Australian Federation of Air Pilots v HNZ Global [Helicopters (Australia)] Pty Ltd

[2014] FWC 8678

[2014] FWC 8678 [Note: An appeal pursuant to s.604 (C2015/1204) was lodged against this decision - refer to Full Bench decision dated 18 May 2015 [[2015] FWCFB 3124] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Australian Federation of Air Pilots
v
HNZ Global [Helicopters (Australia)] Pty Ltd
(C2014/1571)

Airline operations
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 23 DECEMBER 2014

Alleged dispute concerning annual leave, compensation for employees working overtime and a reduction in employees’ rostered days off - Employer able to direct a change to new ‘equal time’ 21 days ‘on’ 21 days ‘off’ rosters, and to direct the taking of annual leave within those rosters.

[1] In 2014 the employer requested a number of helicopter pilots to change their rosters, and as part of the new rosters to take annual leave at various times during the year. The proposed ‘equal time’ rosters and the taking of leave on a proportionate basis are said by the employer to be ‘a regular feature of enterprise agreements in the maritime industry and in the mining industry’ 1.

[2] The Australian Federation of Air Pilots (AFAP) seeks a number of orders 2 to determine whether or not employees are able to refuse the employer’s request to take annual leave as part of new clause 14.2.1 ‘equal time’ rosters of blocks of 42 days, with 21 days on and 21 days off. The 21 off days are 18.3 days rostered days off, and 2.7 days annual leave3. It also seeks orders relating to compensation for work performed on a rostered day off, and to maintain rostering arrangements and entitlements.

[3] The orders are sought pursuant to the dispute settlement procedure in the agreement, clause 21. The employer agrees that the Commission has jurisdiction under that clause to arbitrate or determine the dispute, including those aspects relating to the contracts of employment 4.

[4] The applicant has made this application and has also made an application to the Federal Court with respect to the employer’s alleged ‘failure to consult in respect of roster changes’ and other matters 5. The AFAP considered that this was the only means of dealing with the issues6. The employer showed some limited flexibility about the form of the roster, and said for example that the issue of blocks of annual leave could be ‘thrashed out in the consultations which we say clause 22.6 envisions’7. Some greater flexibility from each side, perhaps shown during consultation under the consultation clause, may be the means of resolving this matter. The parties have the solution to this matter in their own hands, and an agreement clause which they claim to be committed to which has the objective of assisting them in their efforts to resolve the disagreement.

[5] A stay order was issued 8 and extended in this matter9.

Submissions

[6] Mr.Reitano appeared for the AFAP, and Mr.Wade for the employer. The AFAP submissions dealt with the specific circumstances of each of the five employees, overtime provisions of the agreement and Act, annual leave provisions of the agreement and Act, the history of rostering, roster change and annual leave, sections 55-56, ss.87-88 and 344 of the Act, contracts of employment, avoidance of terms of the agreement, and the outcome sought.

Characterising the Dispute

[7] The AFAP submits that the matter relates to the issues raised in its application. These were the ‘acquittal of employees’ annual leave, compensation for employees working ‘overtime’, and a reduction in employees’ rostered days off’ 10. It submits that the question of whether or not the employer may direct an employee to work an equal time roster under clause 14.2.1 is not part of the matter, although the issue of ‘acquittal’ of annual leave arises from an employer decision that employees work the equal time roster, in which annual leave is taken during the year as part of the touring days off.

[8] This submission requires me to characterise the dispute before exercising any powers under clause 21.

[9] The applicant seeks to have the Commission exercise power pursuant to ss.738-739 of the Fair Work Act 2009 (the Act). Those sections enable me to exercise arbitration powers ‘in accordance with the term’ in the enterprise agreement, and require me not to exercise any powers limited by the term in the enterprise agreement. Section 739 of the Act does not confine the jurisdiction of the Commission to agreement clauses, and clause 21 expressly extends the Commission’s jurisdiction to ‘any other matter pertaining to the employer-employee relationship’ (clause 21.1.1), or ‘any other work related matter’ (clause 21.2).

[10] In AMWU v Holden Limited 11 a Full Bench of the Commission said:

‘[45] A dispute referred to the Commission must be properly characterised before powers conferred by a dispute settlement provision in a certified agreement are exercised. This is necessary in order to determine whether the dispute is ‘over the application of the agreement’ within the meaning of s.170LW of the WR Act. As noted by a majority of the Full Bench in Automated Reading Services (AMRS) v ASU, this expression has not been judicially considered. The majority went on to observe that:

“A relationship between the provisions of the relevant agreement and the subject matters in dispute would appear to be an essential element in the identification of any dispute over the application of the agreement. ...”

[46] We adopt these observations. Further, in our view the expression should not be narrowly construed. In this context we agree with the observation of the Full Bench in Shop, Distributive and Allied Employees Association v Big W Discount Department Stores that:

“...what comprises a dispute over the application of the agreement should not be narrowly construed; to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”

[47] In characterising the nature of the dispute in this matter the Commission is not confined to the dispute notification document. The entire factual background is relevant, including matters such as the submissions advanced. In this context we note that in TWU v Mayne Nickless Ltd the Full Court of the Federal Court held that in determining whether an application calls on the Commission to exercise judicial, as opposed to arbitral, power ‘a court should review the entire factual background to properly characterise the claim and the power sought to be invoked.’

