[2019] FWC 2136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Civil Air Operations Officers’ Association of Australia, The
v
Airservices Australia T/A Airservices Australia
(C2018/3832)

COMMISSIONER WILSON

MELBOURNE, 11 APRIL 2019

Alleged dispute about matters arising under an enterprise agreement and the NES. Whether employees rostered on standby shift roster may be used to cover vacancies in other workgroups. Requirements for consultation. Principles associated with “status quo”.

INTRODUCTION

[1] This decision concerns an application by The Civil Air Operations Officers' Association of Australia (Civil Air), pursuant to s.739 of the Fair Work Act 2009 (the Act) alleging a dispute arising under an enterprise agreement. The matters in dispute relate to rostering practices of Airservices Australia.

[2] In particular, the decision concerns the consistency of Airservices Australia’s shift back-filling arrangements for Air Traffic Controllers with the applicable enterprise agreement, the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020 1 (referred to as either the 2017 – 2020 Agreement or the Agreement). Through an application to the Fair Work Commission made on 13 July 2018 Civil Air alleges that Airservices Australia is not complying with the provisions relevant to certain forms of shift back-filling known as ‘Grey Days’.

[3] Following an unsuccessful conciliation of the matter on 2 August 2018, Civil Air requested that the matter proceed to hearing on 9 October 2018 with the hearing itself taking place on 4 and 5 February 2019.

[4] Mr Warren Friend, QC and Ms Siobhan Kelly of Counsel instructed by Joel Winters, Civil Air Legal Officer appeared on behalf of Civil Air while Mr Chris O’Grady, QC and Ms Natalie Campbell of Counsel instructed by Ashurst, appeared for Airservices Australia. Permission for both parties to be represented in these proceedings by a lawyer was granted by me pursuant to s.596 of the Act, with me being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (s.596(2)(a)).

[5] Evidence in these proceedings was provided by Mr Robert Mason, Systems Supervisor at the Brisbane Centre, Air Traffic Controllers David Irvin, Leigh Myer, James Walsh, Geoff Williams, Michael Haines, Mark Wells and Tom McRobert for Civil Air as well as Anthony Nugent, Air Traffic Management Service Manager and James Dawe, Workforce Deployment Resourcing Manager for Airservices Australia.

BACKGROUND

[6] In relation to relevant background, the parties agree that the 2017 – 2020 Agreement permits an Air Traffic Controller unavailable to work for an unforeseen reason but otherwise scheduled to work to be replaced directly by another person on the same roster. The Agreement provides, in effect, that a replacement employee may be held away from work for up to the equivalent of double the relevant shift provided they are ready and fit-for-duty in order to step in at short notice to cover a single shift if required. To achieve this, the stand-by employee is assigned to a nominal roster but is not required to attend for work unless called to do so. This arrangement is referred to as a “Grey Day” roster.

[7] While there is consensus that the 2017 – 2020 Agreement provides for this eventuality, of being replaced by someone on the same roster, there is no agreement between the parties for a Grey Day employee on some entirely other roster to be brought in to replace the absent employee. For the reasons detailed below, Civil Air oppose the use of Grey Day shifts in this way referring to this practice as a “Manufactured Shift”.

QUESTIONS FOR DETERMINATION

[8] Four interconnected questions are posed for determination; each with multiple sub-elements. In summary, the questions are connected with the propositions that guidelines governing the use of Grey Day shifts were withdrawn contrary to the consultation obligations of the 2017 – 2020 Agreement; that Grey Days were introduced in certain locations without the prescribed consultation; that Airservices Australia consequently failed to pause the introduction of the arrangements despite a dispute having been notified under the Agreement, with it being argued that this also was contrary to Airservices’ obligations to consult; as well as it being argued that the 2017 – 2020 Agreement does not permit using Grey Day rostered employees to fill Manufactured Shifts, being subsequent or consequential vacancies in the roster.

[9] Formally, the Questions for Determination by the Commission are these:

“A. Consultation

A1. Ceasing to apply the Grey Day Guidelines

1. Whether the respondent was required to comply with clause 7.2 and/or clauses 8.3(b) and 8.10 of the ATC Agreement before ceasing to apply the Grey Day Guidelines at:

(a) the Byron Group; and

(b) the BNE Tower. 2

2. If the answer to question 1 above is "yes", whether the respondent failed to comply with clauses 7.2 and/or 8.3(b) and 8.10 (as the case may be) of the ATC Agreement by:

(a) failing to provide information about the change to the affected employees and their representatives; and/or

(b) failing to invite the employees to give their views about the impact of the change (including) any impact in relation to their family and caring responsibilities); and/or

before ceasing to apply the Grey Day Guidelines at:

(d) the Byron Group; and

(e) the BNE Tower.

A2. Introduction of Grey Days without consultation

3. Whether the respondent is required to comply with clause 7.2 and/or clauses 8.3(b) and 8.10 of the ATC Agreement before introducing Grey Days in any particular location.

4. If the answer to question 3 is "yes", whether the respondent failed to comply with clause 7.2 and/or clauses 8.3(b) and 8.10 of the ATC Agreement by introducing Grey Days without:

(a) providing information about the change; and/or

(b) inviting the employee to give their views about the impact of the change (including any impact in relation to their family and caring responsibilities); and/or

B. Status quo

5. Whether the applicant notified the respondent of a dispute within the meaning of clause 10 of the ATC Agreement (the Dispute) in relation to the respondent ceasing to apply the Grey Day Guidelines at:

(a) the Byron Group; and

(b) the BNE Tower.

6. If the question to question 5 above is "yes", whether the respondent was required to comply with clause 10.1 (g) of the ATC Agreement in relation to the Dispute.

7. If the question to question 6 above is "yes", whether the respondent failed to comply with clause 10.1 (g) of the ATC Agreement by, after being notified of the Dispute:

(a) refusing to apply the Grey Day Guidelines at the Byron Group; and/or

(b) refusing to apply the Grey Day Guidelines at the BNE Tower.

C. Construction of the agreement

8. Whether, on its proper construction, clause 19.18:

(a) permits the respondent to utilise an employee rostered on standby to fill only the direct vacancy in the roster caused by the absence of an employee rostered to work; or

(b) permits the respondent to utilise an employee rostered on standby to fill both:

(i) the direct vacancy in the roster caused by the absence of an employee rostered to work; or

(ii) subsequent or consequential vacancies in the roster.” 3

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE

[10] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 4 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.5

[11] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 6 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”7

[12] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 8 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.9 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.10 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.11 However, the relief sought may cast light on the true nature of the dispute in some cases.12

[13] If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5) 13 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.14

[14] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 15 (Berri) setting out the principles for such a task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 16

[15] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:

“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 17

RELEVANT AGREEMENT PROVISIONS

[16] The main term of the 2017 – 2020 Agreement requiring consideration in this decision is clause 19.18 which provides as follows:

“19.18. Stand-by rosters (‘Grey Days’)

(a) Where Airservices considers it appropriate to do so, rosters may be drawn so as to include provision for employees to be rostered on stand-by shifts. These ‘grey day’ stand-by shifts will be shifts on which employees will be rostered on stand-by for relief in the event of absence of an employee who is rostered on duty.

(b) When rostered on stand-by, an employee will be rostered for a specific shift on a specific day. This rostered stand by shift will be called the “nominal shift”. Such shift will not commence before 0600 local time and will not be of more than of eight (8) hours duration.

(c) When on stand-by an employee will not attend for the nominal shift unless called in. However, the employee must be available to be called in to perform duty for a period representing twice the length of the nominal shift and the employee shall be "on call", for a period of nine (9) hours or such other period as agreed provided that the employee will be:

(i) stood-down one (1) hour after the commencement of the last shift in the

stand-by period.

(ii) available to report for duty at the nominated start time or in any event not later than two (2) hours after notification.

(d) When rostered on stand-by an employee will be paid at their ordinary rate of pay for a shift in respect of the nominal shift whether or not they are required to attend for duty.

(e) Provisions of these principles relating to shift commencement, cessation and extension and time off apply to the time actually worked.”

[17] The matters requiring determination also involve consideration of whether Guidance Material dealt with later in this decision are polices or procedures over which consultation is required before change, as well as the consultation and dispute resolution clauses and, in relation to the latter, especially whether there is requirement to preserve the “status quo” in relation to the dispute. In this regard, clause 7 (Airservices Policies and Procedures) and parts of clause 8 (Consultation on Change) and clause 10 (Disputes Avoidance and Settlement Process) have relevance:

“7. AIRSERVICES POLICIES AND PROCEDURES

7.1. Airservices’ policies and procedures pertaining to employment matters do not form part of this Agreement. To the extent that there is any inconsistency between any such policy and/or procedure, the terms of this Agreement prevail.

7.2. Airservices will consult with employees and employee representative(s) in the development and variation of such policies and will not unilaterally change them without such consultation.”

“8. CONSULTATION ON CHANGE

8.1. The intent of this consultation provision is to ensure employees and any employee representatives are fully informed, consulted and provided with a genuine opportunity to express their views and provide comments and/or suggestions prior to any final decision being made about changes that are likely to have a significant impact on employees covered by this Agreement and/or changes to an employee’s regular roster or ordinary hours of work. Airservices will give genuine consideration and respond to matters raised and proposals and options put forward.

…

8.3. Airservices will consult employees and their employee representatives about:

(a) the introduction of changes that are likely to have a significant impact on employees covered by this Agreement before a final decision is made to adopt a proposal and implement any change; and/or

(b) changes to an employee’s regular roster or ordinary hours of work.

…

Consultation on changes to an employee's regular roster or ordinary hours of work

8.10. For a change of the kind referred to in clause 8.3(b) Airservices will consult with affected employees and their representatives by:

(a) providing information about the change;

(b) inviting the employee to give their views about the impact of the change (including any impact in relation to their family and caring responsibilities);

“10. DISPUTES AVOIDANCE AND SETTLEMENT PROCESS

10.1. In the event of a dispute about a matter arising under this Agreement or in relation to the National Employment Standards between Airservices and an employee or employees whose employment is subject to this Agreement, the procedure to be followed to resolve the matter will be as follows:

(a) The parties to the dispute first shall genuinely attempt to resolve the dispute at the workplace level. This will involve the relevant employee or employees meeting and conferring about the matter with their manager. All relevant information regarding the matter will be exchanged before, during, or on conclusion of such meeting/s.

