Australian Licenced Aircraft Engineers Association v Qantas Airways Limited
[2013] FWCFB 9368
•28 NOVEMBER 2013
| [2013] FWCFB 9368 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Qantas Airways Limited; The Australian Workers’ Union; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union; and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(C2013/5650)
| VICE PRESIDENT CATANZARITI | MELBOURNE, 28 NOVEMBER 2013 |
Appeal against decision [[2013] FWCA 5125] of Vice President Watson at Sydney on 31 July 2013 in matter number AG2013/1348.
[1] The Australian Licenced Aircraft Engineers Association (the ALAEA) seeks permission to appeal the decision [[2013] FWCA 5125] of Vice President Watson (the Decision) to approve the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9 (the Agreement) in matter AG2013/1348.
[2] At first instance the ALAEA sought, and was granted, leave to intervene in the application by Qantas Airways Limited (Qantas) for approval of the Agreement. The ALAEA submitted at first instance that the Agreement did not meet the requirements for approval as outlined in Division 4, Part 2-4 of the Fair Work Act 2009 (the Act). The ALAEA’s objections were ultimately dismissed and the Agreement was approved.
[3] The appeal was heard in Sydney on 24 October 2013. Mr A Slevin of Counsel sought permission to appear on behalf of the ALAEA, Mr F Parry of Senior Counsel and Mr Y Shariff of Counsel sought permission to appear on behalf of Qantas, and Ms C Howell of Counsel sought permission to appear on behalf of Australian Workers’ Union (AWU), the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively, Respondent Unions). Given the complexity of the appeal and the Counsels’ involvement in the proceedings below, permission was granted to all representatives.
[4] At the conclusion of the hearing of the appeal, we communicated to the parties that permission to appeal is refused by the Full Bench. The reasons for that decision are outlined below.
Background
[5] Qantas employs Aircraft Maintenance Engineers (AMEs) and Licensed Aircraft Maintenance Engineers (LAMEs) who are licensed by the Civil Aviation Safety Authority (CASA). The role undertaken by these two groups is operationally different and industrial coverage of these employees has been separate since as early as 1974.
[6] Within Qantas, AMEs currently perform a wide range of mechanical, structural and avionic aircraft and engine maintenance. Typical tasks performed by AMEs include aircraft/ engine checks and system inspections (for example, checking oil levels, completing a walk around inspection), defect rectification (for example, repairing a door in the galley), component replacement (for example, a wheel change), sheet metal and composite structural repairs, system functional testing and simple troubleshooting. These tasks are currently performed by AMEs and the work is supervised and certified by appropriately licensed LAMEs.
[7] LAMEs are licensed by CASA to perform, supervise and certify for the completion of aircraft maintenance work, as well as performing independent flight control inspections and release the aircraft to service after maintenance. These licensed engineers work in the avionic or mechanical streams.
[8] CASA has in recent years promulgated new regulations (Regulations) that seek to harmonise the Australian aviation regulatory system with the European Aviation Safety Agency system (EASA). Part 66 of the new Regulations introduces new licence categories which mirror the EASA licence categories and ratings. The categories of licence under the new regime are as follows:
(a) Category A – Limited Line Maintenance;
(b) Category B1 – Mechanical;
(c) Category B2 – Avionic; and
(d) Category C – Base (Heavy) Maintenance CRS.
[9] On 27 June 2011, all Australian LAME licences were converted to the new Part 66 licensing system, as follows:
(a) LAMEs working in the mechanical stream were issued with a Category B1 licence (with certain exclusions/inclusions depending on their experience and training) and a Category A licence; and
(b) LAMEs working in the avionic stream were issued with a Category B2 licence (with certain exclusions/inclusions depending on their experience and training), but not a Category A licence.
[10] The requirements to be issued a Category A licence are a Certificate II (which takes approximately 340 hours to complete) and two years practical experience. The requirements to be issued a Category B licence are a Certificate IV (which takes at least 1,200 hours to complete and requires four years practical experience) and a Diploma of Aeroskills (which takes approximately 700 hours to complete).