[11] In Maritime Union of Australia v Australian Plant Services Pty Ltd 12 Lacy SDP said:

“An important limitation on the Commission’s powers under s 170LW is the kind of disputes that may be subject to resolution by the Commission. Parliament has authorised the Commission to exercise powers under an agreement “to settle disputes over the application of the agreement” and, accordingly, its powers are limited to disputes of that kind. Therefore it is necessary for the Commission, in each case where it is asked to deal with a matter arising under the dispute settling procedure in an agreement, to ascertain the character of the dispute that is before it in order determine whether the matter is a dispute over the application of the agreement. And, importantly, the character of the dispute is distinguishable from the orders that may be made in settlement of the dispute.” [Citations omitted]

[12] In UFU v. MFESB 13 a Full Bench of the Commission adopted these observations, and also said:

‘[14]The UFU placed emphasis on the fact that the Commissioner had, in his 2003 decision, characterised the dispute notified to the Commission as a dispute over the application of the agreement. In Re PKIU; Ex parte Vista Paper Products Pty Ltd Gaudron J (with whom Brennan, Dawson and Toohey JJ relevantly agreed) noted that:

“…an industrial dispute is not necessarily fixed and definite, either in terms of its subject-matter or in terms of the parties to it; a dispute “may be diminished or ended or enlarged or altered during ... proceedings in the Commission” (R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163, per Murphy J at p 168) or, for that matter, at any stage during the course of the dispute itself”

[15]Although that comment was made in the context of an “industrial dispute” within the meaning of s.4 of the Industrial Relations Act 1988, it is equally applicable to a dispute notified pursuant to a dispute settlement procedure in a certified agreement.’ [Footnotes omitted]

[13] In Hay Point Services Pty Ltd v. CFMEU 14a Full Bench of the Commission said:

‘To seek to dissect the dispute into several components is highly artificial and, in our view, untenable. Given that the dispute, or at least part of it, relates to a matter arising under the Agreement, the disputes resolution process in clause 22 is enlivened. That process allows the parties to refer the dispute to Fair Work Australia if the parties have been unable to resolve their differences.

...

We see no jurisdictional impediment to the matter progressing to the first stage. During that stage the nature of the dispute might change as agreement is reached on some aspects or other aspects are clarified or restated, as is typically what occurs during conciliation or mediation. As was said, albeit in relation to different legislation, ‘if the functions of an industrial conciliator were circumscribed by the ambit of a prospective or actual dispute, they would lack the flexibility and sophistication exhibited even by the conciliation processes of primitive tribal societies.’

[14] The question of annual leave acquittal arises out of an employer decision that employees work an equal time roster under clause 14.2.1, which consists of time on and time off, part of time off being annual leave. In my view I have jurisdiction to make a determination regarding roster decisions which include annual leave acquittal.

Authorities on Interpretation of Agreements

[15] In Amcor Limited v Construction Forestry Mining and Energy Union 15 Gleeson CJ and McHugh J said in a joint judgement:

“The issue in these appeals is whether, following a corporate reorganisation described as a demerger, certain employees became entitled to redundancy payments under the provisions of an industrial agreement. The employees worked in the same jobs, under the same terms and conditions, following the demerger, but, in consequence of the corporate restructuring, their employer changed.

The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, and the nature of the particular reorganisation. There is nothing inherent in the idea of redundancy that justifies an expectation either that redundancy payments will, or that they will not, become payable in the event of a reconstruction, merger, or takeover. Similarly, there is nothing inherent in the nature of a corporate reconstruction that justifies an expectation either of continuity of a legal entity, or of succession, or of discontinuity. Thus, depending upon the legal regime under which it takes place, a merger between two companies might or might not put an end to the merging entities. The effects upon their pre-existing rights and obligations, and the question of succession to these rights and obligations, will require examination of the relevant legal (usually statutory) framework.”

[16] In that decision, Kirby J said:

“The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand’.”  16

Decision

Direction to take annual leave

AFAP Question

[17] The first question posed by the AFAP is whether or not the employees are required to accede to the employer request or direction that they accrue, acquit and take annual leave in a manner determined by the employer and to which they do not consent 17.

[18] This question relates to employer requests that employees take leave in blocks of 2.7 days per roster period comprising a 42 day block of 21 ‘on’ and 21 ‘off’ days. The applicant described the request as ‘the Respondent’s request that they be directed to accrue, acquit and take annual leave in a manner determined by the Respondent and to which they do not consent’ 18.

Request to Employees

[19] The AFAP says that the employer seeks to direct Ms.Gorlin, Mr.Duncombe, Mr.Casparis, and Mr.Saunders to acquit their annual leave entitlement of 42 days at the rate, or in blocks of, 2.7 days per roster period comprising a 42 day block of 21 ‘on’ and 21 ‘off’ days 19. I am prepared to adopt the AFAP terminology. In each case the employee is aware that the employer seeks that the employee work such a roster. In each case the employee refuses to do so.

[20] The request or direction is in each case part of the introduction of new rosters for Messrs. Saunders, Duncombe, and ‘perhaps’ Casparis 20 pursuant to clause 14.2.1 of the agreement. Mr.Saunders was advised that ‘we are moving all pilots to a 21/21 touring roster’21. Mr.Duncombe was advised that the employer was reviewing work rosters and in particular the 15/13 roster pattern. He responded that the AFAP had been appointed to act on his behalf regarding the proposed change of rosters, and said that he did not consent to a change to a 21/21 roster22. Mr.Casparis commenced work on a 15/13 touring roster by agreement from 23 January 201423. He was advised that the employer was moving away from 15/13 rosters and was advised to ‘discuss the 21/21 roster pattern with those pilots who are currently working it and get their thoughts as you make your decision’24. He was later advised that ‘The only Touring position we have available is the 21/21 touring position. If you wish to accept this, please let me know by the end of Friday 25th July...’25 The full chain of employer email or conversation and employee response, through the AFAP or otherwise, is set out in the employee witness statements and it is not necessary to set them out further.