(b) If the matter is not resolved at such meeting/s, or the nature of the matter is such that it is appropriate to raise it immediately with more senior levels of management, then discussions will occur between the employee (or employees) and senior management as soon as practicable.

(c) At any time during this process, an employee (or employees) who are party to the dispute may choose to be represented by an employee representative.

(d) If the matter cannot be resolved by following the process outlined above, then any of the parties to the dispute may apply to the FWC to have the dispute subject to a process of conciliation, or such other alternative dispute resolution process which the parties agree is appropriate and which the FWC can conduct under the Act.

(e) If conciliation (or such other alternative dispute resolution process as has been conducted by agreement of the parties) is not successful in resolving the dispute, or if the parties agree that they wish the FWC to settle the dispute without recourse to conciliation or another alternative dispute resolution process, the FWC can arbitrate the dispute and make a determination that is binding on the parties, subject to either party exercising a right of appeal against the decision to a Full Bench of the FWC.

(f) Unless otherwise agreed by the parties to the dispute, the powers that the FWC can exercise under this clause 10.1 are those powers available to it under the Act as at the time that this Agreement commences to operate.

(g) While a concern or dispute is being dealt with, work will continue as normal being the status quo save for any bona fide safety concerns.

(h) The employer and employees will continue as usual in respect of work arrangements and work performed.” 18

CONSIDERATION

[18] Airservices Australia is an Australian Government statutory authority and the national provider of civilian air traffic control services. 19 According to the evidence of Robert Mason, Systems Supervisor in the Brisbane Centre, Airservices Australia presently operates two Air Traffic Service Centres; down from an earlier five:

“6. Airservices currently operates two air traffic services centres. The:

(a) Brisbane air traffic services centre:

(i) has a flight information region that covers the airspace over the northern half of Australia, representing around 5% of the world’s total airspace;

(ii) is responsible for the airspace from 45 nm (83km) north of Sydney, up to the airspace boundaries with Indonesia and Papua New Guinea in the north, and east to the airspace boundaries with New Zealand and Fiji; and

(iii) manages the upper level airspace for the Pacific Island nations of the Solomon Islands and Nauru under contracts with the governments of both nations; and

(b) Melbourne air traffic services centre:

(i) has a flight information region that includes the southern half of Australia and the Southern and Indian oceans, representing around six per cent of the world’s surface; and

(ii) is responsible for the airspace extending from Indonesia to the South Pole and from halfway to New Zealand to halfway to Africa.” 20

[19] Both the centres were operational in or around the year 2000. 21

[20] In addition to these Air Traffic Service Centres there are Terminal Control Centres in Perth and Sydney managing the flow of aircraft arrival and departure from major airports with between 28-29 Air Traffic Control Towers based in major cities and regional centres. 22 As may be expected, Air Traffic Controllers work shifts and in some cases, around the clock.23 Rosters are established for different groups in accordance with workgroup needs.

[21] General rostering arrangements are set out in the 2017 – 2020 Agreement, however the application of those rules may vary significantly. Some workgroup rosters may last for years; others may be dynamic and change regularly. 24

[22] The requirement to perform shift work is described as a constant with associated detrimental health and social effects on employees. 25 The Airservices Australia shiftwork context includes the need for employees to be fit for duty whenever rostered, with employees acutely aware of the risks of failure to do so:

“28. The overarching impact of shiftwork is that you are required to maintain yourself as fit for duty irrespective of the shift for which you are rostered. ATCs and support employees must continuously meet the medical standard necessary to lawfully exercise the provisions of their license safely.

29. In essence, this means you must be fit for duty and you must be well rested. It is up to the individual to decide what their level of fitness for duty is. The CASA guidelines provide that fitness for duty is a strict personal liability and penalties apply to any staff member breaching these requirements.

30. Getting appropriate rest and recovery time must be balanced against day to day life. One of the effects of shift work is that it is very difficult to settle into regular sleep patterns. This often leads to sleep debt. It can also lead to irritability, which has an impact on family.

31. Within that framework, it is important to understand the nature of air traffic control work. When plugged in, a controller must give their complete attention to the task. The impact of being distracted could be catastrophic. The job requires intense concentration. Whilst there are certainly times when a controller is not pushed to full capacity, this can change within seconds. Emergencies, weather, system failures can all elevate a controller’s workload to extreme with little or no warning. At any stage the controller must be prepared to ramp up to their maximal level.

32. As such, it is not a job that can be performed safely if the ATC is tired or distracted. One consequence of this is that it is not simply a matter of turning up for work and settling into the day. From the minute the ATC plugs into the system, they are required to give full concentration and attention to the task at hand. For this reason, ATCs are generally only to work a maximum of two hours “plugged in” before taking a thirty-minute break. In exceptional circumstances, the two-hour period can be extended to three hours.” 26

[23] In general, there are three ways in which to staff such rosters including (a) a 24/7 shiftwork roster which does not plan for unforeseen absences; (b) a 24/7 shift roster plus overtime roster to cater for unforeseen absences; and (c) a 24/7 shift roster plus Grey Day shifts roster to cater for unforeseen absences. All three options pose some level of problem with fatigue management and work-life balance. 27

[24] On balance, the evidence suggested that the third alternative of 24/7 shift rosters plus Grey Days options might be seen as posing the least risk to fatigue and work-life balance than the other options, particularly the use of overtime. Grey Day shifts allow Air Traffic Controllers to be on-call for a 16 hour period of time (double a nominal shift), however they can be called in to cover unplanned absences for a single shift of 8 hours duration.

[25] Airservices Australia confirmed the current safeguards surrounding Grey Days included that Air Traffic Controllers are given 45 days’ notice of being on a Grey Day shift and that they are provided with two hours’ notice when called in for duty. Grey Day employees are also paid for the entire Grey Days shift regardless of whether they work any part of the shift or not, with the shift forming part of the hours a controller is required to work as part of their roster being 72 hours over a fortnight, irrespective of whether they are required to attend or not. Further, the Grey Days shift is incorporated into a fatigue rating (Fatigue Risk Management System ‘FRMS’) used by Airservices to deal with fatigue regardless of whether the controller is required to work, although the fatigue rating is reassessed after a shift should the shift not have been worked by a controller; and an employee is to monitor their own fatigue levels to ensure they are able to undertake work. 28

[26] Civil Air does not suggest these safeguards do not exist or that they do not assist in the reduction of fatigue. Instead, Civil Air argue that there is an inherent increase in fatigue and negative effects of work-life balance and carer’s responsibilities from Grey Day rostering arrangements because Air Traffic Controllers are required to hold themselves ‘in readiness’ for extended periods of time. 29 There is also an inherent level of preparation involved in Grey Day shifts. For example, it was said, “Generally the controller would prepare for the possibility of callout for the 6 o'clock start, so for most people - depending on proximity to the airport - I will allow time to be called. Most people will have a shower before they get to work, have something to eat, transport to work and can be ready to commence duty at 6 o'clock. In that case for most people that means an early night the night before…”,30 which in turn impacts on Air Traffic Controllers’ sleep patterns.

[27] The lack of certainty of a recall to work for a Grey Day employee was argued as a potential problem, because of what that situation did for the pressures placed on work-life balance and in particular any carer responsibilities. The example of a mother of preschool-aged twins was used (without the example being in direct evidence), with it being argued the mother would be required to arrange child care over a 16 hours period, as opposed to an ordinary hours or overtime shift of 8 hours duration with no certainty that the child care arrangements would actually be required. 31 Civil Air also pressed the effect of uncertainty surrounding travel and the types of activities Air Traffic Controllers can engage in while on Grey Day shifts stating that “It also means not being able to travel far afield the next day, and not being able to easily plan for things like social events and family commitments. As you have to remain fit throughout that period of time, it also means that the activities you can engage in while on the grey shift waiting to be called are limited. You cannot start any significant task at home (such as painting) because you might be called in to work. You also have to be mentally fit, which means you cannot do anything too strenuous.32 While Airservices Australia submitted that the 45 day notice to make such arrangements reduces the impact on carer’s responsibilities, as does the two hour window in which controllers are required to attend, Civil Air pressed that regardless of the notice period the uncertainty surrounding the shift is the difficulty in such circumstances, not the notice itself.

[28] Civil Air also further pressed the effects on Air Traffic Controllers’ families especially given the impact on sleep patterns, submitting that there is “an impact on other members of the family, who must be quiet during these periods. Other members of the family also feel the impact of the limitations on social events and functions. Further, shiftwork can often cause symptoms such a short-temper or general irritability. These are side-effects that must be managed by partners and families”. 33

[29] Civil Air submit that when Grey Day shifts were introduced Air Traffic Controllers could see a benefit/cost balance in the use of the shifts given they received a benefit for being paid for a shift when they may not be physically required to attend for duty, given the likelihood of being called in was relatively. 34 However, this balance is being negatively affected, with an increased number of Air Traffic Controllers being called in on Grey Day shifts due to their expanded use, and especially to cover Manufactured Shifts.35 Submissions were put that the “greater frequency with which employees are called to work increases the difficulties in managing fatigue. When grey days were introduced, employees understood that there was a very limited set of circumstances in which they could be used. The limitation on the use of grey days were seen as a reasonable compromise for the uncertainty that goes with them. That is no longer the case.”36

[30] Airservices Australia argued that there can be a level of frustration on the part of managers endeavouring to recall employees for overtime which creates greater uncertainty and pressure on Air Traffic Controllers and thus is a less preferable option to catering for unplanned absences through the use of Grey Day shifts. In response to the proposition that managers may become “increasingly panicky or frustrated about the inability to get somebody in to work the overtime” given the result may be that airspace is required to be closed down if the shift is not filled, Mr Mason, a System Supervisor witness for Civil Air, accepted that such is an element, albeit not quite to the suggested level:

“It varies dramatically about what that might be. In many cases it's me, as a supervisor, ringing directly rather than the manager, per se. It can also be admin staff ringing. It can also, depending on the arrangements, can also be a BA manager making those arrangements but certainly it's one of our peers in the workplace that will be ringing to make those calls. In terms of the pressure to come in, that varies dramatically depending on the individual. There are managers who are very insistent. Most people who, when they ring, if a controller makes the assessment that they are unavailable for one of the five reasons that's specified in the agreement and the Fair Work Act, then we will accept that and move on.” 37

[31] Civil Air suggested that the failure to fill a vacancy will not always result in the close-down of airspace, noting there are other options such as an assessment of whether there are enough employees to cover the absence without replacement or whether a shift swap could be undertaken or a reduction in air traffic for a period of time, all of which reduces the pressure on managers to fill the vacancy and thereby the pressure put on employees to undertake additional work. 38 Moreover, a controller’s power to refuse reasonable overtime under the Act, such as for reasons of fatigue, reduces such pressures to undertake additional work.

