[2020] FWC 2571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739—Dispute resolution

Matthew Fox; David Crick
v
Toll Remote Logistics Pty Ltd t/a Toll Helicopters
(C2019/5716)

DEPUTY PRESIDENT SAMS

SYDNEY, 28 MAY 2020

Application to have the Commission deal with a dispute under an agreement’s dispute settlement procedure – emergency helicopter services – interpretation of agreement – payment when a pilot is ‘stranded’ on a mission due to bad weather, mechanical failure etc. and must stay overnight away from home base – previous practice permitted overtime paid for off duty period – error in administration and oversight – whether overtime payable in off duty period – words used said to be unambiguous and not susceptible to more than one meaning – principles of agreement interpretation – words have plain, ordinary meaning having regard to context and purpose – surrounding circumstances, fairness and inconvenience considerations not relevant – words must be considered having regard to their context and purpose of the Agreement and the legislative and regulatory framework in which pilots operate – employer construction preferred – dispute resolved.

BACKGROUND

[1] This matter concerns an application, filed by Mr Matthew Fox and Mr David Crick, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’) which seeks to have the Fair Work Commission (the ‘Commission’) deal with a dispute in accordance with the Dispute Settlement Procedure (the ‘DSP’) under the Toll Helicopter Pilots Enterprise Agreement 2016 (the ‘Agreement’). The Agreement is a Greenfields Agreement and has a nominal term expiry date of 29 June 2020, and the parties were due to commence negotiations for a new agreement by 29 December 2019.

[2] Mr Fox and Mr Crick are helicopter pilots employed by Toll Remote Logistics Pty Ltd (‘Toll’ or the ‘respondent’) and are members of the Australian Federation of Air Pilots (the ‘Federation’), which has represented them throughout the proceedings before the Commission.

[3] Shortly stated, Toll is contracted to provide Emergency Medical Services (‘EMS’) to Ambulance NSW, and the dispute concerns ‘the [r]espondent’s decision in January 2019 to not pay pilots overtime in accordance with Schedule 2.4, and related provisions, of the Agreement in circumstances where a pilot, in the performance of his or her employment and ordinary duties, is prevented from returning to their ‘base’ within their rostered shift and shift length.’ The Federation maintained that the outcome of this dispute will impact on all their members who experience the circumstances described above.

[4] In accordance with my usual procedure, I convened a conference with the parties on 1 October 2019 to explore settlement of the dispute in accordance with Cl 10(iv) of the Agreement’s DSP. As no settlement of the matter was reached, the Federation sought the following relief in accordance with Cl 10(v) of the DSP, dealing with arbitration of such dispute:

• an order that the respondent will provide overtime payment in accordance with schedule 2.4(b) and (c) at the rate prescribed in schedule 2.1 of the Agreement where a Pilot is required to layover away from home base;

• that the order be made to specify the payments will be effective on and from 1 January 2019; and

• that the order specify the period of layover is the period the Pilot is required to be away from home base following the Pilot’s rostered shift finish time and the time the Pilot returns to home base, plus 30 minutes in accordance with schedule 2.4 of the Agreement.

[5] There is no jurisdictional impediment to the Commission proceeding to arbitrate the dispute. I issued amended directions for the hearing on 31 October 2019, which ultimately occurred on 13 February 2020. At the hearing, Mr D Stephens and Mr P Ferguson appeared for the Federation and Mrs F James appeared for Toll. I invited the parties to advise me by 19 February 2020 as to whether the answer to the dispute could be encapsulated into an agreed question for the Commission to answer. No response was received and assuming no agreement on the question was possible, it seems to me that the question, in essence, is:

‘in circumstances where a pilot is ‘stranded’ overnight, is overtime payable during the period from when the pilot enters into overnight accommodation and before commencing to return to home base the next day?’

[6] It is appropriate, at this juncture, to set out a number of Agreement provisions which are relevant to the issue in dispute and which are to be read in the context and purpose of the relevant provisions and the Agreement as a whole.

APPLICABLE PROVISIONS OF THE AGREEMENT

[7] I begin with Cl 2 definitions:

‘“Home Base” as specified in the Pilot’s letter of employment (or as subsequently varied by agreement in writing), means:

(a) For a Pilot utilised in touring activities under this Agreement -the primary domestic airport (as defined in each respective Schedule) of the city specified and from which Tours of Duty are deemed to commence and cease;

(b) For other Pilots- the Company’s operating base as specified and to which the Pilot is allocated by the Company for the purpose of commencing and ceasing Duty ‘Duty and Duties’

“Duty Travel” means any travel, other than as a crew member of any aircraft, which a Pilot undertakes in Company service and includes travel for the purpose of taking up a new Base (whether on a permanent or temporary basis). Duty Travel excludes travel of a Pilot between his or her home and the Home Base airport or Home Base of operations.

“Sign Off” is the time of completion of all duties associated with a Tour of Duty in accordance with Company policies and procedures. This time will ordinarily be the rostered end of Tour of Duty. Where the end of a Tour of Duty has been exceeded, Sign Off shall be a maximum of 30 minutes after shutdown of the aircraft. This allows sufficient time for post-flight administrative requirements. Overtime will not be authorised after the period of 30 minutes, unless approved by the Company Representative.

“Sign On” is the time at which the Pilot is scheduled or rostered to arrive at the Base after having been tasked for a Tour of Duty in accordance with Company policies and procedures.

“Tour of Duty” means the period between Sign On and Sign Off time.

[8] Clause 12 deals with a pilot’s place of work and reads:

‘12. Place of Work

(a) A Pilot will normally perform duties at or from the Pilot’s Home Base.

(b) Pilots will be required by the Company to work at a designated frequency in another location domestically or overseas for training and/or instructional duties.

(c) The Company may require a Pilot to work under a Temporary Transfer arrangement at other places from time to time (including other Bases) Temporary transfer does not apply for pilots attending training facilities or training activities.

(d) Where the Company requires a Pilot to deploy away from the Pilot’s Home Base and the deployment location is a distance that would require the Pilot to reside overnight, the Company will provide accommodation of a reasonable standard, as determined by the Company and/or as available at the deployment location.

(e) Each Pilot will keep the Company informed of his or her normal place of residence in order to ensure that appropriate travel times are in place for a Pilot to attend for work without being fatigued at the commencement of shift and on the return leg. If the Pilot chooses to relocate his or her normal place of residence, the Pilot will hold discussions with the Company prior to relocation. The discussions will include how the Pilot will safely travel to and from work and by what mode of transport.’

[9] Fatigue management is dealt with at Cl 2 as follows:

‘“FRMS” means the CASA approved Company Fatigue Risk Management System, which identifies approved Work Practices and fatigue management rules for Pilots operating under those Work Practices.’