[21] Clause 14.2.1 provides for what are termed ‘equal time’ rosters in which annual leave is taken during the year as part of the touring days off. The 2.7 days annual leave per roster period is only one form of such a roster, and the employer for example raised the possibility of annual leave being taken in larger blocks.

[22] The employer considers that clause 14.2.1 enables it to direct touring pilots to work an equal time roster, and direct the taking of annual leave. This right to direct is not express in the clause. The clause simply states that ‘a tour will on the basis of either’ the rosters in (a) or (b).

The Agreement Consultation Clause

[23] However, the agreement contains a consultation clause commonly included in awards and agreements since the 1984 Termination, Change and Redundancy decisions 26. As required by recent amendments to the Act (s.205), the consultation clause now also applies to roster changes.

[24] Section 205(1)(a)(ii) of the Act provides that an agreement must include a consultation term that requires the employer to consult the employees about:

‘(ii) a change to their regular roster or ordinary hours of work;’

[25] Clause 22.6 of the agreement provides that subclauses 22.7-22.11 of the consultation clause applies:

‘For a change [to their/the?] regular roster or ordinary hours of work’ 27

[26] The consultation clause expressly provides for the employer to make the decision on introducing roster or other changes. The Company is to notify if it has ‘made a definite decision to introduce major changes’ (clause 22.1.1). A Workplace Consultative Group must meet as required ‘when major change has been definitely decided and the details of the implementation are being planned’ (clause 22.12.2). The Group meets to facilitate consultation ‘on all major workplace changes that the Company has definitely decided to implement’.

[27] Only clauses 22.7-22.11 expressly apply to ‘Change to regular roster or ordinary hours of work’. The employer is required to notify the relevant employees of the proposed (regular roster) changes, and then the employer must engage in the consultation provided in those subclauses. ‘As soon as practicable after proposing to introduce the change, the employer must’ discuss with employees and provide them with information, and invite them to give their views about the impact of the change (clause 22.9). The employer must ‘give prompt and genuine consideration to matters raised about the change by the relevant employees’ (clause 22.11). This is a requirement to give consideration to whatever it is that employees raise.

[28] An enterprise agreement must include a consultation clause of this kind, and if it does not the model clause is taken to be term of the agreement (s.205). However, it is possible to add additional consultation requirements and even a requirement of employee agreement. This clause however seems to be the usual consultation clause in which the employer makes the decision to implement change rather than a clause that operates on the basis of employee agreement. Subparagraphs 22.7-22.1 are identical to the provisions of the model clause, which provide for consultation not employee agreement over roster changes.

[29] I also note that various clauses in the agreement refer to different types of ‘roster’, some work cycles, and some the immediate roster in effect on the notice board setting out the detailed hours of work. The roster referred to in clause 22.6 is of the general kind, reflecting the requirements and it appears the actual language of s.205(1)(a)(ii). If it was not of that kind the requirements of s.205 would not be met, or could easily be avoided. It is odd that the employer refuses to concede this 28. If it does not concede this then it is submitting that the requirements of s.205 were not met.

[30] The AFAP submits that clause 14.2.1(b) rosters may only be introduced by the consent of the employee or employees 29. However, the plain and ordinary language of the change clause is that a roster change is one that the employer consults about, and then makes a decision to introduce or not. There is little or nothing by way of context which would lead me to depart from the ordinary meaning. This is not an unusual or harsh interpretation. It is what one would expect from a roster change consultation provision introduced into the agreement as required by s.205(1)(a)(ii) of the Act. It is consistent with the ‘model’ consultation clause provided for in the Act, and with the 1984 award decisions.

[31] The AFAP quite properly drew my attention to the personal circumstances of each employee, and the effect that the employer direction has on their personal circumstances. A roster change can be a difficult thing for many employees. The consultation clause, and s.205 requirements generally, are a means of enabling such issues to be discussed by employer and employee and worked through: the employer is to ‘invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities), and must give ‘prompt and genuine consideration to matters raised’ [clause 22.9(c)-22.11]. I see no reason to believe that the employer will not comply with its obligations under clause 22 to consult and give weight to issues raised with it by employees.

[32] The basis of an equal time roster is one ‘in which annual leave is taken during the year as part of the touring days off’, and the employer direction to introduce such a roster includes a direction regarding days off including the taking of annual leave.

Agreement Annual Leave Clauses and other Clauses

[33] When annual leave clauses of the agreement are examined, clause 13.1.2(a) provides for leave to be taken in ‘one 28 day block immediately after one block of 13 Touring Days Off’, which is a reference to one type of roster only, clause 14.2.1(a) work cycles. These are the work cycles which provide for ‘13 Days off duty’. Equal time rosters in 14.2.1(b) do not provide for 13 days off duty and are not affected by the requirement. In any event clause 14.2.1(b) expressly provides for leave to be taken ‘during the year as part of the touring days off’, not as a block.

[34] In my view no clear contrary interpretation arises from other provisions of the agreement, including other requirements to take annual leave. Clause 14.2.3 relates to the ‘normal roster cycle’ and allows such a cycle to be altered by mutual consent. In the context of this clause this refers to the details of the cycle ‘promulgated’ in writing seven days prior to the commencement of the roster period (clause 14.2.3(a)), ie. in effect the roster on the notice board, not different work cycles under clause 14.2.1.

[35] There is an express employer right to alter rosters under clause 14.1.3, and normal rosters may be altered by mutual consent under clause 14.2.3(c). However, these clauses appear to relate not to the general roster structure but to particular rosters set for each employee seven days in writing beforehand under clauses 14.1.1 and 14.2.3(a). Clause 14.3 allows alternate arrangements to be agreed to meet the operational requirements of the Company, and does not take the matter any further.

