Fair Work Ombudsman v Broome Helicopter Services Pty Ltd
[2017] FCCA 2364
•28 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FAIR WORK OMBUDSMAN v BROOME HELICOPTER SERVICES PTY LTD & ANOR | [2017] FCCA 2364 |
| Catchwords: INDUSTRIAL LAW – Whether failure to pay minimum rate of pay – whether properly classified as helicopter pilot – whether entitled to pay rate as helicopter pilot – hours worked – period of employment – whether employed for entire period of employment as a helicopter pilot – whether paid for accrued days off (or duty free days) – whether failure to pay accrued annual leave entitlements on termination of employment – whether employment records false or misleading – whether paid in full for period worked – whether provided with compliant roster – whether roster publishable electronically. WORDS AND PHRASES – “pilot” – “principal functions” – “roster”. |
| Legislation: Air Pilots Award 2010, cls.3.1, 4.6, 15, 12.6, 14, 18.4, 19.6, 20.1, 24.2, 24.6, 24.7, 25, 27.2, 27.3, 27.5, Sch.A, cl.A2, Sch.5, cll.E.5.1, E.5.5(a) Civil Aviation Regulations 1988 (Cth), reg.20.11 Fair Work Act 2009 (Cth), ss.12, 14, 90, 95, 134, 143, 323, 535, 536, 539, 550, 687, 701 Fair Work Regulations 2009 (Cth), regs.3.36, 3.44(1), 3.46(3) |
| ACT Visiting Medical Officers Association v Australian Industrial Relations Commission [2006] FCAFC 109; (2006) 153 IR 228; (2006) 232 ALR 69 Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410; (1995) 69 ALJR 797; (1995) 61 IR 32; (1995) 131 ALR 422; (1995) 38 AILR 3-194 Re IBM Global Services Australia Ltd; Re an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66, (2005) 144 IR 389; (2005) 56 AILR 100-364 C Sappideen et al, Macken’s Law of Employment (7th Edn) (Pyrmont: Law Book Co, 2011) |
| Applicant: | FAIR WORK OMBUDSMAN |
| First Respondent: | BROOME HELICOPTER SERVICES PTY LTD |
| Second Respondent: | JOSEPH HANS CALANDRA |
| File Number: | PEG 396 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 9-11 June 2015 |
| Date of Last Submission: | 11 June 2015 |
| Delivered at: | Perth (and by telephone to Melbourne) |
| Delivered on: | 28 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Saraceni |
| Solicitor for the Applicant: | Ms T Dwight, Office of Fair Work Ombudsman |
| Counsel for the Respondents: | Dr J Henderson |
| Solicitors for the Respondents: | Kimberley & Pilbara Lawyers |
ORDERS
The applicant prepare, file and serve a minute of proposed declarations and orders to reflect these Reasons for Judgment by 4.00pm on 6 October 2017.
The proceedings are to otherwise be adjourned to a directions hearing at 2.15pm on 11 October 2017.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 396 of 2013
| FAIR WORK OMBUDSMAN |
Applicant
And
| BROOME HELICOPTER SERVICES PTY LTD |
First Respondent
| JOSEPH HANS CALANDRA |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings, the Fair Work Ombudsman (“FW Ombudsman”) seeks orders under the Fair Work Act 2009 (Cth) (“FW Act”) in relation to alleged contraventions of the FW Act by the first respondent, Broome Helicopter Services Pty Ltd ACN 105 421 814 (“BHS”), and the second respondent, Joseph Hans Calandra (“Mr Calandra”).
The parties and the employees concerned
The FW Ombudsman is appointed pursuant to s.687(1) of the FW Act, and is a Fair Work Inspector pursuant to s.701 of the FW Act. The FW Ombudsman thus has standing to apply for penalties and other orders in respect of alleged contraventions of civil penalty provisions of the FW Act: FW Act, s.539(2).
BHS is a company, and it is not in dispute that it was at all relevant times a national system employer for the purposes of s.14 of the FW Act. BHS operated a helicopter business which included tourist and commercial flights in and around Broome in the Kimberley region of north Western Australia.
Mr Calandra is and was at all relevant times the sole director of BHS, and the designated Chief Pilot. Mr Calandra was responsible for day-to-day management of BHS’s operations, and for the employment of pilots to fly BHS’s helicopters.
There are two employees the subject of alleged contraventions: Michael John Thomson (“Mr Thomson”) and Guy David Sullivan (“Mr Sullivan”).
The FW Act, the relevant modern award and coverage of the employees
There is no dispute that in relation to the employment of Mr Thomson and Mr Sullivan:
a)the FW Act applied to their employment with the BHS; and
b)BHS was covered by the relevant Modern Award (as that term is defined in s.12 of the FW Act), being the Air Pilots Award 2010 (“AP Award”) insofar as it employed persons as helicopter pilots.
The issues in these proceedings
The issues in these proceedings can be summarised as follows:
a)whether BHS contravened cl.18.4 and Cl.A.2 of Sch.A of the AP Award by failing to pay Mr Thomson and Mr Sullivan the relevant minimum rate of pay. The ultimate resolution of the alleged failure to pay also depends upon the resolution of a number of sub-issues, as follows:
i)whether Mr Thomson and Mr Sullivan were properly classified as helicopter pilots and entitled to the helicopter pilot’s pay rate under the AP Award for the whole of their employment with BHS;
ii)what hours were worked by Mr Thomson;
iii)the period of Mr Sullivan’s employment as a helicopter pilot by BHS, and in particular, whether he was employed as a helicopter pilot between 5 April 2012 and 20 May 2012;
iv)what hours were worked by Mr Sullivan; and
v)what amount of pay was paid to Mr Sullivan;
b)whether Mr Thomson and Mr Sullivan accrued days off under cl.12.6 of the AP Award for which they were not paid by BHS in contravention of cl.12.6 and cll.E.5.5(a)(vii) of Sch.5 of the AP Award;
c)whether BHS failed to pay Mr Thomson and Mr Sullivan accrued annual leave on termination, and whether there was a contravention of s.90(2) of the FW Act;
d)whether BHS failed to pay Mr Thomson for the period he worked from 21 to 31 March 2012 in full in contravention of s.323(1) of the FW Act;
e)whether BHS failed to pay Mr Sullivan for mobile telephone calls made for BHS contrary to cl.19.6(b) of the AP Award;
f)whether BHS failed to ensure that its employment records were not false or misleading to its knowledge in contravention of s.535 of the FW Act; and
g)whether BHS provided Mr Thomson and Mr Sullivan with a compliant roster in accordance with cl.25.2 of the AP Award.
The evidence
The evidence comprised both affidavit and oral evidence.
The affidavit evidence was as follows:
a)for the FW Ombudsman:
i)the affidavits of Jacqualine Fay McArthur filed 13 November 2014 (“First McArthur Affidavit”) and 30 March 2015 (“Second McArthur Affidavit”);
ii)the affidavits of Mr Thomson filed 13 November 2014 (“First Thomson Affidavit”) and 30 March 2015 (“Second Thomson Affidavit”); and
iii)the affidavits of Mr Sullivan filed 14 November 2014 (“First Sullivan Affidavit”) and 30 March 2015 (“Second Sullivan Affidavit”); and
b)for BHS and Mr Calandra the affidavit of Mr Calandra filed 19 February 2015 (“Calandra Affidavit”).
The oral evidence, including some examination-in-chief, but primarily cross-examination and re-examination, are referred to as “TD 1”, “TD 2” and “TD 3” respectively below, noting that TD 1 comprises pages 1 to 72, being the evidence from day one of the hearing, and that TD 2 and TD 3 are then numbered consecutively as pages 1 to 198, being the evidence from days two and three of the hearing.
The objections to the affidavit evidence were dealt with at hearing, and it is unnecessary to set out the details and outcome of the objections in these Reasons for Judgment.
The Court has had regard to the admissible evidence in each of the affidavits tendered, and to the oral evidence and the three Exhibits tendered in the course of the hearing. The Court has re-read the Transcript of the hearing in the course of preparation of these Reasons for Judgment.
Failure to pay the minimum rate of pay
There is no dispute that BHS was required to pay Mr Thomson and Mr Sullivan in accordance with cl.18.4 and cl.E.5.1 of Sch.E of the AP Award, as those rates of pay were modified by transitional provisions in Sch.A of the AP Award insofar as they were employed as pilots.
There is however a dispute as to the application and effect of the transitional provisions on the pay entitlements of Mr Thomson and Mr Sullivan under the AP Award, and BHS and Mr Calandra dispute the entitlement to payment as alleged (as to quantum) for Mr Thomson and Mr Sullivan.
Ultimately, it is not necessary for the Court to resolve the issue with respect to quantum for each of Mr Thomson and Mr Sullivan as the parties have agreed their positions on quantum, as set out in Exhibit 1, as follows:
Explanatory note
1.The below table represents the quantum and monies owed by the First Respondent to former employees, Michael Thomson and Guy Sullivan.
2.Column A represents the Applicants position on the facts; and Column B represents the Respondents position on the facts.
3.Subject to the findings of liability made by his Honour Judge Lucev in these proceedings as to whether the quantum to be used is column A or column B.
4.Interest will need to be calculated on the figure in either column A or column B pursuant to section 547 of the Fair work Act (Cth).
Column A – Applicant
Column B – Respondent
Minimum wage
Thomson: $2,351.49 (gross [paras 20-25 SoC]
Nil
Sullivan: $5,798.14 (gross) [paras 26-31 SoC]
Nil
Duty free days
Thomson: $154.59 (gross) [paras 42 & 43 SoC]
Nil
Sullivan: $618.34 (gross) [paras 42 & 43 SoC]
Nil
Accrued annual leave
Thomson: $1,837.34 (gross) [paras 47-50 SoC]
$708.32 (gross)
Sullivan: $3,077.28 (gross) [paras 47-49 SoC]
$1,370.04 (gross)
Annual leave loading
Thomson: $566.54 (gross) [para 51 SoC]
$123.97 (gross)
Sullivan: $538.52 (gross) [paras 51 SoC]
$239.76 (gross)
Mobile phone
Sullivan: $132.93 (gross) [para 52-55 SoC]
$132.93 (gross)
Totals
Thomson: $4,909.99 (gross) [para 72 SoC]
$832.29
Sullivan: $10,025.60 (gross) [para 72 SoC]
$1,742.73
If the Court makes factual findings which are not in accord with the position of either the FW Ombudsman on the one hand, or BHS and Mr Calandra on the other, the parties appear to accept that it will be necessary for them to re-calculate the quantum in accordance with any factual findings of the Court: TD 3 at page 182.