[10] Cl 18 deals with hours of work and overtime and reads:

‘18. Hours of work

18.1. Work relevant to Schedule

A Pilot’s hours of work will be as per the Company approved Work Practice in the FRMS and detailed in the relevant Schedule attached to this Agreement.

18.2. Overtime and Undertime

(a) Where a Pilot’s ordinary hours of work on operational shifts are worked to an equi-time roster, a Pilot will typically work the ordinary hours’ shift, and may be required to work additional overtime.

(b) Over the course of a calendar month, any overtime worked by a Pilot will be calculated and paid to the Pilot in the following month’s pay.

(c) There may be occasions where a Pilot is rostered to work his or her ordinary hours, and the Pilot is contacted by the Company and informed that the previous shift will not return to base for a number of hours. The Pilot may elect, with the Company’s approval, not to attend for work at the nominated rostered start time, and to attend for work at a later, nominated start time. Any hours between the rostered start time, and the Pilot’s actual start time will be offset against any overtime that would otherwise be payable to the Pilot in the relevant month on an hour for hour basis. An example is provided below:

Example: Pilot is due to commence work at 18:00. The Pilot is contacted at 17:00 and advised that the aircraft will not be available until 21:00. The Pilot may elect not to attend for work until 21:00. The difference between 21:00 and 18:00 (that being 3 hours) will be offset against any overtime that is owed to the Pilot during that calendar month on an hour for hour basis.

(d) A Pilot is not obliged to agree to the example in clause 18.2(c), and may elect to attend for work at the original rostered start time.

(e) This arrangement can be changed for operational reasons. However, where it is changed at the initiative of the company, the pilot shall be entitled to a reasonable period of time to attend for duty.’

[11] Schedule 2.4 deals further with overtime and states:

‘2.4. Schedule 2.4 Work Hours

(a) The NSW/ACT HEMS roster is a 2 day on, 2 night on, 4 day off, 12/12 hour roster (subject to change by Client or CASA direction).

(b) Overtime will only be paid where a Pilot’s hours of work extend past the rostered finish time for an operational shift. Overtime to be paid on a per minute basis per the agreed hourly rate.

[12] A Duty Travel Allowance is set out at schedule 2.5 as follows:

‘2.5. Schedule 2.5 Duty Travel Allowance

Per hour or part thereof
1	Meals not provided	$5.40
2	Meals provided	$2.14

(a) The Duty Travel Allowance (DTA) is payable from the time a Pilot is required to leave Home Base until return, but not payable on normal operational shifts terminating at Home Base.

(b) For duty air travel, DTA payable from scheduled departure time of flight minus one hour, until actual time of arrival of return flight back at airport.

THE EVIDENCE

[13] The following persons provided statement evidence in the proceeding:

• Mr Matthew Fox – Pilot;

• Mr David Crick – Pilot;

• Mr Desmond Hunt – Pilot Captain;

• Mr Peter Talbot – Pilot Captain; and

• Mr Colin Gunn – General Manager, Toll Helicopters and qualified pilot (only person required for cross-examination).

Mr Matthew Fox

[14] Mr Fox has been employed by Toll for three years, having previous helicopter pilot service in the Australian Army and for 8 years as an EMS helicopter pilot. Mr Fox is a member of a consultative group, the Pilot Representative Committee with three other pilot representatives and management which discuss workplace issue and grievances.

[15] It was Mr Fox’s understanding that since July 2016 (the commencement of the Ambulance NSW contract), Toll pilots were paid overtime from the time they would have ordinarily signed off duty at home base until they returned to home base (usually the next day). These ‘strandings’ were usually caused by unfavourable weather conditions or the aircraft becoming unserviceable. Mr Fox said the Company changed this practice in January 2019 to limit overtime in these circumstances to two specific periods:

(a) The time between ordinary sign off until the pilot is booked into accommodation arranged and directed by the company; and

(b) The time they would otherwise have been capable of flying in accordance with Toll’s Fatigue Management System (‘FMS’).

[16] In the intervening period, that is, where the pilot is accommodated in arranged accommodation, the Pilot is paid $5.40 per hour Duty Travel Allowance (‘DTA’). It is this period which is in dispute and should be paid as overtime contiguous to the periods in (a) and (b) above. Mr Fox noted that DTA is not relevant as the allowance is not payable on normal operational shifts terminating at home base (Schedule 2.5(a) of the Agreement). Mr Fox recalled the first occasion on 22 October 2017 when crew were stranded in Newcastle due to bad weather returning to Bankstown the next day and paid overtime from the 19:30 sign off at Newcastle until returning to Bankstown Home Base at 10:59 the next day. No DTA was paid.

[17] Mr Fox set out the sequence of events from when an overtime payment was withheld from Mr Crick in Dec 2018. When queried Mr Crick was advised on 17 December 2018 by Mr Tim Frankel – Senior Contract Pilot as follows:

‘I can confirm that the payment of OT during aircraft ‘strandings’ is being reviewed by Toll HR. As soon as a determination has been made I will let you know.’

[18] On 14 January 2019, Mr Frankell further advised as follows:

• OT is payable for all periods of ‘Duty’ (hours of work in EBA 2.4b) up until arrival at suitable sleeping accommodation and an ‘Off Duty Period’ commences.

• Once crews arrive at their suitable sleeping accommodation and commence an ‘Off Duty Period’ they are no longer on ‘Duty’ and so cannot claim OT.

• Once crews arrive at their suitable sleeping accommodation and commence an ‘Off Duty Period’ they are eligible for DTA.

• DTA can be claimed either with or without meals.

• If DTA is claimed without meals we will cover the cost of meals through the normal claim process.

• OT is again payable for all periods of ‘duty’ after departure from suitable sleeping accommodation.

[19] In later meetings in May 2019 with management, the Federation was advised that the previous practice had been an administration error from the outset of the contract and the General Manager (‘GM’) said he did not believe it to be any great inconvenience to pilots when stranded overnight. Mr Fox said that the GM had said that the pilot could elect to be transported back to base by Uber or taxi, but it was implied that this would be undesirable from a contract perspective. The pilots took this a threat to their employment and sought confirmation that if they did take up this option, there would be no adverse repercussions. This concern was never clarified.

[20] Mr Fox said that, in any event, such an option was impractical. A new crew would need to be redeployed the next day, most likely on overtime; thereby defeating the purpose of any cost savings to the Company or the Client.

