James Greenberger v Aircrew Logistics Pty Ltd
[2019] FWC 2325
•19 AUGUST 2019
| [2019] FWC 2325 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
James Greenberger
v
Aircrew Logistics Pty Ltd
(C2018/6684)
COMMISSIONER SIMPSON | BRISBANE, 19 AUGUST 2019 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] On 27 November 2018, Mr James Greenberger made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with the dispute settlement procedure at Clause 1.7 of the Aircrew Logistics Pilots Enterprise Agreement 2006 (the Agreement). Aircrew Logistics Pty Ltd (Air North) is the Employer Respondent to this application.
[2] A private conference was convened by the Commission on 30 January 2019 and a further conference on 2 February 2019. The matter did not resolve in conference and was subsequently referred for arbitration.
[3] I listed the matter for hearing on Monday 8 April 2019 in Brisbane, with parties appearing by video-link from the Fair Work Commission office in Darwin. Mr Greenberger was represented by Mr Andrew Molnar of the Australian Federation of Air Pilots (AFAP). For reasons provided at the hearing I granted leave for Air North to be represented by Mr McIntosh of Counsel instructed by Roussos Legal.
The dispute
[4] The dispute concerns whether Mr Greenberger is entitled to by-pass pay pursuant to clause 4.6.2 of the Agreement.
[5] In his initiating Form F10 application, Mr Greenberger set out the dispute as follows:
“1. The Applicant currently holds the position of command on the E120 aircraft type.
2. On 23 July 2018, the Respondent issued Flight Crew Bid Notice #2018-04 (Attachment C) which advertised 2 vacancies for the position of Captain on the ERJ170 aircraft type. The Applicant made a bid for the E170 command vacancies.
3. The Applicant's seniority was the highest of all applicants who made a bid for the E170 command vacancies.
4. The Applicant was not awarded an E170 command. The vacancies were awarded to Scott Werleman and Mark Sushkin [sic] who were lower than the Applicant on the seniority list. Accordingly, the Applicant was bypassed.
5. The Applicant requested the reasons he was bypassed and was informed by Dean Ham (Chief Pilot of the Respondent) that the Flight Operations Standards and Policy Committee (FOSPC) had decided "that the step up from E120 to E170 is too much and that approximately 6 months in the RHS or type experience is required, prior to transitioning to the LHS" (Attachment D).
6. The requirement of previous experience on type is inconsistent with Flight Crew Bid Notice #2018-04 which specifically provides for transitions to the E170 command position from another type.
7. Clause 4.6.2 of the EA provides that:
Should a pilot be promoted in grade or status over a more senior pilot, the more senior pilot shall retain their position on the service list and shall be advised forthwith in writing by the employer of the reasons for their by-pass. Should the more senior pilot dispute the Employer's assessment of them and should the [sic] prima facie meet the criteria for appointment to the position concerned, they may elect to dispute the matter and the employer shall be required to demonstrate and advise in writing why the pilot should not be paid the salary applicable to the position concerned.
8. On 18 September 2018, the Applicant's representative (the Australian Federation of Air Pilots ("AFAP") requested the Respondent to demonstrate and advise in writing why the Applicant should not be paid the salary applicable to the E170 command position (Attachment E).
9. On 28 September 2018 the Respondent replied (Attachment F) and relevantly stated:
The FOSPC considers each applicant and their suitability to be a E170 Captain, when considering James and his relevant experience, it was deemed that this step was too large, as per Dean's email to James on the 24'h August 2018. The move from E120 Captain to E170 Captain may be achievable for someone with different experience. The appropriate E170 Captain bid process was followed. The FOSPC reviewed all of the bids and based on experience, James was not considered suitable.
10. On 2 October 2018, the AFAP requested details about the appropriate E170 Captain bid process and why the Applicant was not considered suitable (Attachment G).
11. On 10 October 2018, the Respondent replied (Attachment H), stating that:
The FOSPC met on Tuesday 31st July 2018 and considered all bids for the E170 Captain Position. On that particular day the FOSPC consisted of 5 Current Training Captains on the E170, the current Head of Flying Operations and the Training Development and Standards Manager. There was consensus within the Committee that both E120 Captain that had bid for the Position had no previous Jet experience and that at approximately 6 months in the right hand seat of the E170 would be a requirement for these applicants based on their experience levels.
12. The Applicant does not consider this demonstrates why he should not be paid the salary applicable to the E170 command position.”
[6] Further to the above, the parties filed an “Agreed Statement of Facts” as follows:
“1. The Applicant’s employment with the Respondent commenced on 27 January 2014.
2. Between 27 January 2014 to 8 November 2016, the Applicant was employed as a Captain on the Metro 23 aircraft type.
3. From 9 November 2016 to now, the Applicant was employed as a Captain on the Embraer 120 aircraft type.
4. The Applicant continues to be employed as a Captain on the Embraer 120 aircraft type.
5. On 19 July 2018, the Respondent issued Flight Crew Bid Notice #2018-04. That bid notice advertised 2 command positions on the Embraer 170 aircraft type.
6. The Applicant made a bid in response to Flight Crew Bid Notice #2018-04.
7. On 31 July 2018, the Flight Operations Standards & Policy Committee (“FOSPC”) convened a special meeting to discuss, among other things, the Applicant’s bid in response to Flight Crew Bid Notice #2018-04.
8. The FOSPC did not award the Applicant either of the command positions on the Embraer 170 aircraft type referred to in Bid Notice #2018-04.
9. The Respondent compiles a seniority list which shows the relative seniority of each pilot employed by the Respondent.
10. One of the command positions on the Embraer 170 aircraft type referred to in Bid Notice #2018-04 was awarded to Mark Soiushkin.
11. Mark Soiushkin holds a position on the seniority list which is below the position held by the Applicant.”
[7] On 21 February 2019, the parties filed agreed questions for arbitration. These were later amended and ultimately agreed to, with the revised agreed questions for arbitration being as follows:
“1. What are the criteria for appointment to the position of E170 Captain?
2. Does the applicant prima facie meet the criteria for appointment to the position E170 Captain?
3. If yes to 2, has the Respondent demonstrated why the Applicant should not be paid the salary applicable to the position of E170 Captain?
4. If no to 3, is the Applicant is entitled to be paid the salary applicable to the position of E170 Captain?
5. If yes to 4, for what period is the Applicant entitled to be paid the salary applicable to the Position?”
[8] In addition to the agreed questions for arbitration, Air North highlighted that the Agreement does not specify the salary for the position of E170 Captain, and hence sought direction from the Commission on whether an Order that Mr Greenberger be paid the salary applicable to the position of E170 Captain could be made.
[9] Following the hearing conducted on 8 April 2019 closing submissions were filed by Mr Greenberger on 1 May 2019, Air North on 15 May 2019 and closing reply submissions by Mr Greenberger on 22 May 2019.
Jurisdiction
[10] The Agreement itself is a transitional instrument. It was approved in accordance with section 170LT of the Workplace Relations Act 1996 (WR Act) and came into force from 13 April 2006. In accordance with Schedule 19 of the Transitional Provisions and Consequential Amendments Act 2009 (TPCA Act) the WR Act continues to apply after the repeal of the WR Act for the purposes of dealing with disputes in relation to a matter arising under a transitional instrument.
[11] Section 170LT(8) of the WR Act as it was provided that an agreement must include procedures for preventing and settling disputes about matters arising under the Agreement.
[12] Schedule 19(2) of the TPCA Act provides that anything that could, or would, have been done by, or in relation to, the Commission or the Industrial Registrar because of item 1 may only be done by, or in relation to, the FWC.