Classification of Mr Thomson and Mr Sullivan as pilots under the AP Award
There is no dispute that for a certain period or periods of their employment Mr Thomson and Mr Sullivan were employed as pilots (specifically, helicopter pilots) under the AP Award, and were for those periods required to be paid for all their duties in accordance with the appropriate rate of pay for a helicopter pilot.
There is a dispute as to whether Mr Thomson and Mr Sullivan were properly classified as helicopter pilots for the whole of their employment, with BHS and Mr Calandra arguing that as Mr Thomson and Mr Sullivan did not spend the whole of their employment carrying out the duties of pilots, they should not be paid as pilots for all their hours worked.
Resolution of whether each of Mr Thomson and Mr Sullivan require consideration of their individual circumstances (as to which see below), but initially requires consideration of the AP Award provisions as to what constitutes a “pilot”.
Clause 3.1 of the AP Award defines “pilot” to mean:
… a person who is the holder of a commercial pilots licence or airline transport pilots licence and is employed under the provisions of the award, including pilots operating overseas from a base within Australia on behalf of the operator. The term pilot includes a check pilot, training pilot, first officer and second officer.
Clause 4.1 of the AP Award provides that that Award “… covers employers throughout Australia of air pilots and those employees”.
Clause 14 – Classifications of the AP Award relevantly provides as follows:
All employees covered by this award must be classified according to the applicable structure as set out in the relevant schedule.
…
(d) helicopter operations
See Schedule E
14.2 Employers must advise their employees in writing of their classification and of any changes to their classification.
14.3 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.
In this case there was no evidence of or reliance sought to be placed upon:
a)the intent of the framers of the AP Award: Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J (“Kucks”); Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260; (2003) 53 AILR 100-013 at [21] per Finkelstein J;
b)the context of the making of, and the practical purpose intended to be served by, the AP Award: Kucks at 184 per Madgwick J; Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 335; (2001) 106 IR 172 at [11] per Gyles J; and
c)the history of the AP Award: Short v FW Hercus Pty Ltd (1993) 40 FCR 511; (1993) 46 IR 128; (1993) 35 AILR 151 at 518-519 per Burchett J; NSW Nurses Association v Ramsay Health Care Australia Pty Ltd [2009] FMCA 579; (2009) 185 IR 1 at [122] per Barnes FM.
Therefore, in interpreting the AP Award the Court must:
a)begin with a consideration of the ordinary meaning of the words of the AP Award: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; (2006) 153 IR 426 at [53] per French J (“City of Wanneroo”);
b)generally give ordinary or well-understood words their ordinary or usual meaning: Kucks at 184 per Madgwick J;
c)have regard to the context and purpose of the provision being construed, where context may appear from the whole of the text of the AP Award, the arrangement of the text, or the place in the text of the relevant provision: Amcor Ltd v Construction, Forestry, Mining and Energy Union & Ors [2005] HCA 10; (2005) 222 CLR 241; (2005) 79 ALJR 703; (2005) 138 IR 286 at [2] per Gleeson CJ and McHugh J; City of Wanneroo at [53] per French J; and
d)have regard, as a contextual consideration, to the fact that it is an industrial award being construed, and therefore not open to literal, narrow or pedantic construction: George A Bond & Co Ltd (In liq) v McKenzie [1929] AR (NSW) 498 at 503-504 per Street J; City of Wanneroo at [57] per French J; Kucks at 184 per Madgwick J; Australasian Meat Industry Employees Union (WA Branch) v Woolworths Ltd [2007] FCAFC 201; (2007) 164 FCR 420; (2007) IR 403; (2007) 244 ALR 658; (2007) 60 AILR 100-788 at [21] per Siopis J.
The issue arises as to what constitutes “principal functions” for the purposes of the employment of both Mr Thomson and Mr Sullivan.
Schedule E of the AP Award contains specific conditions for all employers and pilots conducting helicopter operations. In this case there is no dispute that the relevant helicopter operations are on-shore, and that for time worked as a pilot Mr Thomson and Mr Sullivan were to be paid at the first year of service rate for a single-engine helicopter pursuant to cl.E.5.1 of Sch.E of the AP Award.
The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.
There is no definition of the phrase “principal function” in the AP Award. The Macquarie Dictionary (7th Edn) (Sydney: Macquarie Dictionary Publishers, 2017) relevantly defines:
a)“principal” as meaning:
first or highest in … importance; … chief; foremost … something of principal or chief importance
(at 1191); and
b)“function” as meaning:
to carry out normal work, activity, or processes
(at 615).
Use of the term “function” elsewhere in the AP Award provides little assistance in particularising or specifying particular pilot functions, for example, cl.3 of the AP Award defines “Chief flying instructor”, somewhat circularly, to mean the instructor appointed by a school and approved by CASA to carry out the function of chief flying instructor.
In Community and Public Sector Union v EDS Australia [2003] 129 IR 7 a Full Bench of the then Australian Industrial Relations Commission stated at [124] per Munro J, Marsh SDP and Deegan C:
the relatively diverse and indiscriminate use of the word function or functions…connote either the activity and work of employees, or the activity and work undertaken by employers.
The case law identifies two types of test for determining classifications: the “major and substantial” test and the “primary purpose/function” test.
The major and substantial test has been applied to establish an employee’s classification under a particular award or agreement: The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097. Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 stands as authority for the principles of the major and substantial test:
…two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.
The approach of examining the major and substantial employment of employees continues to be well used and cited for issues regarding employee classification: Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia& Anor (1980) 49 FLR 355; (1980) 32 ALR 541; Keen v Health Corporation Ltd [2008] FMCA 1622; Sim v LUO Enterprise Pty Ltd(No 2) [2009] FMCA 1060; Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4; (2014) 284 FLR 238 (“Coles”); Fair Work Ombudsman v D’Adamo Nominees Pty Ltd (No 4) [2015] FCCA 1178.
In this case however, the AP Award expressly refers to the principal function test, and therefore the major and substantial test can be put to one side. Because the AP Award expressly sets out the test to be used in determining the employee’s classification it is unnecessary to have regard to those cases where industrial tribunals have recently posited that for modern awards the appropriate test might be a “most appropriate award classification” test: see for example Broadspectrum Limited t/a Broadspectrum v United Voice [2017] FWCFB 3202.
The principal purpose or principal function test is often cited with reference to the remarks of the Full Bench of the then Australian Industrial Relations Commission in Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387, neatly summarised in Coles at [128] per Driver J as follows:
The task of the Court or Tribunal is to examine the major, substantial or principal aspect of the work performed by the employee. That will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment and what the employee was employed to do. The question is one of fact to be determined by reference to the duties actually attaching to the position, rather than its title.
As opposed to identifying the classification based on the duties of the employee, the test also requires an examination of the nature of the work and the circumstances in which the employee was employed to do the work: Re IBM Global Services Australia Ltd; Re an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66, (2005) 144 IR 389; (2005) 56 AILR 100-364 at [66] per Gray J:
In order to identify the principal function of part of a business, it is necessary to be able to identify the part. Only in that way is it possible to determine what are the functions of that part, and which of them might be said to be the principal function.
In Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767 at [22] per Cambridge C Fair Work Australia said that determining if such a function is a principal function of the employment requires:
an evaluation of the relative importance of the particular function… as against any other function or functions, for the purpose of determining whether the particular function can properly be described as ‘principal.’
The Court notes that the answer to the question whether a person’s employment is covered by an award is not to be found in the title given to the employee because the job title may mislead as to the nature of the job: Joyce & Ors v Christofferson & Ors (1990) 26 FCR 261; (1990) 33 IR 390; (1990) 32 AILR 401; IR at 405 per Gray J.
Based upon the language of the provision, it appears application of the “principal purpose” test is most suitable. Turley v The Laminex Group [2015] VMC 28 (“Turley”) discussed an identical provision, cl.15.2 of the Clerks Private Sector Award 2010, and in determining the appropriate classification of pay of the applicant it was found the applicant would “in an anecdotal and collegiate sense, provide guidance or assistance to new or even established employees on an ad hoc basis…”. Such a task was above the principal functions of her employment and can only be “described or categorised as involving herself either by design or choice in the exercise”: Turley at [23] per Ginnane M.
The principal purpose test appears to be the most suitable in making a determination of the “principal functions of employment.”
Mr Thomson
The parties agree that Mr Thomson (and Mr Sullivan) carried out the following duties when employed as a helicopter pilot:
a)inspected and prepared the helicopter, prepared manifests, checked weather;
b)conducted flights, including flights to Willie Creek Pearl Farm (“Willie Creek”) (but mainly at Willie Creek in the case of Mr Sullivan);
c)sold flights;
d)loaded and off-loaded passengers;
e)completed Civil Aviation Safety Authority (“CASA”) paperwork; and
f)cleaned and tied down the helicopter at the end of the day.
Mr Thomson gave evidence that on a typical day he would enter the BHS office (which was located at Broome Airport) once or twice a day, usually in the morning before flying to Willie Creek, and at the end of the day after returning from Willie Creek, to do paperwork and to enter flight and duty times.
On 18 May 2012 Mr Calandra sent an email to a number of people including Mr Thomson and Mr Sullivan which relevantly included the following:
a)that on the following Monday morning at 7.00am there would be a “staff meeting” to explain bookings and office systems;
b)attaching the new roster;
c)explaining that operations at Willie Creek were “half day loading and half day flying and alternating between am and pm pilots”;
d)that everybody would receive “award rates for the hours they do … based on hours submitted as for flight and duty times”, which needed to be submitted fortnightly;
e)that the “phone and the internet hour [sic] incoming sales mecca. If this is not looked after then we lose business. … If this happens it will be viewed as a serious mistake. Flying the aircraft is only ever part of your responsibilities as a pilot wherever you go.”;
f)that people were expected to respect the aircraft and “Treat them like gold and keep them clean.”, and to clean, tidy and maintain the aircraft (helicopter); and
g)that there was “always something to do”, following by references to “flight and sales responsibilities”, cleaning the aircraft and doing paperwork.
First Sullivan Affidavit at Annexure GDS 12.
On 26 May 2012 Mr Calandra wrote to a number of pilots, including Mr Thomson and Mr Sullivan in the following terms:
Recently some of you have failed to understand that sales at the farm are always to be covered by a pilot. Without fail. We have taxi accounts and plenty of ways to achieve what we need to. There is no excuse for a pilot to be there when I pay for two pilots.
Today however there was plenty of time for one pilot to do a drop off and pick up the next punters for a flight. Two pilots returning and leaving sales at the farm to Wc endangers the contract conditions. It also means that we don’t get sales and I lose turnover. This for your own personal advantage. I don’t take to this well.
