Brad Lacy v Civil Aviation Safety Authority
[2014] FWC 1305
•13 MARCH 2014
| [2014] FWC 1305 [Note: An appeal pursuant to s.604 (C2014/3567) was lodged against this decision - refer to Full Bench decision dated 25 June 2014 [[2014] FWCFB 4218] for result of appeal.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Brad Lacy
v
Civil Aviation Safety Authority
(C2013/5238)
COMMISSIONER BISSETT | MELBOURNE, 13 MARCH 2014 |
Alleged dispute in relation to payments (loadings).
[1] Mr Bradley Lacy is an employee of the Civil Aviation Safety Authority (CASA). He works as a Flying Operations Inspector. He has worked for CASA since 2007.
[2] Mr Lacy’s employment is covered by the Civil Aviation Safety Authority Enterprise Agreement 2012-2014 (2012 Agreement). The 2012 Agreement was approved by the Fair Work Commission (the Commission) on 25 June 2012. Prior to this Mr Lacy was covered by the Civil Aviation Safety Authority Enterprise Agreement 2010-2011 (the 2010 Agreement).
[3] Mr Lacy believes that he is entitled to be paid an endorsement loading in accordance with Schedule A to the 2012 Agreement in respect of an endorsement he holds for the Gulfstream V aircraft. He says the endorsement he holds for the Gulfstream V is required by CASA for him to do his job and is within the categories of aircraft for which an endorsement loading is payable.
[4] CASA says the endorsement loading does not apply to this particular endorsement held by Mr Lacy.
Background
[5] Flying Operations Inspectors (FOIs) are experienced pilots who ‘utilise their particular skills and knowledge in relation to the aviation industry in general, as well as specialised skills obtained in specific aircraft types, to provide regulatory oversight of the aviation industry. FOIs meet their operational obligations by performing regulatory tasks including:
a). conducting flying assessments of senior supervisory pilots employed by aviation operators;
b). assessing applications for operational approvals and permissions;
c). conducting flight testing of aviation licence holders;
d). reviewing and assessing operation documents and procedures submitted by aviation operators; and
e). participating in audits of air operators.’ 1
[6] Aircraft pilots (and therefore FOIs) are licensed with respect to the aircraft to which the licence relates. The regulatory regime ensures that pilots do not operate a particular class or type of aircraft unless they have undertaken further flying training to ensure they are adequately equipped to safely operate the aircraft. The satisfactory completion of this training is recognised by the issue of a relevant aircraft endorsement. 2
[7] The non-contentious background to the matter in dispute is that prior to 2011 CASA had two groups of FOIs. These were the Air Transport Operations Group (ATOG) consisting of Air Transport (AT) FOIs and the General Aviation Operations Group (GAOG) consisting of General Aviation (GA) FOIs.
[8] This separation would appear to reflect the general industry separation - ‘air transport’ comprises commercial airline operations conducted in high capacity aircraft (HCA) and ‘general operations’ comprises all commercial operations in low capacity aircraft (LCA). 3
[9] The 2010 Agreement, as it applied to FOIs, provided for an ‘endorsement loading’ for FOIs in ATOG who held an endorsement and were required to hold that endorsement by CASA to undertake their duties. The endorsement loading was in the range of approximately $16,500 - $63,000. The amount of the endorsement loading payable is based on the type of aircraft for which the FOI held the endorsement and, of course, their duties with CASA. The endorsement was considered as salary for all purposes. Under the 2010 Agreement there were four levels of endorsement loading with each level having a descriptor designed to assist in determining the loading payable.
[10] The 2010 Agreement contained a section in Schedule A titled ‘ATOG Loadings’ which contained the Endorsement Loading Levels and Endorsement Loading Principles and Procedures.
[11] The 2010 Agreement also provided two separate salary structures for FOIs dependent on whether the FOI was in ATOG or GAOG.