[32] Airservices Australia argued that a system in which a controller feels that they're under some sort of obligation to come in on an ad hoc basis is less desirable than one where they've known for 45 days that there is 16 hour window whereby they may be required to attend. 39 They pressed the advantages for a controller in knowing that they may be called in during this two shift window, compared with having to call around to find someone to attend. Airservices Australia also pressed the argument that working overtime adds to a controller’s overall hours while Grey Days forming part of controllers’ ordinary rostered hours decreased the effect of fatigue from working additional hours on a regular and systematic basis.

[33] The use of Grey Day shift appears in some respects at least to be a response to the context of a complex web of interacting workgroups responsible for different aspects of Australian civilian airspace as well as a working environment faced with obvious pressures and matters of fatigue. The purpose of a Grey Day shift is enunciated in clause 19.18(a) as being “for relief in the event of absence of an employee who is rostered on duty”.

[34] While on a Grey Day roster an employee must be otherwise fit-for-duty, even if not called in for work. An employee may be rostered on a Grey Day for a handful of occasions in the course of their roster period, for those rosters incorporating Grey Day arrangements. There are presently 22 locations or workgroups with Grey Day arrangements. 40 The Grey Day clause sets out a number of practicalities surrounding the shift:

• Grey Day employees are nominally assigned to a particular shift on a particular day;

• The nominal shift is for no more than 8 hours duration and may not commence before 6:00 AM local time;

• The Grey Day employee does not work the nominal shift unless they are called in;

• The Grey Day employee must be available for duty for a period of twice the nominal shift.

[35] It may be seen from these parameters that having a Grey Day employee fit for duty available to backfill absent employee will serve a valuable purpose for Airservices Australia. Work may go on, with the airspace remaining open despite the substantively rostered employee’s absence.

[36] The nub of the dispute is not that Grey Day rostered employees may be called into work in the event of the absence of an Air Traffic Controller within the same roster. Instead, the dispute relates to an employee’s recall to some entirely different roster, with the vacancy within that second roster possibly being created not just by an absence arising at short notice because of an Air Traffic Controllers personal circumstances, but because of Airservices Australia’s business needs. This scenario increases the frequency with which Air Traffic Controllers are being called in on Grey Days.

[37] The matters Civil Air’s argue against are set out in the union’s Outline of Submissions:

“4. Civil Air contends that on its proper construction, clause 19.18 of the 2017 Agreement does not permit or authorise Airservices to use a ‘grey day’ stand by shift in the following way: (a) an employee rostered on for duty is absent from work, creating a vacancy in the roster (the original vacancy);

(b) an employee who is already rostered to work a different shift is issued a change of shift (COS) to fill the original vacancy, leaving a consequential vacancy (the manufactured vacancy); and

[38] Civil Air contends several points of historical background must be examined and deserve to be accepted in formulating the construction of the 2017 – 2020 Agreement:

“11. In the present case, the clause is the product of history. The principal considerations arising from the history of the clause and that bear on its proper construction are these:

(a) standby shifts were first referred to in the Civil Aviation Authority and Civil Air Operations Officers Association of Australia Agreement 1992;

(b) a detailed clause was first included in the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 1996;

(c) that clause, which is in similar but not identical terms to the current clause, represented an industrial compromise; and

(d) the clause in its various iterations has been consistently applied as part of a common understanding by the parties.” 42

[39] Mr Meyer, an Air Traffic Controller witness for Civil Air gave evidence about the emergence of Grey Day shifts, including this background about some of the practical difficulties in managing the 24/7 customer demands and employee needs (with his point of reference being to 2009, when “Airservices introduced grey night shifts into the Hunter group roster”):

“At this time, the Hunter group was short staffed. Each roster that was posted was short of staff. There would be at least one line in the roster that was not filled by a named person, because there was simply no one to roster on the shift. These shifts needed to be filled by overtime. Early on, it was possible to fill the shifts with overtime. But after months on end, it became harder and harder to get people to accept the overtime shifts. Further, because there were no spare people, sick leave had to be filled by overtime. This became a real issue, particularly on the night shift. Eventually, there were closures of airspace. This primarily happened at night.” 43

[40] Airservices Australia accepts that construction of the 2017 – 2020 Agreement turns on the language of the Agreement, having regard to its context and purpose and that some admissible objective facts are available to assist that task, but not in the way argued for by Civil Air.

[41] Beyond the excerpt from Civil Air’s submissions referred to above regarding the historical matters relied upon by the Applicant are two occasions in which the Commission and its predecessors dealt with disputes associated with Grey Day matters; one in 2009 before Vice President Lawler and the other in 2012 before Deputy President Smith.

[42] As alluded to in Civil Air submissions, the matter of Grey Days has been a feature of workplace agreements between the current parties for some years. Airservices Australia confirmed this with research showing that stand-by clauses dated back to 1996. 44 The earliest clauses surrounded the formulation that stand-by rosters could be utilised “where Airservices considers it is economical to do so”.45 That consideration was amended to Airservices considering it “appropriate to do so” from the 2009 – 2012 Agreement.

[43] Civil Air’s evidence includes that, at the date of the hearing, Grey Day arrangements were in place in 22 locations or workgroups and were pending in another four. 46

[44] The current clause is not the first to deal with Grey Day standby rosters however, the term in the 2017 – 2020 Agreement differs from that which is contained in some of the earlier versions of the applicable enterprise agreement.

[45] Relevant to the textual background are the two disputes referred to above. The March 2009 decision made by Vice President Lawler 47 which was made under the 2005 – 2008 Agreement48 (the 2009 dispute) and the matter determined in August 2012 by Deputy President Smith49 which was under the 2009 – 2012 Agreement (the 2012 dispute).50

[46] The 2009 matter related whether Airservices Australia could roster an Air Traffic Controller in a standby capacity on the night “doggo” shift, as night shifts were commonly called, 51 with Civil Air contending that the use of standby rosters for the doggo shift was excluded from the then operable clause, 4.2.13. Standby arrangements on night shifts became known as “grey doggos”.52 After consideration of the competing instructions advanced by the parties, Vice President Lawler found:

“I have considered whether or not the expression in paragraph (b) of clause 4.2.13: "The shift will not commence before 0600 local time" was intended to prevent the commencement of but rather was intended to prevent the rostering of shifts that commenced late in the evening the previous day, that is the doggo shift, and on balance given the terms of clause 4.2.7 I am not satisfied that that intention ought be attributed to the parties objectively determined. In my view the reading of clause 4.2.13 in the context of the agreement as a whole for the reasons I've identified leads to the construction that it is open to Airservices to roster air traffic controllers on standby in respect of the doggo shift, and I determine accordingly.” 53

[47] The 2012 dispute was somewhat conceptual in nature. It was advanced under the 2009 – 2012 Agreement with the nub of the dispute being Civil Air’s contention as follows:

“[4] The issue for determination is the scope of the phrase “in the event of absence of an employee who is rostered on duty’ in cl.l8.l3(a). Shorty stated, Civil Air argues that the absence must be unforeseen and that grey days cannot be used to fi l l known absences in the roster. Airservices argue that the approach by Civil Air is too narrow and restrictive. The concern of Civil Air arises when an Air Traffic Controller (ATC) is on a grey doggo shift (rostered on overnight) and might be called in to work that night shift or the following morning shift. The evidence is that this is not a popular shift.

…

[7] It was submitted that to be able to use the grey doggo shift as an integral part of normal rostering attendance would be unfair. The Agreement requires that rosters be prepared in advance and it is accepted that there will be absences from rosters which need covering. However, it is argued that it is inconsistent with fatigue management if a person is used from a standby roster to replace an absence known or planned in advance.” 54

[48] Consistent with this interpretation of the 2009 – 2012 Agreement, Civil Air sought:

“[8] Civil Air seek a determination that the proper application of the Agreement means that an employee can only be called in from a standby shift, in the event of an employee who is rostered for duty being absent in an immediate sense.”

[49] Coupled with this approach was the evidence given at the time by Robert Mason and noted by Smith DP as follows:

“[10] It was the evidence of Mr Mason, that the clause under examination was tightened to make its operation clear. Indeed, Mr Mason gave evidence that the clause was applied in the way understood by Civil Air until December 2011, when the approach to rostering in the Hunter Group changed. It was the evidence of Mr Mason that an email had been sent out advising of the approach due to long term sick leave. Mr Mason was of the view that long term sick leave was a known factor when constructing the roster and the grey day roster should not be used to cover that absence. It was only absences which occurred after the roster was set which should be considered for the use of grey days.”

[50] Deputy President Smith’s determination, after considering and weighing the alternative constructions was firm. Standby rosters were not for the purpose of filling predictable or known gaps in the roster, such as for annual leave, training and the like, but for the unpredictable, such as those exigencies arising after publication of the roster. In particular “absence” must contemplate something which is unknown at the time of fixing the roster:

“[20] I think there are a number of areas where there is common ground. These are that the grey doggo shift:

• cannot be used to cover for a person who is on annual leave where that is known at the time the roster is set, and

• can be used to cover absenteeism.

[21] The last point is important as it was a common complaint by Airservices that there is high absenteeism. If a person is on the roster and absents themselves from the workplace then it is clear that the grey doggo shift can be called in aid.

[22] I note that whilst the shift is a difficult one and can be more so if a person is called into work, it is nonetheless apart of ordinary hours of duty.

[23] Where the conflict arises is the apparent fear by Civil Air, that the shift will used in a way in which, over time, it no longer remains a genuine stand-by shift, but one where it will be expected that ATC’s will work because of the changing operational demands by Airservices. That cannot have been the intention of the parties when the agreement was negotiated. On one view it is easy to understand the proposition that an absence must be unplanned because if it was planned, what work does the concept of “stand‐by” have to do. This would be consistent with the view of Airservices that the grey day doggo shift should not be used to cover for planned annual leave. An examination of the issue must begin with the proposition that the planned shift, set 45 days in advance, is disturbed by an absence.

