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

[2014] FWC 6911

[2014] FWC 6911

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
COMMISSIONER CRIBB	MELBOURNE, 2 OCTOBER 2014

Alleged dispute concerning annual leave, compensation for employees working overtime and a reduction in employees’ rostered days off.

1. Introduction

[1] As indicated to the parties at the conclusion of the hearing on Friday, 26 September 2014, given the degree of urgency for both parties, the Commission would provide, in the first instance, a decision with brief reasons, in relation to the Australian Federation of Air Pilots (AFAP, the union) application for interim orders. It was made clear that either party could request fuller written reasons for the decision at a later date.

[2] Accordingly, what follows are the decision and brief reasons in relation to the interim orders sought by the AFAP. On 30 September 2014, the AFAP advised that it was not pressing for order (iv) from the substantive dispute application at this time. Therefore, these reasons and decision concern only the order sought in relation to Captains Gorlin, Casparis and Quayle in relation to being rostered in accordance with their pre-dispute roster cycles until determination of the substantive dispute.

[3] The submissions of the parties, during the hearing on 26 September 2014, went to the two traditional tests for deciding whether the Commission should exercise its discretion and issue the interim orders sought. With respect to whether or not the Commission has jurisdiction to make the interim orders, it was common ground between the parties that the Commission has jurisdiction to make the interim orders.

[4] Therefore, I will deal with the questions of - is there a serious issue to be tried? And then secondly, whether or not the balance of convenience lies with making the order?

2. Is there a serious issue to be tried?

(a) The AFAP

[5] With respect to whether there is a serious issue to be tried, the union submitted that the issues concern interpretation of the HNZ Australia Pty Ltd (Helicopter Pilots - Australian Operations) Enterprise Agreement 2013 1 (enterprise agreement; Agreement). It was stated that there is a dispute about whether the company can prevent touring pilots from accessing their leave in 28 day blocks without their agreement. Secondly, there was said to be an issue about whether live on-site pilots can be required to work a 10 on 4 off roster without their agreement. Further, it was contended that there was a question of whether the company can require Captain Gorlin to work a 21 on 21 off roster without her agreement.2

[6] The common thread through these issues was said to be the clauses in the Agreement that require the agreement of the parties prior to a change of roster. 3 It was argued that there has not been consultation by HNZ Global [Helicopters (Australia)] Pty Ltd (the company, HNZ Global (Helicopters)) with the pilots and with the union about its proposals.4 In relation to touring pilots, it was argued that clause 14.2.3 of the enterprise agreement states that the normal roster cycle cannot be altered without mutual consent. Captain Gorlin’s normal roster was said to be a 28 on 28 off roster which requires her agreement to change.5

[7] In addition, the union argued that, clause 14.3.1 of the enterprise agreement (which applies to all pilots), provides that nothing in the Agreement precludes the parties agreeing to alternate rosters to meet the operational requirements of the company. Whilst clause 14.1 states that the rosters for live on-site pilots may be altered by the company to meet the operational requirements of the business, the union contended that this does not obviate the need for the company to comply with clause 14.3.1 of the enterprise agreement. 6

[8] With respect to the imposition of certain deductions from annual leave, the union submitted that this is not permitted by the enterprise agreement. It was stated that, under the proposal for Captain Gorlin, 2.7 days’ annual leave would be deducted for every 21 days and she would have no choice about how to take the leave. Currently, it was said that Captain Gorlin has the benefit of four weeks off at the end of every tour. With the proposed changes to her roster, Captain Gorlin would be limited to 21 days. 7

[9] The serious issue to be tried, from a legal perspective, was described as being that the consultation provisions of the enterprise agreement contemplate a consultation process in relation to changes to rosters. Reference was made to clauses 22.6 - 22.11 which require the company to consult. The company’s view that the consultation provisions do not apply as there are provisions in the agreement dealing with rostering, was said to not be open to it on the plain words of clause 22.6. 8

(b) HNZ Global (Helicopters)

[10] In relation to whether there is a serious question to be tried, the company submitted that it is clear from the documentation filed that the company has attempted to discuss and address the issues relating to changing the duty cycle for touring and live on-site pilots, with the AFAP, since June 2014. With respect to Captain Gorlin, it was stated that the company gave notice, on 4 August 2014, of termination of her Individual Flexibility Agreement. 9

[11] Further, it was argued that clause 14.1.4 of the enterprise agreement is the only reference to the duty cycle for live on-site pilots. Therefore, any consideration of maintaining the normal duty cycle ought to involve acknowledgment that that is the duty cycle specified in the enterprise agreement. In relation to Captain Gorlin, it was stated that the duty cycle for touring pilots is set out in clause 14.2.1 where there are two options provided. The company argued that the 28 on 28 off roster was part of Captain Gorlin’s higher grade which has been subsequently terminated. The enterprise agreement then sets out the roster provisions which are a 15 on 13 off roster or an equal time roster. 10

[12] The notion of the status quo was also queried in relation to clause 21.2.4 of the enterprise agreement. It was contended that the clause refers to work occurring without interruption unless there is a health and safety risk rather than the status quo continuing. Further, the company argued that the status quo in relation to touring pilots is 15 on 13 off. The enterprise agreement was said to envisage a 15 on 13 off arrangement as the normal cycle, which is what the company is proposing in relation to Captain Gorlin and so, therefore, this is what should apply. 11 It was argued by the company that clause 21.2.4 does not assist the AFAP in preventing a change to the duty cycle. The company contended that any particular duty cycle can be unwound and a new cycle put in place.12