Any staff not adhering to company policy will receive a written warning.
This is a business and if you don’t act like you want to work, I will let you go.
First Sullivan Affidavit at Annexure GDS 9.
Mr Calandra wrote to a number of persons including Mr Thomson and Mr Sullivan and, having berated a number of staff in relation to the failure to correctly divert phones resulting in a loss of business, he observed as follows:
I offer you all the opportunity to resign now. Take it if you don’t want to be responsible for your actions or start acting like pilots.
First Sullivan Affidavit at Annexure GDS 15.
Mr Thomson gave evidence that he was employed originally by BHS as a line pilot, to fly helicopters and do the associated tasks preparing the aircraft, cleaning it and completing the necessary paperwork, and at the time he commenced his employment on 21 March 2012 he was the only pilot at BHS other than Mr Calandra, who was the chief pilot: First Thomson Affidavit at [27]-[28]. Mr Thomson’s evidence is that notwithstanding his appointment as operations manager after about six to eight weeks he was nevertheless still flying helicopters in addition to looking after more junior staff, and that he was effectively employed “as a fulltime helicopter pilot”: First Thomson Affidavit at [29]-[31]. Mr Thomson says that the majority of the work of pilots with BHS was piloting flights from Broome to Willie Creek and conducting joy flights out at the Willie Creek Pearl Farm with the necessary preparation and cleaning of helicopters and associated necessary paperwork, and the flying of Willie Creek staff to and from Broome: First Thomson Affidavit at [41]-[42]. At Willie Creek, Mr Thomson says that BHS pilots sold and conducted, including the loading and off-loading of passengers, joy flights around Willie Creek for tourists on behalf of BHS: First Thomson Affidavit at [43].
Mr Thomson described the ordinary working day for a BHS pilot in the following terms in the First Thomson Affidavit at [44]:
44. An ordinary working day for a Broome Helicopter Services pilot involved the following duties:
(a) On most days while I was employed, the helicopter departed from Broome at 8:30am, so pilots would normally arrive at 7:30 to 7:45am to do the pre-flight checks on the helicopter (which included weather checks and paperwork to comply with CASA guidelines, such as passenger manifests, aircraft maintenance releases and flight sheets). If the helicopter required refuelling, I would refuel it at Willie Creek from a drum.
(b) The Willie Creek staff who were to fly from Broome to Willie Creek Pearl Farm to work would arrive at about 8:25am and the pilots would (after completing the passenger manifests) load them onto the helicopter, fly and be out to Willie Creek by approximately 8:45am.
(c) The first bus of tourists would arrive at Willie Creek Pearl Farm at about 9:00am, so from about 9:00am until 11:00am, the pilots would help out at the Pearl Farm, talking to customers and selling joy flights on behalf of Broome Helicopter Services. Most flights are about five to fifteen minutes. The tourists would pay for these flights beforehand. Joe Calandra gave me (and the other pilots) passwords for the computer in the Willie Creek showroom and the EFTPOS machine also in the Willie Creek showroom to put sales through on behalf of Broome Helicopter Services. The passengers did not get tickets, but we took their information so that we knew who was on what flights. Cash received for payment was collected and entered into the computer located in the Willie Creek showroom, and the EFTpos machine was located in the Willie Creek showroom. Broome helicopter staff operated the EFTpos machine. Joe Calandra provided us all a code pf to enter into the computer in order to enter flight sales made. Payments were collected on behalf of Broome Helicopter Services.
(d) From 11:00am onwards, would be the first joy flights sold by the pilots that morning. On a busy day, the pilot could be airborne between 11:30 am and 4:00pm if they had sold lots of flights. If the pilot hadn't sold lots of flights, they would sit around and help out the Willie Creek staff. Regarless of the number of flights sold, we always had time for a lunch break. Joe Calandra encouraged us to help out the Willie Creek staff even though we were not paid to work at the Willie Creek Pearl Farm. Our Broome Helicopter uniforms were also badged Willie Creek so for customers/tourist, I assume it would have looked like a seamless operation.
(e) At about 5:00pm, pilots would load passengers and fly the Willie Creek staff back to Broome.
(f) When back in Broome, the pilots would carry out the shut-down procedure for the helicopter. This involved putting the covers on the helicopter, tie downs and giving it a little clean if necessary. Usually, the pilots would finish between 5:30pm and 6:00pm.
Mr Thomson also gave evidence that:
a)pilots shared loading duties between morning and afternoon: Second Thomson Affidavit at [6]; and
b)any person employed specifically as a loader travelled to Willie Creek on either the helicopter or the bus, but that normally loading duties were shared between the two pilots: Second Thomson Affidavit at [14] and [6], and that Mr Calandra encouraged the pilots to assist or help out with other duties at Willie Creek including the sale of pearls: Second Thomson Affidavit at [6].
Mr Thomson was not challenged in cross-examination in relation to his description of his duties: TD 1 at pages 4-10. His evidence as to a 7.30am start at work (one hour before flying) is consistent with Mr Calandra’s evidence and the BHS Operational Manual: TD 2 at page 48.
In the Court’s view it is plain that Mr Thomson had as his principal function the role of pilot, specifically helicopter pilot, for BHS. All of the activities in which Mr Thomson was engaged during the time that he flew helicopters were ancillary to this principal function: the paperwork, the cleaning and tying down of the helicopter, the sales at Willie Creek and the preparation of rosters, would have not have been performed had Mr Thomson not been a helicopter pilot for BHS. BHS was a commercial and tourist helicopter flight operation, and Mr Thomson as a helicopter pilot was employed to facilitate BHS operating commercial and tourism helicopter flights. None of the other work performed by Mr Thomson (including his tasks as operations manager) would have been performed by him had he not been engaged as a helicopter pilot. In the circumstances, his principal function as an employee of BHS was that of a pilot, specifically a helicopter pilot, for the duration of his employment from 21 March 2012 to 19 September 2012. As such Mr Thomson was entitled to be paid as a pilot in his first year of service pursuant to cl.18.4 and cl.A.2 of Sch.A and cl.E.5.1 of Sch.E of the AP Award.
There was no evidence that the package of entitlements paid to Mr Thomson whilst he was designated as operations manager were intended to be set-off against any award entitlements. Indeed the evidence is to the contrary. In any event, even if there had been an agreement to set-off award entitlements against the package of entitlements paid to Mr Thomson as operations manager, such a set-off would not have been enforceable as an award cannot be contracted out of: Josephson v Walker (1914) 18 CLR 691; 15 SR (NSW) 170; CLR at 700 per Isaacs J; Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410; (1995) 69 ALJR 797; (1995) 61 IR 32; (1995) 131 ALR 422; (1995) 38 AILR 3-194; CLR at 421 per Brennan CJ, Dawson and Toohey JJ; Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 99 FCR 95; (2000) 98 IR 390; (2000) 176 ALR 46 at [18]-[20] and [24] per French J.
The FW Ombudsman says that Mr Thomson worked a total of 1040.85 hours during his employment. That amount has been calculated pursuant to the evidence contained in:
a)the First McArthur Affidavit at [37]-[40] and Annexures 23 and 24; and
b)the First Thomson Affidavit at [45] and [49], [50]-[53] (referring to flight and duty timesheets), [54] and Annexure MJT 2 (referring to pilot flight sheets) and [55]-[57] and Annexure MJT 3 (referring to the pilot’s logbook).
Further evidence of the time worked by Mr Thomson is set out in the First McArthur Affidavit at [68]-[70] and Annexures 47 and 48 (referring to flight sheets provided by Mr Thomson), at [125(b)] at Annexure 86 (referring to flight sheets provided by CASA, and [125(d)] at Annexure 88 (referring to flight and duty timesheets provided by CASA).
The calculation by the FW Ombudsman of hours worked has allowed for a 30 minute lunch break on each day worked by Mr Thomson.
Mr Thomson’s evidence as to his hours of work can be summarised as follows from the First Thomson Affidavit at [45]-[49]:
a)he was a fulltime employee;
b)he usually arrived at work at about 7.30am and would finish between 5.30pm and 6.00pm, depending on flight times;
c)most of the day was spent at Willie Creek Pearl Farm;
d)he usually worked about five days per week with two days off, but would sometimes work an extra day a week or change his days off and let Mr Calandra know of the change; and
e)although he regularly worked more than 40 hours a week his agreement with Mr Calandra was that he would be paid for at least 40 hours per week based on the AP Award rate.
Mr Thomson’s flight and duty time records are in evidence: First McArthur Affidavit at [36]-[40] and Annexures 23 and 24. They take the form of a spreadsheet seemingly derived from an electronic record recording the days and times said to have been worked by Mr Thomson, including time flown recorded in 6 minute units, with the time flown total to show accumulate of flying times: First McArthur Affidavit at [37]-[38]. The total duty time is also shown, and each day is recorded as being 9.00am for time on and 5.00pm for time off: First McArthur Affidavit at Annexures 23 and 24.
Mr Thomson gave evidence with respect to the nature of the flight and duty time records as follows at the First Thomson Affidavit at [50]-[53]:
a)that the flight and duty time records were kept in excel spreadsheets entered on the computer in the office at BHS as there is a CASA requirement to record a pilot’s duty hours each day;
b)early in his employment Mr Calandra instructed Mr Thomson to enter the hours of 9.00am to 5.00pm (and the other pilots) “irrespective of the actual hours we flew the helicopters”: at [51], and he does not remember Mr Calandra telling him to take time out for a lunch break;
c)he understands that CASA regulations limit pilots to 90 duty hours in a 14 day period and that if the true hours were recorded for pilots at BHS then their total hours “would come up in red which meant that the pilot would not be able to fly or work the next day”: at [52]; and
d)Mr Thomson entered the hours as directed by Mr Calandra, because he knew that if he did not Mr Calandra could find another pilot to work those hours, and that as this was Mr Thomson’s first job as a pilot it was “very important to build as many hours as possible” and that “under the constant threat of being let go, it was best to conform to … [Mr Calandra’s] wishes”: at [53].
In relation to the pilot flight sheets Mr Thomson gave evidence as follows:
The flight sheets [Pilot Flight Sheets] are also a CASA requirement and record the actual times that each flight takes off and the actual time that each flight lands. Helicopter pilots must record when the blade starts turning and when the blade stops in the Pilot Flight Sheets. The pilot writes the time in while they are sitting in the helicopter.
Annexure “MJT-2” is a copy of my Pilot Flight Sheets for the period 21 March 2012 to 19 September 2012.
