Australian Licensed Aircraft Engineers Association, The v Forstaff Aviation Services
[2012] FWA 10265
•19 DECEMBER 2012
[2012] FWA 10265 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Australian Licensed Aircraft Engineers Association, The
v
Forstaff Aviation Services
(C2012/857)
COMMISSIONER GREGORY | MELBOURNE, 19 DECEMBER 2012 |
JOBS AUSTRALIA (AIRCRAFT MAINTENANCE AND REFURBISHMENT) AVALON SITE AGREEMENT 6
(ODN AG2011/224) [AE884104]
Alleged dispute concerning Retrenchment.
[1] This is an application by the Australian Licensed Aircraft Engineers Association (the Applicant) under s.739 of the Fair Work Act 2009 (the Act). It concerns a dispute with Forstaff Aviation Services Pty Ltd (the Respondent) about the intent of Part C “Shortage of Work” in Schedule B “Shift Agreement” of the Jobs Australia (Aircraft Maintenance and Refurbishment) Avalon Site Agreement 6 1 (the Agreement). Those particular provisions deal with the processes to apply when there is a “shortfall in work” and retrenchments are required.
[2] The Respondent is a specialist supplier of labour in the aviation industry. Since 1998 it has supplied a skilled workforce to Qantas in order to carry out aircraft maintenance and refurbishment at Avalon Airport. In June of this year the Respondent was notified by Qantas of a change to its work order which required the Respondent to reduce its workforce across the following classifications - Aircraft Worker, Aircraft Mechanic, Aircraft Mechanical Engineer (AME) and Licensed Aircraft Mechanical Engineer (LAME). The current dispute has accordingly been triggered by that decision and associated concerns by the Applicant as to how the provisions of Part C of Schedule B of the Agreement have been applied by the Respondent.
[3] The matter was dealt with in conference on 7 August and 8 October, but was unable to be resolved. The Australian Workers’ Union (AWU) and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), who are also covered by the Agreement, were involved in those conferences. The discussions and subsequent correspondence exchanged between the parties did lead to some clarification of the Applicant’s position, and appeared to resolve the issues of concern for the AWU and the AMWU. However, the issues between the Applicant and the Respondent remained outstanding.
[4] The Applicant subsequently requested Fair Work Australia list the matter for arbitration and directions for filing written submissions and any witness statements were made. Neither party took issue with the Tribunal’s ability to deal with the matter and I am also satisfied the dispute resolution procedure in clause 22 of the Agreement, and the subject matter of the dispute, enable the Tribunal to deal with it in accordance with s.739 of the Act.
The Issues for Determination
[5] Schedule B of Part C “Shortage of Work” of the Agreement states:
C1 | In the event that there is a shortfall in available work the provisions of Clause 11.4 applies to employees then the following: |
C1.1 | Should it be necessary pursuant to Clause 29 - Retrenchments for a reduction in employee numbers (retrenchments) then the following process will apply: |
C1.1.1 | Expressions of Interest for retrenchment will be called for. An employee expressing an interest in retrenchment may be retrenched subject to skill requirements. |
Cl.1.2 | Where following retrenchments skill shortages exist the company will where possible retrain remaining staff. |
C2 | Should there not be enough retrenchments following the Expression Of Interest process then the principle of Last On First Off will apply across the Avalon site. |
[6] Those provisions set out the processes to apply in regard to voluntary retrenchment, retraining and compulsory retrenchment in the unfortunate event the Respondent is required to reduce employee numbers due to a “Shortage of Work”. Other provisions in the Agreement deal with the entitlements of those actually made redundant, but are not relevant to the determination of this matter.
[7] There are essentially three issues that arise for determination in the light of the provisions in Part C of Schedule B of the Agreement. Firstly, what is intended by the words “may be retrenched subject to skill requirements” in clause C1.1.1. Secondly, what is intended by the words “the company will where possible retrain remaining staff” in clause C1.1.2. Finally, where compulsory retrenchments are required, and the principle of “Last On First Off” is applied, what is intended by the words “will apply across the Avalon site” in clause C2 of Part C.