[12] During the period of the 2010 Agreement Mr Lacy worked in GAOG. He was not entitled to receive an endorsement loading. Mr Lacy’s work has not substantially changed since that time.
[13] In 2011 CASA abandoned the ATOG/GAOG distinction and introduced Certificate Management Teams (CMT). The CMTs are multi-disciplinary teams designed to give CASA a ‘more holistic picture of the safety performance of the aviation operators’ for which it has oversight responsibilities. The CMTs generally include FOIs (from both AT and GA), airworthiness inspectors and safety systems inspectors.
[14] The 2012 Agreement introduced a single salary structure for FOIs and transitional arrangements were put in place for the movement of FOIs to the new structure.
[15] The 2012 Agreement also dispensed with the nomenclature around ATOG and GAOG and AT and GA FOIs.
[16] Some changes were also made to the endorsement loading table. It is these changes and their impact which underlies the matter in the dispute between Mr Lacy and CASA.
Jurisdiction
[17] Clause 10 of the 2012 Agreement provides a process for the resolution of particular matters in dispute. That process states:
10. Dispute settlement procedures
10.1. If a dispute relates to:
10.1.1. a matter arising under the Agreement (other than as limited by clause 6.2- 6.4 of this Agreement); or,
10.1.2. the National Employment Standards (the NES);
this term sets out procedures to settle the dispute.
10.2. An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause 10.
10.3. In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
10.4. If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to FWA.
10.5. FWA may deal with the dispute in 2 stages:
10.5.1. FWA will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
10.5.2. if FWA is unable to resolve the dispute at the first stage, FWA may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
Note: If FWA arbitrates the dispute, it may also use the powers that are available to it under the FW Act. A decision that FWA makes when arbitrating a dispute is a decision for the purpose of Div 3 of Part 5.1 of the FW Act. Therefore, an appeal may be made against the decision.
10.6. While the parties are trying to resolve the dispute using the procedures in this term:
10.6.1. an employee must continue to perform their work as they would normally do so unless-they have a reasonable concern about an imminent risk to their health or safety; and
10.6.2. an employee must comply with a direction given by CASA to perform other available work at the same workplace, or at another workplace, unless
(i) the work is not safe; or
(ii) applicable work, health and safety legislation would not permit the work to be performed; or
(iii) the work is not appropriate for the employee to perform; or
(iv) there are other reasonable grounds for the employee to refuse to comply with the direction.
10.7. The parties to the dispute agree to be bound by a decision made by FWA in accordance with this term.
[18] The matter in dispute relates to the entitlement of Mr Lacy to receive an endorsement loading provided for in Schedule A to the 2012 Agreement. I am therefore satisfied that the matter in dispute is a matter arising under the 2012 Agreement.
[19] Mr Lacy raised the matter with his supervisor in August 2012. The matter did not settle at this level and was escalated to more senior management. The AFAP ultimately raised the matter with CASA’s head of People and Performance where it was not resolved.
[20] The matter was subject to conciliation before me where it failed to settle.
[21] The parties have agreed that, in resolving the dispute, there are three questions the Commission should address. These are:
(i) Whether the transition in the Enterprise Agreement to a combined Flying Operations Inspector salary structure was intended by the parties to broaden access to Endorsement Loading beyond that which has been provided in the predecessor agreement;
(ii) Whether the Gulfstream G550 aircraft is an aircraft which qualifies for payment of a Level 2 Endorsement Loading;
(iii) Whether, on the terms of the Enterprise Agreement, the applicant satisfies the minimum criteria to be eligible to be paid the Level 2 Endorsement Loading.
[22] Mr Lacy was represented by the Australian Federation of Air Pilots (AFAP) during proceedings. CASA was represented with permission by Mr Harrington of counsel.
Interpretation of agreements
[23] There appears to be no substantial difference between the parties in the approach to interpreting an industrial instrument although they may differ on emphasis.