[21] Mr Fox deposed that since 12 January 2019, crews have been stranded ten times – an average of incident a month. While Mr Fox has not been stranded himself, he noted that with two young children and with his wife working full time, such a situation would result in additional short notice childcare costs for his family, in circumstances completely outside his control.

Mr David Crick

[22] Mr Crick has been a helicopter EMS Pilot for 14 years and an Army Helicopter Pilot for 13 years prior to that. He has been employed by Toll for three years on the Ambulance NSW contract.

[23] Mr Crick described his involvement in the dispute when he first became aware in December 2018, that overtime was not being paid when pilots were ‘stranded’ and rumours were that the existing practice was being reviewed to disallow future payments. Mr Crick outlined the history of the dispute and meetings with management during 2019. As this evidence was not disputed and is similar to Mr Fox’s above, I do not repeat it here.

[24] It was Mr Crick’s view that despite the infrequency of the ‘stranded’ circumstances (about once a month) there was a significant personal and financial impact on pilots, who are forced, for reasons beyond their control to be unable to return to home base. It impacts on family and childcare arrangements for which $5.40 an hour is the only payment made for the period of accommodation until sign on at home base.

Mr Desmond Hunt

[25] Mr Hunt is a Helicopter Pilot Captain. He has experience and qualifications including multi engine, light to medium helicopters, EMS operations and military flights for the army. He has been employed by Toll since June 2016. Mr Hunt is a member of the Pilot Representative Committee with Messrs Fox, Crick and Talbot. Mr Hunt is familiar with the background to, and details of this dispute and attended meetings with management to discuss it. He agreed with the evidence of the other pilots. I do not repeat it.

[26] Mr Hunt had been personally affected by a ‘stranding’ on 10 August 2019 which he described as follows: At around 16:30 the Orange base received a late task for a primary (a critically injured or unwell patient) at Jindabyne – 80km flight from Orange). It was decided that the flight to Jindabyne could be safely undertaken, but the weather at night-time would restrain the crew from returning to Orange base that night. At Jindabyne, Mr Hunt rang operations who booked rooms for the crew. No crew member was offered relocation by other means back to Orange. The mission concluded at 22:30 when the patient was delivered to Canberra Hospital.

[27] Due to poor weather the aircraft was ‘stranded’ at Canberra airport overnight. Mr Hunt said his duty period finished at 23:00 after starting work at 07:00 that morning. The next day he was rostered for a night shift to commence at 19:00. At approximately 09:00, the crew attempted to get back to Orange base, but due to winter and poor weather at Orange and after several attempts to make the Orange airfield, they diverted to Parkes and became ‘stranded’ again. After informing Operations, a day shift pilot was tasked to pick up the crew and drive by road from Parkes to Orange. He completed his post flight administrative duties at 16:00 that day.

[28] Mr Hunt stated that 11 August was his daughter’s birthday and he was not rostered that day until 19:00 hours. His intention was to organise and prepare for his daughter’s birthday, transport children and assist with supervising the children. He missed the party, was of no help to his wife or daughter and other parents had to be organised for transporting the children. As a result, he received a total of $54.00 DTA for being stranded, not once but twice.

[29] On 14 May 2019, Mr Hunt attended the meeting with Mr Gunn, the General Manager (‘GM’). Mr Gunn had said that if a pilot wished to return after being ‘stranded’ arrangements would be made to facilitate this. He had added that ‘it would be interesting from a performance perspective… from the client’s perspective’.

[30] Mr Hunt took this comment as a threat to a pilot’s employment as there is provision in the Agreement for a pilot to be terminated should the client (Ambulance NSW) direct Toll to remove a pilot from the contract (Cl 35(f)). Mr Hunt said that despite the Federation seeking assurances that this would not occur, Mr Gunn had only said that if a pilot chose to be transported back to home base ‘there will be no ill will’.

Mr Peter Talbot

[31] Mr Talbot has extensive experience largely in the military, piloting single and multi-engine light to medium aeroplanes and helicopters in Australia, United Kingdom and the USA. After 22 years in the Navy (the last 13 years as a Qualified Helicopter Instructor), Mr Talbot joined Toll in February 2017. Mr Talbot generally supported the evidence of the other pilots and had participated in meetings with management. For convenience, I do not repeat this evidence.

[32] Mr Talbot had been ‘stranded’ only once (at Port Macquarie on 26 October 2017), but prior to the decision to alter the existing overtime arrangements under the Agreement. He rejected the suggestion that the inconvenience to a pilot of being ‘stranded’ was of no consequence. On the contrary, he highlighted the adverse consequences for the Company as:

‘This compares to the consequences for the company of a stranding being significantly mitigated by ensuring the crew overnight on site. The company enjoys not having to transport the crew back to home base, and avoids having to position an alternative crew to the stranded aircraft the following day, while avoiding the delays associated with that positioning and the interruption to the service, impacting on potential or actual responsiveness by Ambulance NSW to an incident. I say more about this later in relation to a perceived threat made by the company during the 14 May 2019 meeting. However, in short, the motivation in having crew overnight with the stranded aircraft significantly outweighs the cost of “over-nighting” crew on site for which the company now seeks to maximise by also avoiding paying pilots overtime’.

Mr Colin Gunn

[33] Mr Gunn has had helicopter EMS airborne law enforcement experience for 7 years, having been a pilot and aviation capability manager for 14 years in the Australian Defence Force. He commenced employment with Toll in July 2012 and was appointed GM on 1 November 2018.

[34] Mr Gunn described the business of Toll under the contract with Ambulance NSW and ACT Ambulance, which commenced on 10 January 2017. There are four operational bases at Bankstown, Albion Park, Canberra and Orange. After a 2-year intensive mobilisation period, there is now a flight training academy and about 110 operational staff. The standard flight crew is four, being the Toll pilot, rescue crewman, a doctor and a paramedic. The pilot’s role is to plan the aviation components of the mission. Given the urgency of these missions, including patient rescue, retrieval and treatment, there are short response times from acceptance of a mission to taxying out of the base of approximately 10 minutes in daylight and 20 minutes at night, depending on the complexity of the mission.

[35] Mr Gunn said the average mission length is four to five hours involving three phases – home base to patient – from accident or pick up site to hospital – from hospital to home base.

[36] Mr Gunn set out the pilots’ employment terms and conditions, including a free health resilience and well-being program, which is unique in the industry and which is designed to provide assistance and support for pilots who often experience trauma given the work they perform. Mr Gunn said pilots work on 4 x 12-hour shifts over 4 days, then 4 days off. Because of the nature of the retrieval jobs, it is not uncommon for a pilot to return to base after their rostered finish time. Overtime is paid for this period, including an extra 30 minutes of overtime for paperwork completion. Pilots must have an off-duty period (‘ODP’) prior to the next shift which is free of all duties or standby. This is a requirement of civil aviation legislation.