The Evidence and Submissions
[8] The Applicant provided a written outline of submission and various exhibits, together with witness evidence from Gary Norris, who is employed as a Senior Industrial Officer with the Association. The Applicant stated it was advised on 14 June by the Respondent a short fall in work, due to a change in the Qantas work order, necessitated a reduction in employee numbers across 96 positions. The Respondent initially sought expressions of interest from volunteers and indicated on 3 July 64 expressions of interest had been received. It advised it would accordingly need to implement additional compulsory retrenchments.
[9] However, the Applicant indicated it had an issue in terms of Part C of Schedule B of the Agreement and how it had been applied in the circumstances. The Applicant tendered a draft order in the proceedings which reflects its view about the intent of Part C of Schedule B. The terms of that order are as follows:
“i. That the Respondent initially call for expressions of interest in voluntary retrenchments.
ii. That an employee expressing an interest in voluntary retrenchment should not be overlooked due to possessing skills when training in that skill could possibly be provided to another employee who may be the subject of compulsory retrenchment.
iii. That the Respondent nominate, arrange and subsequently provide retraining in accordance with C1.1.2 to address any lack of necessary skills or qualifications which will arise after implementing retrenchments.
iv. That Last on First Off across the job classifications in the Agreement is to apply across the Avalon site to the exclusion of other criteria when any compulsory retrenchments are being implemented.
v. That the orders operate from the beginning of the dispute between the parties.” 2
[10] The Applicant also made further submissions about the intent of Part C of Schedule B of the Agreement.
[11] It submitted, firstly, an employee who expresses an interest in retrenchment when “Expressions of Interest” are called for, in accordance with clause C1.1.1, should not be automatically overlooked or refused the option of retrenchment simply because they possess skills the Respondent continues to require. Instead, any decision by the Respondent should be made taking into account whether training in those skills could possibly be provided to another employee wanting to remain in employment but lacking the requisite skills or qualifications.
[12] Secondly, the provisions in clause C.1.1.1 need to be considered in the overall context of Part C of Schedule B of the Agreement. Accordingly, after any retrenchments have occurred the Respondent should arrange and provide retraining as required by clause C1.1.2 to respond to any lack of necessary skills or qualifications existing as a result of the redundancies. It submits in this context retraining should be:
“...carried out if it could enable the company to accept an expression of interest from an employee expressing interest in voluntary retrenchment who holds skills or qualifications that the company wants to maintain.” 3
[13] In this context the Applicant places emphasis on the words “where possible” to emphasise the obligation intended to be placed upon the Respondent. It notes “possible” is defined in the Macquarie Dictionary as something that “may or can be done”. It also points out the wording in clause C1.1.1 is not qualified, for example, to exclude training on another type of aircraft, or to involve training only when Qantas is able to assist in providing it, or only when appropriate training courses are available.
[14] The Applicant also acknowledges the obligation is not open ended but submits it does place an obligation on the Respondent, following any voluntary retrenchments, to address any shortfall in skills or qualifications with appropriate training, including licence training, unless the provision of that training is not possible. It continued to indicate:
“It’s much broader than the ‘where reasonable/practicable’ that I believe the respondent asserts it should be read down as and those words do not appear in the agreement. We submit that the tribunal should give some weight to the breadth of the expression used. If it had been intended that licence or type training of an additional aircraft type was to be exempt or would only be made available with the cooperation of Qantas or if Qantas were running a course soon, surely the clause would have been further qualified. But it wasn’t.” 4
[15] The final issue concerns the wording of clause C2 and, in particular, the intent of the words “Last On First Off will apply across the Avalon site.”
[16] The Applicant submits the meaning of clause C2 is clear. If compulsory redundancies are required to be made they should be made on the basis of Last On First Off across the job classifications on site to the exclusion of other criteria. It provides a practical example to demonstrate what it submits is intended:
“...if the company declares that 10 mechanical licensed aircraft engineers need to be made redundant the application of the Last On First Off policy should apply to all mechanical licensed aircraft engineers regardless of what other additions they have to their base qualification.” 5
[17] The Applicant also stated:
“We aren’t suggesting that say, a staff member employed under the administrative classification in the agreement should be retained because they had longer service on a LAME or an AME. That’s not what the clause was drafted to achieve in a practical sense. However, Commissioner, whilst we agree that Last On First Off shouldn’t be applied by gate service across the whole workforce of the respondent covered by the agreement, there has to be some limitation or the clause in fact is meaningless. We say that the logical and intended limitation is by job role or trade classification.” 6
[18] The Applicant contrasts its position with that of the Respondent, which is based on the specific job qualifications or job characteristics no longer required because of the changes in work order. For example, in the present situation the Respondent excluded staff holding 767 and 737 licences from the voluntary redundancy pool because the amended Qantas work order required those skills to be retained.