[13] The dispute resolution procedure at clause 1.7 of the Agreement reads as follows:
“1.7 DISPUTE RESOLUTION PROCEDURE
1.7.1 In the event of a dispute, claim or grievance arising in the workplace that involves a provision or arrangement in this agreement, the procedure will be as follows:
1.7.1.1 The pilot and immediate supervisory person will meet and confer on the matter; and
1.7.1.2 If the matter is not resolved at such a meeting, the parties will arrange for further discussions between the pilot and their nominated representative/pilot friend, if any, and the next senior level of management and/or the Chief Pilot;
1.7.1.3 If the matter remains unresolved, a discussion will occur between the pilot, their pilot friend and the Chief Executive Officer;
1.7.1.4 If the matter is still not resolved a discussion will be held between the pilot, representatives of the employer and the Federation or other representative of the pilot;
1.7.1.5 If the matter cannot be resolved it may be referred to the Commission or a mutually agreed chairperson for final resolution. The Australian Industrial Relations Commission will be able to exercise all its powers under the Workplace Relations Act 1996;
1.7.2 While the parties attempt to resolve the matter, work will continue as normal unless a pilot, or the employer have a reasonable concern about an imminent risk to health and safety, in such situations, Clause 1.10.5 and 1.10.6 shall apply.
[14] At the hearing of this matter on 8 April 2019, Air North raised for the first time with the Commission a jurisdictional objection (despite two earlier private conferences and the parties having settled and filed an agreed statement of facts and issues and agreed questions for arbitration). Air North now said that clause 1.7.1.4 of the Agreement and perhaps, although not pressed as forcefully, clause 1.7.1.1. had not been performed and that, accordingly, the power conferred on the Commission by clause 1.4.1.5 of the Agreement could not be so conferred.
[15] Given Air North was seeking to rely, for the purposes if its jurisdictional argument, on material that Mr Greenberger had not been given a proper opportunity to consider it was agreed that the respective cases including evidence should be dealt with in their entirety on 8 April and parties could be afforded a further opportunity to call any other evidence and make submissions on jurisdiction if deemed necessary at a later time.
[16] Air North referred to a Full Bench decision in the matter of AWU v MC Labour Pty Ltd[2017] FWCFB 5032 at paragraph [37]. In this case it was found that the preconditions in the relevant dispute procedure had not been followed before referral to the Commission and the Full Bench found it is not permissible for the Commission to recast or ignore certain components of a dispute settlement procedure.
[17] It is not in dispute that a dispute or grievance existed between Mr Greenberger and Air North. Air North accepted that in relation to clause 1.7.1.3, a meeting between the pilots and the CEO had occurred on 12 November 2018, and the application was lodged on 4 December 2018; however, it requested that Mr Greenberger prove that there was a meeting as contemplated by clause 1.7.1.4 between 12 November 2018 and 4 December 2018. Aircrew apologised for its lateness in raising the matter. 1
[18] Mr Greenberger submitted that clause 1.7.1.4 cannot be a jurisdictional block to the arbitration because there will be circumstances where it is impossible to comply with clause 1.7.1.4 if the pilot is not a member of the Federation, or if the pilot has no other representatives. Air North responded that was not a construction that would be favoured by the principles in Berri. 2
[19] In closing submissions 3 Mr Greenberger said in relation clause 1.7.1.1 that his oral evidence4 referred to a discussion between Mr Ham and himself which constituted satisfaction of clause 1.7.1.1.
[20] In relation to clause 1.7.1.4 Mr Greenberger relied on the two conciliation conferences conducted before the FWC and submitted that the step under this clause occurring after the Form F10 had been filed on 27 November 2018 is no bar to clause 1.7.1.4 being satisfied.
[21] Mr Greenberger relied on the expression ‘final resolution’ in clause 1.7.1.5 as meaning, in context, arbitration as opposed to conferences preceding arbitration. Mr Greenberger submitted that in the alternative, in addition to the initial meeting between Mr Ham who was the Applicant’s manager and himself, a meeting occurred on 24 August 2018 where Mr Greenberger met with Mr Peter McNally, the Chief Operating Officer of the Respondent; Ms Maree Styles, the Current General Manager Corporate Services of the Respondent; and Mr Mark Flanigan, the then Air North Representative of the AFAP, satisfying clause 1.7.1.2. 5
[22] Mr Greenberger further submitted that on 18 September and 2 October the AFAP, on his behalf, had an email exchange with Ms Styles and Mr Ham over the dispute clause which satisfies clause 1.7.1.4. Further on 16 October 2018 Mr Greenberger raised the dispute with Mr Daniel Bowden the Chief Executive Officer of the Respondent which satisfies clause 1.7.1.3.
[23] Mr Greenberger submitted that it can be seen that all the persons referred to in clauses 1.7.1.1 through to clause 1.7.1.4 had dealt with the dispute prior to it being referred for final resolution under clause 1.7.1.5.
[24] Air North submitted that while Mr Greenberger asserted that engaging in discussions before the Commission were steps taken for the purposes of clause 1.7.1.4, the difficulty with that submission is that the Commission must be invested with jurisdiction at the time the application is made as all steps taken before the Commission are steps within the power conferred by clause 1.7.1.5.
[25] In reply Mr Greenberger said Air North failed to address the fact that all relevant persons required to meet actually did meet prior to referring the dispute to the Commission.
[26] I accept Air North’s submission that the Applicant cannot rely on the conciliation conferences to satisfy the step at clause 1.7.1.4 for the reasons given by Air North, however I am prepared to accept that the Commission has jurisdiction as all steps from 1.7.1.1. to 1.7.1.4 have occurred prior to referral to the Commission (although apparently not in the order set out in the dispute settlement procedure). I do not accept that the discussion held referred to at 1.7.1.4. is required to be conducted in person.
[27] If I am wrong on jurisdiction, it has not ultimately resulted in a finding against Air North for the reasons set out below.
Relevant clauses of the Agreement
[28] Clause 4.2 Opportunity for Promotion reads as follows:
“4.2 OPPORTUNITY FOR PROMOTION
4.2.1 Relative length of service of permanent pilots as indicated on the period of Service List shall be the primary consideration of the Employer in all matters concerning employment opportunities providing that at all times, the viability of the employer’s operation is not unduly disadvantaged due to any such change of employment status, including:
4.2.2 Equipment Assignments.
4.2.3 Promotions.
4.2.4 Retention or demotion in case of reduction of establishment. This clause will apply in any case of receivership, liquidation, and/or administration and be binding on the liquidator/administrator.
4.2.5 Postings, temporary and permanent transfer.”
[29] Clause 4.3 Special Considerations includes the following:
“4.3 SPECIAL CONSIDERATIONS
4.3.1 It is acknowledged that whilst service will be the primary consideration for situations under this clause, the employer’s commercial requirements are to be considered. Pilots in the existing employ of the Employer who are suitably qualified may be considered for a position outside of service order only with full consultation with the ALPG.
4.3.2 …………………
4.3.3………………….”
[30] Clause 4.5 reads as follows:
“4.5 ADVERTISING OF POSITIONS
4.5.1 All equipment/administrative assignments, vacancies and temporary and permanent transfers shall be advertised prominently on the notice board at each pilot base for a period of seven (7) days. The Employer shall notify all pilots who are on leave. Any pilot on leave requiring to be notified of any bid notices shall provide to the Employer a point of contact prior to taking leave. All pilots shall be entitled to apply in writing for such positions and the employer shall fill such vacancies and allocate such transfers in accordance with sub-clause 4.8 of this clause, excepting that the employer may be entitled to appoint any Captain to the positions of a Supervisor, Manager, Deputy Chief Pilot, Chief Pilot or General Manager. The employer may appoint Training and Checking captains from captains on the Service List who must have the requirements to rate the type or category of aircraft as specified in the Capiteq Limited General Policies and Procedures Manual (Flight Operations).