[36] The applicant claims that the employer actions are a contrivance to avoid the operation of the agreement in relation to annual leave and overtime 30. However, the employer is simply seeking to implement new ‘equal time’ rosters under a provision of the agreement expressly providing for them. There is no substance in this.

The Act

[37] Turning to deal with the Act, there are a number of statutory restrictions on any purported employer right to direct the taking of annual leave under an enterprise agreement contained in ss.55-56, and ss.87-94 of the Act. The Act provides for an employee entitlement to annual leave, and provides for the taking of annual leave. It also provides for enterprise agreements to include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable (s.93). The applicant refers to the provisions of the Act referring to annual leave and claims that each of them is breached, including ss.87-88, 92-93.

[38] The agreement requires consultation with employees about the equal time rosters, including details such as days off. The employees receive the essential rest and recreation contemplated by annual leave: Canavan Building Pty Ltd 31; PATEFA v. PIEU32; Three Weeks Annual Leave Inquiry 196333; Oil Companies Case 197034; Annual Leave Cases 197135. It would clearly be the case that equal time rosters which confined the taking of annual leave to one or more of the 42 day blocks would meet the requirements of the Act, simply by describing a period of absence as annual leave rather than rostered days off. It would be odd if the Act required a change in terminology and no change at all in substance of the roster. This would be distinction made on the basis of language rather than any issue which affected the employee’s rest and recreation.

[39] Having regard to the needs of both the employee and the employer’s business, and the other factors raised by the applicant 36, in my view clause 14.2.1 meets the requirements of the Act (including s.93), as does any employer direction under it. There is no detriment to employees within s.55(4), and no undue influence or pressure under s.344. The arrangement is consistent with the Act and other legislation, agreement and contract of employment, and is not otherwise harsh.

[40] In the alternative, the employer was willing to allow employees to nominate which 21 days block would be annual leave, and to have them choose another seven days in another duty cycle, for the taking of annual leave. It would consult with employees about such issues. This arrangement is in my view consistent with the Act, agreement, and contract of employment, and is not otherwise harsh 37.

The contract of employment

[41] I also note that in each case the employee is employed under a written contract of employment, with somewhat similar terms. Mr.Duncombe’s contract of employment provides that:

‘You will nominally work a 15 days on 13 days off roster. Travel will be on your own time. As this is a 24 hour operation your actual hours will vary depending upon the roster and client requirements, with due consideration for Fatigue Management Guidelines.’ 38

[42] Ms.Gorlin’s contract of employment contains a clause to the same effect 39, as does the contract of Mr.Saunders40. Mr.Casparis’ contract provides:

‘You will work a Live on Site roster to be determined by your Base Manager. As this is a 24 hour operation your actual hours will vary depending upon the roster and client requirements, with due consideration for Fatigue Management Guidelines. The number of working days per year will be 221.’ 41

[43] In each case the contract provides that it may only be ‘significantly varied by written agreement’, and there are other similarities.

[44] In my view nothing in the contracts of employment prevent an employer directing a roster different to the ‘nominally’ provided roster and which is provided for in the enterprise agreement. The roster is in each case not fixed as a central term of the contract but is a nominal roster. With respect to Mr.Casparis, the contract does not refer to a nominal roster. However, the position is the same with respect to him. He requested to ‘tour’ from Perth to Karatha in place of his LOS roster 42.

[45] In the alternative, the terms of each contract do not override clause 14.2.1. The reverse is the case. As the employer submits, the enterprise agreement permits the new equal time rosters to be worked. Further, the contracts of Casparis, Duncombe, Saunders and Gorlin expressly indicate an intention that the agreement and contract be read and operate together in stating that ‘This Contract and the Agreement forms the entire agreement between you and the Company ....’ which would mean that the agreement prevailed 43.

[46] The employer has not established any ‘custom and practice’ 44 of relevance to the present matter: Con-Stan Industries of Australia Pty Ltd v. Norwich Winterthur Insurance (Australia) Ltd45 per Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ, referred to with approval in Byrne v. Frew (1995)46 by McHugh and Gummow JJ.

Determination

[47] The applicant seeks orders that Messrs. Quayle, Saunders, Duncombe, Gorlin and Casparis continue to be employed on their existing rosters. Messrs. Saunders, Duncombe and Casparis are or were on 15/13 touring rosters. Ms.Gorlin is or was on a 28 days on/24 days off/4 days annual leave touring roster under a 30 January 2013 Individual Flexibility agreement 47. Special issues arise with respect to Mr.Quayle, who is apparently covered by an Australian Workplace Agreement, and Ms.Gorlin, party to an Individual Flexibility Agreement. They are dealt with below.

[48] The working arrangements were established under previous agreements. However, the 2014 agreement it appears governs what the employer does now by way of directions. The employer appears to concede that the new duty cycles have not yet commenced 48. As previously discussed, the employer both accepts that clause 22.6 applies for the purpose of the present proceedings, without formally conceding that it does. I have already commented on that part concession.

[49] In my view the employer must comply with the relevant provisions of the consultation clause before the requests or directions to change rosters take effect.

[50] Having regard to the needs of both the employee and the employer’s business, and the other factors raised by the applicant 49, in my view clause 14.2.1 meets the requirements of the Act (including s.93), as does any employer direction under it. There is no detriment to employees within s.55(4), and no undue influence or pressure under s.344. The arrangement is consistent with the Act and other legislation, agreement and contract of employment, and is not otherwise harsh.