[24] The principles relevant to interpreting an agreement are well known. The authorities on the matter are well summarised in the decision of Lawler VP in Watson v ACT Department of Disability Housing and Community Services4. Upon consideration of the authorities his Honour concluded:
In summary, the general principles governing the construction of contracts laid down by the High Court in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales apply to the construction of industrial agreements. However, consistent with the approach in Kucks and Short v FW Hercus Pty Ltd, an industrial agreement must always be construed in context: the context of particular provisions within the agreement as a whole and the context in which the agreement was made including any relevant statutory or historical context. Extrinsic evidence as to the context in which the agreement was made, including the statutory and historical context, will be admissible to demonstrate the existence of ambiguity and or to resolve ambiguity.5
[25] This approach was recently endorsed in Stanley v Father Michael Court. 6
[26] In Shop, Distributive and Allied Employees Association (Queensland Branch) Union of Employees v Woolworths Limited T/A Woolworths 7 (SDA v Woolworths) the Full Bench of the Commission considered the question of the approach to interpreting an agreement and circumstances where the ordinary meaning of the words in the agreement may be departed from:
There are circumstances in which it is permissible to depart from the ordinary meaning of the words used in an agreement in order to correctly interpret them: “there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning”. However, the words in an agreement should not be given other than their ordinary meaning unless there is some well founded basis to do so. Examples of a proper basis to depart from the ordinary meaning of a provision in an agreement include where the application of the ordinary meaning would lead to a result that is patently absurd or leave the provision with no practical work to do or render it illusory, or where the agreement read as a whole dictates that a different interpretation is required. However, any alternative interpretation adopted must be one which is reasonably available on the language used in the particular provision read in the context of the agreement as a whole (unless it is a case of actual drafting error). 8
[footnotes omitted]
[27] I have respectfully adopted the approach in Watson and been mindful of the caution in SDA v Woolworths in determining the matter before me.
Endorsement loadings and the 2012 Agreement
Evidence and submissions
[28] The AFAP submits that, in interpreting Schedule A to the 2012 Agreement, the Commission should be guided by the language of the clause and, where it has a plain meaning, construe it in the context of the agreement as a whole and the relevant statutory circumstances. Further, evidence of surrounding circumstances should only be considered if the terms of the clause are ambiguous or susceptible to more than one meaning.
[29] The AFAP submits that there is no ambiguity or uncertainty in the 2012 Agreement in respect of the payment of the endorsement loadings and the entitlement to those loadings.
[30] The AFAP says that there is no evidence of any mutual intention of the parties that the endorsement loadings should only be paid under the 2012 Agreement as they had under the 2010 Agreement. It says that, having reached a bargained outcome, the mutual intention of the parties is reflected in the words of the clause.
[31] The evidence of Mr Lacy is that he was not told at the conclusion of negotiations for the 2012 Agreement that he would now be eligible for the endorsement loading but he says he reached this view on reading the 2012 Agreement.
[32] The AFAP submits that the wording of the provisions in relation to the endorsement loading makes it clear that the endorsement loading at Level 1 is only available for work on aircraft types previously allocated in the ATOG stream but that such a distinction is not made at Level 2 and above. This, in conjunction with the ‘notes’ that appear with the FOI wage rates, makes it clear that an FOI who meets the criteria specified in those ‘notes’ is entitled to the endorsement loading at Level 2.
[33] The AFAP relies on the decisions in Codelfa Construction Pty Ltd v State Rail Authority9 (Codelfa) in support of its proposition that, in determining the intention of the parties the starting point is the words of the agreement itself. The context and industrial purpose of the instrument are also relevant to its interpretation: see Amcal Limited v Construction, Forestry, Mining and Energy Union and Others 10and City of Wanneroo v Holmes11. The AFAP also seeks to rely on the decision in Watson in relation to the approach to be taken in the resolution of ambiguity in an agreement.
[34] CASA submits that during the negotiations for the 2012 Agreement the AFAP sought to ‘broaden the reach of the endorsement loading definitions’12 but that this was rejected by CASA management in two letters to AFAP (and other unions involved in bargaining) dated 7 November 201113 and 22 November 201114.