4.5.2 The Employer shall use a standard documentary format, which displays the relevant information on each occasion a vacancy is advertised. The format shall include:
4.5.2.1 Equipment/Administrative assignment
4.5.2.2 Location(s) of vacancies
4.5.2.3 Number of vacancies at each location
4.5.2.4 Closure date of bid
4.5.2.5 Commencement date of technical training
4.5.2.6 Return of Service Obligation Period/Details
4.5.3 Nothing in this Clause precludes the employer advertising multiple positions on the one Bid Notice.”
[31] Clause 4.6.2 of the Agreement reads as follows:
“4.6.2 Should a pilot be promoted in grade or status over a more senior pilot, the more senior pilot shall retain their position on the service list and shall be advised forthwith in writing by the employer of the reasons for their by-pass. Should the more senior pilot dispute the Employer’s assessment of them and should theprima facie meet the criteria for appointment to the position concerned, they may elect to dispute the matter and the employer shall be required to demonstrate and advise in writing why the pilot should not be paid the salary applicable to the position concerned.”
Submissions and Evidence
Applicant
[32] Mr Greenberger submitted that the application of seniority to promotion and the concept of bypass pay is common in the aviation industry. Mr Greenberger submitted that prior to the award simplification process in the early 1990s, the Pilots (General Aviation) Award 1984 ("Pre-simplification Award") contained clauses expressly dealing with seniority for the purposes of promotion and bypass pay (see clause 49(h) of the Pre-simplification Award).
[33] Mr Greenberger submitted that after the simplification process, seniority was a non-allowable award matter. He argued that accordingly, although seniority was now removed from awards, it remained a matter that was routinely dealt with at the enterprise bargaining level in the aviation industry and continues to be dealt with at this level at the present time in all levels of the aviation industry.
[34] Mr Greenberger submitted that seniority has been accepted by the Commission in various decisions. 6 Mr Greenberger submitted that similarly, bypass pay is often dealt with in enterprise agreements.7
[35] Mr Greenberger submitted that it should be noted that clause 4.6.2 of the Agreement matches closely clause 49(h) of the Pre-simplification Award. He said it should also be noted that the pre-cursor to Air North was a respondent to the Pre-simplification Award.
[36] Mr Greenberger submitted that Clause 4.6.2 provides for several elements to be satisfied for by-pass pay to be paid. Mr Greenberger submitted those elements are, as applicable:
a) a less senior pilot to Mr Greenberger must have been promoted in grade or status over him;
b) Mr Greenberger must dispute the promotion;
c) Mr Greenberger must prima facie meet the criteria for the promotion;
d) Air North must be able to demonstrate and advise in writing why the less senior pilot was promoted over Greenberger.
[37] It is noted that only elements c and d are in dispute.
[38] In relation to element c, Mr Greenberger submitted the term 'prima facie' should be given its ordinary and natural meaning, being 'at first sight' or 'on the face of it'. He submitted it is a circumstance that can be accepted until proved otherwise.
[39] Mr Greenberger submitted that Air North must demonstrate that the position that Mr Greenberger prima facie met the criteria for the promotion is displaced. He said the reason provided by Air North for that displacement was that "the step up from the E120 to E170 is too much and that approximately 6 months in the RHS or type experience is required, prior to transitioning to the LHS". He submitted it did not provide any other reason.
[40] Mr Greenberger submitted that subsequent to this, Air North has foreshadowed that the promotion requirements in the General Policy and Procedures Manual (“GPPM”) will include this six month requirement for all pilots bidding for an E170 Command position. The six month requirement is not contained on the bid notice, in the GPPM and was not mentioned in any discussions between Mr Greenberger and Air North management at the time.
[41] Mr Greenberger referred to the decision of Leary C in AFAP v Air North Pty Ltd 8, stating it is instructive as to the operation of clause 4.6.2 of the Agreement. He submitted this decision dealt with a dispute in relation to clause 49(h) of the Pre-simplification Award (which as noted above is substantially the same as clause 4.6.2 of the Agreement).
[42] Mr Greenberger submitted that there is no difference between the intended operation of clause 4.6.2 of the Agreement presently under dispute and clause 49(h) of the Pre-simplification Award considered by Leary C. Further, the factual circumstances giving rise to both disputes both deal with extra minimum experience requirements being imposed by Air North, so that the factual matrices are substantially similar.
[43] Mr Greenberger submitted that the imposition of an extra minimum experience requirement is not sufficient to demonstrate why pilots lower on the seniority list should be promoted over him. He submitted that accordingly he is entitled to bypass pay.
[44] It was submitted that the period for which bypass pay should be paid is from the date that the less senior pilot is paid the E170 Command rate until such time as Mr Greenberger achieves the E170 Command position (and is paid the E170 Command rate because of that). That is, for the period that Mr Greenberger is adversely affected by the bypass.
Evidence of Mr James Greenberger
[45] Mr Greenberger provided a witness statement in these proceedings. 9 Further to his submissions, his witness statement provided the following.
[46] Prior to working with Air North, he had worked with various employers including Polar Aviation and Brindabella Airlines.
[47] Mr Greenberger has never held a First Officer position while working for Air North.
[48] In Mr Greenberger’s experience, positions at Air North are awarded on seniority; and this is his understanding of clause 4 of the Agreement.
[49] Air North’s General Policy and Procedures Manual (“GPPM”) contains criteria for promotion. Mr Greenberger states that he satisfies all experience requirements for progression on the E170 Command position “well in excess of what is required by the GPPM”. 10
[50] Further, he stated he has undergone periodic checks with Air North, which consists of three simulator checks each year (one every four months), conducted by external and internal check captains, as well as one in-flight test each year conducted internally. Mr Greenberger stated that at no point during his employment have there been concerns noted “on the sim/check reports about [his] standards”. He stated he has not had any standards issues at Air North or at any other time in his aviation career.
[51] In his witness statement, Mr Greenberger conceded that Mr Dean Ham had confirmed he would be subject to the FOSPC regarding a decision to promote him to an E170 command position. 11 However, based on the seniority list and the individuals that applied for the relevant role, Mr Greenberger’s evidence was that he should have been awarded the E170 command position.12
[52] In his oral evidence Mr Greenberger indicated he would have qualified for an E170 command without having previously been a First Officer after sufficient training that the Respondent provides to everyone. 13
[53] Mr Greenberger accepted that he did not apply for four bid notices for First Officer positions on the E170 around December 2017 and prior to his July 2018 bid for Captain of an E170. 14 Mr Greenberger admitted he sent an email to Mr Ham asking whether if he applied for a Command position he would get it, and he asked the question to determine whether to apply for the position. He accepted he was told that it was possible if he was considered suitable by the FOSPC.15 He accepted that he was told on 19 December 2017 that suitability by FOSPC was a criteria for appointment.16 Mr Greenberger accepted that being Captain of an E170 would require him at times to take over the operation of the aircraft from the First Officer in accordance with the GPPM.17
[54] Mr Greenberger accepted that the relevant bid notice required bid lodgement by 26 July 2018 and it was published some time before that. He agreed the fifth dot point said as follows:
“Candidates must be assessed as suitable by the Flight Operations Standards and Policy Committee”. 18
[55] Mr Greenberger accepted that he attended the meeting of the FOSPC where his suitability was considered. 19 Mr Greenberger accepted that the six persons on the FOSPC were experienced pilots and five of the six had operated the E170.20 Mr Greenberger accepted that the basis on which the FOSPC determined he was not suitable was that he had not performed six months in the right hand seat of the E170.21
[56] Mr Greenberger accepted that the E170 was faster than the E120 and its cruising altitude is higher.