[51] In the alternative, the employer was willing to allow employees to nominate which 21 days block would be annual leave, and to have them choose another seven days in another duty cycle, for the taking of annual leave. It would consult with employees about such issues. This arrangement is in my view consistent with the Act, agreement, and contract of employment, and is not otherwise harsh 50.

[52] Mr.Quayle is an LOS employee who is or was on a 15 days on/13 days off roster. Mr.Quayle was on an Australian Workplace Agreement. I asked the parties to provide a submission on the status of that agreement, and they provided contradictory information 51. There is no Commission record of approval of termination under transitional items52. Given that I refrain from making a determination with respect to him at this stage, including in relation to what was described by the applicant as compensation for work performed on a rostered day off53. A separate application should be made if necessary to deal with his particular circumstances.

[53] Ms.Gorlin was on an individual flexibility agreement in 2013 pursuant to what appears to be the predecessor to clause 23 of the agreement. It appears to provide for termination on 4 weeks’ notice by the employer (clause 5.1). Such notice appears to have been given by email dated 4 August 2014 54. It would appear that such notice can be given without a need to engage in consultation under clause 23, however it would be highly desirable that such consultation occur. In any event once the individual flexibility agreement is terminated, then the employer must establish a new roster by agreement or by direction. If there is a change to the regular roster then the roster consultation clauses apply.

Stay Order

[54] The stay order is discharged.

DEPUTY PRESIDENT

Appearances:

Mr Reitano for the applicant

Mr Wade for the respondent

Hearing details:

2014

Melbourne

2 December

Appendix A:

Extracts from the HNZ Australia Pty Ltd (Helicopter Pilots - Australian Operations) Enterprise Agreement 2013 55

Clause 8.6 Call Out LOS Pilots (Pilbara MPT)

A Pilot who is called out to work on a rostered Day Off will receive a replacement Day in lieu or be paid an amount, for each Day worked, equal to 1.6 times the Daily Rate (Salary I 261 ). It always remains the Pilot’s right, without prejudice, to reject a call out.

Clause 13 LEAVE

13.1 Annual Leave

Annual leave is provided for in the NES. This clause provides occupational specific data.

13.1.1 A LOS or Resident Pilot on full -time employment shall be entitled to forty-two (42) Days annual leave inclusive of Saturdays, Sundays and public holidays on full salary for each completed 12 months of continuous service. This entitlement accrues on an hourly basis. Full salary for the purposes of this clause means gross Annual Salary plus any applicable area allowance. Pilots may be rostered to work on public holidays.

13.1.2 A Touring Pilot is entitled to forty-two (42) days off per annum, which shall include;

(a) Twenty eight (28) Days annual leave inclusive of Saturdays, Sundays and public holidays on full salary for each completed 12 months of continuous service. A Touring Pilot will take annual leave in one 28 day block immediately after one block of 13 Touring Days Off, being a total of 41 continuous days off duty.

(b) One additional day of annual leave will accrue for each completed year of service and, so as not to upset the normal touring cycle, may be acquitted in exceptional circumstances (such as a bereavement or other unplanned urgent family need) upon application to, and consent by the Company, or if not taken as annual leave during the course of the Pilot’s employment, the accrued days will be paid out in full upon termination of employment.

13.1.3 Any period of authorised unpaid leave or unauthorised leave does not count as service for the purposes of determining a completed year of service.

13.1.4 Touring Pilots may apply, and leave may be granted at the Company’s discretion provided the leave is accrued, at any time within the year. However; a leave embargo may be held over the months of June/July and over the Christmas holiday period for the purpose of rostering alternate Christmas tour breaks. To facilitate this, the June/July rosters may, subject to the Fatigue Risk Management System, be amended to incorporate 22 Days on and 20 Days off touring cycle in order to provide alternating Christmas roster periods. Accordingly, leave over the Christmas period may normally not be approved other than in exceptional circumstances. Applications for leave over the summer holiday period must be submitted in April or earlier and the successful applicants advised in September of each year. Applications for summer leave will be assessed on the applicant’s duty in previous years and primarily upon whether the applicant spent the previous Christmas and New Year away from their family.

13.1.5 Leave applications should be made using the appropriate form. Once the Pilot has submitted their leave application, the Company will respond to their request within five working days. The Pilot will receive notification of approved leave prior to the requested leave and are not authorised to take the leave until they have received approval. Where Pilots require urgent notice of approval this may be requested at any time by phone or email to the Operations Manager or Operations Coordinator or in their absence, the Chief Pilot followed up by the submission of the form within three (3) working days.

13.1.6 Once granted, annual leave shall not be altered except by mutual agreement, or in the case of a Pilot’s change of status, equipment or base, the Company is unable to crew existing schedules, in which case amended leave shall be mutually agreed between the Company and the Pilot. The Company will not be entitled to recall a Pilot from annual leave except by mutual agreement between the Company and the Pilot.

13.1. 7 Effective from the date of this agreement, a Pilot will be paid a leave loading equivalent to 17.5 per cent of four weeks of the Pilot’s Annual Salary when taking his or her annual leave each year.

For transition purposes, a Pilot who, under a previous agreement, has been paid annual leave loading on their anniversary date, even though leave was not taken, will only be entitled to payment of leave loading on annual leave that has accrued since their last anniversary date. The Company will advise each Pilot of their leave loading balance and situation when the change occurs.

13.1.8 On termination of employment a Pilot shall be paid fully in lieu of annual leave not taken and shall be paid, on a pro rata basis the entitlement described in the preceding subclause subject to the retention of any outstanding training bond debt.