[37] Mr Gunn described the arrangements which apply when a crew cannot return to home base. If feasible, the crew may be retrieved to home base via air or road, or alternatively, the crew stays overnight at the Company’s expense. Overtime is paid before and after the ODP usually between $500-$1,100 in addition for an unplanned night away, plus the DTA for the full ODP. It was Mr Gunn’s estimation that over the last 3 years, involving 11,000 flying hours and over 7,000 missions, each Pilot might be expected to have a single unplanned night away once every 3-4 years.

[38] Mr Gunn described the legislative, regulatory and licensing requirements and specific requirements of the Civil Aviation Safety Authority (‘CASA’), as to fatigue risk management. Toll must have an approved fatigue risk management system (‘FRMS’) dealing with work practices and work patterns (Civil Aviation Order 48.1 Instrument 2019) for duty time and ODP, when no work (flying or non-flying) is permitted, including standby.

[39] In November 2018, Mr Gunn was advised of a pilot who claimed 24 hours of overtime for an unplanned overnight period. At first, Mr Gunn thought the claim was so excessive as to be a mistake. It was the first time he had such a claim brought to his attention. Upon investigation, it was established that the pilot had claimed for several hours before and several hours after the ODP and over 12 hours for the ODP. In denying the claim, Mr Gunn believed that it was not in conformity with the Agreement entitlements which stipulate that overtime is paid where a pilot’s hours of work extend beyond the rostered finish time for an operation. He also relied on the hours of work clause in accordance with an approved FRMS which mandates ODP, where pilots are strictly not permitted to carry out any work, be it ‘on call’ or standby. Toll must also provide suitable sleeping accommodation. Mr Gunn added that allowing a pilot to work paid overtime on ODP would be a breach of CASA rules which could involve a penalty.

[40] After Mr Gunn was informed of another similar claim having been paid in the past, he referred the issue to HR to confirm the correct interpretation of the relevant clause. His understanding was confirmed. Further investigation revealed multiple instances (six) of overtime being paid when the pilot was on ODP. This was an administration error, not in accordance with the Agreement. Mr Gunn believed that the error arose due to ‘immature’ systems for lodging and approving overtime claims, which were unfamiliar to Toll’s usual standard practices in its other operations, through a HR system called ‘Workday’. Rather than the error being picked up in ‘Workday’, a manually inputted process through a flying administrative system (‘Air Maestro’) meant there was inadequate vetting by administration or operations staff and no vetting at all by an appropriate senior manager. The risk in these processes has been rectified.

[41] Mr Gunn responded to the other witness statements by stating that:

(a) An email sent to all Toll’s 45,000 staff in January 2019, by the previous Managing Director (‘MD’), Mr Michael Byrne, was not directed to the pilots, or to any issues of the interpretation of the overtime clause in the Agreement.

(b) He did say to Mr Crick ‘it would be interesting from a performance perspective… from the client’s perspective’. However, this was in response to Mr Crick saying, ‘next time this occurs I’ll simply call an Uber and leave the aircraft where it is and just go home’. He took from this that Mr Crick would simply leave the aircraft where it was without assisting the rest of the crew and without any appropriate arrangements for the aircraft and the mission status. This was not a threat of any kind.

(c) As to Mr Hunt missing his daughter’s birthday, this was very unfortunate and had he brought the matter to management’s attention and requested he be brought home it may have been possible. This can occur, where possible, if a pilot has a pressing need to return home. It could cost several hundred dollars for road transport.

(d) Mr Hunt had received $1,494 additional pay for this instance, with 210 minutes of overtime before ODP, 390 minutes post-ODP at $144 per hour plus $54 DTA. This was a fair amount of additional remuneration for the circumstances beyond either the Company’s or the pilot’s control.

[42] In reply statements, Messrs Fox, Crick and Hunt all said they understood that Mr Crick had been speaking on behalf of all pilots when he referred, in the meeting of 14 May 2019, to Mr Gunn’s comments as a ‘threat’ (see [29]-[30] above). They had all considered it was a threat to all pilots expressly relevant to Cl 35(f) of the Agreement. Further, at no time, was it suggested that any pilot would just walk away from an aircraft. They believed Mr Gunn’s recollections were incorrect. Further he had never clarified his comment until 8 months later (for these proceedings).

[43] Mr Hunt was offended by Mr Gunn’s suggestion that 10 hours’ overtime was suitable compensation for being ‘stranded’ for 20 hours away from home. Further, DTA is not compensation in accordance with the Agreement, and is not paid on operational shifts terminating at home base.

[44] Mr Crick questioned Mr Gunn’s suggesting about the option of being returned via air or road when stranded. This is not a realistic option and is not readily made available. To his knowledge, he had been the only pilot who had been retrieved. This was why he considered Mr Gunn’s other comments as a threat to employment. As far as he was aware, he had not been reported to CASA (for any safety breach).

Cross examination of Mr Gunn

[45] In cross examination, Mr Gunn noted that six weeks’ annual leave was standard in the aviation industry, and that pilots are rostered to work on public holidays. They also receive a $15,000 EMS allowance per annum, which is not related to overtime. Mr Gunn generally understood Toll pilots were paid slightly more than Toll’s competitors.

[46] Mr Gunn was made aware of two examples in three years where a pilot has requested to return to home base after being stranded. Overtime is paid when the pilot is travelling home by air or road. He described four circumstances which arise from a ‘stranded’ aircraft:

• if the issue was bad weather, or fatigue, another crew would be sent the next day;

• if it was a maintenance issue which could be fixed quickly, then maintainers and air crew are sent to bring it home;

• if the problem extended over a number of days, engineers would be sent and once the aircraft is airworthy, crew would be sent to retrieve it; or

• if the ‘stranding’ was near home base road transport can be used; but usually the most expedient way is to use one of the two spare aircraft, with a crew on a standard shift.

[47] Mr Gunn stated that there is no discretion to agree or refuse a request to return to home base – the Company merely facilitates a pilot’s request. He understood that due to the nature of the work, pilots regularly work overtime, but over about 3 years and 8,000 missions, he believed that there have been about 22 ‘strandings’.

[48] Mr Gunn discussed the development of Toll’s FRMS which took place in 2018-2019 in consultation with CASA and the pilots and which resulted in simpler work practises and more protections for air crew. The current policy was formally approved by CASA in November 2019 and contains definitions of ‘duty period’ and ‘off duty period’. He agreed the policy can be changed, but once the FRMS is approved, it is difficult to alter it or go around it. Pilots undertake an annual exam on the FRMS and must implement and follow all its procedures. He acknowledged it is not an agreed document in that sense, but pilot feedback is an important consideration in its formulation.