[35] In the letter of 7 November 2011 CASA specifically rejected a claim for a ‘civil/business commercial jet loading’ on the grounds that it was not considered viable at the time.15
[36] In the letter of 22 November 2011 CASA responded to the ‘indicative’ log of claims put forward by the joint unions16 in about June 2011. In response to the unions’ claim that:
FOIs and FTEs engaged in GAOG (howsoever described) shall be paid endorsement loadings consistent with those that apply to FOIs and FTEs engaged in ATOG operations.
CASA responded as follows:
CASA has proposed a ‘single spine’ pay structure for all FOIs to align remuneration wherever possible. CASA will continue to provide pro rata endorsement loading for GA FOI type specialists undertaking specific AT work. CASA will not support this claim.17
[37] Whilst the 2012 Agreement was not approved until June 2012, the evidence of Mr Michael Whitfield, Manager Workplace Environment and Support for CASA, is that CASA’s negotiating position on this issue did not change between the letter of 22 November 2011 and the finalisation of the agreement.18
[38] Mr Jon Weeks, Acting Senior Manager Operations Strategy for CASA, gives evidence that the industry is broken into two sectors: AT operations which comprise commercial airline operations conducted in high capacity aircraft (HCA); and, GA operations comprising all commercial operations conducted in low capacity aircraft (LCA).19 A HCA is defined in Civil Aviation Order 82.0 as an aircraft with a maximum seating capacity greater than 38 seats or one certified with a maximum payload exceeding 4,200kg.
[39] Mr Weeks’ evidence is that historically the payment of endorsement loadings has been limited to FOIs with AT qualifications and experience and with endorsements to fly HCA. He says that the ‘prime rationale for the endorsement loading’ is to enable CASA to compete in the market place and attract qualified AT pilots from the commercial sector.20 The difficulty in attracting AT pilots is not replicated in the recruitment of GA pilots because wages and conditions offered by CASA ‘generally compare favourably with those on offer within the GA sector of the industry.’21
[40] Mr Weeks also gives evidence of position descriptions (PD) for two positions in CASA, one of which was ‘authorised’ by CASA HR in December 2013 (that is, after the 2012 Agreement was approved) for an FOI Level 2 has with a title of Flight Operations Inspector Level 2. 22 Mr Weeks’ evidence is that ‘AT’ is continued to be used on the PD to ensure that CASA continues to recruit people with the relevant background. This is then further reflected in the requirements set out in the PD.23 The second PD is for an FOI Level 1 with the title of Flying Operations Inspector (Fixed-Wing).
[41] CASA says that under the 2010 Agreement there was a clear distinction between the AT and GA FIOs and that only the AT FOIs were entitled to the endorsement loadings and that the endorsement loadings attached exclusively to what are known as HCA.
[42] CASA submits that there was no controversy in the negotiations for the 2012 Agreement that references to ATOG and GAOG and AT and GA needed to be removed or the nature of the amendments to the endorsement loading table. It says the rejection by CASA of both the extension of the endorsement loadings to the GA FOIs and the introduction of an endorsement loading for business jet category, demonstrates CASA’s stated desire to maintain the status quo. This is evidence which it says provides the appropriate context within which to consider the intent of the parties in reaching the 2012 Agreement.
[43] CASA relies on the decision in Short v Hercus Pty Limited24with respect to the need to consider the context of words in an industrial instrument and the importance of considering the circumstances under which an industrial instrument is made. It relies on BP Australia Pty Ltd v Nyran Pty Ltd 25 in support of its proposition that, in considering the objective framework of facts that make up surrounding circumstance to the 2012 Agreement I should have regard to evidence of prior negotiations. Further, it submits that the decision in Perisher Blue Pty Ltd and Ors v Australian Workers’ Union26 supports its submission that an understanding of particular industrial usage of terms in the agreement may be gained from the history of the development of the provision.