[19] The Applicant also submits, given the uncertainty about the intended meaning, it is appropriate to make reference to extrinsic evidence to demonstrate the intention of the clause. In this context it submits the wording in Part C of Schedule B was first included in an agreement between the parties in the 2003 Jobs Australia (Aircraft Maintenance and Refurbishment) Avalon Site Agreement IV, 7 known as EBA IV. It states:
“EBA IV was negotiated against the backdrop of an upcoming expansion to the Respondent’s business in part in order to undertake a program of installing ‘Skybed’ seating into Qantas’ 747 aircraft. To facilitate the expansion the Respondent was to be actively seeking and engaging significant numbers of new employees. At the time, there was significant concern amongst existing staff of the Respondent that, once the Skybed program had been completed, there would be a shortfall in work and the newer-hired staff would have an advantage in being retained as they were more likely to have more updated qualifications or be licensed on a wider variety of aircraft. This is due to the fact that longer-term staff of the Respondent performed work on, and therefore held current qualifications in relation to, a very limited number of aircraft. Therefore existing staff would potentially be at a disadvantage to newer staff with broader qualifications should retrenchments be instituted.” 8
[20] Mr Gary Norris gave evidence on behalf of the Applicant. He is a Senior Industrial Officer with the Applicant and has been employed by the Association since May 2000. He stated when EBA IV was being negotiated there was significant concern about possible redundancies, particularly when the current Skybed installation work was completed. This led to a claim from the Applicant any compulsory retrenchments be based upon seniority. He stated, in part, in his witness statement:
“6. The rationale for this claim was the apprehension that, should retrenchments be deemed necessary, the newly hired employees would be retained ahead of longer serving employees as newly hired employees were likely to have current qualifications in relation to a wider variety of aircraft than longer serving employees, many of whom had been employed by the Respondent since the opening of the Respondent’s Avalon business in 1997.
7. In addition, a further concern of the Applicant was that the longer serving employees had higher pay rates than the newly employed employees, which may provide an incentive to the employer to terminate the employment of the longer serving employees should redundancies arise.
8. The Respondent accepted this claim and the principle of Last On First Off was agreed to.” 9
[21] Mr Norris indicated in his examination-in-chief:
“...that the clause that was put in that agreement was specifically designed in the steps that it is to ensure that the existing employees would retain the right to training.” 10
[22] He also indicated in cross-examination that:
“...the best way to protect the employment because the employees at hangar 5 and 6 would be employed before the people in hangar 4, was a last on, first off policy.” 11
[23] He also stated: “The only limiting criteria that was discussed at the time was that the Last On, First Off would apply within the trade stream, either avionic or mechanical”. 12
[24] The Respondent has also provided a draft order in the following terms:
“1. The retrenchment process adopted by the Respondent in between June and August 2012 complied with the requirements of the Jobs Australia (Aircraft Maintenance and Refurbishment) Avalon Site Agreement 6.
2. When considering expressions of interest in voluntary redundancy in accordance with clause C1 of Schedule B of the Agreement, the Respondent:
(a) may take into account skills requirements;
(b) if it would be reasonably practicable to retrain another employee in a skill that would otherwise be lost if the Respondent accepted an expression of interest, will accept the expression of interest and provide the retraining.
3. If compulsory retrenchments are still necessary, the Respondent will determine the roles in which employee reductions are required, according to its workforce requirements.
4. After determining which roles are no longer required, the Respondent must apply the principle of “last on, first off” to all of the employees working in each type of role where a reduction is required, to select the employees who will be retrenched.