[49] Mr Gunn reiterated his evidence as to the reasons why pilots had been previously paid overtime on ODP when ‘stranded’ (see: [15] above). Mr Gunn agreed that the issue arose shortly before Mr Delaney (as the previous GM who negotiated the Greenfields Agreement) left the business. On assuming the GM’s role, Mr Gunn had additional financial delegations. He was taken to the memo of the then MD in January 2019 regarding wider reviews of efficiencies and costs. He said that Toll Helicopters had made budget every month in eight years and there was never any pressure to do anything any differently. There was no financial focus on Toll Helicopters as a business unit and never had been.

[50] In re-examination, Mr Gunn said that in respect to the January 2019 memo from the MD, there is only one reference to overtime in respect to guidelines for casual labour. As the Toll Helicopters’ business does not engage casual pilots, the memo had nothing to do with his ‘sphere of influence’.

SUBMISSIONS

For the applicants and the Federation

[51] The Federation firstly relied on Schedule 2.4 of the Agreement and its correct application from the date of the commencement of the Agreement on 6 July 2016 to about 1 January 2019. This was when Toll unilaterally decided to withdraw from the existing practice of paying overtime when a pilot is ‘stranded’ between the end of the rostered shift to when he/she is returned to home base. Secondly, the Federation submitted that Toll had failed to maintain the status quo as required by the DSP at Cl 10 (a)(vii) of the Agreement, when the dispute was first raised.

[52] In its written submissions, the Federation set out the relevant statutory provisions, the terms of the DSP and the history of the dispute. The Federation described the effect of the respondent’s interpretation of Schedule 2.4, in which it now deems the period from when the pilot enters overnight accommodation if stranded until the pilot returns to home base (usually the next day) as an ODP. By reference to the respondent’s FRMS, the Federation noted a minimum period of 10 hours ODP (or the equivalent ODP) if the DP is greater than 10 hours. It was said that the payment of DTA does not apply to operational shifts. It has been a convenient contrivance to obfuscate overtime payments, where DTA is usually paid when a pilot is undertaking training (not on an operational shift).

[53] The Federation submitted that it was no coincidence that the change in the existing practice occurred around the same time as Toll’s MD’s announcement to all staff on 3 January 2019, that all areas of the business were being reviewed to reduce costs. Emphasis was put on the meeting of the parties on 14 May 2019, and comments by Mr Gunn, which were viewed as a threat to a pilot’s employment, particularly in the context of Cl 35(f) of the Agreement; see: evidence above. Mr Gunn’s clarification of bearing ‘no ill will’ to any pilot who sought to be transported to home base if stranded, was no assurance at all that there was no threat to a pilot’s employment.

[54] The Federation relied on the Commission’s principles when it is called upon to interpret the words in an enterprise agreement, as set out in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 (‘Golden Cockerel’) (noting in its reply submissions, the Federation accepted prevailing Full Bench authority which further clarified the Golden Cockerel principles). It was submitted that the words in Schedule 2.4 have a plain, unambiguous meaning being that there is only one condition establishing where overtime is payable; namely, where the hours of work extend past the pilots rostered finish time. Notably, there is no other Agreement term which expressly deals with the overtime to be paid when a pilot is ‘stranded’, so there is no assistance in interpreting Schedule 2.4 other than the express words themselves.

[55] To the extent the respondent relies on the practice being a mistake or administrative error, the Commission would reject such a submission. The Federation relied on National Union of Workers v GrainCorp Operations Limited (PR918161) where Ives DP said at [73]-[74]:

‘[73]So long as the agreement satisfies the “no disadvantage test” and the other requirements of the Act, the role of this Commission does not include protecting parties from making commercially poor decisions, or what may be (for one party at least) a `bad’ deal.

[74] Furthermore, it is not for this Commission to participate in a process where one party to an agreement, having decided that it ought not to have agreed to a specific term, sets out to twist the meaning of that term in order to render it a nullity. If an Agreement sets onerous requirements upon one or other parties then that is for the parties to address, either when negotiating a new agreement after the nominal expiry date of the existing agreement, or during its life by negotiating and agreeing to a variation in accordance with Division 7 of Part VIB of the Act.’

[56] By examining the factual circumstances to the terms of the Agreement, the Federation submitted that the respondent had sought to reconstruct Schedule 2.4 by importing words and changing existing words to effectively rewrite the Schedule. This was impermissible in the interpretation exercise. For example, the respondent substitutes the words ‘hours of work’ for ‘duty’ imports the term ‘off duty period’ which is ‘singularly applicable’ to Toll’s FRMS only, not to the Agreement. It also seeks to substitute ODP with ‘rostered finish time’. It was submitted that by using the word ‘base’ relating to a 30-minute overtime period after ‘arrival back at base’, does not otherwise limit when overtime is paid (past the rostered finish time). Further, Cl 12(d) ‘Place of Work’ refers to planned deployment and is not relevant to unplanned standby overnight.

[57] The Federation rejected the claim that ‘strandings’ are so infrequent and attract overtime payments (in part) that inconvenience for the pilot is minimal. The frequency of the circumstances is irrelevant to interpretation and, in any event, the evidence was that it occurs approximately once a month.

For Toll

[58] After setting out the background to the dispute, Mrs James gave an example of the circumstances which give rise to the matter:

‘11. By way of example, a pilot may be rostered to start at 7.30 am and finish their operational shift at home base at 7.30 pm (Rostered Finish Time). Close to their Rostered Finish Time, they may find themselves stranded away from home base because of a thunderstorm. The FRMS and Work Practice requires a pilot to have a 12 hour Off-Duty-Period before they can operate the helicopter back to home base. The next day, the pilot resumes their operational shift and finished at 10.59 pm (Actual Finish Time).

12. Using the example above, the Respondent in error, paid the pilot overtime for all hours between the Rostered Finish Time and the Actual Finish Time, including for the entire off-duty-period. This invariably meant that the pilot was also paid overtime for time spent sleeping in a hotel room.

13. Last year the Respondent informed the Applicant of this error, and that it would cease the malpractice of paying pilots for their entire off-duty-period. Now, the Respondent only pays its pilots at the overtime hourly rate for all hours of actual work performed or duty time that exceeds a pilot’s rostered finish time – this change is what gave rise to the dispute.’