Mr Thomson also gave evidence in relation to the pilot log books, which are a pilot’s personal record, needed to maintain a pilot’s licence and which records hours actually flown not hours worked. Mr Thomson completed his pilot log book either at the end of each day, or sometimes at the end of each week, and in the latter case it would be done from memory: First Thomson Affidavit at [55]-[57] and Annexure MJT 3.
Mr Thomson’s original pilot flight sheets are in evidence: First McArthur Affidavit at [70] and Annexure [48] and First Thomson Affidavit at [54] and Annexure MJT 2. The pilot flight sheets are a contemporaneous record recording the engine start and engine stop times for each flight in the helicopter by the pilot concerned. The pilot flight sheets are hand-written on a daily basis. The significance of the pilot flight sheets is that they demonstrate that the flight and duty timesheets are false in recording total duty hours as being worked from 9.00am to 5.00pm every day. The majority of the pilot flight sheets show a commencement time of somewhere between 8.00am and 9.00am, and more often than not between 8.20am and 8.40am, and a cessation time occasionally before 5.00pm, but more usually between 5.00pm and 5.30pm, and occasionally after 6.00pm. The pilot flight sheets indicate that the flight and duty timesheets are an inaccurate record of total duty hours. Total duty hours must be assessed by having regard to the pilot flight sheets plus Mr Thomson’s unchallenged evidence as to the hours that he actually worked beyond the hours ascertainable from the pilot flight sheets.
BHS and Mr Calandra say that Mr Thomson worked 903.5 hours during his employment being:
a)525.5 hours during the period 21 March 2012 to 30 June 2012 (said to be based on the time of the self-recorded flight and duty times less one hour for lunch); and
b)378 hours during the period 1 July 2012 to 19 September 2012 (again being the time of his self-recorded flight and duty times less one hour for lunch).
BHS and Mr Calandra say that the FW Ombudsman’s assessment fails to take account of CASA regulations limiting the duty hours of helicopter pilots, and in that regard refer to, and rely upon, Civil Aviation Amendment Order (No R48) 2004 as amended. BHS and Mr Calandra say that their assessment of the hours worked by Mr Thomson is consistent with Calandra Affidavit and with the CASA regulations, and therefore ought to be preferred to the FW Ombudsman’s assessment of the hours worked by Mr Thomson.
Mr Calandra says that Mr Thomson:
a)passed a flight check whilst in Broome in January 2012; and
b)was employed by BHS as a line pilot when he returned to Broome in March 2012: Calandra Affidavit at [124]-[128].
Mr Thomson commenced employment according to Mr Calandra on 21 March 2012, and was told by Mr Calandra that he would be employed as a line pilot and would be paid the award rate for his hours worked as a line pilot: Calandra Affidavit at [131]-[134].
Apart from Mr Calandra’s commitment to pay the award rate for hours worked as a line pilot there was no specific rate mentioned as Mr Calandra was confused by the rates applicable as a consequence of the phasing-in of the AP Award as a modern award under the FW Act.
Both Mr Calandra and Mr Thomson appear to have made inquiries concerning the appropriate rate under the AP Award, and received differing advice, as well as differing advice at different times. The advice given is immaterial to liability (but not to penalty), as the obligation is, as Mr Calandra obviously understood, to pay the award rate to Mr Thomson.
Mr Calandra says that he had a discussion with Mr Thomson approximately two weeks after Mr Thomson commenced employment concerning Mr Thomson performing additional duties including setting pilot rosters, management of the pearl farm operations, management of new bookings and staff management within regulations, and that he agreed to give him the new position and came up with the title of operations manager: Calandra Affidavit at [157]-[158].
Mr Calandra says that a package equivalent to $50,000 per annum was agreed, being an annual salary of $39,000, plus the provision of a vehicle, telephone and fuel for the vehicle, which was a package which Mr Thomson agreed to: Calandra Affidavit at [160]. Mr Calandra further says that Mr Thomson agreed that his performance in the role of operations manager would be overseen, and that if he was competent, BHS would back pay him from the date that Mr Thomson and Mr Calandra agreed that he had overtaken the duties: Calandra Affidavit at [161]. In relation to hours it was Mr Calandra’s expectation that Mr Thomson would work approximately 38 hours per week, but not on standard hours, but on flexible start and finish times as he was being paid a salary to fulfil the role: Calandra Affidavit at [162] and [164].
Mr Calandra give various dates as the dates on which Mr Thomson commenced his role as operations manager, firstly in approximately May or June 2012, secondly in approximately mid-May 2012: Calandra Affidavit at [164] and [166]; and thirdly in late May 2012: Calandra Affidavit at [187].
Mr Calandra denies telling Mr Thomson (and Mr Sullivan) to always enter the hours of 9.00am to 5.00pm in the flight and duty records, and says that he has never given such a direction to a pilot, and he considers that it would be contrary to both the BHS Operations Manual as well as CASA regulations: Calandra Affidavit at [169]. Mr Calandra further says that with the exception of Mr Thomson (and Mr Sullivan) all other pilots entered their flight and duty times as the times actually worked: Calandra Affidavit at [169] and Annexure JC 26. Mr Calandra says that he recalls checking Mr Thomson’s flight and duty records in his role as chief pilot throughout his employment, and that his recollection was that they were entered accurately and were not recorded as block 9.00am to 5.00pm entries on a daily basis, and that he cannot explain why the flight and duty time records for Mr Thomson do not appear to show the correct hours: Calandra Affidavit at [171] and Annexure JC 27. Mr Calandra says that Mr Thomson was allowed to work whenever he wanted to so long as his role was fulfilled and so long a she did not work over 90 hours in a fortnight, which would be contrary to CASA regulations: Calandra Affidavit at [171]. For reasons otherwise set out above and below Mr Calandra’s evidence as to the accuracy of the flight and duty records, and the accuracy of the flight and duty records themselves, is unreliable, save for the fact that they were kept for the purposes of demonstrating that pilots were not exceeding flight and duty time limits imposed by CASA (but in that regard because of the inaccuracy they were misleading), and as to days actually worked: see generally the cross-examination of Mr Calandra at TD 2 at pages 86-95.
Mr Calandra says that for the weeks that Mr Thomson was employed as a line pilot he paid him a 38 hour week at the net rate of $16.52 per hour, which he believed was higher than the correct rate under the AP Award scale: Calandra Affidavit at [173].
On 4 April 2012 Mr Calandra contacted Fair Work and was told that the minimum rate of pay for a single engine helicopter pilot was $18.30 per hour, which was different from the $18.34 an hour supplied from a wage calculator that he had used on-line: Calandra Affidavit at [175]. From the time at which Mr Thomson commenced to be paid, that is 5 April 2012, he was paid $1000 net per fortnight until 10 August 2012 when his fortnightly payments were increased to $1248 net per fortnight: Calandra Affidavit at [178] and [185].
Mr Calandra also said that prior to Mr Thomson taking on the position of operations manager he directed that Mr Thomson be paid so that his payslips reflected a net amount of $16.52 per hour, as he thought that this would result in a payment above the minimum rate prescribed by the AP Award which he had calculated as being a net figure of $16.35: Calandra Affidavit at [179].
Mr Calandra back-paid Mr Thomson a net figure of $700 on 25 September 2012 said to be a reconciliation of amounts by reference to the number of weeks Mr Thomson had worked as recorded on his duty and flight records, and on his being employed and paid as an operations manager from late May 2012: Calandra Affidavit at [187]. Mr Calandra says that although he did not initially pay Mr Thomson the full salary for the operations manager position from when he commenced in that role, because it was a trial and that Mr Calandra wanted to make sure that he was competent, when he did pay him back after he resigned he ensured that he received the full $39,000 salary as operations manager from the date that he commenced in that role: Calandra Affidavit at [187].
Mr Calandra gave evidence that employee duties at Willie Creek were split into those of a loader and those of a pilot. His evidence was that a “loader pilot” was a pilot employed by BHS who for the day should not perform any flight duties but instead rostered to load flights and assist the rostered pilot for the particular day, and that there is only ever one loader on duty per day: Calandra Affidavit at [190]-[191]. Mr Calandra says that generally speaking the loader pilot travels to Willie Creek by bus unless there is a spare seat on the aircraft: Calandra Affidavit at [192].
Mr Calandra says that Willie Creek runs four tours daily at 9.00am, 11.00am, 1.00pm and 2.00pm and that the loaders act as persons selling tickets for joy flights after tour passengers have completed a tour of Willie Creek and assist in loading persons onto the helicopter: Calandra Affidavit at [190] and [194]-[195].
Mr Calandra says that the loader pilot had no formal duties until 9.50am when the first Willie Creek tour has a morning tea break, and the loader pilot can commence to sell tickets for the scenic flights, and that once morning tea finished at approximately 10.05am, and then at approximately 11.00am after the first tour is finished, the pilot loader organises the passengers for the scenic flights by giving them a safety brief and loading them onto the helicopter which entails showing the passengers how the seatbelts work and how the door opens and closes for use as an emergency exit: Calandra Affidavit at [194]-[195].
Mr Calandra says that the process is then repeated for each tour throughout the day, and that there is a substantial amount of time between ending each tour when the pilot loader is not required to do anything: Calandra Affidavit at [196]-[197].
Mr Calandra says that the pilot loader is not told to assist Willie Creek staff in their operations or employment duties as they are not covered for the same liability as Willie Creek staff: Calandra Affidavit at [198].
Mr Calandra says that the last tour usually finishes at Willie Creek at 4.00pm and the pilot loader then returns home: Calandra Affidavit at [199].
In relation to pilot duties Mr Calandra says that:
a)when a pilot is on duty for Willie Creek operations they usually arrive at the BHS offices 30 minutes prior to the first flight when they inspect the aircraft and clean the aircraft if required: Calandra Affidavit at [200];
b)only one pilot is rostered to fly Willie Creek operations per day, and the other pilot, is a loader pilot: Calandra Affidavit at [201];
c)the Willie Creek staff usually arrive 15 minutes prior to the first tour and the pilot flies the aircraft to Willie Creek with the Willie Creek staff on board, but that the time varies depending on the seasons and Willie Creek tour requirements: Calandra Affidavit at [202];
d)it usually takes the helicopter 15 minutes to fly to Willie Creek: Calandra Affidavit at [203];
e)the pilot may hose down the helicopter at Willie Creek, but this only happens about once a week as there is a limited supply of fresh water and BHS need permission to use the water. The process takes about 10 to 15 minutes: Calandra Affidavit at [204];
f)the pilot then has no duties to perform until after the morning tea Willie Creek tour has finished when the pilot is required to fill in the passenger manifest from any sales that had been made, including the name, address and weight of each passenger who has purchased a scenic flight, and that this task would take approximately two minutes to complete per flight: Calandra Affidavit at [205]-[206];
g)when the first Willie Creek tour has finished the pilot then flies passengers on the scenic flight for a maximum of half an hour flight time per tour group, and that that process then repeats for each tour group throughout the day: Calandra Affidavit at [207]-[208]; and
h)the pilot then returns to Broome airport with the Willie Creek staff sometime between 4.00pm and 4.30pm, and then ties down the aircraft blades and calls the re-fuellers to re-fuel the aircraft prior to the next schedule flights the following morning, which usually takes approximately five minutes, and the pilot then drops the passenger manifest into the office on the way out: Calandra Affidavit at [210]-[211].