5. Where “last on, first off” has been applied and more than one employee has the same start date, the Respondent may apply the additional selection criteria it applied in August 2012, being:
(a) Outcomes of performance appraisals for the previous three years;
(b) Additional skills held by the employees;
(c) Absenteeism (excluding paid or unpaid leave taken in accordance with the Agreement).” 13
[25] The Respondent submits Part C of Schedule B of the Agreement should be read in two parts. Clause C1, including clauses C1.1, C1.1.1 and C1.1.2, deals with the voluntary redundancy stage. Clause C2 then applies when compulsory redundancies are required. In its submission the retraining obligation is accordingly only concerned with the voluntary redundancy process. Clause C1.1.1 expressly allows the Respondent to take into account its future skill requirements when assessing expressions of interest in voluntary redundancy. For example, in the current circumstances it received 70 expressions of interest about voluntary redundancy, but rejected two of those due to required skill needs, namely the two volunteers held required 767 and 737 licences.
[26] Secondly, the Respondent submits the obligation to retrain in clause C1.1.2 must be read in contemplation with the words in clause C1.1.1. The obligation to retrain, limited by the words “where possible,” is consistent with and balances the right of the Respondent to take into account skill requirements when considering expressions of interest. The Respondent submits “where possible” should be considered as words of qualification to mean “where reasonably practicable”. For example, in the current situation it was not possible to retrench all volunteers possessing 767 and 737 ratings and yet still comply with the requirements of the revised Qantas work order.
[27] In terms of clause C2 the Respondent submits “Last On First Off ... across the Avalonsite” was clearly understood not to mean every position covered by the Agreement, without regard to any other factors except commencement date. In its submission it was instead intended to be applied by reference to the redundant roles referable to the changed Qantas work order.
[28] The Respondent submits the “relevant category” in clause C2:
“...must be defined according to the roles that are no longer required, arising from the relevant work order it is required to service,” 14
and further:
“Once the roles are determined, selection for retrenchment is not discretionary. The Respondent is bound to apply the principles of LOFO across all of the employees working in each type of role where a reduction in required.” 15
[29] Mr Peter Melhuish gave evidence on behalf of the Respondent. He is the General Manager, Industrial Relations with the Chandler McLeod Group Limited, the parent company of the Respondent. He participated in the renegotiation of EBA IV when the provisions contained in Part C of Schedule B of the Agreement were first introduced.
[30] He indicated in his witness statement at the time EBA IV was negotiated the Applicant was concerned employees might in future be selected for redundancy based on the particular hangar in which they were working. The Last On First Off provisions were accordingly intended to ensure seniority in a category to be reduced, rather than location or geography, was the relevant consideration. He disagreed with the evidence of Mr Norris that the “Last On First Off” provision was structured on the basis of concerns recently hired employees were likely to have a broader range of qualifications than existing longer term employees.
[31] Mr Melhuish also stated the Respondent did consider whether retraining was possible in response to the recently changed Qantas work order so that all “expression of interest” volunteers could be released, however, “Forstaff does not have the ability to provide in house licence training,” 16 and
“...it could take up to twelve months or more for a candidate to satisfy the licence requirements, depending on whether and when the Respondent was able to provide the relevant practical experience.” 17
[32] Mr Melhuish also stated:
“If Forstaff had applied the ALAEA’s approach to compulsory retrenchment of LAMES, having regard to classification only but not to aircraft licences held, we would have had a reduction of 767 and 737 ratings from 55 to 33.” 18
[33] In his view the Respondent would not, in that situation, have been in a position to meet the revamped Qantas work order.