Respondent
[57] Air North submitted that the format of the Bid Notice released on 19 July 2018 included:
a) Equipment/Administrative assignment
b) Location(s) of vacancies
c) Number of vacancies at each location
d) Closure date of bid
e) Commencement date of technical training
f) Return of Service Obligation Period/Details
[58] Air North submitted that at the time of submitting his bid for the E170 Captain position, Mr Greenberger was number 25 out of 56 on the Period of Service List (“Seniority List”). Air North confirmed that three other Air North pilots submitted bids for the vacancies, with these pilots being numbers 18, 27 and 29 on the Seniority List at the time of their bids. Air North submitted that if seniority was the only deciding factor in relation to whether a Pilot is eligible for the vacancy, the pilot at number 18 and Mr Greenberger would have been the two pilots awarded the bid vacancy.
[59] Air North submitted however that in accordance with clause 4.2 of the Agreement, the relative length of service of permanent pilots as indicated on the seniority list is the “primary” consideration in matters relating to promotions. Air North submits that in this regard, the term “primary” should have its ordinary meaning, being “happening first”.
[60] Air North confirmed the Bid Notice #2018-04 stated: “The following vacancy is open for bids from flight crew who meet the licensing and experience requirements specified in 2.1.2 of the General Policies and Procedures Manual” (emphasis added). Air North submitted that per 2.1.2 of the GPPM, to be eligible for selection and commencement of command training, the Pilot’s total aeronautical experience must consist of a minimum of 300 hours aeronautical experience as a First Officer on Company aircraft, or 500 hours in command of the aircraft type concerned.
[61] Air North submitted Mr Greenberger has not filled the position of a First Officer on any Company aircraft during his employment, nor does he have 500 hours in command of the E170 Aircraft type. Therefore, Air North submitted Mr Greenberger does not prima facie meet the criteria for promotion to E170 Captain.
[62] Air North conceded that Mr Greenberger previously progressed from a Metro Captain to an E120 Captain without being a First Officer on the aircraft prior. However, Air North submitted the Metro and E120 are both “turboprop aircraft dealing with similar technology, speed and operate at equivalent altitudes”. It submitted that the speed difference between those two aircraft is less than 60km per hour. In comparison, the speed difference between the E120 aircraft and E170 aircraft is approximately 370km per hour, and in Air North’s submission, some individuals do not have the “mental capacity” to deal with the significant increase in speed.
[63] In addition to the above, Air North submitted that the Bid outlined: “Candidates must be assessed as suitable by the Flight Operations Standards and Policy Committee”. However, on 31 July 2018, the FOSPC met and discussed the bid applications received, and the Committee determined that Mr Greenberger’s bid was unsuccessful based on his lack of Jet experience. Air North submitted that it was advised that Mr Greenberger would benefit from sitting in the “Right Hand seat” as a First Officer on the E170 for a minimum of “300 hours / six months prior to transitioning to a E170 Captain”.
[64] Air North submitted a number of witness statements, as outlined below, in support of the discussions had and recommendations made at the Committee meeting, which resulted in Mr Greenberger’s bid being deemed unsuccessful.
[65] Air North submitted that the Pilots at numbers 18 and 29 on the seniority list were awarded the bids for E170 Captain. Air North submitted that Mr Greenberger was by-passed by the pilot at number 29 as, taking into consideration the licensing and experience of this pilot, he fulfilled the necessary requirements to progress to the E170 Captain position.
[66] Air North submitted that Mr Greenberger has retained his relevant position on the seniority list.
[67] In accordance with the above submissions, as well as the witness statements as outline below, it was Air North’s submission that Mr Greenberger is not entitled to by-pass pay for not being awarded the E170 Captain position. Air North conceded that a pilot less senior than Mr Greenberger was appointed the E170 Captain position; however, as seniority is not the only consideration for determining promotion, Mr Greenberger was not by-passed as “he was not and is still not qualified to succeed in a bid for an E170 Captain position”. Therefore, Mr Greenberger is not entitled to receive the pay that a qualified E170 Captain attracts.
Mr Dean Ham – witness statement
[68] Mr Ham, Manager Training Development & Standards for Air North, provided an initial witness statement in these proceedings. 22 Mr Ham gave evidence that he chaired the 31 July 2018 FOSPC meeting.
[69] Mr Ham’s evidence was that he was aware of two E120 Captains progressing straight to an E170 Captain position in the past, however this occurred at the introduction of the E170 aircraft and the two Captains had “considerable experience”. 23
[70] His evidence was that the E170 aircraft fly approximately twice as fast as E120 aircraft, and that most people struggle with the automation which could potentially cause a safety issue. He stated issues could include “relying on the automation and getting behind the aircraft and not having the experience to recover a possibly unsafe situation”. 24
[71] Mr Ham also gave evidence that if Mr Greenberger had previous experience operating a Jet aircraft, the outcome of the meeting may have been different, however:
“the FOSPC would still take into consideration the type of Jet experience, how recent the experience was, whether the pilot was current on the jet aircraft, total experience and where in the world they have been flying, to name a few factors that would be considered. It is considered on a case by case basis”. 25
(Emphasis added)
[72] In a further witness statement filed 8 April 2019, 26 Mr Ham provided evidence as to the technical and functional differences between E170 and E120 aircraft.
[73] Mr Ham was referred to paragraph 3 of his further statement and accepted that the GPPM at 2.1.2.2 did not contain certain criteria he included in his statement. It was put to Mr Ham that CASA would have a problem if the GPPM was deficient in regards to safety and he accepted that. 27 Mr Ham accepted that the FOSPC required criteria on top of the GPPM and said the current experience criteria in the GPPM needed to be updated.28
[74] Mr Ham said the criteria in his further statement were his opinion and the initial discussions (about them) happened as part of the FOSPC meeting to discuss the changes bid. Mr Ham accepted that Mr Rod Manning had been put into command of an E170 without prior jet experience. 29 Mr Ham gave some evidence that Mr Manning had experience in the right hand seat and it was an isolated case. Mr Ham accepted Mr Mayhead had also been put directly into the command of an E170 but said it was on the introduction of the E170. He also accepted Mr Chris Ingham had as well. He indicated that Mr Mayhead’s circumstances were a business decision on the introduction of new equipment and Mr Mayhead and Mr Ingham had significant experience.30
[75] Mr Ham indicated that in the cases of Mr Mayhead and Mr Ingham their promotions occurred in 2007, and Mr Manning in 2015 or 2016. 31 In regard to Mr Mayhead and Mr Ingham they were promoted because it was at the time of the introduction of the E170 aircraft and there was no one with significant jet experience to fly them and the decision was made by the general manager of flight operations at the time based on their experience. Mr Ham said everyone else had to go through the right hand seat.
[76] Mr Ham said in relation to Mr Manning he was going into training, checking, management role and one of the requirements is for you to be endorsed on the most sophisticated type in the company and he did train into the ERJ 170 at the time. 32
[77] It was put to Mr Ham that if prior experience in a jet is a requirement why was Mr Greenberger not informed of this beforehand. Mr Ham’s evidence was that it was a decision of the FOSPC.
[78] Mr Ham gave evidence confirming that he believed the FOSPC exercised power under clause 6.22.4 of the GPPM. 33
Mr Andrew Lee – witness statement
[79] Mr Lee, E170 Training Captain for Air North, provided a witness statement in these proceedings. 34
[80] Mr Lee gave evidence that he has participated as a member of the FOSPC, and that his involvement has been as a Subject Matter Expert (SME) to provide input into Flight Operations standards and policy matters relating to training within Air North.