Mr Calandra’s evidence in relation to the times worked by Mr Thomson, based as it is on the flight and duty time records, is wholly unreliable. Mr Calandra effectively conceded that the flight and duty time records were inaccurate: TD 2 at pages 86-95. Further, Mr Calandra’s evidence that there was a loader pilot and a pilot rostered each day and that the two performed duties exclusively as a loader and a pilot is also unreliable. The unchallenged evidence of Mr Thomson (and Mr Sullivan) in respect of the alternating of duties between pilot and loader between morning and afternoon is to be preferred. Furthermore, there is contemporaneous evidence from Mr Calandra that those duties were so alternated: see the 18 May 2012 email to all staff, a fact Mr Calandra conceded under cross-examination: TD 2 at page 53. Further, to the extent that there were rosters, those rosters did not distinguish between loader pilots and pilots, from which it can be inferred that there was no such distinguishment: see the documents at Annexure JC 29 to the Calandra Affidavit.
In relation to breaks, the evidence makes it plain that there were times at which the pilots who were at Willie Creek were able to take a break, and Mr Thomson’s unchallenged evidence is that “we always had time for a lunch break”: First Thomson Affidavit at [44(d)]. Again, Mr Thomson’s evidence is unchallenged insofar as he says that if pilots had not sold a lot of flights, and were therefore not airborne, they would assist the Willie Creek staff. In all the circumstances, the Court considers that the FW Ombudsman’s allowance of a 30 minute break during the day for Mr Thomson (and for Mr Sullivan) is appropriate. To the extent that pilots might not have actually have been working whilst at Willie Creek (as suggested by Mr Calandra) the facts indicate that they were required to be a Willie Creek, and that that time was therefore time worked because the pilots fell into the category of persons who serve while waiting: Hospital Employees Industrial Union v Lee Downs Nursing Home (1977) 57 WAIG 455 at 456 per Burt CJ.
In the above circumstances, it is evident that the flight and duty time records are inaccurate, and that the time entries therein are incorrect in relation to the total duty hours worked by Mr Thomson. The Court reaches that view on the basis primarily of the documentary evidence in the pilot flight sheets which, given that they are completed by hand in the helicopter at the time of flight, which given the level of detail recorded in relation to times and details of the flight, are inherently likely to be more accurate than either the flight and duty timesheets completed on the 9.00am to 5.00pm basis at Mr Calandra’s direction, or the pilot log books which were sometimes completed from memory. Further, all of the evidence from the witnesses who worked at BHS (Mr Thomson, Mr Sullivan and Mr Calandra) indicates that the flight and duty timesheets are inaccurate. The evidence of Mr Thomson, which was not challenged and which the Court accepts, indicates that his working day generally speaking was from around 7.30am to sometime between 5.30 and 6.00pm.
Mr Sullivan
Mr Sullivan says he was employed as a pilot during the period from 5 April 2012 to 28 September 2012: First Sullivan Affidavit at [8] and [93].
BHS and Mr Calandra say that Mr Sullivan did not commence employment “as a pilot” until 24 May 2012 and that he ceased on 24 September 2012.
The FW Ombudsman observes that BHS and Mr Calandra have not made any submissions as to what Mr Sullivan should have been paid between 5 April 2012 and 24 May 2012. There is, however, no obligation on them to do so in the absence of a claim outside of that made (that Mr Sullivan was employed as a pilot pursuant to the AP Award during this period) being made by the FW Ombudsman.
Mr Sullivan plainly attended BHS’s premises from 5 April 2012, and engaged in various activities. During the course of April 2012 Mr Sullivan was given $300 in cash by Mr Calandra, presumably on behalf of BHS: First Sullivan Affidavit at [69(a)].
Mr Thomson says that Mr Sullivan accompanied him on flights in April 2012. Mr Thomson says that Mr Sullivan did not go to Willie Creek “on his own steam”, and remembers that Mr Sullivan came to Willie Creek with him on the helicopter if room was available, or on the bus if there was no room available on the helicopter: Second Thomson Affidavit at [5]. The evidence of Mr Sullivan actually going to Willie Creek is not inconsistent with the evidence of Mr Calandra that Mr Sullivan went out to Willie Creek on a few occasions to have a look around, but not as part of any formal employment arrangement: Calandra Affidavit at [62].
Mr Sullivan first flew a helicopter at BHS on 6 April 2012: First Sullivan Affidavit at [28] and Annexure GDS 5. Thereafter, it appears that Mr Sullivan undertook flights on:
a)13 April 2012 (twice, for half an hour each time, and noted as a flight test and Willie Creek familiarisation respectively);
b)14 April 2012 (for 18 minutes marked as Willie Creek circuit training);
c)20 April 2012 (twice, for a total of 48 minutes marked as circuits/training and Broome to Willie Creek);
d)24 April 2012 for 66 minutes (marked as Broome circuits – Willie Creek – Broome); and
e)28 April 2012 for 42 minutes (marked as Broome – Gantheame – Broome),
and on each of those flights the other pilot or crew was Mr Calandra.
Mr Calandra hand wrote a note (probably after the event in December 2012) on Mr Sullivan’s flight and duty time records which said:
4/04/12-18/05/12 Loading only no pilot duties
First McArthur Affidavit at Annexure 24.
On 20 May 2012 there is a flight to Willie Creek, and thereafter flights regularly between Willie Creek and Broome (and some other flights) from 24 May 2012 onwards until the last flight recorded with BHS being on 25 September 2012. The pilot log book for Mr Sullivan simply records the time flown and purpose of the flight.
The pilot flight sheets for Mr Sullivan are in evidence from 25 May 2012 to 25 September 2012: First McArthur Affidavit at Annexure 85.
Mr Sullivan said that during the day the helicopter would be located at Willie Creek and that he, or another pilot, would conduct a dozen to 18 short joy flights of about 5 to 15 minutes duration at Willie Creek. This was in addition to flying some Willie Creek staff members from Willie Creek back to Broome at the end of each day. As a consequence, he spent most of his working hours at Willie Creek: First Sullivan Affidavit at [41]-[42].
Mr Sullivan also gave evidence that in addition to his duties flying the helicopter he had been directed Mr Calandra to perform additional duties, including:
a)inspecting the helicopter prior to flying at the beginning of each day;
b)preparing necessary paperwork to deal with CASA regulations including passenger manifests, pilot flight sheets and maintenance releases;
c)fuelling the helicopter at Willie Creek when required;
d)selling helicopter flights whilst at Willie Creek including sales presentations to tourists at Willie Creek;
e)loading and off-loading passengers onto and from the helicopter flights;
f)assisting Willie Creek staff; and
g)cleaning the helicopter, including with anti-corrosive spray, and tying it down at the end of each day: First Sullivan Affidavit at [43].
Mr Sullivan gave evidence that there were two pilots for each helicopter, and typically one would fly in the morning and load in the afternoon, and the other pilot would operate on the reverse arrangement: First Sullivan Affidavit at [43(d)]-[44] and [30]. See also [29] and [36] of the Second Sullivan Affidavit.
In relation to the commencement of his employment and pre-employment discussions Mr Sullivan gave evidence that he spoke to Mr Calandra initially and that there was an agreement that he would “come over and work for him over the upcoming dry season in Broome, which usually starts around April”, those discussions appearing to have been held in February and March 2012: First Sullivan Affidavit at [11]-[13]. Mr Sullivan then says that:
a)in or around March 2012 Mr Calandra spoke to him by telephone and told him that he needed him before Easter, but that he could return home to Queensland to pick up his car after a couple of weeks, but that Mr Calandra needed him to “get through the Easter period”: First Sullivan Affidavit at [14];
b)there was no discussion about pay because Mr Sullivan was simply happy to have his first job in aviation, but Mr Sullivan says that he would not have resigned from his existing work as a technician with a Queensland-based company earning about $140,000 a year to work as a volunteer at BHS: First Sullivan Affidavit at [15]-[16];
c)there was no written contract of employment with BHS: First Sullivan Affidavit at [17];
d)he resigned from his employment in Queensland effective 15 March 2012, noting in his resignation letter to his then employer that he “… having sacrificed a lot of time and money in obtaining my commercial helicopter pilots licence, a job opportunity in this field is difficult to pass up”: First Sullivan Affidavit at [18] and Annexure GDS 2;
e)he underwent a urine drug screen and breath alcohol test before leaving Queensland as Mr Calandra had asked him to do so, and he also knew that passing a drug test was a CASA requirement before being allowed to fly, but that the drug test was not suitable to Mr Calandra who, on 5 April 2012 (his first day in Broome) told him that he would have to have another test in Broome: First Sullivan Affidavit at [19] and [24];
f)he arrived in Broome in 5 April 2012, the day before Good Friday: First Sullivan Affidavit at [21];
g)on 5 April 2012 he flew to Willie Creek with Mr Thomson who piloted the helicopter, and Mr Sullivan assisted him to load and unload, and he also sold joy flights at Willie Creek and generally helped staff at Willie Creek: First Sullivan Affidavit at [22];
h)he flew for the first time with Mr Calandra on 6 April 2012: First Sullivan Affidavit at [23] (but is evident from the pilot log book that this was a check flight) [may need to explain check flight];
i)he was not able to undertake another drug test until 30 April 2012, but in the meantime flew a helicopter on a number of occasions, albeit that they all appear to have been either check flights, training flights or familiarisation flights undertaken with Mr Calandra: First Sullivan Affidavit at [25]-[26] and Annexure GDS 5 and [28]-[29];
j)at the time that he commenced employment Mr Calandra explained that he was employed to conduct scenic flights in and around Broome and Willie Creek, but that Mr Calandra’s biggest interest was in sales and the number of sales that could be made at Willie Creek: First Sullivan Affidavit at [38]-[39]; and
k)on the days that he was not flying he was loading passengers on to the helicopter and selling flights at Willie Creek, and that usually he would fly out to Willie Creek with Mr Thomson but if there was not room in the helicopter then he would take the bus to Willie Creek: First Sullivan Affidavit at [30].