3. Whether or not the balance of convenience favours making the order?

(a) AFAP

[13] It was the union’s instructions from Captain Gorlin that, if the roster is required to change to 21 on 21 off, she will be required to spend substantially more of her own time travelling to and from base. This would impinge on the amount of time off that she has between tours. As well, there would be an increase in the amount of travelling as there would be an increase in the number of tours per year which would result in eight more flights per annum. 13 All of this was said to therefore result in less time to recover from the flights and then less time to enjoy the time off.14

[14] Further, if the rostering was to change prior to resolution of the dispute, for Captain Gorlin, it meant that the Captain’s annual leave deductions would start to change. This would necessitate recalculation of her annual leave if the union’s substantive application succeeded. As well, it was argued that Captain Gorlin would experience additional fatigue and travel time in the meantime. 15 It was also contended that changing Captain Gorlin’s roster would be more expensive for the company as the number of international flights it would be funding would increase.16

[15] In relation to Captain Quayle, it was stated that he is very concerned about fatigue risk if his roster changes to briefer periods between tours. This was said to be particularly so given that he is rostered to work night shifts and afternoon shifts with additional shifts of up to 12 hours including nights, weekends and public holidays. The union had also been instructed that, if the roster reverted, in the interim to 15 on 13 off, it would provide Captain Quayle with more predictability and stability. This is because he has already experienced some change to his roster. Further, there are also family health issues which are exacerbated by his time away from home not being predictable and him being home for shorter periods of time. This was stated to have resulted in an extreme amount of stress on the Captain and his family. 17

[16] With respect to Captain Casparis, it was recounted that he has had significant issues relating to family childcare. It was stated that his wife has had to cease work because the Captain’s rostering arrangements have been so variable and unpredictable. This was said to have resulted in being unable to secure external child care and so the Captain’s wife has had to cease working due to the variability of her husband’s roster. 18

[17] The union argued that the balance of convenience therefore favoured the making of the interim orders. The preservation of the pre-dispute roster cycle for each employee was said to be for Captain Gorlin - 28 on 28 off and for Captains Casparis and Quayle - 15 on 13 off. 19

(b) HNZ Global (Helicopters)

[18] The company submitted that, in terms of the balance of convenience, it did not lie with Captain Gorlin as it is possible to adjust the calculation of annual leave. It was accepted that there would be increased travel time per annum. This was said to reflect the agreement of most pilots to move from a 15 on 13 off roster to a 21 day roster as there is less travel time and more time at home. 20

[19] With respect to Captains Quayle and Casparis, it was argued that, if the interim orders were issued, they would override a legitimate and normal duty cycle for live on-site pilots which is provided for in the enterprise agreement (4 days off in a 14 day period). The company contended that the interim orders would almost rewrite the enterprise agreement and create a new duty cycle for live on-site pilots. 21 Further, if one of these pilots moved to Perth, the back-to-back arrangement of 15 on 13 off could not work.22

[20] Mr Laird, Managing Director of the company, in his statement, outlined the requirements of the company as being the provision of certain service levels to its client within set limits on its pilot staff levels. This could only be done with live on-site pilots within duty cycles provided by the enterprise agreement. It was stated that a single pilot, Captain Gorlin, on a 28 on 28 off roster is economically unsustainable and not effective. Mr Laird was clear that the rosters requested by the union would result in HNZ Global (Helicopters) being unable to meet its required service levels. This would result in the company being either in default of its contract or required to hire additional pilots. Both options were stated to be not sustainable practically or financially.

4. Considerations and conclusions

[21] Having considered the submissions of the parties, I have formed the view that, on balance, there is a serious question to be tried. The question is whether, under the terms of the enterprise agreement, the company can change the duty cycles of pilots without their agreement or without consultation. Specifically, the question concerns the operation and interaction of a number of clauses in the enterprise agreement, namely 14.2.3, 14.1, 14.2.1, 14.3.1 and 22.6 - 22.11.

[22] For both the employer and the employees, the issue of whether changes to duty cycles can be made by the employer unilaterally; following consultation or only by mutual agreement is an important one in terms of the efficient operation of the business and a harmonious workplace.

[23] With respect to the question of where the balance of convenience lies, I have weighed up the increased travelling, the decrease in her time off and the additional fatigue for Captain Gorlin and the family and personal costs and increased fatigue for Captains Quayle and Casparis - with increased fatigue with the resulting practical and financial difficulties for the company. Balancing these, I have formed the view that the balance of convenience favours the employees on the basis that the prejudice to the employees of not making the interim orders outweighs the prejudice to the employer.

[24] Finally, balancing up that there is, on balance, a serious question to be tried with the balance of convenience favouring the employees, I find that both questions favour the making of the interim orders. There is a serious question to be tried but the greater harm or prejudice to the three employees if the interim orders are not made outweighs the financial prejudice to the company.

[25] Accordingly, I have decided to exercise my discretion to issue the interim orders 23 sought by the AFAP. These will be issued separately in the terms set out by the AFAP on 30 September 2014.

Appearances:

Ms C Kazakoff, of Slater Gordon for AFAP

Mr J Uphill, of CCIWA for the respondent

Hearing details:

2014.

Melbourne:

September 26.

 1   AE408463

 2   Transcript PN 134

 3   Ibid

 4   Ibid PN 140

 5   Ibid PN 135 - 136

 6   Ibid PN 137

 7   Ibid PN 139

 8   Ibid PN 141 - 143

 9   Ibid PN 177 - 178

 10   Ibid PN 179 - 180

 11   Ibid PN 181 - 184

 12   Ibid PN 185

 13   Ibid PN 149 - 151

 14   Ibid PN 151

 15   Ibid PN 152

 16   Ibid PN 157

 17   Ibid PN 153 - 155

 18   Ibid PN 154

 19   Ibid PN 162

 20   Ibid PN 193 - 194

 21   Ibid PN 195

 22   Ibid PN 196

 23   PR556157

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<Price code C, AE408463  PR556124