[11] The Regulations do not prevent someone from holding a Category A licence only. Accordingly, if an AME obtained the appropriate qualifications for a Category A licence, they may be licensed to perform the same work they previously performed and now, in addition, certify some of that work themselves. Importantly, unlike a Category B1 or a Category B2 licence holder, a Category A licence holder cannot supervise or certify the work performed by any other employee. A Category A licence holder can only certify work they have personally performed.
[12] The effect of the new Regulations is relatively simple. If Qantas chooses to utilise the new Category A licence regime such that it employs Category A licence holders who are not LAMEs, AMEs will continue to perform the same tasks under the new regime as they did under the old regime and the tasks performed by a LAME will continue to be the same, however they may not be required to supervise certain tasks performed by Category A licence holding AMEs.
[13] It is this outcome which leads to the objections raised by the ALAEA. It should be made clear that the ALAEA is the union covering LAMEs, but not AMEs. AMEs are covered by the Respondent Unions. As such, it is evident that the utilisation of the new Category A regime which causes the ALAEA, and its members, concerns as the amount of work to be performed by the LAMEs will reduce and, presumably, so may the workforce.
[14] Through the negotiations process for the Agreement, the ALAEA attempted to represent the interests of AMEs, however, as the ALAEA’s eligibility rules do not permit it to enrol and admit as members employees classified as AMEs who are employed by Qantas (whether or not they hold a Category A licence), and following proceedings commenced in the Federal Court of Australia, the ALAEA gave an undertaking to the Federal Court not to represent industrially any person employed, or engaged, or proposed to be employed or engaged as an AME, whether holding a Category A licence or not. Accordingly, the ALAEA were not included in the negotiations for the Agreement as LAMEs are covered under a different industrial instrument, being the Licenced Aircraft Engineers (Qantas Airways Limited) Workplace Determination 2012 (the Workplace Determination).
[15] Accordingly, in the proceeding below, the ALAEA sought to intervene, and were granted that status. The ALAEA alleged that the Agreement, which made provisions for Category A licensed employees, should not be approved by the Commission as the Agreement had not been “genuinely agreed by the parties” as required by s.186(2)(a) of the Act. It also alleged that s.186(3) and s.186(3A) had not been satisfied because the employees to be covered by the Agreement had not been “fairly chosen”.
[16] Although the ALAEA attempted to move somewhat away from the proposition, both of these contentions were, and are, primarily premised upon the argument that employees who hold a “Category A” licence are covered by the Workplace Determination. The Respondent Unions, which have coverage of AMEs, made no such argument and supported the approval of the Agreement.
Decision at first instance
[17] In the Decision dated 31 July 2013, his Honour, Vice President Watson, rejected the ALAEA’s arguments and approved the Agreement. The Vice President found that:
“[37] In my view a key to determining this matter is the notion of the Category A licence holders under the Agreement. Properly understood, they are AMEs who obtain additional qualifications. That they are not a variant of LAMEs is evident from the ALAEAs long standing opposition to their introduction. There has been a clear delineation between LAMEs and AMEs in union coverage and agreement coverage for many years. But there has been some overlap in their respective duties. The provisions of the Workplace Determination were formulated to cover LAMEs with respect to the work they are engaged to perform.
[38] I find that the terms of the Workplace Determination do not extend to Category A licence holders. Coverage by the Workplace Determination is dependent on coverage under the classification structure. This is formulated on the basis of the traditional notion of licensed aircraft maintenance engineers - not the recently modified and much more limited licensing arrangements for AMEs. I do not consider that, on their proper interpretation, the terms apply to Category A licence holders.
[39] Further support for this interpretation can be gained from a consideration of the mutual intent of the parties. The evidence establishes a clear intention by Qantas and the ALAEA that it and previous agreements not cover AMEs and Category A licence holders. The recent introduction of Category A Licence holders did not give rise to any modification of the Workplace Determination to cover them. As the ALAEA concedes, raising this issue would have only led to conflict because the ALAEA knew that Qantas had no intention of including them. Indeed I find that the arguments now advanced by the ALAEA are somewhat opportunistic. I cannot be satisfied that it was the mutual intention of the parties involved in consenting to the terms of the Workplace Determination or previous enterprise agreements that Category A licence holders be covered by these instruments. A consideration of the objective framework of facts at the time the Workplace Determination was made suggests that the presumed intention of the parties was not to include the Class A licence holders.