13.1.9 A Pilot who is sick and;

(a) Who has exhausted his/her sick leave; and
(b) Who has un-taken annual or long service leave entitlements

may apply in writing to be granted annual or long service leave at 25% of the normal Daily Rate of pay provided that the Pilot does not cash out more than 2 weeks annual leave each year.

During this period annual leave will accrue on the same basis as the proposed acquittal.

13.1.10 A Pilot who is sick whilst on annual leave may on presentation of the appropriate medical certificate transfer annual leave into sick leave and have his/her annual leave credited with the sick days covered by the medical certificate.

13.1.11 The Company may grant annual leave in advance to the Pilot. Where a Pilot is granted annual leave in advance and the Pilot is terminated or resigns prior to the leave in advance having been accrued, the Pilot authorises the Company to adjust the Pilot’s final salary payment to the extent of the leave granted.

13.1.12 Pilots must apply to use their annual leave to ensure that they should not have more than 28 days accrued. Pilots may request to cash out accrued excess annual leave and it will be paid at the rate of pay at the time the annual leave is taken, provided that a minimum of twenty eight (28) days accrued annual leave remains. This request must be in writing and if approved by the Company will be confirmed in writing.

Clause 14 HOURS OF WORK

Hours of work is provided for in the NES. This clause provides occupational specific data.

14.1 Rosters (Resident and LOS Pilots).

14.1.1 Rosters will be compiled to cover a period of 14 Days and, whenever possible, will be promulgated in writing seven Days prior to the commencement of the roster period.

14.1.2 Where practicable, rosters will be compiled to cover longer periods of time. Rosters will nominate duty periods on each Day, reserve or standby time/duty Days, known flying, leave and Days off.

14.1.3 Notwithstanding clause 14.1.1, rosters may be altered, by the Company, to meet the operational requirements of the business.

14.1.4 A Pilot will be rostered for a minimum of four Days free from all duties in every 14 Day period.

14.2 Touring Pilots

14.2.1 General

A tour will be on the basis of either:

(a) thirteen 28 Day cycles per year, each cycle consisting of 15 Days (or part thereof) on duty and 13 Days off duty with the thirteenth cycle being annual leave or

(b) an equal time roster in which annual leave is taken during the year as part of the touring days off. Additional days annual leave will be provided so that pilots on an equal time roster are on par with 15/13 pilots.

If the Pilot is not fully utilised during the duty period this will not have any impact on the Pilots future duty Days or roster cycles.

14.2.2 Duty Period

(a) A duty period shall consist of 15 continuous Days and 14 nights at the operating base. Travel shall be arranged to enable Pilots to arrive on site at their place of work on Day one of their tour. Travel home shall commence on Day 15.

(b) Travel shall be booked in order for Pilots to arrive at the operating base on Day one of their tour and depart on Day 15 on completion of the required duty periods and after the arrival of their replacement Pilot, unless otherwise released by the Company.

(c) Where a Pilot has worked the fourteenth night and is not able to fly on the fifteenth day, the Company will release them before their replacement Pilot arrives subject to there being no requirement by the client contract for there to be a certain number of Pilots on the base.

14.2.3 Rosters

(a) Rosters will be compiled to cover a period of 14 days and, whenever possible, will be promulgated in writing seven days prior to the commencement of the roster period.

(b) Rosters will nominate travel Days and duty periods.

(c) The normal roster cycle may be altered by mutual consent. The Chief Pilot may alter the roster over the Christmas/New Year break to ensure duties over the festive season are shared

14.2.4 Rostered Irregular Touring Cycles

In unusual circumstances, such as the start-up of an operation where tours of 28 Days may be varied to meet operational necessity and where a Pilot works less than 15 Days in a 28 Day cycle, where no leave has been taken, the situation will be treated as follows;

(a) A Pilot will be entitled to Days off as per a 13/15 ratio applied to the Days they have worked in the 28 Day cycle. (For example; if a Pilot works 10 Days in a 28 Day cycle they will be entitled to; 10 x 13/15 = 8.6 Days)

(b) The Days that are not ‘Days worked’ or ‘Days off’ will be recorded as negative Days owed to the Company and deducted from any Days accrued in an ‘extension of tours of duty’ (For example, If a Pilot worked 10 ‘Days on’ and then was entitled to ‘8.6 Days off’ he would therefore have 9.4 Days recorded as Days owed to the Company or deducted from any overtime accrued [28- (10+8.6) =9.4].

14.3 Variation to Hours of Work and Rosters

14.3.1 Nothing in this Agreement shall preclude the parties agreeing to alternate arrangements for hours of work or rosters to meet the operational requirements of the Company provided that the Company’s approved Flight and Duty system is adhered to.

14.3.2 The Company may agree to a pilot working part-time or in a job share arrangement without reducing the overall pilot complement, provided the operational requirements are met.

14.4 Hours of Work- Field Tours

14.4.1 The provisions of clause 14.2 shall not apply when a Pilot is on a tour of duty away from Home Base (Field tour), when taking Field Leave immediately following a period of duty away from Home Base or when taking Field Leave which has been deferred. The following conditions apply in lieu:

14.4.2 A period of duty away from Home Base will be up to 30 Days duration inclusive of travel provided, however, the tour may be extended a further 14 Days by mutual agreement.

14.4.3 Where a Pilot is on duty away from Home Base, the Pilot will be entitled to accrue time free of duty in accordance with the provisions of clause 13.9, Field Leave. The Pilot will on return to Home Base, immediately receive such time free of duty, provided however, that he/she may request to defer duty free Days in excess of those duty free Days referred to in the Company’s approved Flight and Duty system. The Company may agree to defer the Pilot’s duty free Days in accordance with clause 13.9.2.