Mr Sullivan says that he understood that it was a requirement if a pilot might be dealing with or flying with dangerous goods to complete dangerous goods training and receive the appropriate certificate, which he did on 10 April 2012: First Sullivan Affidavit at [32] and Annexure GDS 7.
Mr Sullivan also says that CASA requirements include induction training for pilots, and that BHS did not provide that training to him right away, and that he received it a few months after he commenced employment and had started flying for BHS and that he did not think that this training was a pre-requisite to employment with BHS: First Sullivan Affidavit at [33].
Mr Sullivan says that between 5 and 13 May 2012 he took a period off work to finish re-locating from Brisbane to Broome as had been arranged with Mr Calandra at the commencement of his employment: First Sullivan Affidavit at [34].
Mr Sullivan points to some text messages from Mr Calandra between 6 April 2012 and 25 May 2012 as evidencing the fact that he was an employee of BHS during this period because he was given instructions. Those text messages were as follows:
a)on 6 April 2012:
Can you call this number. Business inquiry.
b)on 9 April 2012:
Can you pick up 2 people from cable beach club under name white at 5:15 and bring to airport?
c)on 9 April 2012 (at 11.58am):
Grab a manifest and bring passengers straight down to chopper. Do paperwork later.
Hurry.
d)on 13 April 2012 at 6.38pm:
John and Pia on the Chopper at 8.30am. Meet at gate 2 at 8.20am near two benches in the Thrifty car park. Thanks
e)on 25 May 2012 at 1.49pm:
Mish and Pia on the Chopper at 8.15am. Meet a gate 2. Thanks. Hey keep up your chin. You’ll get there. Lot of stuff going on for you but there will be light at the end if the tunnel. Keep the cap thing between us and nobody will know. Catch up in tha morning.
You two need to listen when it comes to instructions. The deal with guy was he got dead legs in lieu of being at the farm today. Not fly and be off inbetween. I give instructions for a reason and they are not to be changed without approval.
I’m really pissed about this guy. I favoured you over Andrew and you crapped on my gesture.
A payslip was purportedly prepared for Mr Sullivan dated 5 May 2012: Calandra Affidavit at Annexure JC 19, which Mr Calandra says was a random date chosen [by him]: Calandra Affidavit at [94]. Ms McArthur says that Mr Calandra never gave this explanation to her during her investigation on behalf of the FW Ombudsman: Second McArthur Affidavit at [7].
On 26 May 2012 Mr Calandra wrote specifically to Mr Sullivan and warned him about his conduct in leaving Willie Creek on the previous day, and Mr Calandra observed as follows:
There was absolutely no need for two pilots to leave the farm at the expense of company sales. There was absolutely no reasons for two pilots to come into town and sales at the farm not to be covered.
Second Sullivan Affidavit at Annexure GDS 21.
When flying the helicopter Mr Sullivan gave evidence that it would be flown to Willie Creek in the morning with Willie Creek staff, but that if there were too many Willie Creek staff then the second pilot would get a bus to Willie Creek because only four people could fit into the helicopter: First Sullivan Affidavit at [40]. In terms of a typical day Mr Sullivan said that:
a)he would go the office once or twice a day, first thing in the morning to pick up any relevant paperwork, and then at the end of the day to drop off the paperwork at the end of his shifts, including the entering of flight and duty times: First Sullivan Affidavit at [41]; and
b)during the day the helicopter would generally be based at Willie Creek and that joy flights would be undertaken around Willie Creek and back into Broome, and that up to 18 short joy flights would be undertaken each day at Willie Creek which meant that the majority of working hours was spent at Willie Creek: First Sullivan Affidavit at [42].
There was evidence from Mr Sullivan that a typical working day at BHS might involve the following:
a)a normal start time no later than 7.30am to ensure that there was sufficient time to prepare for the staff transfer flight of Willie Creek staff to Willie Creek, which involved completing the daily inspection of the helicopter and preparation of the passenger manifest, as well as minor administrative duties such as checking emails and phone messages;
b)flying the Willie Creek staff transfer from Broome to Willie Creek at 8.30am arriving at 8.45am at Willie Creek;
c)at 9.00am commence selling to the first tour of the day and processing sales transactions using the Willie Creek point-of-sales system;
d)clean the helicopter;
e)at 10.00am sell flights and process payments using the point-of-sales system;
f)at 11.00am conduct the flights from the 9.00am sales and sell flights and process those using the point-of-sales system for the 1.00pm tour;
g)at 12.00noon conduct rides and sell and process flights from the 12.00noon tour;
h)at 1.00pm conduct flights and sell and process flights from the 1.00pm tour;
i)at 2.00pm conduct flights from the 12.00noon tour and sell and process flights from the 2.00pm tour;
j)at 4.00pm conduct flights from the 2.00pm tour and then depart with Willie Creek staff back to Broome arriving usually no earlier than 4.30pm; and
k)upon arrival at Broome with Willie Creek staff, pack up helicopter, and if no more scenic flights are booked in to be carried out from Broome finish work at about 5.30pm.
Mr Sullivan also gave evidence that there was sometimes a requirement to carry out scenic sunset flights from Broome after the return from Willie Creek in the afternoon, which would mean that work would finish at around 6.30pm depending on the nature of the flight. Mr Sullivan also said that from time to time he was required to work a day in town involving general office duties and conduct any scenic flights out of Broome.
Mr Sullivan was not able to indicate what percentage of his time was spent flying and what percentage was spent doing other duties as a loader, but noted that there were always two pilots per flight and that one would fly in the morning and the other would do loading duties and that in the afternoon that regime would be reversed: First Sullivan Affidavit at [44].
From 1 August 2012 to 20 September 2012 Mr Sullivan also worked for a sole trader in Broome one day a week delivering brochures to resorts.
Specifically in relation to Mr Sullivan, BHS and Mr Calandra say that:
a)prior to the commencement of Mr Sullivan’s employment, but after his arrival in Broome, he was capable of being employed as a helicopter pilot;
b)Mr Sullivan was not employed, or at least not employed as a helicopter pilot between 5 April 2012 and 24 May 2012 because he did not meet the preconditions for employment as a helicopter pilot; and
c)alternatively, if the relationship between BHS and Mr Sullivan between 5 April 2012 and 24 May 2012 can be characterised as an employment relationship, then Mr Sullivan could not have been employed in the capacity of a helicopter pilot, and the relevant award is not the AP Award.
Mr Calandra’s evidence is that he initially spoke to Mr Sullivan on the telephone and told Mr Sullivan to send through his resume: Calandra Affidavit at [19]-[20]. Mr Calandra says that he told Mr Sullivan to come to Broome for a flight test a week or two prior to Easter, but Mr Sullivan eventually told him that he would not arrive until after Easter as he had his house (in Queensland) to pack up: Calandra Affidavit at [20]-[21]. Mr Calandra says that he told Mr Sullivan not to pack up his house as he had a flight test to do and that there was “no job” until he did that: Calandra Affidavit at [21].
Mr Calandra admits saying to Mr Sullivan that if he did not arrive until after Easter he would employ someone else, and that Mr Sullivan then said that he would fly over to Broome and would have to return home for his car. Mr Calandra indicated that that would be “fine” but he still needed to arrive in time to be trained and tested and that Mr Sullivan then did come to Broome two days prior to the Easter break: Calandra Affidavit at [23].
Mr Calandra says that he told Mr Sullivan when he arrived that he would not be able to fly for the Easter period (which was a busy period in Broome) as he did not have his dangerous goods certification and he was too late to meet the induction requirements, and that whilst he obtained drug test, it was not one which, in Mr Calandra’s view, met the relevant regulatory aviation standards for a drug test: Calandra Affidavit at [25].
Mr Calandra’s understanding was that Mr Sullivan had to pass a flight test before he could fly, an understanding based on reg.20.11 of the Civil Aviation Regulations 1988 (Cth) (“CA Regulations”). In addition, Mr Calandra understood that Mr Sullivan had to undertake and pass a drug test, complete a dangerous goods awareness certification, and read and understand the BHS Operations Manual: Calandra Affidavit at [26]-[28].
Mr Sullivan undertook a flight test on 6 April 2012, and failed that test: Calandra Affidavit at [26]. Mr Calandra says that he allowed Mr Sullivan to “hang around the office” so that he could undertake his dangerous goods awareness certification on-line and read the Operations Manual, and also so that he could obtain his drug test: Calandra Affidavit at [35]. Mr Calandra says that it would take a pilot two to three days to read and understand the Operations Manual. Mr Sullivan signed to say that he had read and understood the Operations Manual on 18 April 2012: Calandra Affidavit at [35]-[36].
Mr Calandra then says that Mr Sullivan:
a)undertook and failed a further flight test on 11 April 2012: Calandra Affidavit at [38]; and
b)undertook his drug test on 30 April 2012 with the results provided to BHS and Mr Calandra on 1 May 2012: Calandra Affidavit at [40].
Mr Calandra says that he told Mr Sullivan that he would allow him to practise flying the helicopter, a task he said was permitted pursuant to the CA Regulations, so long as it did not constitute part of the commercial enterprise of BHS, and that Mr Calandra made himself and a helicopter available to Mr Sullivan to try and assist Mr Sullivan in this regard: Calandra Affidavit at [42].
Mr Calandra says that the flights undertaken by Mr Sullivan between 6 April 2012 and 28 April 2012 were flights which were recorded as being “In Command Under Supervision” (“ICUS”) with Mr Calandra being on board, and that they were non-commercial flights, and that flights conducted prior to 21 May 2012 verified that those flights were check flights, and that after six such flights, Mr Sullivan passed his flight test on 20 May 2012: Calandra Affidavit at [43] and [45] and Annexure JC 8.
Mr Calandra says that as a consequence of passing his flight test on 20 May 2012 Mr Sullivan was formally offered employment on 21 May 2012 and that he received his first pay, in advance, on 31 May 2012: Calandra Affidavit at [46] and [53], and Annexures JC 10 and JC 11. Mr Calandra conceded under cross-examination that Mr Sullivan’s offer of employment and formal commencement date as a pilot with BHS was 20 May 2012: TD 2 at page 82.
Mr Calandra says that the employment offered to Mr Sullivan commencing on 20 May 2012 was employment offered on a part-time and probationary basis, which Mr Sullivan accepted: Calandra Affidavit at [49].