[40] I therefore find that the Workplace Determination does not cover AMEs who obtain a Category A licence, and the Agreement clearly does cover them. I apply this finding to the matters that fall for determination.
...
[46] It follows from my finding on the alleged application of the Workplace Determination that there is no sound basis for concluding that there is no genuine agreement of employees. I also find that the class of the employees covered by the Agreement has been fairly chosen. There has been separate regulation of AMEs for some time and the planned introduction of training and licensing of AMEs with Category A licences does not alter the fairness of agreement coverage confined to that group of employees. This is especially the case when the Workplace Determination covering LAMEs is taken into account.
[47] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.”
[18] There was no application for a stay of the Vice President’s Decision and therefore, in accordance with the Decision, the Agreement commenced operation on 7 August 2013. The ALAEA now seeks permission to appeal the Decision alleging that the Vice President, in summary, made the following errors:
(a) An incorrect finding that Category A licence holders were not covered by the Workplace Determination (the First Ground);
(b) A failure to take into account whether the group of employees covered by the Agreement is geographically, operationally or organisationally distinct (the Second Ground);
(c) A failure to address submissions relevant to the question of whether the group of employees covered by the Agreement was fairly chosen (the Third Ground); and
(d) Alleged mistakes as to the nature of Category A licences (the Fourth Ground).
Submissions by the ALAEA
[19] The ALAEA, for most part, re-agitated its submissions made at first instance.
[20] It was submitted by the ALAEA that the Agreement will apply to employees who obtain the Category A licence qualification during its term. It was contended that those employees would, absent the Agreement, be covered by the Workplace Determination. It was submitted that the failure to tell employees that this was the case was a failure to explain the effect of the Agreement to the relevant employees as required by s.180(5) of the Act. It was accepted that this argument centred on the question of whether the Workplace Determination covered the Category A licence holders.
[21] However, it was submitted by the ALAEA that the Vice President erred in describing the Workplace Determination coverage argument as central to the fairly chosen argument, a separate objection raised by the ALAEA.
[22] It was submitted that at first instance the ALAEA’s argument concerning the fairly chosen test did not centre on the coverage of the Workplace Determination. The fairly chosen objection had multiple grounds, including the effect it had on existing licence holders themselves.
[23] Accordingly, the ALAEA contended that the Vice President erred in finding that the Workplace Determination’s coverage did not include the Category A licence holders, and furthermore, even if the Commission was right on the coverage question, there were other factors that Vice President failed to take into account in deciding to approve the Agreement.
[24] The ALAEA further submitted that the Vice President erred by failing to apply the proper approach to the construction of the Workplace Determination. Specifically, it was submitted that the Vice President failed to address the language of subclause 16.2 of the Workplace Determination and there was also a failure to consider the purpose of the Workplace Determination which was to regulate the terms and conditions of licensed engineers.
[25] In the proceeding at first instance, the ALAEA contended that the group of employees to be covered by the Agreement was not geographically, operationally or organisationally distinct. This is a factor which tells against the employees being fairly chosen. It was submitted that the Vice President erred by making no finding about whether or not the group of employees covered by the Agreement was geographically, operationally or organisationally distinct. By failing to reach a view about that, the Commission did not perform its statutory task of taking that factor into account when deciding whether the group was fairly chosen.
[26] The ALAEA further submitted that the Commission’s findings at first instance included a number of errors of fact in relation to the nature of the Category A licence. These alleged errors are discussed in more detail below.
[27] Finally, it was submitted that permission to appeal should be granted because the Decision involves errors of law and fact that warrant correction on appeal. Those errors go to the proper construction of the Workplace Determination and to the proper application of the tests for approval of enterprise agreements under the Act. Furthermore, the legal errors include errors going to the exercise of the Commission’s jurisdiction.
Submissions by Qantas
[28] It was submitted by Qantas that permission to appeal should be refused as there is no public interest issue that warrants the grant of permission. Indeed, it was submitted, there is a public interest in not granting permission to appeal as the Agreement that was approved by a clear majority of employees in May 2013 and in circumstances where Qantas and the Respondent Unions agree that the Agreement satisfied all the pre-conditions to approval imposed by the Act.