[34] He also stated:
“To retrain the workforce Forstaff would have had to retrain eleven LAMES it selected for redundancy for up to a year or more while retraining them. Once retraining was complete, it would have had to make redundant people who already held the skills required to meet the Qantas work order.” 19
[35] In cross-examination and in response to a question concerning retrenchments and the existing clause in the Agreement Mr Melhuisih stated:
“The concerns as I recall them were that if hangar 4 were to complete the project and the hangar closed, that those people who had transferred out of hangars 5 and 6 would not be caught up in those redundancies and that was the genesis of the Last On First Off agreement.” 20
[36] In regard to the intended training obligations he also indicated in cross-examination:
“My belief is the intent of that clause is that where we can, where it is practicable then we would look at training and as I said during the consultation process we took into consideration training insofar as those things that we had control over, confined spaces training, first aid tickets and those sorts of things. But we simply cannot undertake a program of licensed training.” 21
The Law to be applied
[37] The Applicant submits the principles of agreement construction are well established. It cites the decision in Codelfa Construction Pty Ltd v State Rail Authority of NSW 22 in turn cited with approval in the decisions in the Amcor Limited v Construction, Forestry, Mining and Energy Union 23 (Amcor) and the Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd24(John Holland). It submits on the basis of those decisions a clause in an agreement is to be interpreted to give effect to its plain and ordinary meaning in the relevant industrial context having regard to the subject matter and the text of the instrument as a whole. Narrow and pedantic approaches should be avoided and there must be solid justification for implying words which limit or restrict meaning. In addition, if a clause is ambiguous or susceptible to more than one meaning extrinsic evidence is admissible to resolve the ambiguity. Any such evidence should be confined to matters known to both parties at the time of making the industrial instrument.
[38] The Applicant referred to the decision in John Holland to submit the task for the Tribunal is “...whilst departing from the words of the agreement as little as possible to develop an objective interpretation...” 25
[39] The Respondent also cited the decision in Amcor and the view of the High Court that “...an agreement must be understood in the light of its industrial context and purpose.” 26 It submits the surrounding circumstances, as known to the parties, and the purpose and object of the agreement will be relevant factors to take into account when interpreting the term of an agreement.
[40] The Respondent also states:
“It is unhelpful to say, as the ALAEA submits, that words should not be read into the Agreement which are not there. On either party’s view, Fair Work Australia will need to consider the context of the clause and interpret it consistently with the principles above, in a manner which imports some additional words to give a practical meaning to the clause.” 27
[41] However, it continues to submit the Applicant “falls into error ... in the use it tries to make now of extrinsic evidence that it has called from Mr Norris.” In this context it refers to the decision in John Holland and submits:
“But what the court says is that generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances and aid to construction unless they were known to both parties, although as we have seen if the facts are notorious, knowledge of them will be presumed. It’s here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract.
To the extent to which they have this tendency they’re admissible but insofar as they consist of statements and actions of the parties which are reflected of their actual intentions and expectations they are not receivable. The point is that those statements and actions reveal the terms of the contract which the parties intend or hope to make. They’re superseded or merged in the contract itself. So that’s a classic statement of the parol evidence rule and we say that applies.
So the question is not what rationale or concern was in the mind of the ALAEA when it came to the bargaining table and we say that paragraphs 6 and 7 of Mr Norris’ statement should not be taken into account and not his additional oral evidence about what the ALAEA’s concerns were about overseas recruitment or about how he hoped to protect people in relation to the types of licence that they held. It was not Mr Melhuish’s evidence that that was in the company’s mind. They’re not notorious facts. They’re not facts that the parties agree are part of the contextual matrix and we say that should not be taken into account.” 28
[42] The Respondent submits an approach that is cogniscent of industrial and commercial reality instead needs to be applied, looking firstly to the roles to be made redundant. Voluntary redundancy is then the first step, qualified by the reference “subject to skills.” It also submits this context makes clear the use of the words “across the site.” They were put into the agreement in a context of changes including servicing a “finite work requirement.” It also citesAustralian Federated Union of Locomotive Enginemen and State Rail Authority (NSW) 29 (XPT Case)in submitting “...determining what roles are redundant is one of the classic matters that falls within management prerogative...”30 and that it was a matter for the company as to whether it effected redundancies and what roles it chose”.31
The Decision
[43] The Applicant and the Respondent both seek a declaration about the intention of the provisions contained in Part C of Schedule B of the Agreement. Both have provided draft orders to reflect their submissions about the intended meaning. The Respondent submits the retrenchment process it went through this year complies with what the clause intends. The Applicant disagrees. The respective positions of both parties have already been set out in some detail.
[44] The principles required to be applied to the determination of this matter have also been referred to and can be summarised on the following basis.
