as to when she would eat.
It is not the most attractive result that, where agreed facts have been used, the respondent will fail (as will be apparent) because she bears the onus of proof. However, despite an invitation from the court to convert the proceedings into a vehicle for a formal interpretation of the award under s 413 of the Act, so that both parties could consider putting on more evidence, their decision was to leave the nature of the proceedings and the evidence as they stood.
Accordingly, the appeal should be allowed. The order of the learned magistrate is quashed. The respondent's application is dismissed.
I certify that the preceding 10 pages are a true copy of the reasons for decision of Madgwick J.
Associate:
Dated: 27 March 1997
APPEARANCES
Counsel for the Applicant: Mr. G. M. Giudice Solicitor for the Applicant: Freehill Hollingdale and Page Counsel for the Respondent: Mr. B. D. Hodgkinson Solicitor for the Respondent: R. L. Whyburn and Associates Date of hearing: 3 March 1997
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