[44] CASA also says that a finding of ambiguity in a clause of an industrial instrument is not a necessary condition for the consideration of extrinsic material: CFMEU v John Holland27. On this basis CASA says I should have regard to the 2010 Agreement and the parties’ negotiating documents relevant to the development of Schedule A to the 2012 Agreement.
[45] CASA submits that, when the surrounding circumstances and history of the provision is taken into account it is apparent that the changes to Schedule A were designed to do no more than fix (by removing) redundant language and amend the Level 1 descriptor to ensure that the loading was available in respect of aircraft formerly overseen by AT FOIs (without specific reference to ATOG) and maintain the status quo for the Level 2 loading and above. That is, the purpose of the changes made to the endorsement loadings was to preserve the loadings and their application to that which existed under the 2010 Agreement.
[46] In this respect CASA submits that the transition in the 2012 Agreement to the FOI salary structure was not intended by the parties to broaden access to the endorsement loadings from that which existed in the predecessor agreement.
The specific provisions of the 2012 Agreement
[47] As outlined above, this dispute goes to the correct interpretation of provisions relating to eligibility for the endorsement loading by Mr Lacy in circumstances where he was not eligible to receive the endorsement loading under the 2010 Agreement because he was a GA FOI.
[48] A consideration of the clause in dispute must have, as its starting point, a consideration of the words as they appear in the 2012 Agreement.
[49] Schedule A to the 2012 Agreement sets out the rates of pay for all employees including for the single FOI structure. With respect to FOIs it includes specific ‘notes’ that deal with classification progression and endorsement loadings and an endorsement loadings table (including special endorsement loadings relating to night vision goggles and heavy helicopters) specifying the endorsement loadings payable to FOIs under the Agreement.
[50] The wording of the notes relevantly state:
1. The Flying Operations Inspector (FOI) classification structure covers all FOIs and reflects the flexibility and experience expectations of CMT work practices and the amalgamation of the former AT and GA FOI salary structures. FOIs will continue to maintain distinct roles within CMT as described in their individual position descriptions.
Classification progression
2. ...
3. For an FOI to progress past the barrier between FOI Level (i) D and FOI Level (ii), the following things must be satisfied:
(a) the attainment point process described in clause 20 of the agreement must be completed...; and
(b) unless the FOI is paid a special endorsement loading, the FOI must also have a level of experience that would enable them to provide generalist advice on activities for which an endorsement loading would otherwise be payable, but where the FOI does not hold an endorsement loading.
(c) notwithstanding (b), FOIs who advance from FOI level (i) to FOI level (ii) are entitled to be paid an endorsement loading where the FOI is appointed to a position that requires that person to hold an endorsement for which an endorsement loading is payable.
4. ...
Endorsement loading
5. Subject to the Endorsement Loading Principles and Procedures described in the agreement, an FOI will be paid an endorsement loading or special endorsement loading...if (a) an aircraft endorsement within the categories in the following tables...is held by the FOI, and (b) the aircraft endorsement... is required by CASA of the FOI to undertake their duties
[emphasis added]
[51] A transition process to the single salary structure is included at Schedule D to the 2012 Agreement and relevantly states that:28
A combined salary structure has been introduced for Air Transport (AT) and General Aviation (GA) FOIs. The combined FOI salary structure will better reflect the flexibility and experience expectations of the CMT work practices through the amalgamation of the GA and AT FOI salary structures.
...
FOIs will still maintain distinct roles within the CMT as described in their individual position descriptions.