[24] There can be no issue taken, in my view, with many of the examples raised by Airservices, although it appears to me that training and endorsement re-familiarisation may be more in the camp of a planned absence than not. In the ordinary course, these matters should not take managers by surprise and should be capable of planning. It is also understood that there may be unusual circumstances in relation to these matters, but it is difficult to see them arising on a regular basis. The stand‐by shift is designed to have an additional resource where absences arise for reasons not known at the time the roster was formed. Given that the standby shift also forms part of ordinary hours, it cannot be regarded as only being available in exceptional circumstances. Being on the shift and being called in, is a part of the territory in which ATC’s operate and is needed to maintain the service that Airservices is obliged to provide.

[25] There is no easy answer to this matter, but I find that an absence must contemplate something which is unknown at the time of fixing the roster. That is about as far as this matter can be taken.”

[51] Relevant for the purposes of the dispute now before the Commission is that Deputy President Smith thought it important to note that Airservices Australia workplace environment was featured by high absenteeism and that the provision in question was instrumental in overcoming the problem, which he characterised as being when “a person is on the roster and absents themselves from the workplace”, noting the context of the dispute then before the Commission was regarding grey doggo shifts.

[52] There has been no change to the Agreement term in question since Deputy President Smith’s decision in August 2012.

[53] As set out above, the Questions for Determination are in four parts;

• that guidelines that governed the use of Grey Day shifts were withdrawn contrary to the consultation obligations of the 2017 – 2020 Agreement;

• that Grey Days were introduced in certain locations also without the prescribed consultation;

• that Airservices Australia consequently failed to pause the introduction of the arrangements despite a dispute having been notified under the Agreement, with it argued this also was contrary to its obligation; and

• that the 2017 – 2020 Agreement does not permit using Grey Day rostered employees to fill Manufactured Shifts, being subsequent or consequential vacancies in the roster.

CONSULTATION OVER WITHDRAWAL OF GUIDELINES

[54] In 2017, well after the determination referred to above of Deputy President Smith, in which he found that Grey Day shifts were for the purpose of dealing with eventualities arising after publication of a roster, guidance material was developed by Airservices Australia dealing with the subject of Grey Days. The parties are disputed about whether the material was developed only in relation to certain shifts or whether they have broader application.

[55] Civil Air contends that, in any event, there was no consultation as required by the 2017 – 2020 Agreement for withdrawal of the material, which occurred on 13 May 2018. 55

[56] The disputed material is referred to in the evidence of Air Traffic Controller Leigh Meyer, a witness on behalf of Civil Air, as well as in the evidence of Anthony Nugent who is an Air Traffic Management Service Manager who gave evidence on behalf of Airservices Australia.

[57] Many parts of this decision refer to the Byron Group, being a particular workgroup;

“The Byron Group is responsible for managing the airspace located geographically between the Gold Coast and Coffs Harbour. Within the Byron Group, there are currently 18 ATCs. Generally, three ATCs will be rostered on a morning shift, and four ATCs will be rostered on an afternoon shift.” 56

[58] In short, in early 2017, Airservices Australia wanted to introduce Grey Day shifts into the Byron Group which operates out of Brisbane, and Mr Meyer and Mr Nugent discussed how that could occur:

“31. I met with Mr Nugent. Mr Nugent said to me that Airservices wanted to introduce grey day shifts to assist in reducing overtime. I said that members distrusted Airservices because of what happened with the grey doggos in 2009-2012. Mr Nugent said that he understood that. I said that the most important point from the members’ perspective was call out procedures and practices. Mr Nugent and I specifically discussed grey days being used for consequential vacancies. Mr Nugent said that the clause did not allow Airservices to do this, and that it would not happen. We discussed what constituted an “unforeseen absence”. We discussed that, in the past, this was mostly only sick leave. However, in modern times it included carers’ leave and bereavement leave. We both expressed the view that these types of leave fell within the scope of the clause. We discussed the situation where an ATC needs to attend a meeting or training and Airservices had forgotten to adjust the roster. We both expressed the view that this was not an unforeseen absence.” 57

[59] Mr Nugent does not recall:

“…stating that Airservices could not use grey days for consequential vacancies, that it was not allowed or that it would not happen. I do not recall discussing consequential vacancies or using that term and I deny making those statements.” 58

[60] Mr Meyer prepared a document entitled “Application of Grey Days” and provided it to another manager, Mr Francis. After some amendment a settled document emerged and was provided by Mr Nugent to those working in the Byron Group. 59 Mr Nugent qualifies the material as being an informal document not applicable to anyone outside of the Byron Group.60

[61] The document prepared by My Meyer was provided by him to Civil Air which sent the document to the Brisbane TCU and Tower Delegates. While the document was not in identical terms to that which was officially distributed by Mr Nugent, Mr Meyer submits that:

“I believed my document said exactly the same as the Airservices document, but my document was clearer. For this reason, I distributed paper copies of Civil Air’s document on the consoles and a copy was sent to the Brisbane TCU & Tower Delegate. I intended that this would give him the information he needed to discuss any issues with members that he may have had to deal with. Over the next few weeks, I explained to any Byron controllers that asked for clarification on the agreed position of grey day callouts.” 61

[62] There is no evidence before the Commission that Mr Meyer’s earlier version of the document was ever distributed by Airservices Australia to employees, nor that Airservices Australia was aware that the document had been distributed and endorsed such distribution.

[63] Mr Nugent’s document, entitled “General Notes on Grey/Standby usage” is generally consistent with the finding made by Deputy President Smith, to the effect that Grey Day shifts are permissible for absences arising after the publication of the roster. 62 Mr Nugent recalls that following publication of the material Grey Day shifts were introduced into the Byron Group in February 2017 but were not introduced in other groups within the Brisbane Tower or Brisbane Centre at that time.63

[64] A further iteration of the guidance material, footnoted with the same date as the original version, 3 February 2017, contains an important addition, being a note qualifying that the greater shifts were not to be used in respect of Manufactured Shifts. Mr Meyer says that this version was prepared by Mr Francis, with an important part reflecting Mr Meyer’s discussion with Mr Nugent. 64 The relevant text of the second iteration of the material, entitled “Specifically for SM/SS’s – Usage and callout procedures for Grey/Stand-by shifts” is as follows:

“Special Note: Without agreement, Grey/Stand-by is only required to cover the actual specific vacancy not any backfill arrangement. Eg. 1400‐2300 calls in, Grey/Stand-by only required to cover 1400-2200 (2300 with agreement) thus you are not able to simply organise a change (COS) where you move the 1230-2130 into the vacant 1400‐2300 with plans to use the Grey/Stand‐by to backfill as the new vacancy has become a manufactured vacancy. However, prior to any change organised you can obtain agreement from the Grey/Stand‐by person to do the alternate shift.” 65

[65] In this decision, I refer to both iterations of these documents, namely the “General Notes on Grey/Standby usage” and the document entitled “Specifically for SM/SS’s – Usage and callout procedures for Grey/Stand-by shifts”, as the “Guidance Material”. The references may be collective references, or to only one or other of the iterations.

[66] Mr Meyer contends that “the “special note” addresses and incorporates the general concerns I raised in relation to manufacturing vacant shifts”. 66 While Mr Nugent accepts that there were two versions of the guidelines document,67 he disputes that they had application broader than the Byron Group noting that correspondence at the time from Debra O’Keefe, an ATC line manager in the Brisbane Tower postulates that the relevant Guidance Material might be a “good base line” for a task she was advancing at the time, being introduction of the Grey Day roster arrangements into other rosters in the Brisbane Tower. Part of the correspondence she provided to a Civil Air delegate in confirmation of discussion she had had with him included these references to how Grey Day shift may be arranged:

“Rhys,

As you are the Brisbane Tower Local Roster representative- this email is to confirm two separate items we discussed today:

1. Implementation of a new master roster: To ensure that National Rostering have sufficient time to upload and check the different versions to be put to staff for consideration could you please have your version completed and to me by Friday 241h March? As discussed:

a. Shift coverage times may be different to the current shift times e.g. different doggo start and finish times

b. There must be sufficient HO/TO times built into shift change over e.g. doggo to morning

c. Shift endorsements must be "stand alone" e.g. SM shifts can't have a requirement to be FEC

2. Implementation of Grey Days as per the EA 19.19:

a. The discussion today and this email form commencement of Consultation on Change under part 8, specifically clauses 8.1, 8.2, 8.3 and 8.10 of the EA.

b. Grey Days are to be rostered due to surplus staff levels resulting from ramp up for INTAS to NPR. Where this is no surplus staff due to training or secondment or any other reason for staff levels reducing, grey days will not be rostered or will be tactically replaced with advance notice e.g. due early notification of long term sick leave or ad hoc request for rec leave.

c. I have attached information provided to me by Glenn Francis who is a Northern Operations ALM responsible for the management of Enroute Groups. The information was written to provide guidance for Shift Managers, System Supervisors, Adm.in and ATC staff when grey days were introduced into the Byron Group. It would be a good base line for developing a similar one for Brisbane Tower.

To provide a bench mark for staff to easily review new master roster versions:

1. I will check with National Rostering as to whether they can proved the current master roster with additional surplus staff lines shown as grey days, where the grey day will sit in the cycle and what the shift time will be,

2. Request your version have the surplus lines of grey days annotated so that this can also reflect where the grey day will sit in the cycle and what the shift time will be.

3. Ensure any other versions submitted for consideration also reflect where the grey day will be in the flow of the roster cycle.

Regards,

Debra O’Keeffe

ATC Line Manager

Brisbane Tower

Air Traffic Control” 68

[67] The contention that either part of the Guidance Material was intended to have national application and was not otherwise restricted to the Byron Group relies upon accepting the evidence of Mr Meyer that that was the case and rejecting the evidence of Mr Nugent to the contrary. Although Mr Meyer and the people with whom he communicated in Civil Air may have hoped that the Guidance Material under discussion would have national application, or may have misunderstood the status of the discussions they were having, the evidence in support of a suggestion that such was any more than an aspiration is really very slight. The contention would rely upon accepting that the mid-January 2017 approach from Mr Nugent to Mr Meyer asking “if we could get together to discuss how to implement grey shift on the Byron control group roster” 69 developed over the course of the following month from a discussion about settling the business rules within a particular roster to Mr Francis accepting proposed changes, and adding some “General Notes” with Airservices Australia adoption of the content,70 with that scrutiny essentially being an agreement that the Guidance Material had agency-wide application.