[59] By reference to the principles set out in Golden Cockerel and then in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v BerriPty Ltd [2017] FWCFB 3005 (‘Berri’), Mrs James submitted that the Commission would conclude that Toll is not required to pay Pilots overtime for nonwork time (mostly involving sleep), having regard for the ordinary meaning of the language used in the Agreement and as a whole and its context and purpose. The relevant clauses are:

• Cl 2 – Definitions;

• Cl 18 – Hours of work ;

• Cl 2.1 – Remuneration; and

• Schedule 2.4 – Work Hours.

[60] Also relevant is the legislative and regulatory environment in which Toll operates, namely, the regulations by the CAA and CASA, particularly CASA’s approved FRMS, which sets out a pilot’s maximum duty time and minimum ODPs. ODP is the minimum hours of non-work time between operational shifts and there is no material difference between duty time and hours of work. Duty time under the FRMS and work practices, may be either ordinary or overtime hours. This is expressly recognised in Cl 18.2, which requires Toll, over the course of a month to pay an employee any duty time actually worked in excess of the ordinary hours shift (Cl 18.2(a)).

[61] Mrs James explained that to determine when an ordinary hours shift ends and overtime starts, one needs to determine what constitutes ordinary hours. This is to be found in the opening words to Schedule 2.4(b) ‘Overtime will only be payable where a pilot’s hours of work extend past the rostered finish time for an operational shift’. It follows that overtime is only paid for the hours of work beyond the rostered finish time and only for hours actually worked, not for ODP.

Reply for the applicants and the Federation

[62] After reiterating its earlier submissions, the Federation rejected Toll’s submissions that ‘work’ and ‘duty’ are interchangeable. These are different words with different meanings depending on the context. Duty and Off Duty is found in the FRMS and is different to the Agreement definition of ‘Duty’ being:

‘the work of a Pilot and covers all activities, that may be required of a Pilot by the Company in accordance with the Pilot’s Position Description, the operating contract held with the Client, Civil Aviation Requirements, CA048.1 or the FRMS whichever is applicable, or this Agreement, together with any lawful and reasonable direction given by the Company.’

[63] Thus, it was said, that as Duty and ODP are part of the FRMS which is included in the definition of ‘Duty’ in the Agreement, then an ODP must be captured under the banner of ‘work of a pilot’ So regardless of activity, if the Pilot has not returned to home base for reasons beyond their control, they have not completed their operational shift. They are not off duty or in their own time. It was noted that the pilot would be in the same clothes and without any personal items, including toiletries.

[64] The Federation repeated its concerns that Mr Gunn had threatened pilots and had not withdrawn such a threat to their employment. The threat was also understood by an AFAP Officer who attended the meeting. Further, pilots were offended with the suggestion that they would simply ‘walk away’ from an aircraft and crew if stranded. There had never been any occasion where Toll had cause to question the pilots’ integrity. In any event, Mr Gunn’s clarification of the event eight months later calls into question the credibility of his evidence.

[65] The Federation challenged Mr Gunn’s assertion that pilots receive $500-$1000 extra when ‘stranded’. These figures do not compensate for the ‘duty of ODP’. Further Mr Gunn’s assertion that each pilot could expect to have an unplanned night away once every three to four years did not take into account individual pilots who have not been impacted at all and others who have experienced three occasions in three years (two employees who were based in Canberra).

[66] The Federation further submitted that Toll’s FRMS was created and formulated for its own purposes and it is merely approved by CASA. The respondent had not been compelled to apply its approach to the regulator’s requirements. CASA regulations do not define ‘work’ and the only relevant entitlement to overtime is derived from the Agreement. Moreover, the FRMS did not even exist at the time the Agreement was negotiated and later approved.

[67] In oral submissions, Mr Stephens said the only question which requires determination is ‘do the pilots’ hours of work extend past their rostered finish time?’. If the answer is ‘yes’ then the pilot is entitled to overtime for all time, until they return to home base. Concepts such as ODP, hours of work, FRMS and DTA etc. were essentially irrelevant as is whether the pilot is accommodated overnight. Pilots are directed to return to base or not to return to base. The entitlement to overtime stems simply from the only applicable term in the Agreement, being Schedule 2.4.

[68] Mr Stephens stressed that there is nothing in Schedule 2.4 which alters, modifies, limits or otherwise prescribes conditions on the express words used, to provide an entitlement to overtime beyond the time the pilot is directed to remain overnight after their rostered finishing time until arrival back to their home base.

[69] Mr Stephens submitted that there is barely any inconvenience or cost to Toll, but there is a ‘level of inconvenience to an employee and his or her family’. In any event, convenience is not a factor to be taken into account.

[70] Mr Stephens referred to the former GM, Mr Delaney. He had negotiated the Agreement, had remained employed by Toll for a period subsequently and had overseen the payment of overtime as it previously existed. It was never disputed over three years.

[71] Lastly, Mr Stephens identified other definitions of sign off which refer to the scheduled or rostered time a pilot arrives at base for a ‘tour of duty’, completion of all duties associated with a ‘tour of duty’ which itself is described as ‘the period between sign on and sign off time’ (I note that pilots do not physically sign off or sign on by signature).

For Toll

[72] Mrs James opened her oral submissions by placing on record the Company’s gratitude for the work the pilots do on behalf of the community.

[73] Mrs James said that the aviation sector is a highly regulated industry in which the Company is bound to the Civil Aviation Act 1988 (Cth), the Civil Aviation Regulations 1988 (Cth) and Civil Aviation Order 48.1 dealing specifically with fatigue rules, which sets maximum hours of work and minimum ODPs.

[74] Mrs James pointed to a maximum duty time (not just flying) of 16 hours in 24 hours, which occurs in circumstances where a pilot is stranded, and which also requires a minimum of a 10-hour break. As an equal time roster, if the 16 hours duty time is reached, then a 16 hours’ ODP applies. This is mandated by the law and regulations and is a notorious fact, which Toll cannot ignore. Where Toll had been inadvertently paying overtime, which is duty time, then this was an obvious mistake. Mrs Jones referred to the industry’s Modern Award to demonstrate its position. Clause 15.2 reads:

‘Hours of work, days off and rest periods will be determined in accordance with the following provided that ordinary hours of work must not average more than 38 per week:

(a) the regulations approved by CASA from time to time;

(b) general or employer-specific exemptions to, or concessions under, the regulations approved by CASA from time to time; or

(c) a Fatigue Risk Management System (FRMS) that has been developed by the employer after consultation with the affected pilots and/or their representatives and approved by CASA to apply to particular employers and employees.’

[75] Mrs James rejected the Federation’s submission that any definition of duty or duty period or off duty period in the FRMS is captured under the banner of work, as defined in the Agreement. If this was right, Toll would be required to pay the pilots 24 hours a day, 7 days a week, whether at home base or not. No reasonable person would objectively conclude that an ODP should be paid when you are sleeping or socialising. Mrs James added that a reasonable person would also conclude that if you chose to work as a pilot, that you are signing up for some unplanned overnights. This is a reality of the industry.