[29] It was pointed out by Qantas that the Agreement was approved by the Commission on 31 July 2013 and with no stay application filed by the ALAEA, the Agreement has commenced operation in accordance with its terms. There is no warrant, as a matter of principle or otherwise, to interfere with the operation of the Agreement which impacts on a workforce of some 1200 employees.
[30] It was submitted by Qantas that the Commission approved the Agreement upon the application of conventional and orthodox legal principles and that the two issues raised by the ALAEA, namely the absence of a genuine agreement and the contention that the group of employees had not been fairly chosen, were considered by the Vice President and were rejected. In the appeal, the ALAEA, it was submitted, is simply re-agitating the same arguments that were rejected below.
[31] Furthermore, the Fourth Ground in the appeal seeks only to challenge findings of fact made by the Vice President. It was submitted that the ALAEA had failed to address any relevant appealable error in this regard. Findings of fact are matters requiring the exercise of discretion. In order to challenge factual findings, it must be established that the findings were not reasonably open on the evidence. In this regard, it is necessary to establish that the decision maker acted upon the wrong principle, allowed extraneous or irrelevant matters to guide or affect its conclusions or reached a conclusion that is unreasonable or plainly unjust. Qantas submitted that no errors of this type had been alleged by ALAEA, and accordingly, this ground, like the others, must fail.
Submissions by the Respondent Unions
[32] The Respondent Unions generally adopted the submissions of Qantas.
[33] Similarly to Qantas, the Respondent Unions submitted that the Commission should not grant permission to appeal as no error is demonstrated and the public interest is not raised by the grounds outlined in the Notice of Appeal.
[34] It was submitted that the Vice President correctly found that the Workplace Determination covers LAMEs but does not covers AMEs who obtain a Category A licence. The Vice President referred to and applied the correct principles in determining the scope of the Workplace Determination. Properly considered, both the text and the history of the Workplace Determination support the conclusion that Category A licence holders are not covered by the Workplace Determination.
[35] It was submitted that the Vice President correctly found, at [37] of the Decision, that a Category A licence holder is not a variation of a LAME. The work performed by AMEs remains unchanged with the introduction of the new licensing regime. The Agreement maintains the distinctions historically applied by all of the industrial parties between AMEs and LAMEs. It was submitted that the nature of the respective licences is qualitatively different and accordingly, on any view, the group covered by the Agreement is organisationally and operationally distinct. The Respondent Unions submitted that this conclusion necessarily followed from the Vice President’s findings of fact. The Vice President further found that the planned introduction of Category A licences did not alter the fairness of the Agreement coverage confined to that group. Proper consideration was given to these issues and no error is disclosed.
[36] With respect to the Fourth Ground, the Respondent Unions submitted that ALAEA’s submissions, even taken at their highest, do not identify any errors of fact. They merely cavil with the weight given by the Vice President to particular considerations in his assessment of the fairly chosen test.
Consideration
[37] The appeal is brought pursuant to s.604(1) of the Act and, accordingly, the ALAEA is required to obtain permission from the Commission to appeal the decision below. The conventional considerations for the granting of permission under s.604(1) apply, namely whether the decision is attended with sufficient doubt to warrant its reconsideration or whether substantial injustice would result if permission was refused. Section 604(2) of the Act also provides that the Commission must grant permission if it is satisfied that it is in the public interest to do so.
[38] In GlaxoSmithKline Australia Pty Ltd v Colin Makin 1 a Full Bench summarised the concept of public interest in the following terms:
“Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”
[39] As stated above, permission to appeal was refused at the hearing of the appeal. We accepted the submissions of Qantas and the Respondent Union that the ALAEA has not demonstrated an error in the Decision below and, in those circumstances, it would not be in the public interest to grant the ALAEA permission to appeal. We are of the view that the Vice President considered the submissions made by parties, gave appropriate weight to the evidence before him, and made findings which were clearly open to him on the evidence presented.
[40] The Vice President considered the submission made by the ALAEA that the Workplace Determination covers Category A licence holders and, applying the correct interpretation principles, ultimately found (at [38] of the Decision) that the Workplace Determination does not extend to employees who hold a Category A licence. We accept Qantas’s submissions that, objectively construed, there was no evidence within the text, language or structure of the Workplace Determination that supported the ALAEA’s contention that the purpose of the Workplace Determination was to cover all licence holders. Furthermore, we see no error in the Vice President’s reference to “mutual intention” as it is clear that the Vice President was referring to the parties’ mutual intentions as an additional reason to support the textual interpretation and conclusions reached.