[45] The objective is to search for the meaning intended by the parties, and to give effect to its evident purpose in the relevant industrial context within which the agreement was developed. What might be fair or just should not be put in place of what others intended. If a clause is ambiguous or capable of more than one meaning extrinsic evidence can be admitted to remove that ambiguity. However, it should not contradict the language if it already has a plain meaning. In addition, when two or more possible meanings exist the Tribunal should look to the objective framework of facts within which the agreement came into existence, and the parties presumed intention in that setting. I have endeavoured to apply these principles in coming to a decision in this matter.
[46] I note at the outset Part C of Schedule B is contained within an Agreement that has an overall objective set out in clear terms. It is contained in clause 6 “Objective of the Agreement” and expressed in the following terms:
“The objective of this Agreement is to establish innovative employment arrangements that enable the maintenance and/or refurbishment of aircraft to be undertaken in Australia.”
[47] Those words are important in understanding the relevant industrial context in which the agreement was developed, and the evident purpose and meaning intended by the parties. It is obviously an agreement that intends to set out the conditions and working arrangements of the employees of the Respondent covered by the Agreement. But it also does so against the background of an objective to enable ongoing aircraft maintenance and refurbishment to be undertaken in circumstances and at a time where there has been significant change to how that work is performed.
[48] In terms of Part C of Schedule B of the Agreement the first requirement, before the provisions have any relevance or application, is there must be a “shortfall in available work”. This is an important pre-condition in terms of setting the context in which the remaining provisions apply.
[49] Turning to the specific issues the first concerns the meaning of the words “subject to skill requirements” when expressions of interest about voluntary redundancies are being considered, contained in clause C1.1.1.
[50] I am satisfied these words have a plain meaning. They propose voluntary redundancies as the first option when there is a shortage of work and retrenchments are required. However, they also qualify that option by making it subject to skill requirements. In other words the Respondent is able to refuse to make redundant volunteers for redundancy who possess required skills and/or qualifications necessary to meet ongoing work requirements. I am satisfied that intention is clear from the plain meaning of the words in clause C1.1.1.
[51] However, I am also satisfied the words that follow in clause C1.1.2 impose an obligation on the Respondent to provide training to employees who may not have the necessary requisite skills, but wish to avoid being made redundant. However, the extent of that obligation is less clear.
[52] The Applicant submits an expression of interest in voluntary redundancy should not be overlooked because of skills or qualifications possessed by that employee when training in those skills or qualifications could be provided to another employee. It acknowledges the obligation is not open ended, but does place an obligation on the Respondent to address any shortfalls in skills with appropriate training, including license training, unless the provision of that training is not possible. In their submission “when possible” is a broader obligation than “reasonably practicable”.
[53] The Respondent submits it is simply required to take into account skill requirements when considering expressions of interest for voluntary redundancy and only required to retrain if “reasonably practicable”.
[54] I am satisfied the plain meaning of the words in clause C1.1.2 and their evident purpose do impose a positive obligation upon the Respondent to provide appropriate retraining when redundancies occur. I am also satisfied clause C1.1.2 should be considered in the context of overall provisions contained in the various sub-clauses in clause C1. Retraining is accordingly to be considered for other employees when it can enable those wanting to take voluntary redundancy, but possessing required skills. It is also an obligation that exists after retrenchments have occurred and “skill shortages exist” as clause C1.1.2 provides for.
[55] In terms of the context of the obligation it is clearly not open ended. It will be a matter to be considered in the particular circumstances surrounding any situation where redundancies are required. The various provisions in the sub-clauses within C1 in Part C also need to be viewed against the overall objective contained in clause 6 of the Agreement to enable the ongoing maintenance and refurbishment of aircraft to continue to be undertaken. Consistent with this objective the Respondent needs to be able to have in place a group of employees who can perform work in accordance with the Qantas work order and Qantas work requirements as they exist from time to time. This will mean employees wanting voluntary redundancy will not always be able to be accommodated. It also means the Respondent is required to provide retraining, both to facilitate voluntary redundancy when it can, and to replace skills lost through redundancy. The order made seeks to reflect this balance.
[56] The final matter is perhaps the most significant. When compulsory redundancies are required to be made on the agreed basis of “Last On First Off” sub clause C2 in Part C of Schedule B provides that principle is to be applied “across the Avalon site”. What is intended by those words?