[76] Mrs James submitted that words are not ambiguous and neither party has brought evidence of surrounding circumstances, such as the objective intention of the parties when negotiating the Greenfields Agreement. Mrs James referred to all the other Agreement provisions which give Schedule 2.4 its context and meaning.

In reply

[77] Mr Ferguson did not dispute that pilots must comply with civil aviation rules and regulations and Toll’s FRMS. However, these documents are not negotiated agreements and it is only the words of the Agreement which are before the Commission for interpretation. Mr Ferguson stressed that in circumstances where a pilot has signed on and not returned to sign off at home base the he/she is still engaged on a tour of duty. ‘Back to base’ can only mean the place from which they left and had signed on at. Mr Ferguson pointed out that home base is the place identified in the pilots’ letters of employment.

CONSIDERATION

Principles of agreement construction

[78] The principles the Commission is to apply to the interpretation (the concept of ‘interpretation’ is interchangeable with ‘construction’) of enterprise agreements has been well established from a long line of Court and Commission authorities, which had originally been applied to awards. As the focus in industrial relations shifted from awards to collective agreements, and more recently to enterprise agreements, the earlier principles of award construction continued to be relevant to the construction of enterprise agreements.

[79] In WorkPac Pty Ltd v Skene [2018] FCAFC 131, the Full Federal Court, in referring to some of the earlier cases, summarised these principles as follows at [197]:

‘The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”: Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).’

The Full Federal Court reaffirmed that the starting point for interpreting the terms of an enterprise agreement begins with the ordinary and plain meaning of the words in contention. At [202] the Federal Court further said:

‘Where a term is undefined, unless there is contrary indication, it ought to be presumed that the draftsperson intended that the term have its ordinary meaning. Despite the broad purposive approach to be taken to the interpretation of industrial agreements, that cannon of construction remains applicable as a starting point.’

[80] The Full Bench of the Commission embraced and endorsed the above principles, firstly in Golden Cockerel and then in Berri, modified the principles (‘Berri Principles’), but did not change the fundamental and long held guiding tenets for the interpretation of enterprise agreements.

[81] Both parties appropriately relied on the Berri Principles and it is useful to set them out in full below:

‘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.’

[82] Also of relevance to this case are two further Full Bench decisions which emphasise that in the consideration of the ordinary meaning of words in an agreement, regard must be had to the context and purpose of the provision or words used.

[83] In Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd T/A Appin Mine [2017] FWCFB 4487, the Full Bench said at [42]-[43]:

‘[42] In Golden Cockerel, the Full Bench set out authorities which make it clear that while the task of construction begins with consideration of the ordinary meaning of the words of the agreement, regard must be paid to the context and purpose of the provision or expression being construed. Those authorities make clear that context and purpose are relevant to construction and must be considered even where the words of the provision being construed appear, on their face, to have a clear and unambiguous meaning.

[43] In this regard, the Full Bench in Golden Cockerel set out at [29] the explanation of this point by the NSW Court of Appeal in Mainteck Services Pty Ltd v Stein Heurtey SA. Relevantly, that explanation emphasises the following matters:

• Until a word or phrase is understood in the light of the surrounding circumstances, it is rarely possible to know what it means 16 and there is always some context to any statement;

• Language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”;

• To state that a legal text is clear reflects the outcome of an interpretation process and means that there is nothing in the context that detracts from the ordinary literal meaning and cannot mean that context can be put to one side;

• The phrase used by Mason J in Codelfa “if the language is ambiguous or susceptible of more than one meaning” does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances and in order to determine whether more than one meaning is available it may be necessary to turn to context; and

• Context has also been described as surrounding circumstances and the meaning of terms normally requires consideration not only of the text, but of the surrounding circumstances known to the parties and the purpose and object of the transaction.’ (footnotes omitted)

[84] Further, in United Firefighters Union of Australia v Emergency Services Telecommunications Authority T/A ESTA [2017] FWCFB 4537 the Full Benchsaid at [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.’

[85] Both parties submitted that the words in Schedule 2.4 of the Agreement are not ambiguous, uncertain or susceptible to more than one meaning. However, both parties’ constructions result in diametrically different outcomes, and this produces an obvious dilemma; on the other hand, they both cannot be right, or both parties may be wrong, and the Commission will need to properly interpret the disputed words.

[86] Given that the Federation consistently maintained that the words in Schedule 2.4 are unambiguous, it is difficult to understand why the Federation placed considerable emphasis on the fact that the payment of overtime on ODP, when a pilot is ‘stranded’, was made from around 2016 to January 2019 (when Toll changed the practice). If the words are unambiguous and clear on their face, as the Federation contends, then why go beyond the words themselves to surrounding circumstances, being the post-agreement conduct of the parties. On the Federation’s primary case, one does not need to go that far.

[87] In any event, it is irrelevant to the construction task, what Toll paid in this period, or whether it did so based on an error caused by an ‘immature’ time keeping system or poor management oversight. The words may mean what they say, having regard to their context and purpose or they are ambiguous, uncertain or susceptible to more than one meaning. If the latter applies, then surrounding circumstances may be considered, such as the parties’ objective intentions when negotiating the Greenfields Agreement (about which no evidence was addressed by either party in this case).

[88] I would add, although unlikely, that if the Commission found in favour of Toll’s construction, it might follow that the pilots who benefited under the past practice would be obliged to pay back any overpayment. That said, I do not apprehend Toll has proposed such a course (nor could it); if the payment of overtime on ODP was a genuine mistake it would be expected that the employer would have to wear its own error.

[89] The Federation’s approach to the construction of the disputed words was to focus exclusively on the words ‘past the rostered finish time’, in the first sentence of Schedule 2.4(b). Its principal position is that the Commission need look no further than this sentence, because the precise words only have one unambiguous meaning. In my opinion, the clarity and meaning of these words do not arise from such a narrow and pedantic approach; that is, from the prism of splendid isolation, but are found when one properly applies Berri Principle 1 to Schedule 2.4(b). The Federation’s approach is erroneous, as it is inconsistent with that principle in that the words are to be given their plain and ordinary meaning, having regard to their context and purpose, taking into account ‘the text of the agreement viewed as a whole; the disputed provision’s place and arrangement in the agreement; and the legislative context under which the agreement was made and in which it operates.’