[41] In our view not only was that finding open to the Vice President, but it was also correct. No error is revealed, and accordingly the First Ground must fail.
[42] With the Second Ground the ALAEA alleges that the Vice President erred because he did not make a finding that the group of employees to be covered by the Agreement was geographically, operationally or organisationally distinct. In support of this proposition, the ALAEA relied on Katzmann J’s decision in CFMEU v Hamberger DP 2, where her Honour held (at [103]) that:
“Section 186(3A) imposes an obligation on Fair Work Australia, in deciding whether the group was fairly chosen, to take into account whether the group of employees covered by the agreement is geographically, operationally or organisationally distinct. In other words these are factors Fair Work Australia is bound to consider. A failure to do so will give rise to jurisdictional error. It is not enough for it to state that it is satisfied that the requirements have been met. Here, the majority made no finding about whether or not the group was geographically, operationally or organisationally distinct. Without reaching a view about that, it could not perform its statutory task. This is not merely a case of failing to give adequate reasons.”
[43] Given that the Vice President summarised the parties’ submissions with respect to whether the group of employees to be covered by the Agreement was geographically, operationally or organisationally distinct at paragraphs [17] - [20] of the Decision, it appears to us that the actual error alleged by the ALAEA is the Vice President’s failure to specifically state in the Decision that the group was “operationally and organisationally distinct”.
[44] We consider that when the Decision is viewed in its totality, it is evident that the Vice President had turned his mind to and considered the submissions with respect to this issue and ultimately concluded, at paragraph [46], that “…the class of the employees covered by the Agreement was fairly chosen.”
[45] In the face of the Vice President’s findings at paragraphs [37] and [46] of the Decision, we agree with Qantas’s submissions that it is untenable to suggest that the Vice President had not taken into account the operational and organisational distinctiveness of the group of employees to be covered by the Agreement. The Vice President found that the group was separate (i.e., organisationally or operationally distinct) and that the group had been fairly chosen. In our view, the Vice President clearly discharged the statutory task.
[46] It should also be noted that, generally speaking:
“The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.” 3
[47] The Third Ground takes issue with the Vice President’s alleged failure to address submissions relevant to the question of whether the group of employees covered by the Agreement was fairly chosen. The ALAEA contends that not all of its arguments about “fairly chosen” were based upon whether Category A licence holders would be covered by the Workplace Determination. It contends that the Vice President did not consider the ALAEA’s full submissions.
[48] We consider that a fair reading of the Decision discloses that there is no substance to the ALAEA’s assertions. Most of the contentions raised by the ALAEA in the proceedings below were indeed tied to its contention that Category A licence holders were covered by the Workplace Determination. Accordingly, any such contentions were subsumed by the Vice President’s rejection of that argument. To the extent that a few of these contentions were not affected by the “coverage point”, these arguments were generally considered by the Vice President and rejected. The Vice President was not under any obligation to recite in the Decision every proposition advanced by the ALAEA, particularly once the underpinning assumptions of those propositions had been rejected.
[49] Pursuant to the Fourth Ground, the ALAEA alleges that the Vice President made a number of errors of fact. These alleged errors include:
[50] We reject the Fourth Ground. The abovementioned findings or observations were open on the evidence. Although the findings or observations could have been expressed differently or more accurately by the Vice President, we see no appealable error.
Conclusion
[51] The ALAEA has not demonstrated an error in the Decision below and, in those circumstances, it would not be in the public interest to grant the ALAEA permission to appeal. Permission to appeal is accordingly refused.
VICE PRESIDENT
Appearances:
A Slevin of Counsel for the Australian Licenced Aircraft Engineers Association.
F Parry of Senior Counsel and Y Shariff of Counsel for Qantas.
C Howell of Counsel for the Australian Workers’ Union, the Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
Hearing details:
2013.
Sydney:
October 24.
1 [2010] FWAFB 5343 at [27].
2 [2011] FCA 719; (2011) 210 IR 298.
3 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291 per Kirby J.
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