[68] Mr Francis did not give evidence and the only Airservices Australia evidence about the status of the Guidance Material came from Mr Nugent who maintained that the guidelines were not applicable to anyone outside of the Byron Group and therefore were not distributed more broadly, 71 and Mr Dawe who did not have direct knowledge of the genesis of the document, and who thought the document had no status beyond the Byron Group.72

[69] Overall, the evidence on the subject of the extent of application of the Guidance Material is not sufficient and generally inconclusive. The documents themselves to do not lead to the impression they were intended to have national application. The witness evidence does not compel either a finding that they were intended to have national application, or that they went onto apply widely or nationally. As a result, the evidence does not lead to a finding that the relevant Guidance Material had application beyond the Byron Group roster.

[70] From about April 2018 Airservices Australia considered that the Guidance Material was no longer relevant and by no later than 13 May 2018 it walked away from its contents when Philip Bassingthwaite, an ATC line manager in Brisbane emailed staff advising that he had deleted the material “as it is misleading and incorrect”. 73 Mr Bassingthwaite did not give evidence in these proceedings.

[71] James Walsh, who is an Air Traffic Controller in Brisbane gave evidence about the context of the withdrawal of the Guidance Material. He was aware of the Grey Days having been introduced into the Byron Group roster in 2017 and that guidelines were issued for the use of Grey Days:

“36. I am aware that grey days were reintroduced into the Byron Group roster in 2017. I was not directly involved in that process. However, I am aware that guidelines were issued for the use of grey days. […]

Consultation and Status Quo

37. In 2017, I received a phone call about the apparent misuse of a grey day. What occurred was:

(a) a grey shift was rostered in the Brisbane Tower;

(b) an employee rostered on approach was absent from work due to illness;

(d) Brisbane Tower grey shift was called in to replace Mr Clarke.” 74

[72] Mr Walsh’s evidence is also that Mr Bassingthwaite had not spoken to him prior to withdrawing the Guidance Material and that he learned of its withdrawal when a shift manager approached him. 75 Mr Walsh is a Civil Air delegate and in that capacity he and another delegate met with Mr Nugent on the subject:

“45. On Wednesday 27 June 2018, I attended a meeting with Mr Nugent and Mr Irvine. In the course of that meeting, Mr Irvine and I said that the removal of the Guidelines had led to Airservices attempting to use grey days in a way that was inconsistent with the 2017 Agreement. One or both of us said that this was contrary to the 2017 Agreement. One or both of us also said that Airservices was not allowed to withdraw the Guidelines without consulting Civil Air and its members.

46. The three of us then worked through the Guidelines step by step to work out where the areas of dispute were. The principal area of dispute was the requirement that grey days could only be used to cover a direct vacancy in the roster. Mr Irvine or I said that Civil Air was willing to consult with Airservices about that issue, but that the Guidelines needed to be reinstated while the consultation process took place. Mr Nugent said that he thought it was sensible for there to be a common approach across Airservices. He said that he understood our position and that he was sorry it had happened that way. He said that the Guidelines would be reinstated and that he would be in touch once he had spoken with other people in Airservices to determine how the consultation should take place.” 76

[73] Mr Nugent recalls the meeting and the matters discussed, but in slightly different terms to that recalled by Mr Walsh:

“46. I met with Mr Walsh and Mr Irvine on 27 June 2018 at their request. During this meeting, Mr Walsh raised concerns about grey days not being utilised in accordance with the guidelines document. I said words to the effect that while the guidelines had been part of the discussion process for developing the Byron Group roster, the guidelines had no continued application. In particular I said words to the effect that the Special Note was not consistent with the decision of Deputy [President] Smith … I said that I supported providing guidance to shift managers and supervisors. I informed Mr Irvine and Mr Walsh that I would discuss with Service Managers the possibility of implementing guidelines to ensure there was a uniform application across branches and nationally if possible.

47. During the meeting with Mr Walsh and Mr Irvine, I did not make comments to the effect that Airservices would reinstate the Byron Group guidelines as the status quo. A copy of my notes from the meeting on 27 June 2018 is [attached]. I do not recall either Mr Walsh or Mr Irvine taking any notes.” 77

[74] The notes taken by Mr Nugent about the matters discussed in the meeting confirmed that Mr Walsh raised the matter of Airservices Australia following a “status quo” until resolution of a potential dispute:

“…

- AT THE END OF MEETING;

James + David, discussed greys days – both had a different outcome from out meeting earlier. I advised my e-mail explained my position. James was of opinion “status quo” would have to be returned as they intended to lodge a dispute with FWA. I advised the previous “guidance” was for Byron and was not published but for ‘guidance”. I advised i liked the idea of this doc but it needed review. I would be discussing with National Service Manager Team to develop standard guidance.” 78

[75] The proposition posed in that part of the Questions for Determination relating to withdrawal of the Grey Day guidelines is essentially that Airservices Australia failed to consult in the manner required in either clause 7 or 8.3(b) of the 2017 – 2020 Agreement. Those provisions obligate Airservices Australia to consult in several ways; over the development and variation of “Airservices’ policies and procedures pertaining to employment matters” (clause 7) and about “changes to an employee’s regular roster or ordinary hours of work” (clause 8.3(b)).

[76] In addition to the provisions of clause 8.3(b) are the provisions of clause 8.10, dealing with the process of consultation:

“Consultation on changes to an employee's regular roster or ordinary hours of work

8.10. For a change of the kind referred to in clause 8.3(b) Airservices will consult with affected employees and their representatives by:

(a) providing information about the change;

(b) inviting the employee to give their views about the impact of the change (including any impact in relation to their family and caring responsibilities);

[77] The second iteration of the Guidance Material, entitled “Specifically for SM/SS’s – Usage and callout procedures for Grey/Stand-by shifts” contains numerous propositions, however the operative effect of the withdrawal of that material, at least in terms of the way this dispute has been developed before the Commission, essentially relates to the material within the “special note” which provides the restriction referred to earlier, that “Without agreement, Grey/Stand-by is only required to cover the actual specific vacancy not any backfill arrangement”.

[78] Clause 7 stipulates that “Airservices’ policies and procedures pertaining to employment matters” are not part of the Agreement but that there will be consultation about changes to “such policies”. The Agreement does not particularly define those things which are policies and procedures. Having regard both to the whole of the 2017 – 2020 Agreement, as well as the Guidance Material, it is doubtful that the Guidance Material could be regarded as a policy or procedure. At best, it appears to be a local practice. However, because of the finding I make below in respect of the consultation required by clause 8.3(b) in relation to Question for Determination A2, it is not necessary to determine the status of the document as either a policy or procedure pertaining to employment matters.

[79] The obligation within clause 8.3(b) however is more significant to this matter. The plain language of the clause is for Airservices Australia to consult with employees and their representatives about “changes to an employee’s regular roster or ordinary hours of work”.

[80] The present clause is new to the 2017 – 2020 Agreement and is in a somewhat different form to that within the 2012 – 2015 Agreement. In particular the latter agreement does not contain an explicit obligation to consult with employees about changes to regular rosters or ordinary hours of work.

[81] The context to this is, of course, the legislative amendments made in 2013 which, through what is now s.205(1) of the Act, requires enterprise agreements to contain a consultation term dealing with the need to consult over changes to an employee’s regular roster or ordinary hours of work, or failing that, to have the model consultation term taken to be a term of the agreement. While, of course, the 2017 – 2020 Agreement is to be construed in accordance with its own terms, it is relevant to note the Explanatory Memorandum about the need for employees to consult with employees on changes to their regular roster or ordinary hours of work:

“56. New paragraph 205(1)(a) requires the employer or employers to which an enterprise agreement applies to consult the employees to whom the agreement applies about:

• a major workplace change that is likely to have a significant effect on the employees; or

• a change to their regular roster or ordinary hours of work.

57. New subparagraph 205(1)(a)(ii) provides for the additional requirement that an enterprise agreement must include a term about consultation on change to a regular roster or ordinary hours of work. The effect of this amendment is to ensure that, where a change to regular rosters or ordinary hours of work (which may impact upon an employee, particularly in relation to his or her family and caring responsibilities) does not constitute ‘major workplace change’ in accordance with subsection 205(1), an employer will nevertheless be required to engage in consultation with the employee about the change and impacts raised by the employee.

58. Item 21 inserts new subsection 205(1A) which sets out the consultation process to be included in a term in an enterprise agreement. The term must require an employer to consult with employees about change to a regular roster or ordinary hours of work by:

• providing information to the employees about the change;

• inviting employees to give their views about the impact of the change (including any impact in relation to their family and caring responsibilities); and

• considering any views put forward by those employees about the impact of the change.

59. As discussed at paragraph 44, the consultation term will only be triggered where the change relates to ‘regular’ rosters or ordinary working hours.” 79

[82] It is to be noted from the foregoing, that the intention of the provision is to require there to be a provision in enterprise agreements requiring an employer “to engage in consultation with the employee about the change and impacts raised by the employee” in relation to a change to their regular roster or ordinary hours of work. The obligation to consult will be discharged through consultation with an individual employee about proposed changes to their hours (while accepting that the form of the consultation could well be through a collective means).

[83] An antecedent to the passage of this legislation was the Federal Court judgement in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd which referred to a number of principles of consultation including these: 80

• A key element is that the party to be consulted is given notice of the subject upon which views are being sought before any final decision is made or course of action is embarked upon.

• There is a consequential requirement for the affording of a meaningful opportunity to present those views although what will constitute such an opportunity will vary according to the nature and circumstances of the case.

• A right to be consulted is a valuable right but is not a right of veto.

[84] The material before the Commission would not reasonably lead to the conclusion that the parties to the 2017 – 2020 Agreement intended clause 8.3(b) to have a meaning inconsistent either with the Act’s s.205(1) or what may be regarded as the ordinary and grammatical meaning of the words within the clause of the Agreement itself – to consult with an employee about changes to their regular roster or ordinary hours of work.