[90] That said, in my assessment, there are a number of specific difficulties with the Federation’s interpretation of Schedule 2.4 in the Agreement. Firstly, if the ODP in a ‘stranded’ scenario is regarded as overtime, and overtime can only be logically defined (and how it is generally understood) to mean periods of work, being before or after rostered duty, or even if the Pilot is on call or standby, then, in my judgment the two concepts – overtime and ODP – cannot sensibly or logically sit together.

[91] Secondly, having regard to aviation rules and regulations, CASA’s requirements and Toll’s FRMS, which all strictly require no duties at all to be performed (including standby) when off duty, then if an ODP is designated overtime, it must follow the pilot is ‘on duty’. The consequences are obvious and serious. Toll, and maybe its pilots, will be in breach of the industry’s mandatory statutory obligations and Toll’s own FRMS. Such a result could never have been intended; nor could an interpretation sensibly arrive at such an outcome.

[92] Thirdly, it may be generally and objectively understood that the purposes of an ODP, particularly where it spans an overnight period and arranged accommodation, is to provide a pilot with the minimum regulatory rest and recuperation time before safely resuming duties. This will invariably mean an overnight period of sleep and rest. It follows that such a period does not require any work to be performed at all (be it on call or standby). It could not be said that one is ‘at work’ if one is asleep.

[93] Fourthly, it is ‘to draw a very long bow’ indeed to submit that because the terms ‘on duty’, ‘duty’ and ‘ODP’ are referred to in the FRMS and the FRMS is itself found in the Agreement’s definition of ‘duties’ (Cl 2) being ‘the work of a pilot and covers all activities’, then it follows the ODP must be ‘captured under the banner of work’. Accepting such a submission means that any ODP, whether at home base or elsewhere is considered to be paid work, or even overtime. Such a bizarre strained result contorts the words beyond any reasonable or sensible construction. While I agree, the interpretation task will not be assisted by importing new or different words, assuming or reading words into the Agreement (Berri Principle 14), the corollary of this principle is that the words viewed in isolation must not produce an absurd or illogical result.

[94] Fifthly, if the proposition advanced is that the pilot is entitled to overtime until he/she returns to home base when ‘stranded’, it seems to me that two questions might arise:

1. What happens if the pilot stays for some days in the ‘stranded’ location (which can happen) or is directed to a location other than home base?

2. What is the operational task being performed in such circumstances?

In my opinion, it cannot seriously be posited that if the pilot finds him/herself on an extended ODP, that such period will attract overtime pay for the entire time.

[95] Sixthly, it seems to me one cannot ignore the industry wide practices as reflected in the Air Pilots Award 2020 which makes hours of work, days off and rest periods conditional on:

(a) the regulations approved by CASA from time to time;

(b) general or employer-specific exemptions to, or concessions under the regulations approved by CASA from time to time; or

(c) a FRMS that has been developed by the employer after consultation with the affected pilots and/or their representatives and approved by CASA to apply to particular employers and employees.

In my view, this is a further guide to the meaning of the words in Schedule 2.4. It is difficult to comprehend that the parties entered into the Greenfields Agreement on the basis that one of its provisions was contrary to the unique and notoriously understood aviation industry safety standards dealing with fatigue.

[96] Having made these observations, I concur with Toll’s submission that to understand when an ordinary hours shift ends and overtime begins, one must look to what constitutes an ordinary hours shift. This is answered by the words found in Schedule 2.4 itself, which deals with hours and overtime, read in conjunction with Cl 18.1 – Hours of Work – which reads:

‘A Pilot’s hours of work will be as per the Company approved Work Practice in the FRMS and detailed in the relevant Schedule attached to this Agreement.’

[97] When viewed in this way, I accept that for relevant purposes, the terms ‘hours of work’ and ‘duty’ are not materially different and can be interchangeable in both a practical and interpretive sense. The distinction the Federation seek to make is too finely and narrowly drawn to be of assistance in resolving this dispute.

[98] My findings are fortified when one has regard to the hours of work for which payment is required and where the FRSM applies. This includes mandatory training, instruction duties, completion of mission paperwork, and relevant here, overtime before checking into accommodation and returning to home base the next day – all of which are obviously strictly not operational duties. In addition, I do not see how an argument about whether DTA is payable or not on an operational shift advances the Federation’s case very far. DTA is paid when’ stranded’. Schedule 2.5 is somewhat curiously based on hours and pitched at a low amount, being supplementary to accommodation and meals paid for by Toll, whether the meals are provided or not.

[99] The Federation’s witnesses all highlighted the inconvenience impacted on a pilot and his/her family when ‘stranded’ (although one witness had never been ‘stranded’ overnight). The witnesses were offended by Mr Gunn’s characterisation of the pilot’s inconvenience as minimal and the compensation as sufficient. While I accept there is a degree of inconvenience and in specific scenarios, can be costly, disruptive and quite distressing for the pilot and his/her family, it is not as if compensation for the inconvenience caused through no fault of Toll or the pilot, is not paid at all. In any event, (as the authorities make plain), this discussion is irrelevant to the interpretive exercise, as a construction is not to be preferred simply in order to produce a fair or just outcome (Berri Principle 2). In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelior Pty Ltd [2013] FCA 638 Katzman J said at [30]:

‘

‘A narrow or pedantic approach is to be eschewed, but “[a] court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award” (Kucks at 184, approved in Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8]). Cf. Wanneroo at [57] and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) ALJR 1806; [2003] HCA 55 … per Hayne J at [115].’

[100] A similar conclusion can be made on the Federation’s argument that, in fact, the inconvenience is considerable for Toll, as it could cost more to pay for a full crew (maybe on overtime), being sent to retrieve the ‘stranded crew’ the next day, rather than returning a ‘stranded’ pilot by air or road the same day.

[101] In any event, the issue of what may be appropriate compensation for pilots who are ‘stranded’ overnight, can obviously and practically be addressed in negotiations for a new Agreement, which were due to commence 29 December 2019, and which may already be well advanced.

CONCLUSION

[102] For the aforementioned reasons, I find that the construction of Schedule 2.4 of the Agreement, for which Toll contends, must be accepted. To the extent the resolution of this dispute is determined by answering the question: In circumstances where a pilot is ‘stranded’ overnight, is overtime payable during the period from when the pilot enters into overnight accommodation and before commencing to return to home base the next day, the answer is in the negative.

[103] The dispute is resolved accordingly.

DEPUTY PRESIDENT

Appearances:

Mr D Stephens and Mr P Ferguson for the applicants

Mrs F James for the respondent

Hearing details:

Sydney.

2020:

13 February.

Printed by authority of the Commonwealth Government Printer

David Crick v Toll Remote Logistics Pty Ltd t/a Toll Helicopters

[2020] FWC 2571

28 MAY 2020

DECISION