[52] With the single salary structure for the FOIs and the apparent removal of the distinction between AT and GA, the language in relation to the endorsement loading levels changed between the 2010 and 2012 Agreement. The descriptors relevant to each endorsement loading is set out below:
2010 Agreement | 2012 Agreement | ||
Air Transport Endorsement Loading | Endorsement Loading Levels | ||
Descriptor | Descriptor | ||
Level 1 | Turbo Prop - small passenger carrying aircraft managed under ATOG eg: Dash8 | Level 1 | Turbo Prop - Aircraft of a type that had been managed as an air transport certificate (including freight operations) eg Dash8 |
Level 2 | Single aisle jet - aircraft capability which cover domestic operations eg: B737/B717, B737, NG727/A320, BAe 146 | Level 2 | Single aisle jet - aircraft capability which cover domestic operations eg: B373/B717, B737, NG727/A320, BAe 146 |
Level 3 | Twin engine/twin aisle jet - aircraft capable of both domestic and international operations, but primarily cover domestic operational eg: B767/A330/B787/B777 | Level 3 | Twin engine/twin aisle jet - aircraft capable of both domestic and international operations, but primarily cover domestic operational eg: B767/A330/B787/B777 |
Level 4 | Four engine/twin aisle jet - Large long haul aircraft with the capability of international operations eg: B747/774/A380 | Level 4 | Four engine/twin aisle jet - Large long haul aircraft with the capability of international operations eg: B747/774/A380 |
[53] As can be seen by a comparison of the wording in the respective tables there are only two changes between the 2010 and 2012 Agreements. These are in the table header (‘Air Transport’ is removed) and the wording of the descriptor for Level 1 with the removal of the direct reference to ATOG.
Consideration
[54] I have had careful regard to the contents of the 2010 and 2012 Agreements.
[55] I have carefully considered the material submitted by CASA as to the context within which the negotiations for the 2012 Agreement occurred including the unions’ log of claims and CASA’s correspondence to the AFAP and other unions. Whilst I accept the correspondence may be legitimate extrinsic material ‘admissible to demonstrate the existence of ambiguity’29 it does not assist in identifying or resolving the ambiguity said to exist by CASA. CASA say the ambiguity is in whether the endorsement loadings should be payable to the previous GA GOIs and that this ambiguity should be resolved by recognising that there was no intent on its part to change the eligibility of the endorsement loading in the 2012 Agreement.
[56] To find that this was the mutual intention of the parties would however require me to substantially alter the plain words as they appear in the 2012 Agreement. The words in the ‘notes’ accompanying the salary structure and the endorsement loadings do not lend themselves – without unreasonably straining the language – to what it is CASA says I should find.
[57] It is apparent that in negotiating the 2012 Agreement CASA and the AFAP put some thought into the move from the dual FOI structure to the single CMT structure. Key aspects of the 2012 Agreement were changed to remove reference to ATOG, GAOG, AT and GA FOIs. The heading of the endorsement loading table in Attachment A had the reference to ATOG removed and the Level 1 descriptor was changed to ensure that Level 1 loading remained applicable only to aircraft type that had been managed with an air transport certificate (which I take to mean the endorsement loading is only available in respect of aircraft previously managed through ATOG). No such distinction has been made with respect to any of the other endorsement loading levels.
[58] The notes appearing in conjunction with the FOI wage rates and the endorsement loadings tables have been crafted and inserted into the 2012 Agreement for a reason. The words must have some work to do. They establish the basis for placement within the single classification structure and the payment of the endorsement loadings. These notes form part of the 2012 Agreement and cannot be dismissed or be read down in the context of what was said or written during the negotiations but prior to the bargain being reflected in the 2012 Agreement.
[59] The wording of the endorsement loadings table is clear on its face. Save for the restriction put into Level 1 there is no other restriction on eligibility for the loading except that an employee must have the endorsement and must be required to use the endorsement in their position. Unless that restriction exists elsewhere in the 2012 Agreement (which is not suggested by either party) and is not contradicted there is no basis on which to limit the wording in the table.
[60] If it was just that the table of endorsement loadings was replicated from the 2010 to 2012 Agreement CASA may have an issue that there was ambiguity and uncertainty such that I should have regard to extrinsic material to resolve the conflict. However, the change in respect of endorsement loadings is more than a minor change. Attention was paid to the content of the table. Notes clarifying movement and the basis of payment of the loading were agreed and added. These changes are part of the context within which the table of endorsement loadings sits and cannot be ignored.