14.5 Hours of Work - Pilbara LOS Pilots

14.5.1 Duty time and flight time will be carried out in accordance with the provisions of the Company’s approved Flight and Duty system.

Clause 21 Disputes And Grievance Procedure

21.1 Preamble and Principles of the Disputes Resolution Process (DRP)

21.1.1 In the event of a disagreement regarding the interpretation or application of the terms of this agreement, the NES or any other matter pertaining to the employer-employee relationship that the following Disputes Resolution Process (DRP) be followed.

21.1.2 The parties agree to participate in the DRP in good faith and in recognition that the satisfactory resolution of any dispute is in the interests of all parties to this agreement.

21.1.3 A person subject to this agreement may initiate a dispute concerning the interpretation or application of this agreement at any time.

21.1.4 A person(s) initiating a dispute may appoint and be accompanied and represented at any stage by another person, organisation or association, including a Union representative or Company association in relation to the dispute. Ready access to Pilots shall be provided to the Pilot’s nominated representative so that relevant information and instructions can be provided. However not at a time such that it will impact with the Company’s normal contracted operations.

21.1.5 Unless otherwise agreed, in the first instance a dispute will be dealt with at a workplace level. If the dispute remains unresolved conciliation may occur and in the event that the dispute remains unresolved, a party may seek arbitration as a means of resolving the dispute.

21.2 Disputes Resolution Process

21.2.1 If a dispute arises about this Agreement, the NES (including subsections 65(5) or 76(4), or any other work related matter (including a dispute about whether a workplace right has been breached), the parties to the dispute will attempt to resolve the dispute at the workplace level.

21.2.2 Once a dispute has been initiated the parties shall, unless otherwise agreed, meet and confer within seven (7) days at the local workplace level in an attempt to resolve the dispute.

21.2.3 If a dispute in relation to a matter arising under the agreement is unable to be resolved at the workplace, and all agreed steps for resolving it have been taken, the dispute may be referred to FWA for resolution by mediation and/or conciliation and, where the matter in dispute remains unresolved, arbitration. If arbitration is necessary FWA may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

21.2.4 It is a term of this agreement that while the dispute resolution procedure is being conducted work shall continue normally unless an Pilot has a reasonable concern about an imminent risk to his or her health or safety.

21.3 Appeal rights of the parties.

The decision of PNA will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench of PNA.

21.4 Powers of FWA

21.4.1 The parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute.

21.4.2 PNA shall be provided access to the workplace to inspect or view any work, material, machinery, appliance, article, document or other thing or interview any Pilot who is usually engaged in work at the workplace.

21.4.3 The parties agree that PNA may give all such directions and do all such things as are necessary for the just resolution and determination of the dispute. This includes but is not limited to mediation or conciliation or arbitration.

21.5 Alteration of Rights

The parties agree that to the extent that any decision of PN A alters the rights and responsibilities of any of the parties to the agreement that those rights are so altered and are enforceable in a court of competent jurisdiction.

22 CONSULTATION

22.1 Company to notify

22.1.1 Where the Company has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on Pilots, the Company must notify the Pilots who may be affected by the proposed changes, and their representatives, if any.

22.1.2 Significant effects include termination of employment; major changes in the composition, operation or size of the Company’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of Pilots to other work or locations; and the restructuring of jobs. Provided that where this enterprise agreement makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

22.2 Company to discuss change

22.2.1 The Company must discuss with the Pilots affected and their representatives, if any, the introduction of the changes referred to in clause 22.1, the effects the changes are likely to have on Pilots and measures to avert or mitigate the adverse effects of such changes on Pilots and must give prompt consideration to matters raised by the Pilots and/or their representatives in relation to the changes.

22.2.2 The discussions must commence as early as practicable after a definite decision has been made by the Company to make the changes referred to in clause 22.1 .

22.2.3 For the purposes of such discussion, the Company must provide in writing to the Pilots concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on Pilots and any other matters likely to affect Pilots provided that the Company is not required to disclose confidential information, the disclosure of which would be contrary to the Company’s interests.

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

22.4 If a term in this agreement provides for a major change to production, program, organisation, structure or technology in relation to the enterprise of the employer, the requirements set out in paragraph 22.1.1 and subclauses 22.7 and 22.9 are taken not to apply.

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

(a) the termination of the employment of employees; or

(b) major change to the composition, operation or size of the employer’s workforce or to the skills required of employees; or

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

(d) the alteration of hours of work; or

(e) the need to retrain employees; or

(f) the need to relocate employees to another workplace; or

(g) the restructuring of jobs.

22.6 Change to regular roster or ordinary hours of work

For a change regular roster or ordinary hours of work:

(a) the employer must notify the relevant employees of the proposed change; and

(b) subclauses 22.7 to 22.11 apply.

22.7 The relevant employees may appoint a representative for the purposes of the procedures in this term.

22.8 If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for the purposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

22.9 As soon as practicable after proposing to introduce the change, the employer must:

(a) discuss with the relevant employees the introduction of the change; and

(b) for the purposes of the discussion-provide to the relevant employees:

(i) all relevant information about the change, including the nature of the change; and

(ii) information about what the employer reasonably believes will be the effects of the change on the employees; and

(iii) information about any other matters that the employer reasonably believes are likely to affect the employees; and

(c) invite the relevant employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities).

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

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

22.12 Workplace Consultative Group

22.12.1 The Company shall establish and maintain a Workplace Consultative Group (WCG) comprised of equal numbers (of no less than two each) of senior management representatives and nominated (and where necessary elected) Pilots representatives as the formal mechanism to facilitate consultation with the Pilot group on all major workplace changes that the Company has definitely decided to implement.