[85] The commitment within the 2017 – 2020 Agreement, made within the context of the legislative requirements needed to obtain approval for the Agreement, is on the ordinary grammatical meaning of the words within clause 8.3(b), for employees to be consulted about changes to their regular roster or ordinary hours of work; for them to be provided with sufficient information to indicate opinions about the change; and for their views to be taken into account prior to a final decision being taken. At the least, those things were not done for the Byron Group.

[86] There is insufficient evidence to make a finding that the Guidance Material had application beyond the Byron Group and particularly to other groups in Brisbane. Mr Nugent is firm in his evidence that they material had no application beyond the Byron Group. When Mr Francis circulated his “General Notes” document, it was done through an email addressed to a distribution list entitled “_LG_ANS_NO_BYRON”, as well as to Mr Nugent and Mr Meyer. 81 Mr Meyer then took steps to circulate his document;

[87] There is no specific evidence that the Airservices Australia documents were endorsed by management for operation in other Brisbane workgroups, beyond the Byron Group. Perhaps the documents operated in those other groups for reason that their content had utility and were convenient for all concerned for a time at least, however that possibility does not rise to a finding being able to be made that they “applied” in other Brisbane workgroups, beyond the Byron Group.

[88] There is ample evidence before the Commission to the effect that employees not only do not like Grey Day roster arrangements, but that they foresee significant fatigue, social and familial consequences from working on Grey Day rosters. It is entirely foreseeable that removing a restriction to the effect that Grey Day roster arrangements could be used to fill Manufactured Shifts in other rosters will not only be matters upon which employees wish to express a view before a final decision is made but also one that potentially may have fatigue, social or familial impacts. The import of these findings, together with the provisions of clause 8.3(b), considered in conjunction with clause 8.10, are such as to lead to a finding that the opportunity afforded by those provisions was not, in this case, given to employees in the Byron Group.

[89] In summary, my findings in relation to the first of Civil Air’s questions for determination are that the second iteration of the 2017 Guidance Material has application only to the Byron Group and that changes or withdrawal to it were subject to the requirement for employees to be consulted about changes to their regular roster or ordinary hours of work.

[90] As a result, Question for Determination A1 is determined as follows:

QUESTION

ANSWER

A1. Ceasing to apply the Grey Day Guidelines

1. Whether the respondent was required to comply with clause 7.2 and/or clauses 8.3(b) and 8.10 of the ATC Agreement before ceasing to apply the Grey Day Guidelines at:

(a) the Byron Group; and

(b) the BNE Tower.

A: YES;

(a) in respect of clauses 8.3(b) and 8.10 (but not clause 7.2) and

(b) in relation to the Byron Group (but not the BNE Tower).

2. If the answer to question 1 above is "yes", whether the respondent failed to comply with clauses 7.2 and/or 8.3(b) and 8.10 (as the case may be) of the ATC Agreement by:

(a) failing to provide information about the change to the affected employees and their representatives; and/or

(b) failing to invite the employees to give their views about the impact of the change (including) any impact in relation to their family and caring responsibilities); and/or

before ceasing to apply the Grey Day Guidelines at:

(d) the Byron Group; and

(e) the BNE Tower.

A: YES;

(a) in respect of clauses 8.3(b) and 8.10 (but not clause 7.2) and

(b) in relation to the Byron Group (but not the BNE Tower).

CONSULTATION OVER INTRODUCTION OF GREY DAY SHIFTS

[91] The second part of the Questions for Determination essentially relates to whether Airservices Australia has failed to comply with its consultation obligations because of an intention it has to spread Grey Day shifts beyond their current use. Connected with this, in its written submissions, Civil Air argued that its members had been informed that Airservices Australia had decided to introduce Grey Day standby shifts nationally 83 and further, in order to resolve the second part of the Questions for Determination:

“52. Resolution of this question requires the Commission to determine:

(a) whether Airservices has made a decision to introduce grey day stand by shifts on a national level on rosters that do not presently utilise grey day stand by shifts;

(b) whether, if such a decision had been made, Airservices was required to consult with employees and employee representatives prior to making that decision; and

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

[33] Our conclusion therefore is that the specific provisions of Appendix I exclude the operation of inconsistent general provisions in Appendix C, and therefore that the status quo provision in Appendix C does not operate with respect to work trials properly conducted under Appendix I. Appendix I requires work trials to be conducted provided that the prerequisite consultations have occurred (unless employees agree that a trial is not required). The status quo provision in Appendix C does not therefore authorise non-participation in any work trial which meets the requirements of Appendix I. There was no issue in this appeal that the work trial that was to commence on 31 March 2014 met those requirements. The non-participation of employees in that work trial did not fall within the exclusionary provision of s.19(2)(a), and was therefore “industrial action” under s. 19(1)(a).”

(references from original)

[120] It is to be observed from the foregoing that in relation to CUB, it was Appendix I that required work trials to be conducted, provided there had been the pre-requisite consultations, and that the status quo provision in Appendix C did not authorise nonparticipation in a work trial which otherwise met the requirements of Appendix I.

[121] In this matter the authorisation to implement standby rosters or Grey Day rosters is set out within clause 19.18, as well as the wider clause 19, dealing with matters associated with the hours of work. Amongst other things those requirements include the need to consult with Local Rostering Representatives where Airservices Australia intends to effect a change to existing base/regular roster arrangements.

[122] Of course, in relation to the question before the Commission regarding the status quo matter, rather than it being argued that Airservices Australia introduced new rosters without consultation, the argument is that the thing which Airservices Australia did not preserve was the Guidance Material about how an already existing roster should operate. The language of clause 19.9, creating an obligation to consult with Local Rostering Representatives where there is an intention to make “change to existing base/regular roster arrangements” is arguably sufficiently broad to encompass the withdrawal of the Guidance Material which, to some extent at least, prevented the operation of an existing roster in a particular way, namely enabling Grey Day rostered employees to be assigned to manufactured shifts.

[123] In the alternative, it is not the case that there is within clause 19.18 or elsewhere in clause 19 preconditions of the type referred to within CUB that would enable a finding to the effect that the status quo provision under consideration does not have application.

[124] Consideration of clause 10 shows that it has application to disputes about matters arising under the 2017 – 200 Agreement, with the terminology being broad enough to encompass disputes about the operation of Grey Day rosters. The clause then lays out an escalating process of consideration by successively more senior people. First, the matter is discussed at “the workplace level” which involves the relevant employees and their manager. Second, it may be referred to senior levels of management after which, if the matter is still not resolved it may be referred to the Commission, initially for the purposes of conciliation. The interaction between Mr Nugent, Mr Walsh and Mr Irvine, commenced by Mr Walsh with his email to Mr Nugent on 22 June 2018 117 stands for the commencement of that process, and it was not said otherwise in these proceedings. While the submissions and evidence before the Commission are indistinct as to whether this interaction was said to be at the first or second stage of the dispute resolution process it is not said against Civil Air by Airservices Australia that it has failed to follow the dispute resolution procedure or that the dispute is otherwise improperly before the Commission.

[125] In its submissions, Airservices Australia submits that clause 10.1(g) does not require Airservices Australia to reinstate the Guidance Materials 118 and argues that what is being put forward by Civil Air is in effect an endeavour to rewrite the 2017 – 2020 Agreement:

“48. In these circumstances a decision by Airservices to apply the Agreement according to its terms and as a consequence to refuse to apply the Guidelines, cannot be described as a departure from the status quo. Put differently, the fact that Civil Air has notified a dispute seeking that this application continue, cannot have the effect of varying the Agreement or the obligations it imposes upon the parties. Nor can it prevent Airservices from directing that manager to apply the Agreement in accordance with its terms.

49. Further, and alternatively, the focus of clause 10.1(g) is the continuation of the “work”. It is a clause directed to ensuring that work continues as normal whilst the dispute is being determined. The clause does not purport to regulate the management practices of Airservices where those practices are otherwise consistent with the obligations that the Agreement imposes.” 119

[126] A central question in this matter is whether a dispute about the operation of Grey Day rosters can properly be described as “a matter arising under this agreement”. It is difficult to see how the Respondent’s contentions are accurate in the context of clause 19.18. Although that clause allows a discretion to Airservices Australia to introduce such rosters as it considers appropriate, the right to do so is subject to constraints around what may be done, as well as the requirements both to consult with Local Rostering Representatives in the circumstances set out within clause 19.9, and to consult with employees when there are to be changes to their regular roster or ordinary hours of work.

[127] This is not a circumstance in which Civil Air seeks a variation of the Agreement in relation to the rights and obligations of the parties; rather it is an endeavour by Civil Air to persuade the Commission of a particular construction of the Agreement about matters already contained within the Agreement. If the favoured construction is accepted there will be no variation to the Agreement but merely implementation of a term already agreed between the parties at the time they made the Agreement. Similarly, the contention that nothing can prevent Airservices from directing a manager to apply the Agreement in accordance with its terms has no particular meaning beyond the contention; after all, Civil Air contends for no more than that which is already within the Agreement. Instead, the contention made about the application of the status quo pertains directly to whether or not Airservices Australia is within its rights to implement Grey Day rosters by no longer conforming with the restriction that “Grey/Stand-by is only required to cover the actual specific vacancy not any backfill arrangement” with it being said in effect by Civil Air that such could not be withdrawn without consultation and, at least in these proceedings if not earlier, that such is impermissible within the proper construction of the Agreement. The finding is therefore available that the withdrawal of the Guidance Material is a matter arising under the Agreement.

[128] It follows from the evidence before the Commission that while Airservices Australia followed the dispute resolution procedure at least at the first stages, it did not do so beyond the meeting with Mr Nugent on 27 June 2018. Mr Nugent contends that he never said within the meeting on that day words to the effect that the Guideline Materials would be reinstated. While I accept that this may well be one of those situations in which different people leave the one meeting with a different understanding of what was said, Mr Nugent nonetheless was put on notice by Civil Air shortly after the meeting that it disagreed with the decision that the Guidance Material would not be reinstated. Mr Nugent’s evidence that he considered that “no further action was required to be taken in relation to the grey day guidelines because they were not a published Airservices document” does not demonstrate any real consideration of the subject. Mr Nugent’s reference to the guideline not being “a published Airservices document” is obviously an endeavour by him to characterise the dispute he was dealing with as a dispute arising under clause 7, which requires consultation over the introduction or variation of policies or procedures pertaining to employment matters. The difficulty he faces with that contention is that the dispute he was dealing with was not raised under that clause.