[61] The words of note 3(c) say:
FOIs who advance from FOI level (i) to FOI level (ii) are entitled to be paid an endorsement loading where the FOI is appointed to a position that requires that person to hold an endorsement for which an endorsement loading is payable.
[62] Note 5 provides that the loading will be paid if the endorsement is in the table and CASA requires the FOI to hold the endorsement to undertake their duties.
[63] These notes make it clear that the entitlement to the endorsement loading is based on the FOI being appointed to a position that requires the endorsement loading to be held and CASA requires the endorsement for the FOI to do their job.
[64] I do not find any conflict between the specification that an FOI will continue to maintain distinct roles (see note 1 at paragraph [50] above) as described in their individual PD and the eligibility for an endorsement loading if they are in a position that requires an endorsement to be held (which is presumably specified in the PD).
[65] If the FOI has a PD and therefore is in a position that does not require an endorsement to be held then no entitlement arises to an endorsement loading. If an FOI is required to hold an endorsement and this is specified in the PD or by other means and that endorsement is not encompassed by the endorsement loading table then again no entitlement arises.
[66] It is only in the circumstance where the FOI is required to hold the endorsement – presumably specified in the PD or through some other direction of CASA – and the endorsement sits within the endorsement loading descriptor in the table that the entitlement to the loading arises.
[67] Neither of the PDs put in evidence disturbs my conclusion on this point. They do, in fact, demonstrate the ability of CASA to indicate through a PD the requirement placed on the occupant of a position to hold a particular endorsement to do the job required of them.
[68] Whilst CASA encourages me to put the endorsement loadings in the context of the claim of the union and the expressed views of CASA during negotiations, ultimately what is in the agreement is the bargain that was reached. That this may not have been the outcome CASA had intended is not to the point. While I agree that it needs to be kept in mind that the words finally on paper may not have been written by people with a legal background the words are clear and cannot be re-written for the convenience of one party to the agreement.
[69] Whilst I accept the veracity of the letters sent to the AFAP and other unions during the bargaining process I note that, while the letter of 22 November 2011 includes a revised ‘endorsement loading levels and procedure’ clause30 this is not what ultimately appeared in the 2012 Agreement. Clearly there were more discussions between the parties after this correspondence in finalising the content of the 2012 Agreement. CASA indicates that its position did not change with respect to the endorsement loadings between the letter of 22 November 2011 and the approval of the 2012 Agreement. This is clearly not the totality of the case as further words have been agreed between the parties for inclusion around the endorsement loadings in the form of the ‘notes’ which were not mentioned in the letter of 22 November.
[70] CASA has asked that I draw a Jones v Dunkel inference from the failure of AFAP to call anyone engaged in the bargaining process as a witness in these proceedings. The inference they would have me draw is that such evidence as to events surrounding bargaining would not support Mr Lacy’s claim. AFAP say that no such conclusion should be drawn as its case is that the provision is clear on its face and there is no need to go to extrinsic material to resolve dispute. They do not seek to rely on the negotiations and what occurred therein. They say the outcome of the negotiations is the 2012 Agreement. I accept the submissions of the AFAP as to its approach to the matter in dispute. I therefore decline to draw an inference of the type sought by CASA.
[71] For these reasons I am satisfied that the 2012 Agreement changed the basis of access to the endorsement loadings from the predecessor agreement.
Is Mr Lacy entitled to an endorsement loading?
[72] In determining if Mr Lacy is specifically entitled to the endorsement loading it must first be determined in the Gulfstream G550 is an aircraft which qualifies for payment of the Level 2 endorsement loading.
[73] Mr Peter Gardiner, Technical Director with AFAP, gives uncontested evidence for the AFAP on technical issues associated with aircraft listed in the endorsement loadings table at Level 2. Mr Gardiner relevantly holds an endorsement for all aircrafts specifically mentioned at Level 2 except for the B727. 31 I accept the evidence of Mr Gardiner.
[74] Mr Gardiner says that the aircraft types listed as examples in endorsement loading Level 2 are of a particular category of aircraft used in domestic operations in Australia. He was requested to provide advice on the comparability of the Gulfstream G550 to the aircraft examples given for the Level 2 endorsement loading.
[75] After comparing a range of technical data with respect to the Gulfstream G550 and the aircraft given as examples for the Level 2 endorsement loading Mr Gardiner concludes that the Gulfstream G550 ‘to be a comparable aircraft type at least with Level 2 Single Aisle jets.’ 32
[76] I am satisfied that the aircraft type listed as part of the descriptor at each endorsement level in the 2012 Agreement are examples only and are not intended to be an exhaustive list of aircrafts for which the endorsement loading is payable.
[77] Mr Lacy’s undisputed evidence is that the Gulfstream G550 is used for domestic purposes. I therefore find that the Gulfstream G550 is a single aisle aircraft that covers domestic operations.
[78] I am therefore satisfied that an endorsement on the Gulfstream G550 is an endorsement which qualifies for the payment of a Level 2 endorsement loading in accordance with the provisions of Schedule A to the 2012 Agreement.
[79] The circumstances of this case are that Mr Lacy is an FOI level (ii). He holds an endorsement for (amongst others) the Gulfstream V aircraft 33. He is required by CASA to hold this endorsement and it is necessary for him to do his job.
[80] In these circumstances I am satisfied that Mr Lacy meets the criteria established in the 2012 Agreement for the payment of the Level 2 endorsement loading.
Conclusion
[81] Based on my findings set out above I hereby find that:
(i) The transition in the Enterprise Agreement to a combined Flying Operations Inspector (FOI) salary structure broadens access to the Endorsement Loading beyond that which has been provided in the predecessor agreement;
(ii) The Gulfstream G550 aircraft is an aircraft which qualifies for payment of a Level 2 Endorsement Loading;
(iii) Mr Lacy satisfies the minimum criteria to be eligible to be paid the Level 2 Endorsement Loading.
[82] An order reflecting this decision will be issued in conjunction with this decision
COMMISSIONER
Appearances:
P. Stephens of the Australian Federation of Air Pilots for the Applicant.
N. Harrington of counsel for the Respondent.
Hearing details:
2014.
Melbourne;
6-7 February.
1 Exhibit CASA2, paragraph 13.
2 Exhibit CASA2, paragraph 19.
3 Exhibit CASA2, paragraph 10.
4 [2008] AIRC 291.
5 Ibid [15].
6 [2014] FCCA 156, [31].
7 {2013] FWCFB 2814.
8 Ibid [13].
9 (1982) 149 CLR 337.
10 (2005) 222 CLR 241.
11 (1989) 30 IR 362.
12 Exhibit CASA3, paragraph 18.
13 Exhibit CASA3, attachment MW1.
14 Exhibit CASA3, attachment MW2.
15 Exhibit CASA3, attachment MW1, page 6.
16 Exhibit CASA1.
17 Exhibit CASA3, attachment MW2, page 6.
18 Exhibit CASA3, paragraph 25.
19 Exhibit CASA2, paragraph 10.
20 CASA2, paragraph 33.
21 Exhibit CASA2, paragraph 34.
22 Exhibit CASA2, attachment RW1.
23 Transcript PN 803-4.
24 (1993) 40 FCR 511.
25 [2003] 198 ALR 442.
26 (1999) 91 IR 274.
27 [2010] FCAFC 90.
28 Schedule D.
29 [2010] FCAFC 90 [15].
30 CASA3, attachment MW2, page 15.
31 Exhibit AFAP2, paragraph 7.
32 Exhibit AFAP2, paragraph 28.
33 This is taken to include the Gulfstream G550.
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