22.12.2 The WCG shall meet as required when major change has been definitely decided and the details of the implementation of the change are being planned.

22.13 Introduction of New Equipment

22.13.1 When new types of aircraft or special equipment (such as Night Vision Goggles) are to be introduced the WCG shall enter into discussions on the establishment of appropriate terms and conditions of employment in relation to such aircraft or equipment.

22.13.2 1n the event of a delay in agreeing on the terms and conditions of employment, any agreed changes shall be backdated to the date of introduction of the new or special equipment.

22.13.3 The discussions shall occur in accordance with clause 22 of this Agreement with disputed matters resolved in accordance with clause 21 of this Agreement.

Clause 23 Flexibility Clause

23.1 Notwithstanding any other provision of this agreement, the Company and an individual Pilot may agree to vary the application of certain terms of this agreement to meet the genuine individual needs of the Company and the individual employee. The terms the Company and the individual employee may agree to vary the application of are those concerning:

23.1.1 arrangements for when work is performed;
23.1.2 overtime rates;
23.1.3 penalty rates;
23.1.4 allowances;
23.1.5 leave loading; and
23.1.6 travel between home and touring bases.

23.2 The Company and the individual Pilot must have genuinely made the agreement without coercion or duress.

23.3 The agreement between the Company and the individual Pilot must:

23.3.1 be confined to a variation in the application of one or more of the terms listed in clause 23.1; and

23.3.2 result in the Pilot being better off overall than the Pilot would have been if no individual flexibility agreement had been agreed to.

23.4 The agreement between the Company and the individual Pilot must be in writing and:

23.4.1 state each term of this Agreement that the Company and the individual Pilot have agreed to vary;

23.4.2 detail how the application of each term has been varied by agreement between the Company and the individual Pilot;

23.4.3 detail how the agreement results in the individual Pilot being better off overall in relation to the individual Pilot’s terms and conditions of employment; and

23.4.4 state the date the agreement commences to operate.

23.5 The Company must give the individual Pilot a copy of the agreement and keep the agreement as a time and wages record.

23.6 The agreement must not require the approval or consent of a person other than the Company and the individual Pilot.

23.7 The agreement may be terminated:

23.7.1 by the Company or the individual Pilot giving four weeks’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or

23.7.2 at any time, by written agreement between the Company and the individual Pilot.

23.7.3 The right to make an agreement pursuant to this clause is in addition to, and is not intended to otherwise affect, any provision for an agreement between the Company and an individual Pilot contained in any other term of this Agreement.

 1   PN1338

 2   Exhibit AFAP 1, paragraphs 152-153

 3   Exhibit AFAP 1, paragraphs 4-10.

 4   PN792

 5   Exhibit AFAP1, paragraph 10, Federal Court proceedings VID 525/2014

 6   PN1204-1205

 7   PN1342

 8   AE408463 PR556157

 9   AE408463 PR557100

 10   Form F10, paragraph 4

 11   PR940366, Ross VP, Acton SDP and Hingley C, 10 November 2003

 12   PR908236

 13   PR973884

 14   [2012] FWAFB 9173

 15 [2005] 222 CLR 241

 16   Ibid, paragraph 96

 17   Exhibit AFAP1, paragraph 4

 18   Exhibit AFAP1, paragraph 4

 19   Exhibit AFAP1, paragraph 6

 20   Exhibit H1, paragraph 17; Exhibit AFAP2, Attachments GD2-3; Exhibit AFAP5, Attachments NS2-4

 21   Exhibit AFAP5, Attachment NS4

 22   Exhibit AFAP2, paragraphs13-16

 23   Exhibit AFAP6, paragraph 13

 24   Exhibit AFAP6, Attachment RC4

 25   Exhibit AFAP6, Attachment RC6

 26 (1984) 8 IR 34; (1984) 9 IR 115

 27   Words added to give the sentence effect.

 28   See Exhibit H1, paragraph 5

 29   Exhibit AFAP 1, paragraph 4(i).

 30   Exhibit AFAP1, paragraphs 139-151

 31   [2014] FWCFB 3202, Full Bench, 29 May 2014

 32 (1936)( 36 CAR 738

 33 (1963) 103 CAR 637

 34   (1970) AILR Rep 465

 35   (1971) AILR Rep 839

 36   Exhibit AFAP1, paragraphs 70-103

 37   PN1342

 38   Exhibit AFAP2, Attachment GD1, p.3

 39   Exhibit AFAP3, Attachment IG1, p.3

 40   Exhibit AFAP5, Attachment NS1, p.3

 41   Exhibit AFAP6, Attachment RC1, p.3

 42   Exhibit AFAP6, paragraph 11

 43   Exhibit H1, paragraph 44

 44   Exhibit AFAP1, paragraphs 104-118

 45 (1985-1986) 160 CLR 226 at 236-237

 46 (1995) 185 CLR 410 at 440

 47   Exhibit AFAP 1, paragraph 153

 48   Exhibit H1, paragraph 5

 49   Exhibit AFAP1, paragraphs 70-103

 50   PN1342

 51   Submission Regarding Status of Mark Quayle Australian Workplace Agreement, 12 December 2014

 52   Items 17-19 of Schedule 3, Part 3, of the Fair Work (TPCA) Act 2009

 53   Exhibit AFAP 1, paragraphs 64-69

 54   Exhibit AFAP3, paragraph 21, Attachment IG6

 55   AE408463, HNZ Australia Pty Ltd (Helicopter Pilots - Australian Operations) Enterprise Agreement 2013

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