[81] Mr Lee attended the meeting of 31 July 2018. His evidence was that the FOSPC believed it would be unsafe for a pilot without any time spent on a jet to go directly into the “Left Hand” seat as a Captain on an E170 aircraft. Mr Lee gave evidence that an inexperienced pilot may have trouble keeping up, “particularly in an abnormal situation”. He further stated, “I would not put my family on the flight with a Captain who had no prior Jet experience”. 35
[82] Mr Lee’s evidence was that he was aware of E120 Captains having progressed straight to an E170 Captain position, however that this only occurred when the Company was first introducing the E170 aircraft into operation. His evidence confirmed this is not a common occurrence. 36
[83] His evidence confirmed that even if Mr Greenberger had previous experience operating Jet aircraft, “the FOSPC would still take into consideration the size of the Jet and type, total hours and how recent the experience was as well as other factors” (emphasis added). 37
[84] Additionally, Mr Lee gave evidence that:
“It should also be considered that as per Air North’s General Policy and Procedures Manual (GPPM), the minimum experience required for a Pilot to be eligible for selection and commencement of command training, the Pilot’s total aeronautical experience must consist of a minimum of 300 hours aeronautical experience as a First Officer on Company aircraft, or 500 hours in command of the aircraft type concerned. Mr James Greenberger has not filled the position of 38 a First Officer on any Company aircraft during his employment and therefore does not meet the minimum requirements in order to obtain the position of E170 Captain”.
[85] In a further witness statement filed 8 April 2019, 39 Mr Lee stated that in 2007 he started flying as a First Officer on E120 aircraft, and was later appointed as a First Officer on the E170 for approximately two years. He gave evidence that his progression is distinguishable from Mr Greenberger’s promotion request, as Mr Greenberger sought to commence work straight away as an E170 Captain.
[86] Mr Lee gave evidence that he has been training pilots to operate E170 aircraft for two years, and he has trained approximately 20 pilots, including upgrades from the First Officer to Captain. He gave evidence that his observations in training are as follows:
“a. pilots who have previous jet experience are able to competently operate the flight management system to a good standard almost immediately on commencing as an E170 pilot;
b. I observed pilots who have previous jet experience regularly and accurately performing tasks without me giving input or direction. Such tasks included:
i. changing runway;
ii. approach inputs; and
iii. slowing the speed of the aircraft;
c. the high levels of competency of pilots who had previous jet experience was particularly evidence during “descent”, when the speed at, and frequency on, which piloting tasks increase (as compared to “cruising”); and
d. I also generally observed that pilots who had previous jet experience were accurately conceptualised and predicted the location of the E170 in time and space (as compared to pilots with no jet experience). I made this observation on the basis of their interactions with me in the cockpit and their operation and use of the E170 flight management system”. 40
[87] His evidence was that his observations of pilots with no prior jet experience was that:
“a. such pilots had a tendency to “stagger” their operation of the flight management system, by which I mean that they often looked at it, and said words to the following effect to me:
“where do I find that”;
b. such pilots also asked questions to the following effect:
“how do I get that to work?”; and
c. a particular example of a circumstance in which such issues were evidence was during a change of runway. Ordinarily, the flight management system will take you to runway, but if there is change there is a gap and a pilot must input the difference. My observation is that pilots with no prior jet experience have difficulty with this task”. 41
[88] Mr Lee accepted that he had not heard of the criteria set out at paragraph 3 of Mr Ham’s further statement and they were not discussed at the FOSPC. 42 He accepted that the GPPM did not include the criteria of six months experience in the right had seat but gave evidence that he believed it was required. He appeared to accept that in his view the current GPPM was unsafe.43
Mr Noel Habib – witness statement
[89] Mr Habib, E170 Training & Checking Captain for Air North, provided a witness statement in these proceedings. 44
[90] Mr Habib stated that he has not participated as a member of the FOSPC during his employment with Air North, rather his involvement on the FOSPC when invited has been as a SME to provide input into Flight Operations and policy matters with Air North.
[91] He gave evidence that he attended the 31 July 2019 meeting.
[92] He confirmed that concerns were raised at this meeting regarding Mr Greenberger’s suitability for the E170 Captain vacancy, as it was noted the E170 aircraft is far more technically advanced than the E120.
[93] Mr Habib’s evidence was that he has flown approximately 12,244 hours on B727, B747 and E170 Jet Aircraft and found it beneficial to ease into the flying role on each aircraft as each jet is different, “and vastly different from a propeller driven aircraft”. 45 Further, he gave evidence that during his employment with Air North, it has been the practice for crews coming into the E170 to spend at least six months as a First Officer on the aircraft, before being considered for a Command position.46
[94] In a further witness statement filed 8 April 2019, 47 Mr Habib provided the following:
• He has been flying for 48 years;
• He began his role in “training and checking” in 2008; and
• He began training and checking on E120 in 2008 and on E170 in 2013. 48
[95] He gave evidence that since 2013 he has trained around 40 pilots, and his recollection is that:
“a) 99% of the pilots that I have trained come off a propeller on to a jet. These pilots all started working on the E170 as a first officer; and
b) perhaps one or two of the pilots that I have trained have come off a jet. They, too, went to the RHS as a first officer”. 49
[96] Additionally he gave evidence that:
“In my view, prior jet experience is a threshold criterion for E170 captaincy. I have applied this criterion to my work as a training and assessor since 2013. This is the view I had at the meeting 31 July 2018. Prior jet experience as a threshold criterion for E170 captaincy is consistent with the course of conduct that I have observed at Air North over since at least 2010”.
(Emphasis added)
Mr Ian Mayhead – witness statement
[97] Mr Mayhead, Acting General Manager Flight Operations for Air North, provided a witness statement in these proceedings. 50
[98] Mr Mayhead gave evidence that he is a regular participant of the FOSPC, as a SME for Air North’s Flight Data Acquisition programme. He stated this role involves analysing information recorded on E170 aircraft computers.
[99] Mr Mayhead gave evidence that he attended the FOSPC meeting of 31 July 2018, which involved review of bids for the E170 Command / Captain position. His evidence was that Mr Greenberger’s lack of Jet experience was a factor that contributed to him not being considered for the promotion. He stated that if Mr Greenberger had significant Jet experience from previous employment, his bid “would probably have been successful”. 51
[100] Mr Mayhead also gave evidence regarding the safety concerns around placing a pilot with no Jet experience in an E170 Captain position.
[101] Unlike the evidence of Mr Moncrieff, Mr Mayhead gave evidence that he was aware of E120 Captains progressing directly to E170 positions in the past; however he noted that this occurred when the E170 aircraft were first introduced. Further he stated “One pilot without jet time was made an E170 Captain because he was appointed as the Manager of Training”. 52
[102] His evidence was that since that time, it is not common for E120 Captains to progress directly to an E170 Captain. He stated that applicants for a Captain role on the E170 are normally taken from E170 First Officers. In line with Mr Moncrieff’s evidence, Mr Mayhead confirmed that moving into jet operations from a “turbo prop” is difficult. 53
[103] Further, Mr Mayhead gave the following evidence:
“As one of the first two pilots who progressed directly from an E120 Captain to an E170 Captain, I can attest to the difficulties of adapting to jet aircraft and fulfilling the responsibilities as a Captain. Because your jet experience is low, operational mistakes are made.
… You must learn a different repertoire of techniques. This starts during initial training, but most pilots report only becoming comfortable with the E170 after six months of flying”.
(Emphasis added)
Mr Bruce Moncrieff – witness statement
[104] Mr Moncrieff, Deputy Flight Training Manager for Air North, provided a witness statement in these proceedings. 54 Mr Moncrieff was not required for cross examination.
[105] Mr Moncrieff stated that he has participated as a member of the FOSPC during his employment with Air North. His evidence was that he was present at the FOSPC meeting of 31 July 2018, acting as the Head of Training & Checking for Air North, and was the key member for the Training and Checking organisation participating on the FOSPC.
[106] Mr Moncrieff gave evidence that one of the Agenda items at the meeting was the recent bids for the E170 Captain vacancies. He gave evidence that it was decided at this meeting that Mr Greenberger, and the other E120 Captain that had made a bid for the E170 position, would need “extensive ICUS training”… “Perhaps 500 hours”. 55 Mr Moncrieff’s evidence was that:
“The chance of achieving the desired outcome was assessed as poor. The best way to command for these guys is to enter as an FO, for say 6 months/500 hours, then depending on their ability, move across to the left seat for perhaps 100 hours of ICUS training”. 56
[107] Mr Moncrieff stated that Mr Greenberger, and the other E120 Captain, had backgrounds flying “old type aircraft”, and that moving straight into the left seat of a “Jet” would not be fair to both. He stated the “chance of failure would be high”, and further that it would enliven safety concerns. 57
[108] It was Mr Moncrieff’s evidence that during his employment with Air North and as a member of the FOSPC, he was “not aware of any 120 Captains progressing straight to an E170 Captain position”. He stated the two types of aircraft are significantly different, requiring different flying techniques. He stated the E170 is an advanced aircraft, while the E120 is an old, mostly manual operated aircraft.
[109] As to the safety concerns, Mr Moncrieff gave the following evidence:
“There are significant safety concerns for an E170 Captain not having any prior experience as a First Officer on the aircraft. All training carries various risk. Jumping straight into the left seat, especially with a training pilot who has little to no experience with this different way of training will increase the risk. The impact would result from trainer overload, distractions, and fatigue. This is not a good combination to have on the flight deck. The impact could be, for example, landing with gear up to take off with incorrect configuration, to name a few”. 58
(Emphasis added)
[110] It was Mr Moncrieff’s evidence that Mr Greenberger, as well as the other E120 Captain, did not have any experience operating a Jet aircraft during their Pilot careers; and if they had such previous experience, the outcome may have been different.
Mr Michael Beuret – witness statement
[111] Mr Beuret, E170 Training & Checking Captain for Air North, provided a witness statement in these proceedings. 59 Mr Beuret was not required for cross examination.
[112] Mr Beuret gave evidence that he participates as a member of the FOSPC, as a SME providing input into Flight Operations standards and policy matters relating to Air North.
[113] He stated that he was present at the 31 July 2018 FOSPC meeting.
[114] His evidence was that he was aware an E120 Captain has in the past progressed straight to an E170 Captain position, however this is not common. He stated that the two aircraft require different flying techniques and performance capabilities, and that “It is unlikely that a Captain would be checked to line if there were any safety concerns relating to their ability to safely operate the aircraft”. 60
[115] Mr Beuret gave evidence that Mr Greenberger did not have experience operating Jet aircraft, and if he had previous experience with such the outcome may have been different, “however, the FOSPC would still take into consideration the level of experience and how recent the experience was” (emphasis added). 61
Consideration
Question One - What are the criteria for appointment to the position of E170 Captain?
[116] Mr Greenberger submitted that the criteria for the appointment to the position of E170 Captain are set out in;
(a) clauses 2.1.2.2, 2.1.2.4 and 2.1.2.5 of the General Policy and Procedures Manual (GPPM) of Air North;
(b) clause 4.2 of the Agreement; and
(c) Flight Crew Bid Notice #2018-04.
[117] Air North submitted that the issue of seniority in the 1984 Award balanced the interests of the employee and employer, recognising that strict adherence to seniority is not required.
[118] Air North noted that on 7 January 1999 the 1984 Award was varied and the seniority ceased to be a feature of the Pilots (General Aviation) Interim Award 1998 and the concept of seniority was not reintroduced until 13 April 2006 when the Agreement commenced to operate.
[119] Air North submitted that the Agreement does not adopt the somewhat restrictive definition of “primary consideration” in the 1984 Award, and under the Agreement the interests of Air North are to be evaluated in any promotion decision. Air North also said that the words “consideration of the Employer” as they appear in clause 4.2 of the Agreement make clear it is for Air North to give consideration to the question of seniority in Air North’s promotion decisions. Air North said the question of promotion remains within its discretion provided only that seniority is the first but not last question to be considered.
[120] Air North submitted that the evidence makes clear the Applicant’s seniority was considered, however it ultimately, for legitimate and proper business and safety reasons, came to the conclusion that other factors outweighed the question of seniority in this case. Air North said it is not for the FWC to stand in the position of Air North and make that decision.
[121] Air North submitted that in around 2008 the E170 aircraft was introduced and the FWC was given comprehensive evidence of the differences between the E170 and other aircraft already with Air North’s fleet.
[122] Air North submitted that its witnesses testified that these differences were material to their decision making process.
[123] Air North referred to what it called Mr Greenberger’s tactical decision not to bid for First Officer positions on the E170 that Air North had put forward in late 2017. Air North submitted that the email correspondence between Mr Ham and Mr Greenberger made clear to Mr Greenberger in December 2017 that Air North would consider more than seniority in assessing an E170 captain position, and the criteria for actual appointment to the position of E170 Captain included FOSPC considering that Mr Greenberger was suitable for the position.
[124] Air North submitted that on its face the Bid Notice #2018-04 makes clear that those crew members who satisfied the requirements of 2.1.2 were able to bid for the position consistent with clause 4.5.1 of the Agreement but the “criteria for appointment” as contemplated by clause 4.6.2 include that candidates be assessed as suitable by the FOSPC.
[125] Air North submitted that put another way, if an employee satisfied the requirements of 2.1.2 their bid would be considered, but the requirements did not constitute the criteria for appointment. Air North submitted Mr Greenberger accepted in his oral evidence that assessment for suitability by FOSPC was a criteria.
[126] Air North submitted that the criteria for appointment is a decision of Air North is consistent with the appreciable differences between the 1984 Award and the Agreement terms, and that it is clear Air Norths commercial and other interests are legitimate factors in considering the appropriateness of appointing a particular employee to a given position.
[127] Air North also submitted that it was a criterion for appointment that Mr Greenberger had performed six months as a first officer of an E170. Air North submitted that while the Applicant focusses on the fact that this is not expressly stated in the GPPM such a focus is misplaced. Air North described the content of the GPPM set out in the Bid Notice as a guide and the bid was “open’ to employees who met the requirements of the clause, and the Bid Notice was not a complete statement of the criteria for appointment to E170 Captain.
[128] Air North submitted that Mr Greenberger seeks to attack the six month criteria on the basis that other pilots were appointed to the position of E170 captain without having had such prior experience, however this is misplaced because the time at which the criteria is to be determined is the time at which the application is considered, and those appointments occurred in vastly different circumstances.
[129] In reply Mr Greenberger submitted that there is no support for the proposition that employees do not have to be placed on notice of the criteria, or that the criteria do not have to remain static. Mr Greenberger submitted that the criteria as a matter of fairness must be notified to a potential applicant prior to making the application otherwise the applicant cannot ascertain whether to apply or not. Mr Greenberger also submitted that it is open to Air North to change the GPPM however it had not at the time.
[130] Mr Greenberger submitted that should Air North be able to apply whatever criteria it wanted to, and at any stage, it would always be possible to avoid a finding that a pilot prima facie met the criteria, and Air North would always be able to avoid seniority and this would be contrary to the Agreement read as a whole and exceptions to seniority are clearly spelt out in clauses 4.3.1, 4.7 and 4.8.
[131] It is not in dispute that Flight Crew Bid Notice #2018-04 included at the fifth dot point that “Candidates must be assessed as suitable by the Flight Operations Standards and Policy Committee”.
[132] I accept Air North’s submission that it must determine “criteria for appointment” to a position under the Agreement and then consider whether or not a particular applicant satisfies that criteria and that, provided that Air North is not capricious, or otherwise determines criteria that are unlawful, it is free to determine criteria for the position of E170 captain.
[133] Whilst Mr Greenberger has criticised such an interpretation on the basis that it is unfair and uncertain, and makes it possible for Air North to avoid seniority if it able to decide these matters at its discretion, the protection against that occurring is the ability provided by clause 4.6.2 to dispute the matter, and where it is shown that an applicant with seniority on a prima facie basis meets the criteria for appointment, they be paid the applicable salary.
[134] It must also be remembered that the Agreement provides that the primary consideration of Air North is relative length of service, and if the FOSPC decides on a criteria for appointment that is not sufficiently well founded to oust the primary criteria of seniority, or is capricious, the Commission is empowered by the dispute settlement procedure to deal with such a dispute.
Question Two - Does the applicant prima facie meet the criteria for appointment to the position E170 Captain?
[135] Clause 2.1.2.2 of the GPPM reads as follows:
“2.1.2.2 Captains/Command Upgrade Minimum Bid Experience
To be eligible for selection and commencement of command training on Company aircraft a pilot must have the following experience:
• Meet all regulatory requirements, and
• […]
• Have attained a minimum of 3000 hours total aeronautical experience for ER170 aircraft
• The total aeronautical experience must consist of a minimum of:
• 300 hours aeronautical experience as a First Officer on Company aircraft, or
• 500 hours in command of the aircraft concerned
[136] Mr Greenberger submitted that he has;
(a) Met all regulatory requirements; and
(b) Has attained a minimum of 3000 hours total aeronautical experience; 62
[137] Mr Greenberger submitted that he has a minimum of 300 hours aeronautical experience as a Captain on company aircraft, has only ever held the position of Captain with Air North, and the reference to 300 hours as a First Officer is a minimum requirement applying to both hours required and position held and may be satisfied having held the position of Captain above the First Officer position.
[138] Mr Greenberger submitted this was consistent with him being promoted previously without having been a First Officer and it would be absurd to read the requirement otherwise. Mr Ham in his evidence appeared to accept that Mr Greenberger’s experience as a Captain satisfied this criterion, 63 and Mr Lee also appeared to accept that Mr Greenberger’s interpretation was plausible.64 I accept Mr Greenberger’s interpretation of this criterion.
[139] Mr Greenberger submitted that he satisfied the requirements of clause 2.1.2.4 and 2.1.2.5 of the GPPM and had the seniority to be awarded the position as an E170 Captain for the purposes of clause 4.2 of the Agreement.
[140] Mr Greenberger submitted that the requirements of the Flight Crew Bid Notice are that a pilot must meet the licensing and experience requirements specified in clause 2.1.2 of the GPPM and he met those requirements.
[141] Mr Greenberger submitted that to the extent that Air North argues that there is an additional requirement that the pilot must be assessed as suitable by the FOSPC that is not a requirement that goes towards whether or not Mr Greenberger has prima facie met the criteria for appointment to the position of E170. Mr Greenberger submitted that this is a discretionary element that is relevant to the question of whether Air North has demonstrated why Mr Greenberger should not be paid pursuant to clause 4.6.2 of the Agreement. Mr Greenberger submitted if it were otherwise clause 4.6.2 would have no work to do as it could always be avoided. On that basis Mr Greenberger submitted that the answer to question two is yes.
[142] Air North submitted that on 31 July 2018 FOSPC convened a special meeting to discuss Mr Greenberger’s response to the Bid Notice and the task of the FOSPC was to consider the movement of Mr Greenberger from a position of never having operated a jet aircraft to captain and not merely pilot or first officer of an E170.
[143] Air North submitted that Mr Ham Chaired the meeting and Mr Lee and Mr Habib attended as SMEs and the meeting was comprised of six very experienced pilots. The Minutes of the meeting were admitted into evidence. 65 The minutes include the following:
“After discussion the group recommended a pilot that has no prior jet experience should obtain approximately 6 months in the RHS, prior to moving to the LHS.”
[144] Air North submitted that the views expressed and the unanimous conclusion as the 31 July 2018 meeting was sound and reasonable based on the experience and expertise of the FOSPC members. Further the clear evidence is that one of the criteria for appointment was that the FOSPC considered the Applicant appropriate for appointment, and that the FOSPV determined his appointment was not appropriate.
[145] On the basis of the evidence I accept that the Applicant did not meet the prima facie criteria that he be assessed as suitable by the FOSPC for the reasons set out above concerning his not having six months experience in the right hand seat of the E170.
[146] This case is distinguishable from the decision of Leary C in AFAP v Air North Pty Ltd because there are differences between the consideration of seniority in the 1984 Award as compared to the Agreement which includes wider considerations of the employer Air North being taken into account including the views of the FOSPC. The answer to question two is no.
Question Three - If yes to 2, has the Respondent demonstrated why the Applicant should not be paid the salary applicable to the position of E170 Captain?
[147] Given I have found that the answer to question two is no, the answer to question three must be yes. In the event I am wrong regarding question two, and Mr Greenberger has met the prima facie criteria for appointment because consideration by the FOSPC of whether Mr Greenberger is appropriate, is not a criteria for appointment, but instead a discretionary element that is relevant to the question of whether Air North has demonstrated why Mr Greenberger should not be paid pursuant to clause 4.6.2 of the Agreement, I will consider question 3 in those circumstances.
[148] Mr Greenberger submitted that clause 4 of the Agreement read in its entirety deals with promotion in a detailed way and provides a comprehensive scheme applicable to career progression and at the apex of the scheme is the notion of seniority.
[149] Mr Greenberger submitted given clause 4 there must be something considerable and well-founded to displace the application of seniority. The Applicant submitted that the assessment of the FOSPC is not a well-founded reason.
[150] Mr Greenberger submitted that the FOSPC determined that the requirement for 6 months as First Officer on the E170 aircraft was a blanket rule that would apply to everyone and was not specific to him. Mr Greenberger submitted that under clause 2.1.2.3 of the GPPM, the FOSPC is required to review, amongst other things, the results of previous training and checking points, including an analysis of the past flight proficiency and training reports, and did not do so.
[151] Mr Greenberger submitted in the circumstances the blanket rule is insufficient to displace his seniority and it is not well founded. Mr Greenberger says that it is not based on anything particular to him or his training and checking history.
[152] Mr Greenberger submitted that the blanket rule expressly contradicts Flight Crew Bid Notice #2018-04. Mr Greenberger submitted that the Bid Notice contains 2 tables with table A dealing with progression from the role of an ER170 First Officer to an ER170 Captain, and table B deals with progression from another aircraft type to the ER170 Captain. The Applicant submitted that the blanket rule imposed by the Air North means table B would not apply to anyone.
[153] Mr Greenberger submitted that there have been three other pilots who have been promoted to the E170 Captain position without having completed 6 months as a First Officer on the E170 aircraft.
[154] Mr Greenberger submitted that his seniority gives him the opportunity to be a Captain on the E170 aircraft and he must qualify. It is said he holds the risk of failing to qualify and being subject to the consequences contemplated by clause 5.3 including termination. Mr Greenberger also submitted that no safety concerns arise. Either he would have been deemed safe to fly the E170 aircraft as Captain after the relevant training or not.
[155] Mr Greenberger submitted that the requirement for 6 months in the right hand seat as a First Officer on the E170 is above that required by the GPPM and it is a new requirement. He submitted that it is not so notorious amongst pilots on the FOSPC let alone the general body of pilots employed by Air North.
[156] Mr Greenberger referred to the evidence of Mr Ham that the requirement was not discussed until the meeting of 31 July 2018 and also the earlier email correspondence between Mr Ham and the Applicant that indicated transition was possible. The Applicant also said the requirement was not noted on the GPPM or the Bid Notice.
[157] Mr Greenberger submitted that the FOSPC acted in the same way as that considered in Air North Pty Ltd v Pilots (General Aviation) Award 1984 (1991) 3 CAR 248 and the answer to question three is no.
[158] Air North submitted that for the reasons outlined it has demonstrated why Mr Greenberger should not be paid the salary of an E170 Captain including that the FOSPC considered that appointing Mr Greenberger to the E170 Captain would create a risk to health and safety. Air North submitted that it is under a statutory obligation to eliminate or minimise risks to health and safety so far as reasonably practicable.
[159] Air North also submitted that Mr Greenberger should not be rewarded for his strategic decision made in December 2017 not to bid for the position of E170 First Officer.
[160] Mr Greenberger submitted in reply that Air North’s submission should be rejected as the Applicant was entitled to apply for the E170 role and he did not know of any 6 month requirement as there was no such requirement until the meeting of the FOSPC.
[161] Having considered the evidence, even if the correct answer to question 2 is yes, then I am satisfied Air North has demonstrated why Mr Greenberger should not be paid the salary applicable to the position of E170 Captain. As already stated, on the basis of the evidence the reasoning of the FOSPC based on their extensive experience and knowledge as to why it decided to make an appointment based on a pilot with previous jet experience was well founded. The answer to question 3 is yes.
Question 4 - If no to 3, is the Applicant is entitled to be paid the salary applicable to the position of E170 Captain?
[162] Mr Greenberger submitted that as Air North has not demonstrated why he should not be paid the salary of an E170 Captain the decision in Air North Pty Ltd v Pilots (General Aviation) Award 1984 (1991) 3 CAR should be followed. As indicated, the decision of Leary C is distinguishable and given the answer to question three is yes, the answer to question four is no.
Question 5 - If yes to 4, for what period is the Applicant entitled to be paid the salary applicable to the Position?”
[163] Given the answer to question four is no the consideration in question five does not arise.
Ancillary Issue
[164] Air North raised an ancillary issue that because the Agreement does not specify a salary for the position of E170 Captain, the FWC cannot make an order that the Applicant be paid a salary applicable to the position of an E170 Captain. The Applicant submitted that;
(a) Clause 4.3.3 deals with the introduction of new aircraft types;
(b) Clause 4.7.1 deals with new equipment; and
(c) Clause 5.5.10 contemplates bonding for other aircraft types.
[165] The Applicant submitted that the bypass clause is not limited and it only refers to “the salary applicable to the position concerned”, and not the salary as contained in the Agreement applicable to the position concerned. The Applicant submitted Air North clearly has a salary applicable to the position concerned and accordingly clause 4.6.2 is not displaced by reason of the Agreement not providing a salary for the aircraft type that was not used by Air North at the time the Agreement was made.
[166] The Applicant also relies on clause 1.2 of the Agreement which states that the Agreement is made “in respect of all pilots employed or to be employed by Aircrew Logistics Pty Ltd.”
[167] On the basis of my conclusions below it is strictly unnecessary to determine this matter, however if it were required I would be inclined to agree with the Applicant’s submission on this point.
Conclusion
[168] It is unfortunate that the decision made by FOSPC on 31 July 2018 that six months experience in the right hand seat of the E170 was a requirement for the vacant flight crew position was not made clear to Mr Greenberger before his decision to bid for the role. However I have interpreted the Agreement such that FOSPC had the authority to make that assessment of suitability. Had Mr Greenberger been told in advance of the Bid Notice presumably he would not have bid.
[169] In conclusion the answers to the agreed questions for arbitration are as follows:
1. What are the criteria for appointment to the position of E170 Captain?
[170] The criteria for appointment were as stated by the Applicant as including satisfaction of;
(a)clauses 2.1.2.2, 2.1.2.4 and 2.1.2.5 of the General Policy and Procedures Manual (GPPM) of Air North;
(b)clause 4.2 of the Agreement and
(c) Flight Crew Bid Notice #2018-04.
[171] However contrary to Mr Greenberger’s submission, I accept Air North’s submission that the Agreement does empower it to determine “criteria for appointment”, and that includes the decision of the FOSPC to apply a minimum six months in the right hand seat of the E170 for the purposes its assessment of suitability as set out in the Bid Notice.
2. Does the applicant prima facie meet the criteria for appointment to the position E170 Captain?
[172] No.
3. If yes to 2, has the Respondent demonstrated why the Applicant should not be paid the salary applicable to the position of E170 Captain?
[173] Answer to 2 is no. Answer to 3 is yes. Even if answer to 2 is yes, answer to 3 is still yes.
4. If no to 3, is the Applicant is entitled to be paid the salary applicable to the position of E170 Captain?
[174] Answer to 3 is yes. Answer to 4 is no.
5. If yes to 4, for what period is the Applicant entitled to be paid the salary applicable to the Position?”
[175] Answer to 4 is no. 5 does not arise.
COMMISSIONER
Appearances:
Mr Andrew Molnar of Australian Federation of Air Pilots appearing for the Applicant.
Mr McIntosh of Counsel instructed by Roussos Legal Advisory appearing for the Respondent.
Hearing details:
2019,
Brisbane:
8 April.
Printed by authority of the Commonwealth Government Printer
<PR706646>
1 Transcript PN 32
2 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005
3 Applicant’s closing submissions 1 May 2019 at para 6
4 Transcript PN 514-519
5 Applicant’s closing submission 1May 2019 para 9(a) and reply submission 22 May 2019 para 1
6 Australian Federation of Air Pilots v Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia) [2016] FWCFB 7720 and Captain Tim Nixon v Jetstar Airways Pty Limited [2013] FWC 7960
7 Jetstar Airways Pilots Enterprise Agreement 2015 [2015] FWCA 2698 (clause 24.2.13), Eastern Australian Airlines Pty Limited Pilots Enterprise Agreement 2015 [215] FWCA 6719 (clause 23.1.11) and Sunstate Airlines (Qld) Pty Limited Pilots Enterprise Agreement 2015 [2015] FWCA 5702 (clause 57.11)
8 (1991) 3 CAR 248
9 Exhibit 1 witness Statement of Mr James Greenberger dated 8 March 2019
10 Ibid at [7]
11 Ibid at [9]
12 Ibid at [10]
13 Transcript PN 281
14 Transcript PN 287-290
15 Transcript PN 404-415
16 Transcript PN 421
17 Transcript PN 350
18 Transcript PN 441
19 Transcript PN 445
20 Transcript PN 468
21 Transcript PN 473
22 Exhibit 2 Witness Statement of Mr Dean Ham dated 22 March 2019
23 Ibid at [19]
24 Ibid [20]
25 Ibid at [21]
26 Exhibit 3 Further Witness Statement of Mr Dean Ham filed 8 April 2019
27 Transcript PN 953
28 Transcript PN 595-597
29 Transcript PN 608
30 Transcript PN 621
31 Transcript PN 793 – 796
32 Transcript PN 799
33 Transcript PN 823
34 Exhibit 5 Witness Statement of Mr Andrew Lee dated 22 March 2019
35 Ibid at [20]
36 Ibid at [21]
37 Ibid at [22]
38 Ibid at [23]
39 Exhibit 6 Further Witness Statement of Mr Andrew Lee filed 8 April 2019
40 Ibid at [6]
41 Ibid at [7]
42 Transcript PN 917
43 Transcript PN 925
44 Exhibit 7 Witness Statement of Mr Noel Habib dated 22 March 2019
45 Ibid at [20]
46 Ibid at [21]
47 Exhibit 8 Further Witness Statement of Mr Noel Habib filed 8 April 2019
48 Ibid at [1]-[3]
49 Ibid at [6]
50 Exhibit 10 Witness Statement of Mr Ian Mayhead dated 22 March 2019
51 Ibid at [19]
52 Ibid at [20]
53 Ibid at [21]
54 Exhibit 11 Witness Statement of Mr Bruce Moncrieff dated 22 March 2019
55 Ibid at [18]
56 Ibid
57 Ibid at [19]
58 Ibid at [22]
59 Exhibit 12 Witness Statement of Mr Michael Beuret dated 22 March 2019
60 Ibid at [20]-[21]
61 Ibid at [22]
62 Transcript PN 216
63 Transcript PN 772-773
64 Transcript PN 951
65 Exhibit 9
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