In relation to the period prior to what Mr Calandra says is Mr Sullivan’s formal employment on 20 May 2012 Mr Calandra says that:
a)Mr Sullivan was given $300 in cash on one occasion as a gesture of goodwill because Mr Sullivan was finding it difficult to manage: Calandra Affidavit at [52];
b)on a couple of occasions, Mr Sullivan helped out by bringing people to the helicopter and delivering a manifest, as shown in the text messages on 6, 9 and 13 April 2012 in which Mr Calandra asked Mr Sullivan to do certain things: Calandra Affidavit at [54] and Annexure JC 12;
c)on occasion, Mr Sullivan might have been included in group messages, such as the message in relation to “John and Pia” who were Willie Creek staff, which Mr Calandra says was a message to let the pilots know who was going to be on the helicopter the next morning (Mr Sullivan not being a pilot at that stage on Mr Calandra’s version of events): Calandra Affidavit at [54];
d)Mr Sullivan asked whether he could go out to Willie Creek prior to being formally employed, and Mr Calandra had no problem with him doing so, but says that he was not permitted to be on the helicopters that went out to Willie Creek as he was going out for himself in his own time, but otherwise Mr Calandra had nothing to do with the arrangements with respect to Mr Sullivan getting to Willie Creek: Calandra Affidavit at [55]-[57];
e)Mr Sullivan was not given a uniform, did not receive an email address or the keys to the office until he was formally employed, whereas those persons employed as pilots had a uniform, an email address and keys to the office: Calandra Affidavit at [58]; and
f)Mr Calandra had no difficulty with Mr Sullivan travelling back to Queensland to collect his car, pack up his house and drive back as he was not formally employed by BHS at that stage, but Mr Calandra says that he told Mr Sullivan not to pack up his house until he knew whether he would employ him: Calandra Affidavit at [59].
Mr Calandra says that even after Mr Sullivan passed his flight test he was “initially on limited duties as I did not believe he was competent and ready to handle full duties”: Calandra Affidavit at [60]. Mr Calandra says that Mr Sullivan was only given loading duties: Calandra Affidavit at [63], and that loading duties entailed briefing and control of passenger movements in and out of the helicopter, and that pilots and loading crew ought not be confused and that pilots do pilots work and loading crew to loading crew work, but they do not do both jobs: Calandra Affidavit at [64]. Mr Calandra says that Mr Sullivan was placed on limited duties and was not permitted to fly Willie Creek staff to Willie Creek initially after he had passed his flight test and become employed, and that it was not until shortly before the termination of his employment that Mr Sullivan was authorised to fly Willie Creek staff to Willie Creek as he had become more competent over time: Calandra Affidavit at [65]. Mr Calandra says that whilst based at Willie Creek Mr Sullivan would do approximately one hour of flying scenic flights per day.
In relation to the hours worked by Mr Sullivan, Mr Calandra says that on 30 May 2012 he sent to Mr Sullivan an email informing him that he was recording his duty times incorrectly in the flight and duty time records. The 30 May 2012 email (which is Annexure JC 15 to the Calandra Affidavit) is as follows:
Guy,
I notice you have been filling out your duty times in your spreadsheet incorrectly.
Until you begin commercial operations you are only required to fil in your flight times. There is no duty for private operations. Additionally you need to be accurate. This 9-5 block entries is not correct. It has to read like a clock on and off register. I don’t mind a bit of rounding but there is no way you come in 9-5 every day and I will get penalised in an audit by CASA.
Look mate. I know it’s a hard adjustment and you wanted to be a fulltime employee but be happy with the start you have and build from there. There are 5 pilots for every job. Your l[u]cky you got a start.
Ask Thomo if you’re not sure what you should be entering but it is spelled out in the OM and in the front of your log book.
Joe
The parties agree that cl.25.2 of the AP Award required BHS to compile a roster of pilots to cover a minimum 14 day period which was to be published not less than seven days prior to the commencement of the roster period.
The FW Ombudsman submits that there was no evidence of a roster or copies of any roster until the evidence of Mr Calandra was submitted in the proceedings: Second McArthur Affidavit at [19]-[20], and that both Mr Thomson and Mr Sullivan gave evidence as to the roster and allocation of hours to the effect that there was no set roster, and how the hours of work were allocated: First Thomson Affidavit at [32]-[40]; First Sullivan Affidavit at [46] and [71]-[75], which confirms that the roster changed regularly in accordance with Mr Calandra’s directions: Second Sullivan Affidavit at [50] and Second Thomson Affidavit at [17].
BHS and Mr Calandra deny that they failed to keep and provide appropriate rosters, and rely on rosters produced in evidence in these proceedings: Calandra Affidavit at [217]-[229] and Annexure JC 29.
Mr Thomson gave evidence that around late April or early May 2012 Mr Calandra asked him to prepare a roster for the pilots, and that Mr Calandra told him that the purpose of the roster was so that everyone knew who was working on any particular day: First Thomson Affidavit at [32]. Mr Thomson further says that all of the pilots employed by BHS owned their own iPhone which had a calendar and that all pilots’ iPhones were synched to the office computer, and that Mr Calandra instructed him to prepare a rostering system by making appointments in the Outlook Express calendar on the office computer, which would go through to individual calendars for pilots as appointments for the days and times that everyone would be working, and that everyone who was working could see the calendar on their iPhone: First Thomson Affidavit at [33].
Mr Thomson says that he would normally prepare the roster a week or two in advance, but that it was changed frequently and often at short notice. Mr Thomson says that Mr Calandra told him when he wanted pilots flying and he inputted that information into the computer, and that although Mr Calandra had given him the job of preparing the roster, practically, it was Mr Calandra who decided which pilots would work on which days, and that Mr Thomson would let the pilots know, usually by phone or text message, and put the information into the computer: First Thomson Affidavit at [34]-[35].
Mr Thomson asserts that Mr Calandra would sometimes call him the night before to get him to call pilots and tell them that they were needed the next day: First Thomson Affidavit at [38]. Mr Thomson also said that he could make changes to the roster on the electronic calendar if a particular pilot could not work on a particular day, and that Mr Calandra would often change the roster so that a person was not required to come in the next day, or that another person might be given more hours: First Thomson Affidavit at [40]. Mr Thomson said that the rostering was entirely at Mr Calandra’s discretion and not his, and that whilst he managed the system, it was Mr Calandra who instructed him who to roster and when to roster: Second Thomson Affidavit at [17].
Mr Thomson denies that he favoured one pilot over another or others, at any time: Second Thomson Affidavit at [17], but an assertion to that effect by Mr Calandra is immaterial to the disposition of the question of whether or not there was a roster prepared to cover a minimum 14 day period and published not less than seven days prior to the commencement of the roster period.
Mr Sullivan’s evidence with respect to rostering is that:
a)when he started “employment” at BHS there was no roster and he worked whenever Mr Calandra said to come in;
b)some months later (he does not precisely recall when) Mr Calandra asked Mr Thomson to prepare a roster for the pilots, and that from his recollection Mr Calandra sent an email to all pilots saying that Mr Thomson would be doing the rosters: First Sullivan Affidavit at [72];
c)all pilots had an iPhone calendar that was linked to the BHS computer and the roster came through to that calendar as appointments for the days and times that pilots would be working: First Sullivan Affidavit at [73];
d)he does not recall if the rosters covered a period of at least 14 days, but thinks that they did when they were provided, but says that Mr Calandra would often change a pilot’s days, and might call up before a rostered shift and tell him not to come in, or he might call up the night before and tell him to come in the next day: First Sullivan Affidavit at [74];
e)the rosters were not provided seven days in advance and were not provided regularly and sometimes Mr Sullivan did not know when he was working, or not working, until the day before: First Sullivan Affidavit at [75]; and
f)the roster was not reliable and that it was constantly changing depending upon Mr Calandra’s “mood”, and that he attended work every day unless Mr Calandra told him not to: Second Sullivan Affidavit at [50].
Mr Calandra gave evidence that the roster system worked through the calendar on Microsoft Outlook computer software and that pilots were rostered for specific duties depending upon flight bookings, and that the roster was sent to all pilots using Microsoft Outlook to which all employees had access: Calandra Affidavit at [217]-[218].
Mr Calandra says that the roster was set 28 days in advance pursuant to CASA regulations and included the pilots’ rostered days off within the roster: Calandra Affidavit at [219].
Mr Calandra says that Mr Sullivan did not commence rostered days until after he had completed his check flight on 20 May 2012 as he was not employed until that time: Calandra Affidavit at [220]. Mr Calandra refers to an email dated 18 May 2012 sent to both Mr Thomson and Mr Sullivan, and which is referred to above, but with respect to rosters specifically says:
The roster is there and all bookings are on your phones.
At the same time I have attached the new roster. Once introduced I don’t want to waste time with changes and complaints. If you wish to swap days off this is fine by me as long as you stay inside your legal requirements and don’t bring me or Thomo into it.
Mr Calandra provided a copy of a roster from May 2012 to October 2012: Calandra Affidavit at [221] and Annexure JC 29. Mr Calandra says the roster identifies shift days allocated to pilots and confirms that the roster is always set 28 days in advance, but subject to change on short notice due to operational requirements: Calandra Affidavit at [221].
Mr Calandra makes certain assertions about Mr Thomson changing the roster to favour himself and also Mr Sullivan over other pilots, and that as a result of the rostering both Mr Thomson and Mr Sullivan exceeded the 90 hour duty limitation per fortnight contrary to CASA regulations: Calandra Affidavit at [223]-[226].
Mr Calandra says that the suggestion that he changed rosters according to his own personal opinion is not true, and that his direction to Mr Thomson was that rostering was to be evenly split between the pilots who were not employed fulltime (which he says were Mr Sullivan and another pilot called Andrew Rothery).
Mr Calandra says that there were occasions in his role as chief pilot that he did make some changes to the roster, for example, if Mr Thomson was on a day off or Mr Thomson was working at Willie Creek, he would handle the roster, and that he would also make changes to the roster if he became aware of any duty limitations by reason of pilots being rostered on for over 90 hours per fortnight: Calandra Affidavit at [229].
For present purposes the assertions and counter-assertions about the changes to the rosters are irrelevant: the only question for the Court is whether there was a contravention of cl.25.2 of the AP Award by BHS by reason of it failing to make rosters seven days in advance which covered a minimum period of 14 days.
Clause 25 of the AP Award is titled ‘Rostering.’ Amongst these provisions is cl.25.2 of the AP Award providing a roster of pilots must be compiled to cover a minimum 14 day period and be published at least seven days prior to the commencement of the roster period. The details required in the roster are listed in cl.25.3 of the AP Award. In City of Wanneroo at [52] French J opined “an award is an instrument made by an authority,” pursuant to s.143(1) of the FW Act. Where a Commonwealth law requires information be given in writing, the Electronic Transactions Act 1999 (Cth) s.8 provides such communication in not invalid simply because it took place wholly or partly by means of electronic communication. Thus a roster can be published electronically.
In Shop, Distributive & Allied Employees’ Association v Harris Scarfe Australia Pty Ltd [2014] FCA 283 (“Harris Scarfe”) the Federal Court considered the phrase “rostered to work.” A clause similar to that found in the AP Award was under consideration, and the Federal Court concluded at [35] per Buchanan J that:
Rosters for full-time and part-time employees thus represent an allocation of their contracted weekly hours of work. They are not just a forecast of that work, although they serve that purpose.
In ECH Incorporated v Halliday & Ors [2011] FCAFC 51; (2011) 192 FCR 281; (2011) 207 IR 76; (2011) 63 AILR 101-332 the Full Court of the Federal Court at [37] per Gray J (“ECH”) stated:
An employer who circulates a blank roster, and invites employees to insert their names to indicate that they are willing to work particular shifts, would not be able to succeed in the defence that the employee had made a request permanently to work the shifts chosen.
Harris Scarfe and ECH highlight the importance of specificity and allocation of work in a roster. A blank roster circulated requesting employees’ willingness to work a particular shift differs from a roster circulated detailing the required shifts of the employee subject to a contract of employment. It was the latter kind of roster which was required to be published under c.25.2 of the AP Award.
The Court is satisfied, on the basis particularly of the evidence of Mr Thomson, that:
a)the Microsoft Outlook calendar containing details of days to be worked by pilots constituted a roster;
b)the roster was published to the pilots electronically by being made accessible to them on their iPhones, and by means of notification by email of their roster times and days, and any changes to those times and days; and
c)on the evidence of Mr Thomson the roster was published at least seven days in advance, his evidence being that it was published a week or two in advance.
The roster relied upon by BHS and Mr Calandra (and the only roster relied upon: TD 2 at page 56) is Annexure JC 29 to Mr Calandra’s Affidavit. The Annexure commences with a calendar commencing on 30 April 2012, and on a monthly basis going through until 9 September 2012, and then commencing again on 1 October 2012 through to 4 November 2012.
Insofar as a roster requires details of a person’s shifts or times to be worked to be included in the roster no such details appear on the roster until 8 June 2012 when the names of “Guy” and “Tomo”, that is Mr Sullivan and Mr Thomson, first appear. Prior to that date the calendar indicates times for bookings for scenic flights, transfers, charter work and other flights, but does not specify what employee is rostered on those days or to do those flights (at least on the available information in Annexure JC 29). Mr Calandra conceded in cross-examination that 8 June 2012 was the first occasion on which Mr Thomson and Mr Sullivan’s names appeared on the roster: TD 2 at page 54.
From 8 June 2012 the roster does include details of persons rostered on individual days, save for:
a)13 June 2012 (no details at all); 20 and 21 June 2012 (no details at all); 28 June 2012 (details of a flight booking only);
b)4 and 5 July 2012 (details of flights only); 11 and 12 July 2012 (details of flight bookings only); 19 July 2012 (no details at all) and 26 July 2012 (flight details only); and
c)10 to 30 September 2012 (no details at all).
Given the dates of termination of Mr Thomson and Mr Sullivan in September 2012 it is unnecessary to deal with the rosters for October and November 2012.
It is evident from the foregoing that rosters were published in advance for the majority of the time between 1 May 2012 and 9 September 2012, with isolated omissions. There were however no rosters, on the evidence before the Court, published in the time from the commencement of Mr Thomson’s employment on 21 March 2012 until 8 June 2012, and again from 10 September to 30 September 2012. The failure to publish rosters for those dates was a contravention of cl.25.2 of the AP Award.
Accessorial liability under s.550 of the FW Act
Section 550 of the FW Act provides as follows:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Section 550 of the FW Act provides for accessorial liability for a breach of civil remedy provisions. Sections 340 and 352 of the FW Act are civil remedy provisions. Section 550 of the FW Act provides that involvement in a contravention of the FW Act shall be treated in the same way as an actual contravention.
The relevant principle in federal civil litigation in relation to legislative provisions such as s.550 of the FW Act is derived from the High Court’s judgment in Yorke & Anor v Lucas (1985) 158 CLR 661; (1985) 59 ALJR 776; (1985) 61 ALR 307 (“Yorke”), and the numerous cases which have followed that judgment, which indicate that to be liable a putative accessory must intentionally participate in a contravention, and that to form the requisite intent the putative accessory must have knowledge of the essential matters going to make up the contravention, whether or not the putative accessory knows that those matters amount to a contravention. Necessary intent will be absent if the putative accessory does not know or believe that the assistance or encouragement given is something which goes to make up the facts which constitute the contravention. The principle as it applies in federal civil litigation has its origins in the criminal law: Yorke at 676 per Brennan J; Giorgianni v The Queen (1985) 156 CLR 473; (1985) 16 A Crim R 163; (1985) 59 ALJR 461; (1985) 58 ALR 641; (1985) 4 IPR 97; (1985) 2 MVR 97; CLR at 506 per Wilson, Deane and Dawson JJ (“Giorgianni”), and one of its early federal legislative manifestations is in s.75B of the Trade Practices Act 1974 (Cth). The principles concerning accessorial liability under federal workplace relations legislation are further expounded in Construction, Forestry, Mining and Energy Union v Clarke [2007] FCAFC 87; (2007) 164 IR 299; (2007) 59 AILR 100-686 at [26] per Tamberlin, Gyles and Gilmour JJ (“Clarke”), where the Full Court of the Federal Court observed that:
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashburyy v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E- 308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention.
Under a provision which provides for accessorial liability for breach of civil remedy provisions action may be taken against accessories without taking action against the principal: Australian Competition and Consumer Commission v Black on White Pty Ltd & Ors [2001] FCA 187; (2001) 110 FCR 1; [2001] ATPR 41-820 at [51] per Spender J. An action may continue against an accessory when discontinued against a principal: Torpia v Empire Printing (Australia) Pty Ltd [2009] FMCA 853; (2009) 188 IR 306; (2009) 234 FLR 103; (2009) 61 AILR 101-040 at [65] per Barnes FM. An accessory may also be liable where a company has been deregistered: Fair Work Ombudsman v Proplas Industries Pty Ltd & AnorandFair Work Ombudsman v Blacklight Investments Pty Ltd & Anor [2011] FMCA 506 at [21]-[26] per Lucev FM.
Section 550 of the FW Act does not require knowledge that there has been a contravention for the purposes of imposing accessorial liability, and ignorance of the law is no excuse: Fair Work Ombudsman v Access Embroidery (Australia) Pty Ltd [2012] FMCA 835 at [41] and [50]-[54] per Turner FM. Suspicious circumstances and a wilful failure to make enquiry may result in an inference being drawn as to actual knowledge for the purposes of imposing accessorial liability: Giorgianni at 482, 487 and 507-508 per Wilson, Deane and Dawson JJ; Fair Work Ombudsman v Devine Marine Group Pty Ltd [2013] FCA 1135 at [43] per White J. Being knowingly concerned in a contravention requires association with, or implication in, or a practical connection with the contravening conduct: Clarke at [26] per Tamberlin, Gyles and Gilmour JJ; Qantas Airways Limited v Transport Workers’ Union of Australia [2011] FCA 470; (2011) 211 IR 1; (2011) 280 ALR 503; (2011) 62 AILR 101-349; ALR at 324 per Moore J. A person may be involved in a contravention by act or omission: Fair Work Ombudsman v Al Hilfi [2012] FCA 1166 at [44] and [49] per Besanko J.
In the Defence at [50] Mr Calandra admits that he:
a)was aware BHS had to comply with Commonwealth workplace laws and instruments;
b)knew that Mr Thomson and Mr Sullivan had to be paid in accordance with the AP Award;
c)was responsible for the management and control of BHS;
d)was BHS’s Chief Pilot;
e)had ultimate responsibility for the payroll of BHS;
f)had ultimate responsibility for decisions regarding the employment of staff and employee entitlements, including setting wages, timing of payments and approving payments to employees;
g)was the person from BHS who sought and obtained information from the Fair Work Infoline operated by the FW Ombudsman as to the applicable award, classification and rates of pay payable to employees of BHS; and
h)was a person with responsibility for authorising decisions regarding BHS’s operations.
Mr Calandra also admits in the Defence as [52] that if BHS contravened the FW Act then he was a person “knowingly concerned” in the contraventions, but also made a submission that at all times he acted in good faith, and in accordance with what he understood to be the relevant requirements imposed by both the FW Act and CASA regulations, and that therefore he should not be liable for any contravention found against BHS.
In light of the admissions in the Defence at [50] set out above, there must be a finding that Mr Calandra was a person knowingly concerned in any contraventions by BHS, and that he is therefore accessorily liable for any contraventions by BHS. The issue of whether any penalty ought to be imposed by reason of an assertion that he was acting in good faith, or that he was not able to obtain correct information from the Fair Work Infoline, or understand information given to him by the Fair Work Infoline, might go to whether or not any penalty ought to be imposed in a different phase of these proceedings.
Telephone allowance
Mr Sullivan alleges that he was required to use his personal mobile phone for business purposes, and Annexure GDS 16 is marked up to indicate calls said to be made for business purposes. The evidence makes in plain that Mr Sullivan was required to use his mobile phone for business purposes: First Sullivan Affidavit at [85]-[87] and Annexure GDS 15. Further, the Court accepts Mr Sullivan’s evidence as to the calls nominated being business calls because he was not challenged in relation to any of those calls, either directly or indirectly during cross-examination: TD 1 at pages 46-66.
By reason of the Court’s finding that Mr Sullivan was only employed as a pilot under the AP Award by BHS from 20 May 2012 the award entitlement under cl.19.6 of the AP Award to be reimbursed for telephone calls only arises in respect of the period of employment from 20 May 2012 to 28 September 2012. Therefore, the Court finds that there was a contravention of cl.19.6 of the AP Award by BHS insofar as they failed to pay Mr Sullivan by way of reimbursement for business calls made between and 20 May 2012 and 28 September 2012.
Conclusions and orders
The Court has concluded that:
a)the applicant is to prepare, file and serve a minute of proposed declarations and orders to reflect these Reasons for Judgment by 4.00pm on 6 October 2017;
b)the proceedings are to otherwise be adjourned to a directions hearing at 2.15pm on 11 October 2017.
I certify that the preceding two hundred and thirty-two (232) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 28 September 2017
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