[57] After some uncertainty the Applicant has confirmed its view about what those words mean, although it is less clear whether that clarification is actually achieved by the words proposed in its draft order. The Applicant submits “across the Avalon site” is intended to encompass all AME and LAME classifications, in either mechanical and avionic, to the exclusion of any other qualifying criteria.
[58] The Respondent has a different view. It submits the relevant group of employees “across the Avalon site” are those in each specific role in which a reduction is required. In its view the intended group is confined to only those roles within classifications in which redundancies are required, and not to all AME and LAME classification or sub classifications as the Applicant maintains.
[59] There is clearly more than one meaning that can be given to those words. The parties have narrowed those potential options down to two, although both also at the same time seek to place different conditions or qualifications on the words “across the Avalon site”. I am satisfied the overall objective of the Agreement is again relevant to an understanding of the intention of the parties at the time. Given the words are capable of more than one meaning I am also satisfied it is appropriate to have regard to extrinsic evidence and the objective framework of facts.
[60] The circumstances in which the relevant provisions were first included in an agreement between the parties are known and have been detailed already. Significant recruitment took place at the time to deal with the Skybed installation in Qantas aircraft. A large number of employees with a diverse range of skills were recruited to cope with the demands of the project. A number of existing employees from other hangars at the Avalon site were also relocated to the hangar in which the Skybed installation work was occurring. It was also evident the work was potentially of limited duration and future work opportunities could diminish once it was completed. Longer standing employees who were working on the Skybed installation were accordingly concerned to ensure if sufficient work was not available in the future they would be protected from compulsory redundancy. The Last On First Off criteria was accordingly the means to protect those longer serving employees from compulsory redundancy in circumstances where the “one off” Skybed installation work came to an end and other work was not available to pick up the shortfall. That is the industrial context in which Part C of Schedule B was developed and included in the agreement between the parties at the relevant time.
[61] Against this background I am satisfied the words “across the Avalon site” should be confined to those roles no longer required due to the shortfall in available work. I am again satisfied this approach is consistent with the objective framework of facts existing when the Agreement came into existence, and the presumed intention of the parties in that setting. In coming to this conclusion I am again mindful as well of the objective of the Agreement contained in Clause 6.
[62] To extend the potential candidates for redundancy beyond the roles and classifications no longer required likely means the Respondent would be required to make redundant a significant number of employees whose skills and qualifications are still required to meet current work requirements. I am not satisfied this interpretation can be considered to be consistent with the presumed intention of the parties given the relevant industrial context in which the agreement was developed and the objective framework of facts existing.
[63] An issue was also raised in the proceedings about the application of “Last On First Off” and how to determine the priority order when two or more employees have a common start date. Whilst the issue was raised it was not the subject of detailed submissions. It is accordingly proposed at this time it is a matter that should, as far as possible, be discussed and agreed upon by the parties if those circumstances arise at any point in the future.
[64] The Order will be made contemporaneously with this decision.
COMMISSIONER
Appearances:
S. Purvinas with L. Amos appearing on behalf of the Australian Licensed Aircraft Engineers Association.
J. Mansfield with J. Yateman of counsel appearing on behalf of Forstaff Aviation Services.
Hearing details:
2012.
Melbourne:
2 November 2012
1 AE884104.
2 Exhibit P3
3 Transcript PN43
4 Transcript PN443
5 Transcript PN22
6 Transcript PN62
7 Transcript AG828519
8 Exhibit P1 at paragraph 33
9 Exhibit P2
10 Transcript PN103
11 Transcript PN130
12 Transcript PN150
13 Exhibit M3
14 Exhibit M1 at point 19
15 Exhibit M1 at point 22
16 Exhibit M1 at point 22
17 Exhibit M2
18 Exhibit M2
19 Exhibit M2
20 Transcript PN306
21 Transcript PN314
22 [1982] HCA 24
23 [2005] HCA 10
24 [2010] FCAFC 90
25 Ibid.
26 Transcript PN439
27 Exhibit M1 at point 8
28 Transcript PN503 - PN505
29 (1984) 295 CAR 188.
30 Transcript PN525
31 Transcript PN526
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