[129] Clause 10, within which the status quo provision resides, enables Civil Air to raise disputes in relation to “a matter arising under this Agreement”. When Civil Air wrote to Airservices Australia on 5 July 2018 formally raising the dispute it couched the dispute as being a failure by Airservices Australia to comply with “the consultation requirements as outlined in clauses 8 and 18” of the 2017 – 2020 Agreement. More particularly, the assertion was made by Civil Air that the dispute came about because of Airservices’ unilateral decision “to withdraw the grey day guidelines, without consultation”. 120

[130] Airservices Australia, as well as Mr Nugent, have not provided an adequate explanation to the Commission why, no later than 5 July 2018, the operation of the Guidance Material was not immediately reinstated until such time as the wider dispute was resolved.

[131] I find that Airservices Australia was obliged to follow the status quo in the manner set out within clause 10.1(g) and (h), but did not do so. For the reason of the findings made by me earlier about the application of the formal Guidance Material to the Byron Group and not to other Brisbane workgroups, my finding in relation to the status quo matter is only in relation to the Byron Group.

[132] As a result, Question for Determination B is determined as follows:

QUESTION	ANSWER
B. Status quo
5. Whether the applicant notified the respondent of a dispute within the meaning of clause 10 of the ATC Agreement (the Dispute) in relation to the respondent ceasing to apply the Grey Day Guidelines at: (a) the Byron Group; and (b) the BNE Tower.	A: YES; in relation to the Byron Group (but not the BNE Tower).
6. If the question to question 5 above is "yes", whether the respondent was required to comply with clause 10.1 (g) of the ATC Agreement in relation to the Dispute.	A: YES; in relation to the Byron Group (but not the BNE Tower).
7. If the question to question 6 above is "yes", whether the respondent failed to comply with clause 10.1 (g) of the ATC Agreement by, after being notified of the Dispute: (a) refusing to apply the Grey Day Guidelines at the Byron Group; and/or (b) refusing to apply the Grey Day Guidelines at the BNE Tower.	A: YES; in relation to the Byron Group (but not the BNE Tower).

CONSTRUCTION

[133] The background to the provision within the current clause 19.18 is referred to above. The product of this background is twofold:

• There is no restriction within the clause on rostering employees for standby shifts or night or doggo shifts; and

• The provision is to be interpreted as applying to absences unknown at the time of fixing the roster.

[134] Save for these matters of explicit objective understanding, the background to the current clause 19 does not specifically point to a particular construction in respect of recalls to work for Grey Day rostered employees to fill an absence not within their roster team. I am not satisfied that the clause is ambiguous or susceptible to more than one meaning.

[135] The evidence of prior matters pointed to by Civil Air – an earlier version of the provision and the 2009 and 2012 disputes – do not support the proposition that the current version of the clause was founded on a common understanding of the past with the consequence that the 2017 – 2020 Agreement verbiage should be regarded as ambiguous. Neither does the evidence on those matters lead to a finding that there was evidence of objective background facts. What may have passed between the parties in negotiations for replacement of the 2009 – 2012 Agreement 121 is not evidence of objective background facts and in any event does not establish an ambiguity.

[136] The Guidance Material referred to earlier in this decision pertinent to the Byron Group was the subject of discussions which commenced in mid-January 2017 122 and with its product then being settled in a period starting in February 2017. That period coincided generally with the formation of the 2017 – 2020 Agreement which commenced operation on 30 March 2017. Allowing for the time required for the usual access, voting and approval processes for the Agreement, such things as may be drawn from the Guidance Material do not crystallise as objective background facts upon which a particular construction of the clause may be founded. That is, no findings are to be made that the Guidance Material was a product of or continuation of bargaining. At best, the discussions for the Guidance Material commenced in the twilight of bargaining, with there being no evidence before the Commission that the subject matter of the Guidance Material was some final matter requiring determination in a particular direction in order to elicit agreement from one or both sides. In any event, I have not found the Guidance Material to be an agency-wide policy, but merely guidance for application in one particular roster group, the Byron Group.

[137] As is self-evident, clause 19.18 consists of five parts as follows:

• Subclause (a) sets out that standby rosters may be established and sets several conditions for the eventuality;

• Subclause (b) establishes the basis of the Grey Day arrangement; employees are to be rostered for a nominal shift, being a “specific shift on a specific day”, with shifts not to commence before 6:00 AM and not to be of more than 8 hours duration;

• Subclause (c) provides that there is no requirement for attendance for the nominal shift, but provides how long the employee must be available for recall;

• Subclause (d) provides for payment when rostered on standby, with the payment to be on the basis of an employee’s “ordinary rate of pay for shift in respect of the nominal shift whether or not they are required to attend for duty”;

• Subclause (e) establishes that the principles set out in the clause regarding shift commencement, cessation, extension and time off apply to the time actually worked.

[138] The clause in question uses several key phrases:

• “Stand-by roster” or “stand-by shift” which are terms not used elsewhere in the 2017 – 2020 Agreement;

• “Grey Day” which also is not used elsewhere in the 2017 – 2020 Agreement; and

• “Nominal shifts” which is used primarily in clause 19.18 as well as in one other place in the 2017 – 2020 Agreement, in clause 37 which establishes personal and special leave rights, with that reference being in relation to the provision of a medical certificate for certain single day absences.

[139] Further context is given to the construction of the provision in question from the other parts of clause 19. In particular, the terminology “Base Roster” and its employment in other parts of clause 19 assist in providing context for clause 19.18 itself.

[140] The definition of Base Roster is referred to earlier in this decision and does not require repeating, other than to note that such roster “sets out” a particular pattern of shifts to be worked by a particular workgroup. The context of the definition itself, as well as its use at various points within clause 19 allows it to be accepted that a base roster is something which is programmed in advance, likely intended to recur indefinitely until changed with changes able to be made to it in accordance with the provisions elsewhere within the clause. When changes are mooted there needs to be consultation in the manner set out within clause 19.9. The clause also requires that an employee “will progress through the Base Roster in an orderly way” (19.12), but that “while progression through the Base Roster pattern of shifts is the ideal principle” that may not always occur (19.13). Clause 19.14 deals with the means by which a roster is prepared, with the clause setting out the need for consideration of mutual needs, in the form of business and operational needs and employee requests and responsibilities. There is a requirement that Airservices Australia highlight any proposed significant changes with explanatory notes and, on the part of the employee, the responsibility to review the draft roster and provide feedback.

[141] The overall context of clause 19.18, residing as it does, within the wider clause 19, is to provide a mechanism by which Grey Day shifts may be constructed and used. As already canvassed in this decision, Grey Day shift arrangements are to cater for circumstances in which employees rostered for work do not attend for some reason and other employees need to be substituted into their position at relatively short notice. In broad terms the clause deals with three separate situations. Firstly, the clause deals with the circumstance of the employee who is rostered for a Grey Day shift but does not need to attend for work unless and until they are called with them being treated until they are recalled as having worked the nominal shift. Secondly, the clause regulates what can be expected of a standby employee. In particular, it requires them to be available and ready for work for a period of twice the length of the nominal shift. Thirdly, the clause sets out the payment to be made to a Grey Day employee.

[142] No part of clause 19.18 or for that matter any other part of the 2017 – 2020 Agreement directly prevents a Grey Day employee being substituted into an absence in a different workgroup from their own.

[143] The evidence in relation to Manufactured Shifts does not fully explain the benefits there may be for Airservices Australia in operating as it does. However, it suggests that where there is an absence which cannot be backfilled by a Grey Day shift at one location, Airservices may choose to fill that vacancy by swinging a Grey Day employee in from another roster, perhaps avoiding the need for overtime or penalty payments in relation to the first workgroup. Civil Air’s submissions about Manufactured Shifts include that the proper construction of the Agreement is that Grey Day shifts may not be used in this way:

“(a) an employee rostered on for duty is absent from work, creating a vacancy in the roster (the original vacancy);

(b) an employee who is already rostered to work a different shift is issued a change of shift (COS) to fill the original vacancy, leaving a consequential vacancy (the manufactured vacancy); and

[144] Why an arrangement of this sort is beneficial to Airservices Australia has not been cogently put; nonetheless that in essence is the practice complained about by Civil Air. 124 The practice adopted by Airservices Australia allows the view that there is a cost advantage for Airservices in using Grey Day shifts instead of overtime, given that Airservices are required to pay an employee on a Grey Day shift regardless of whether they work the shift or not, whereas overtime is an additional cost which must be paid when used. As such, where there is no Grey Day shift employee available to cover an absence, Airservices Australia will take another employee to fill a vacancy, whose vacancy elsewhere can be back filled by a Grey Day shift therefore resulting in no additional cost to Airservices to fill the original vacancy.125 Even while this practice is the apparent case, there are plainly some practical limitations on the extent to which this practice could be made to work. For example, clause 19.18(c)(ii) provides that the Grey Day employee will be available to report for duty not later than two hours after notification. The practical effect of this restriction would mean the substitution of an employee in this matter would most likely only be within workgroups at the same locality as the Grey Day employee’s workgroup simply because of the time required to travel to a distant locality.

[145] Civil Air’s objections chiefly concern matters of fatigue and associated deleterious effects upon the employee in question given the increase in frequency of being called in to work when on Grey Day shifts.

[146] The proposition that clause 19.18 prevents the use of a Grey Day employee to fill an absence in some team other than their own would require altogether different wording to that presently within the clause. Civil Air invites a reading of the second sentence of clause 19.18(a) as if it contained the following underlined words or similar:

“These ‘Grey Day’ stand-by shifts will be shifts on which employees will be rostered on stand-by for relief into the same workgroup covered by their Base Roster in the event of absence of an employee who is rostered on duty within the same Base Roster.”

[147] The determination of the dispute by Deputy President Smith in 2012 was that Grey Day shifts were for the purpose of dealing with eventualities arising after publication of a roster. Although the matter of whether absences outside of the workgroup in question could be covered by the Grey Day employee was not dealt with in his decision, that does not lead to a finding that the dispute was determined on the basis that Grey Day rostering was confined to unanticipated absences within the same workgroup.

[148] In finality, the words within clause 19.18 should be given their ordinary meaning, and no restriction should be read into the clause about the duties to be performed upon recall to work. Although there may be reasons from other requirements in the Agreement which prevent an employee from being recalled, such as matters of their qualifications or fitness for duty or fatigue, there is not an overarching restriction to the effect that a Grey Day employee may not be recalled to fill an absence arising after publication of the roster, but in another workgroup.

[149] As a result, Question for Determination C is determined as follows:

QUESTION	ANSWER
C. Construction of the agreement
8. Whether, on its proper construction, clause 19.18:
(a) permits the respondent to utilise an employee rostered on standby to fill only the direct vacancy in the roster caused by the absence of an employee rostered to work; or	A: NO.
(b) permits the respondent to utilise an employee rostered on standby to fill both: (i) the direct vacancy in the roster caused by the absence of an employee rostered to work; or (ii) subsequent or consequential vacancies in the roster.	A: YES.

CONCLUSION

[150] For the reasons set out above, I find that the Questions for Determination require answering in the manner indicated above. In summary, my determinations about each question are as follows:

QUESTION	ANSWER
A1. Ceasing to apply the Grey Day Guidelines
1. Whether the respondent was required to comply with clause 7.2 and/or clauses 8.3(b) and 8.10 of the ATC Agreement before ceasing to apply the Grey Day Guidelines at: (a) the Byron Group; and (b) the BNE Tower.	A: YES; (c) in respect of clauses 8.3(b) and 8.10 (but not clause 7.2) and (d) in relation to the Byron Group (but not the BNE Tower).
2. If the answer to question 1 above is "yes", whether the respondent failed to comply with clauses 7.2 and/or 8.3(b) and 8.10 (as the case may be) of the ATC Agreement by: (a) failing to provide information about the change to the affected employees and their representatives; and/or (b) failing to invite the employees to give their views about the impact of the change (including) any impact in relation to their family and caring responsibilities); and/or (c) failing to give prompt and genuine consideration to matters raised about the change before ceasing to apply the Grey Day Guidelines at: (d) the Byron Group; and (e) the BNE Tower.	A: YES; (c) in respect of clauses 8.3(b) and 8.10 (but not clause 7.2) and (d) in relation to the Byron Group (but not the BNE Tower).
A2. Introduction of Grey Days without consultation
3. Whether the respondent is required to comply with clause 7.2 and/or clauses 8.3(b) and 8.10 of the ATC Agreement before introducing Grey Days in any particular location.	A: YES in respect of clauses 8.3(b) and 8.10 (but not clause 7.2).
4. If the answer to question 3 is "yes", whether the respondent failed to comply with clause 7.2 and/or clauses 8.3(b) and 8.10 of the ATC Agreement by introducing Grey Days without: (a) providing information about the change; and/or (b) inviting the employee to give their views about the impact of the change (including any impact in relation to their family and caring responsibilities); and/or (c) giving prompt and genuine consideration to matters raised about the change.	A: YES in respect of clauses 8.3(b) and 8.10 (but not clause 7.2).
B. Status quo
5. Whether the applicant notified the respondent of a dispute within the meaning of clause 10 of the ATC Agreement (the Dispute) in relation to the respondent ceasing to apply the Grey Day Guidelines at: (a) the Byron Group; and (b) the BNE Tower.	A: YES; in relation to the Byron Group (but not the BNE Tower).
6. If the question to question 5 above is "yes", whether the respondent was required to comply with clause 10.1 (g) of the ATC Agreement in relation to the Dispute.	A: YES; in relation to the Byron Group (but not the BNE Tower).
7. If the question to question 6 above is "yes", whether the respondent failed to comply with clause 10.1 (g) of the ATC Agreement by, after being notified of the Dispute: (a) refusing to apply the Grey Day Guidelines at the Byron Group; and/or (b) refusing to apply the Grey Day Guidelines at the BNE Tower.	A: YES; in relation to the Byron Group (but not the BNE Tower).
C. Construction of the agreement
8. Whether, on its proper construction, clause 19.18:
(a) permits the respondent to utilise an employee rostered on standby to fill only the direct vacancy in the roster caused by the absence of an employee rostered to work; or	A: NO.
(b) permits the respondent to utilise an employee rostered on standby to fill both: (i) the direct vacancy in the roster caused by the absence of an employee rostered to work; or (ii) subsequent or consequential vacancies in the roster.	A: YES.

[151] The application is determined accordingly.

COMMISSIONER

Appearances:

Mr W. Friend QC, Ms. S. Kelly of Counsel for the Applicant.

Mr C. O’Grady QC, Ms. N. Campbell of Counsel for the Respondent.

Hearing details:

2019.

Melbourne:

4-5 February.

Printed by authority of the Commonwealth Government Printer

1 AE423762.

2 with “BNE” referring to Brisbane.

3 Civil Air, Concise Summary of the dispute to be arbitrated, dated 9 October 2018

4 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].

5 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].

6 CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

7 SDA v Big W Discount Department Stores PR924554 at [23].

8 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

9 Ibid [47].

10 MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

11 MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

12 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

13 The Commission must not make a decision that is inconsistent with the FW Act, or a fair work instrument that applies to the parties.

14 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

15 [2017] FWCFB 3005.

16 Ibid [114].

17 [2017] FWCFB 4537.

18 Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020, AE423762.

19 Exhibit A1, Witness Statement of Robert Mason, dated 23 October 2018, [3].

20 Ibid, [6].

21 Ibid, [8].

22 Ibid, [9] – [10]. Exhibit R2, Witness Statement of Anthony Nugent, dated 20 December 2018, [13].

23 Ibid, [23].

24 Ibid, [25] – [26].

25 Ibid, [27].

26 Ibid.

27 Transcript, PN219.

28 Ibid, PN111-125.

29 Ibid, see, for example, PN148-151.

30 Ibid, PN467.

31 Ibid, PN219-233.

32 Exhibit A11, Witness Statement of Michael Haines, dated 23 October 2018, [10].

33 Exhibit A3, Witness Statement of James Walsh, dated 23 October 2018, [10].

34 Exhibit A1, [38]

35 Exhibit A1, [73].

36 Exhibit A3, [62]

37 Ibid, PN246.

38 Ibid, PN248.

39 Ibid, 208-250.

40 Exhibit A13, Reply Witness Statement of Tom McRobert, [3];Attachment TM-3.

41 Exhibit A15, Civil Air Outline of Submissions, dated 23 November 2018.

42 Ibid.

43 Exhibit A7, Witness Statement of Leigh Meyer, dated 23 November 2019, [12] – [13].

44 Exhibit R1, Stand-by shifts in the relevant enterprise agreements.

45 Ibid, 1996, 1998 - 2001, 2002 -2005, 2005 – 2008 Agreements.

46 Exhibit A13, [3]; Attachment TM-3.

47 Exhibit A1, Attachment RPM 3; decision of VP Lawler in the matter of C2009/2328, given in transcript (unreported, 26 March 2009).

48 Agreement reference: CAUN 096028464.

49 Ibid, attachment RPM 8; [2012] FWA 6427.

50 AE898492.

51 Exhibit A7, [14].

52 Ibid.

53 Ibid, Attachment RPM 3, PN442.

54 Ibid, Attachment RPM 8; [2012] FWA 6247, [4] and [7].

55 Exhibit A15, [44].

56 Exhibit R2, [27].

57 Exhibit A7.

58 Exhibit R2, [29].

59 Exhibit A7, [36].

60 Exhibit R2, [32] – [33].

61 Exhibit A7, [40].

62 Ibid, Attachment LM-3.

63 Exhibit R2, [36].

64 Exhibit A7, [41].

65 Exhibit A7, Attachment LM-5.

66 Exhibit A8, Reply Witness Statement of Leigh Meyer, dated 30 January 2019, [5].

67 Exhibit R2, [34].

68 Exhibit A3, Attachments JW5, pg. 2.

69 Exhibit A7, [30].

70 Ibid, [38].

71 Exhibit R2, [33], [39].

72 Exhibit R3, Witness Statement of James Dawe, dated 20 December 2018, [35] – [37].

73 Exhibit R2, [44]; Exhibit A3, Attachment JW8.

74 Exhibit A3.

75 Ibid, [42].

76 Ibid.

77 Exhibit R2.

78 Exhibit R2, Attachment AN5.

79 Explanatory Memorandum to the Fair Work Amendment Bill 2013

80 [2010] FCA 591, (2010) 198 IR 382, [44]

81 Exhibit A7, Attachment LM-4.

82 Ibid, [40].

83 Exhibit A15, Applicant Outline of Submission, dated 23 October 2018, [53].

84 Ibid, [52].

85 Exhibit R2, [37]; Exhibit R3, [36] – [38].

86 Transcript, PN 1970 – 1971.

87 Exhibit A13, [3];Attachment TM-3.

88 Exhibit R4, Respondent Outline of Submissions, dated 20 December 2018.

89 Ibid, [54].

90 [2014] FWCFB 1629.

91 Ibid, [26].

92 Ibid.

93 Exhibit R2, [32] – [33].

94 Exhibit A4, Reply Witness Statement of James Walsh, dated 30 January 2019 [1].

95 [2014] FWCFB 1629, [28].

96 Exhibit A3, Attachment JW-6.

97 Ibid, Attachment JW-7.

98 Ibid, [41].

99 Exhibit A3, Attachment JW9.

100 Exhibit A3, [46]; Exhibit A5, Witness Statement of David Irvine, dated 23 October 2018, [20].

101 Exhibit R2, [47].

102 Exhibit A6, Reply Witness Statement of David Irvine, dated 30 January 2019, Attachment DI3.

103 Exhibit A3, Attachment JW-10.

104 Exhibit R2, [52].

105 [2014] FWCFB 4104.

106 Ibid.

107 Ibid, [3].

108 Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd[2011] FCAFC 67 at [14]-[18].

109 [2011] FCA 1020.

110 Ibid at [32].

111 Ibid.

112 Ibid at [65].

113 (2006) 155 IR 211.

114 Ibid at [44].

115 [2014] FWCFB 4104.

116 (1932) 47 CLR 1 at 7.

117 Exhibit A3, Attachment JW9.

118 Ibid, [47].

119 Ibid.

120 Ibid, Attachment JW-10.

121 Exhibit A15, [23].

122 Exhibit A7, [30].

123 Exhibit A15, [4].

124 Transcript, PN15.

125 Ibid.

Civil Air Operations Officers' Association of Australia, The v Airservices Australia T/A Airservices Australia

[2019] FWC 2136

11 APRIL 2019

DECISION

RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE