Jenkins v Jayrow Helicopters Pty Ltd
[2013] VCC 1584
•12 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
COMMERCIAL LIST
EXPEDITED CASES DIVISION
Case No. CI-13-00572
| WAYNE JENKINS | Plaintiff |
| v. | |
| JAYROW HELICOPTERS PTY LTD | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 – 30 October 2013 | |
DATE OF JUDGMENT: | 12 November 2013 | |
CASE MAY BE CITED AS: | Jenkins v. Jayrow Helicopters Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1584 | |
REASONS FOR JUDGMENT
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Catchwords: Employment law – Award – Helicopter pilot – Chief pilot – Whether entitled to “field leave” when “away from home base” on a “tour of duty” – Whether engaged “offshore” – Whether entitled to claim payment for accrued “field leave” upon termination of employment – Clause E.6.5(d), Schedule E, Air Pilots Award 2010
Employment law – Award – Entitlement to “field leave” – Plaintiff sought to take “field leave” during period he was stood down – Defendant purported to deduct annual leave for this period – Whether defendant had “fixed” the plaintiff’s annual leave under the award – Whether defendant’s fixing of leave “reasonable” and in accordance with the award – s.93(3) Fair Work Act 2009
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Champion | McDonald Murholme |
| For the Defendant | Ms S. Bingham | Davies Lawyers |
HIS HONOUR:
1Wayne Jenkins is a helicopter pilot. He was employed as chief pilot by Jayrow Helicopters Pty Ltd (“Jayrow”) between February 2002 and January 2012. In the proceeding, Mr Jenkins claims:
a.$37,400, as the balance owing for a $50 per day “overnight allowance” pursuant to the terms of his employment agreement with Jayrow;
b.$427,989, as the money equivalent of his entitlement to “field leave” pursuant to the “offshore” working provisions of both the Helicopter Pilots (General Aviation) Award 1999 (“Helicopter Pilots Award”) and the Air Pilots Award 2010 (“Air Pilots Award”);
c.alternatively to paragraph 6, $44,574 as annual leave deducted instead of field leave by Jayrow after Mr Jenkins was stood down as chief pilot in mid-October 2011;
d.payment to him of a civil penalty as a consequence of Jayrow having breached the two awards by failing to provide payment of Mr Jenkins’ field leave entitlement.
2Jayrow operates helicopters in Australia primarily in support of offshore activities – flying to oil and gas platforms, flying search and rescue missions and transporting personnel. From 2002 to 2006, Mr Jenkins was based at Karratha in Western Australia and from 2006 to 2012, at Moorabbin in Victoria. He was stood down as chief pilot by Jayrow in mid-October 2011 and his employment ceased on 20 January 2012.
3As chief pilot, Mr Jenkins had wide ranging responsibilities including administrative, commercial, training, and safety roles, as well as spending significant periods actually flying. During the period of 10 years Mr Jenkins worked for Jayrow, he has calculated that he spent 893 days away from his “home base”. Mr Jenkins alleges that the awards entitle him to 13 days paid leave for every 15 days that he worked away from home. He calculates his claim by multiplying the number of days by the daily rate of pay which he was paid at the time he left Jayrow’s employment in January 2012. He also claims $50 per day overnight allowance whilst he was absent from his home base.
4Mr Jenkins has prepared a spreadsheet setting out the days he worked away from home base and the days he says he was entitled to take as “field leave”, and for which he qualified for the overnight allowance. The spreadsheet was prepared from two source documents; his pilot’s log and the staff activity records.
5The Helicopter Pilots Award and the Air Pilots Award contain essentially identical provisions entitling a pilot to field leave whilst working “offshore”. Generally, I shall simply refer to the provisions of the later award, on the assumption that there are no material differences that affect my decision. The provisions of the Air Pilots Award are contained in Schedule E.6 headed “Offshore helicopter specific provisions”. Clause E.6.5 provides as follows:
a.a pilot on duty away from home base will be entitled to accommodation, meals and transport in accordance with clause E.5.6;
b.a period of duty away from home base will be of up to 28 days duration provided, however, the tour may be extended a further 14 days by mutual agreement;
c.where a pilot is on duty away from home base, the pilot may elect to defer duty free days in excess of those duty days referred to under CAO 48 and in this event, the pilot will on return to home base, immediately receive the deferred days off;
d.a pilot on tour of duty will be employed on the basis of twelve 28 day cycles of duty per annum, consisting of 15 days on duty and 13 days off. Such days off to be taken at the pilot’s home base. In addition the pilot will be entitled to 42 days annual leave per annum (inclusive of Saturdays, Sundays and public holidays), which will consist of one period of 13 days off associated with a duty cycle plus 29 days.
6Under the employment agreement between Mr Jenkins and Jayrow, entered into in February 2002, it is provided, in the clause headed “Financial terms of this agreement”, as follows:
D. The company agrees to pay the employee the sum of AUS$50 [taxation free] for each night he spends away from Home Base.
7In relation to the contract claim for the $50 per day overnight allowance, Jayrow:
a.asserts that it paid $4,000 to Mr Jenkins in April 2008 and $24,000 in June 2008 as the overnight allowance for days he was absent from the home base;
b.admits, for the purpose of only this claim, that Mr Jenkins was absent from the home base for 893 days during the period of his employment;
c.admits that for the period 18 June 2008 to 20 February 2012, Mr Jenkins was entitled to be paid the total sum of $10,700 for the overnight allowance;
d.asserts that any claim in respect of the period prior to 8 February 2007 is statute barred, being more than six years prior to the issue of the writ in the proceeding;
e.asserts that the acceptance by Mr Jenkins of payments totalling $28,000 in June 2008 satisfied any entitlement he had for the overnight allowance pursuant to the employment agreement.
8In relation to the claim for field leave pursuant to clause E.6.5(d) of the award, Jayrow:
a.denies that the award provisions are applicable to Mr Jenkins because:
i.in the Air Pilots Award, clause E.6.5 (and the equivalent clause in the Helicopter Pilots Award) does not apply to a person in the position of “chief pilot” as the clause refers to “pilot” which, as defined, does not specify “chief pilot” in a list of particular pilots who are included in the definition;
ii.Mr Jenkins was not at the relevant times engaged in “offshore” activities;
iii.Mr Jenkins was not at any relevant time engaged in a “tour of duty”;
iv.Mr Jenkins was not engaged on the basis of performing “twelve 28 day cycles of duty per annum”, and was not entitled to 13 days leave in respect of work carried out at different times, even if the separate periods totalled more than 15 days;
v.any claim for payment of an award entitlement brought more than six years after it became due and payable is statute barred because of the provisions of section 544 and section 545(5) of the Fair Work Act 2009 (Cth).
b.if Mr Jenkins had an entitlement to “field leave” pursuant to the award, following any time worked offshore, as the leave was not taken during the period of employment, Mr Jenkins has no right to payment in lieu, particularly as the County Court does not have the right to award “compensation”, as would the relevant federal courts;
c.Mr Jenkins’ remuneration by way of salary in the employment agreement was intended as a total package, and to include any entitlement he might have to the benefit of “field leave” whilst working “offshore”.
9In response to the defendant’s assertion in (b), Mr Jenkins claims that in the alternative, he should be paid the annual leave deducted during the period from mid October 2011 to 20 January 2012, which he had sought to take as field leave.
10The issues for determination in the proceeding are:
a.whether Mr Jenkins’ spreadsheet accurately records the days he worked away from his home base;
b.whether any other factual findings are necessary in respect of the type of operations Mr Jenkins was performing during the periods he was away from his base;
c.whether the award provisions relating to “offshore” operations apply to any of the periods Mr Jenkins worked away from his base, and specifically:
i.whether they applied to him as “chief pilot”;
ii.whether he was engaged in “offshore” operations;
iii.whether he was engaged in a “tour of duty” or “28 day cycles of duty”;
iv.the appropriate method of calculating any field leave entitlement;
d.whether any entitlement to field leave not taken during the period of employment could be taken as a monetary sum upon the cessation of employment;
e.whether Mr Jenkins’ salary in his contract of employment was intended as a total remuneration package, including any entitlement under the award for “field leave”;
f.how any monetary equivalent of the field leave to which Mr Jenkins may be entitled pursuant to the awards should be calculated;
g.whether any part of Mr Jenkins’ claim for the monetary equivalent of the field leave is statute barred;
h.whether, if there was no entitlement to a monetary sum upon cessation of employment, Mr Jenkins was nevertheless entitled to be repaid a sum equivalent to the value of the annual leave deducted by Jayrow for the period mid October 2011 to 20 January 2012;
i.what sum Mr Jenkins would be entitled to in respect of the overnight allowance under the employment agreement;
j.is any part of the claim for the overnight allowance statute barred;
k.whether Mr Jenkins’ entitlement under his employment agreement for the overnight allowance was satisfied by Mr Jenkins’ acceptance of payments totalling $28,000 in April and June 2008;
l.should Jayrow pay a civil penalty, and if so, in what amount and to whom?
11Jayrow in its defence had originally pleaded a modest set off and cross-claim. These matters were not pursued at the trial.
Employment agreement
12At the commencement of his employment in February 2002, Mr Jenkins and Jayrow signed a two page document headed “Jayrow Helicopter’s/chief pilot Employment Agreement”. Pursuant to the agreement, Mr Jenkins was to “be paid the sum of AUS$90,000/annum, paid fortnightly”. In Mr Jenkins’ fifth year of employment, this was increased to $120,000 per annum, and for the last two years of his employment, to $175,000 per annum.
13The employment agreement provided, under the heading “Financial terms of this agreement”, as follows:
“A. It is agreed that the employee be paid the sum of AUS$90,000/annum, paid fortnightly into an agreed financial account.
B. The company agrees to pay the prescribed entitlements of superannuation into a nominated fund monthly or sooner.
C. It is agreed that the employee is provided with a Vehicle Fleet Card for fuel, parts and services up to a limit of AUS$5,000 in each calendar year. The employee has no claim to any unused residual.
D. The company agrees to pay the employee the sum of AUS$50 [Taxation free] for each night he spends away from Home Base.
E. The company agrees to pay meals and services on each date the employee is way from Home Bade up to the meal allowance entitlement outlined in the General Pilots Award”.
14By the agreement, Jayrow also provided further financial benefits as follows:
“6. When away from Home Base, to supply the employee with first class single person accommodation and vehicle transport.
7. Provide the employee with a Corporate Financial Credit Card for use on official company expenditure.
8.The company agrees to provide the employee with written guidance, should certain specific areas of his performance require review.
9.The company will re-emburse the employee for Loss of Licence Insurance up to the limit stated in the General Aviation Pilots Award and provide accident and life insurance coverage as also stated in the General Aviation Award.
10. The company agrees to provide a fully serviced mobile phone.
11.The company agrees to provide a suitable and capable laptop computer with an Australian wide ISP connection.
12. The company agrees to supply a set of suitable personal protective uniforms.
13.Annual Leave and sick leave shall be the same as specified in the General Aviation Award for pilots, including the 17.5% Annual Leave Loading”.
15Defendant’s counsel, Ms Bingham, submitted that there was a similarity of these terms to those proposed by Mr Jenkins in a letter attached to a facsimile to Mr Terry Rose (the CEO) and Mr Roger Stent (the Commercial Manager) of Jayrow dated 24 April 2011. The letter attached to the facsimile is dated 23 November 1998 and is addressed to Mr Stent as Commercial Manager of Noris Dinan Aviation.
16The letter proposed that Mr Jenkins would accept employment with Norris Dinan Aviation based at Karratha, Western Australia, upon the following terms and conditions:
a.salary of $78,000 and a tax free “Karratha allowance” of $20,000 (to cover “all housing costs, including electricity and water”);
b.“limited use of company vehicle [excluding annual leave travel]”;
c.“payment of actual travel, meal and accommodation cost whilst away from Karratha”;
d.“payment of Loss of License Insurance”;
e.“telephone expenses, rental and all business calls”;
f.“annual Perth airfares or equivalent costs to other destinations based on full economy ticket”.
17The letter further provided that, “In consideration to the above financial package I would expect this would be a staff position, therefore the following pilot claims would be forgone:
· Duty Travel Allowance whilst away on all required tours e.g. Northern Bases
· Field Leave
· Structured working hours [e.g., be available 24hrs/7 days for client requests, flexible with flight commitments (within the confines of COA 48)]”.
18Mr Bingham submitted that this letter should be used by the Court to assist in the construction of the employment agreement, and in particular, in relation to Jayrow’s contention that the employment agreement was intended to exclude Mr Jenkins’ entitlement to “field leave” pursuant to the awards. I shall deal with this matter in more detail below.
19The only witnesses to give oral evidence at the trial were Mr Jenkins, on his own behalf, and Mr Grahame Casey, Jayrow’s General Manager since August 2011. Because of the limited time that Mr Casey had been with Jayrow, he was only able to give direct evidence about the circumstances leading up to Mr Jenkins’ departure from Jayrow.
20Mr Jenkins said that he sent the facsimile to Mr Rose and Mr Stents in April 2001, after he was “approached to fill the base manager’s role” at Karratha. He said that:
a.it was not necessary that the base manager be a pilot;
b.it was only later, at the end of 2001, he was offered the position of chief pilot;
c.he was not offered the position of chief pilot “instead of” the position of base manager;
d.when he accepted the position of chief pilot, he did not agree to a “rolled up salary including field leave” or “to forego structured working hours”.
21Mr Jenkins’ evidence on these matters is unchallenged. The letter dated 23 November 1998 and the facsimile dated 24 April 2001 were forwarded to the addressees for other purposes. The proposed terms in the letter and those contained in the later employment agreement have significant differences. In these circumstances, I see no basis for using the letter in the construction of the employment agreement, particularly to determine whether the employment agreement should be construed as disentitling Mr Jenkins to certain award provisions, including an entitlement to “field leave”.
The position of chief pilot
22The employment agreement provided that Mr Jenkins’ position was “chief pilot, Jayrow Helicopters Pty Ltd”. Pursuant to the agreement, Mr Jenkins agreed:
“1. To make every positive effort to ensure his legislative responsibilities stated in Civil Aviation Order 82.0 are fulfilled.
2. To act in a manner that will bring credit to the company and set a high standard for his staff to emulate.
3. To assist other company departments to fulfil their tasks.
4.To represent the company to the highest level, to all clients, agencies, government departments and other entities”.
23A chief pilot has certain legislative responsibilities particularly in relation to airline safety. A chief pilot’s appointment must be approved by the Civil Aviation Safety Authority (“CASA”) and to whom there are reporting responsibilities. Civil Aviation Order 82.0, “Air Operators’ Certificates – applications for certificates and general requirements”, is referred to in the employment agreement. The Order is made pursuant to the Civil Aviation Act 1988 and the Civil Aviation Regulations 1988.
24Appendix 1 to Order 82.0 relates to the position of chief pilot. Clause 2.2 of the Appendix provides that:
“The responsibilities of a chief pilot must, unless CASA otherwise specifies in writing, include the following responsibilities:
(a) ensuring that the operator’s air operations are conducted in compliance with the Act, the Civil Aviation Regulations 1988, the Civil Aviation Regulations 1998 and the Civil Aviation Orders;
(b) arranging flight crew rosters;
(c) maintaining a record of licences, ratings, and route qualifications held by each flight crew member, including:
(i) validity; and
(ii) recency; and
(iii) type endorsements and any applicable licence restrictions;
(d) maintaining a system to record flight crew duty and flight times to ensure compliance with duty and flight time limitations, in accordance with Part 48 of the Orders;
(e) ensuring compliance with loading procedures specified for each aircraft type used by the operator and proper compilation of loading documents, including passenger and cargo manifests;
(f) monitoring operational standards, maintaining training records and supervising the training and checking of flight crew of the operator;
(g) conducting proficiency tests in the execution of emergency procedures and issuing certificates of proficiency as required by section 20.11;
(h) training flight crew in the acceptance and handling of dangerous goods as required by the Civil Aviation Regulations 1988 or the Orders;
(i)maintaining a complete and up-to-date reference library of operational documents as required by CASA for the class of operations conducted;
(j) allocating appropriate aircraft”.
25The Air Pilots Award (and generally in similar terms, the Helicopter Pilots Award) makes a number of references to the position of chief pilot. In clause 3.1, the definitions provision, “chief pilot means the pilot appointed by the employer and who is approved by CASA to perform the duties and responsibilities of the chief pilot”.
26The Air Pilots Award provides for the “Classifications, Minimum Salaries and Additions to Salaries” of “full-time pilots employed by an airline operation”. Clause E.5.1 of Schedule E provides for the minimum salaries which “must be paid to pilots employed in onshore helicopter operations”. Clause E.6.1 provides for the “minimum annual salaries for helicopter pilots engaged in offshore hydrocarbons and gas operations, marine pilot transfer, search and rescue (as defined)”.
27Clause E.4.1(c) provides for “additions to salary” in respect of “supervising pilots”. A “chief pilot” is paid an additional 10% of the specified salary and a “check and training who is also chief pilot”, an additional 12%. The term “chief pilot” is not otherwise (relevantly) used in the award.
Work performed by Mr Jenkins
28When Mr Jenkins was first employed by Jayrow, his “home base” was Karratha. In early 2006, he moved to Melbourne which became his “home base” for the remainder of his employment. Mr Jenkins said that his responsibilities included administrative, engineering, commercial as well as operational duties. All of the Jayrow pilots reported to him and Mr Jenkins reported directly to Jayrow’s CEO.
29Mr Jenkins said that he performed all of the responsibilities set out in paragraphs (a) to (j) of clause 2.2 of Appendix 1 of Civil Aviation Order 82. He said that whilst early in his employment he spent about 50% of his time on compliance issues, later this reduced to about 10 to 15%. Mr Jenkins’ training and instructing duties took up to 40 to 50% of his time. Mr Jenkins assisted the commercial operations with marketing tasks including the preparation of tenders, involving a significant part of his time. In addition, Mr Jenkins carried out flying duties, “flying the line”, which on average occupied 22-25% the whole period of his employment.
30The work performed by Mr Jenkins, particularly the flying operations, were recorded contemporaneously in the “pilots log” and the “staff activity reports”. Mr Jenkins said that, on a regular basis, the information in these documents was transferred to a spreadsheet which he maintained. It is the spreadsheet which has provided the basis for Mr Jenkins’ claim for “field leave” under the award and for the overnight allowance of $50 per day pursuant to the employment agreement.
31Mr Jenkins said that the logbooks, the staff activity reports and the spreadsheet were “put together simultaneously” and that the spreadsheet was updated “regularly”. I consider it is unlikely that the spreadsheet was updated contemporaneously with the source documents as Mr Jenkins did not make a written request of Jayrow in respect of field leave until August 2009. The written applications then made were not detailed, and referred to periods of time many years earlier.
32An email dated 31 August 2009, from Mr Jenkins to the then General Manager, Mr Middleton, and to Mr Gil, the chair of the International Consortium which ran Jayrow at that time, made a “preliminary claim” for unclaimed allowances of accrued annual leave and accrued field leave, for an “entitlement amount…in excess of $300,000”, and noted that, “most of this claim extends back to the 2002-2005 period”. In an email dated 13 January 2011 from Mr Jenkins to Jayrow’s Payroll Officer/Accounts Payable, Ms Natalie Harvey, in response to a request by Ms Harvey for him to “send through what you believe is your FL [field leave] entitlements up to 31/12”, Mr Jenkins noted that “Ian [McBeath] has a copy of my Field Leave Spreadsheet from 2002>2008, which has a total of 1246 Field Leave days”. In an email dated 10 June 2011, Mr Jenkins made a claim for field leave of 1203 days in accordance with an “attached spreadsheet”.
33The spreadsheet prepared by Mr Jenkins sets out in respect of each day of his employment:
a.the home base;
b.the overnight location;
c.whether flight leave is claimed for that day;
d.whether the $50 overnight allowance is claimed.
The spreadsheet includes running totals for each year.
34Mr Casey gave evidence that he had examined the spreadsheet and checked the entries against the original data in the logbooks and staff activity reports. He annotated the spreadsheet with colour coding to record the days, that he assessed Mr Jenkins was working “offshore”, “onshore” and on “administration”. He also made written comments on the spreadsheet recording whether, in respect of certain periods, Mr Jenkins had done “no flying” or there were other relevant matters he had ascertained from the original records.
35Mr Jenkins was cross-examined on Mr Casey’s marked-up version of Mr Jenkins’ spreadsheet. The cross-examination was limited to the years 2002 to 2005. By agreement between counsel, further cross-examination on the spreadsheet was deferred. It was considered that the points Ms Bingham wished to make in support of her submissions on liability had been sufficiently made and should enable the Court to make a determination on the liability issues and a sufficient sample of quantum issues so as to enable the parties to apply the reasoning to the remaining periods of employment. I agreed to this course.
36In my view, it was possible from the evidence in relation to the spreadsheet to state a number of general conclusions:
a.Mr Jenkins has claimed field leave on a number of days when he was not flying aircraft;
b.on the non-flying days, Mr Jenkins may have been performing CASA compliance or other administrative or “paperwork” tasks or he may have been assisting in Jayrow’s commercial activities including the preparation of tenders for offshore operations;
c.Mr Jenkins’ flying days also included training, either for himself or where he was instructing others included undertaking assessment or testing. Some specific training was required before Mr Jenkins, or a pilot he was training or testing, could fly offshore operations. On other occasions, flights were undertaken as “proving flights” to test instruments or other procedures before offshore flying could be undertaken.
37Mr Jenkins also gave evidence about Jayrow’s operations and his own responsibilities, as follows:
a.Jayrow’s main business was performing operations in support of offshore oil and gas platforms, including the transport of personnel to those facilities;
b.Jayrow had bases at Darwin, Port Headland, Karratha, Geraldton, Warrnambool, Tooradin, West Sale, Newcastle and Rockhampton. The activities out of Darwin were primarily onshore. From Rockhampton, search and rescue operations were conducted offshore. Apart from early on at Moorabbin, when there were onshore activities, the activities at each of the other bases, and at later times at Moorabbin, were predominantly offshore;
c.Mr Jenkins was responsible for overseeing the flying operations of Jayrow;
d.Mr Jenkins did not fly a “13/15 roster”, or any other roster;
e.Mr Jenkins was never engaged in a 28 day cycle. No other pilot at Jayrow was so engaged;
f.Mr Jenkins regarded himself as having been engaged on a “tour of duty” every time he was away from his home base, regardless of the duration.
Payments to Mr Jenkins
38Jayrow’s financial records included cheque butts, bank statements and a pay slip recording the following payments to Mr Jenkins:
a.$4,000 on 1 April 2008 for “travel allowance and meals”;
b.$10,000 on 24 April 2008 as “additional salary payment”;
c.$24,000 on 18 June 2008 for “daily travel allowance”;
d.$6,000 on 11 July 2008 as “additional salary payment”;
e.$2,178.90 on 11 December 2008.
Stand down and cessation of employment
39Mr Jenkins was stood down as chief pilot from mid-October 2011. He ceased employment with Jayrow on 20 January 2012. During this period, Mr Jenkins was on leave, apart from two days in November 2011 when, at Mr Casey’s request, he carried out flying operations from Rockhampton.
40Mr Jenkins considered that during this period he was taking field leave to which he had previously become entitled. Jayrow disputed that Mr Jenkins was entitled to any field leave. At some stage, possibly in November 2011, Mr Casey told Mr Jenkins that he was to use up his annual leave during the period he was stood down. Mr Carey expressly included this instruction in a letter to Mr Jenkins dated 23 December 2011.
Claim No. 1 – Overnight allowance under the employment agreement
41Mr Jenkins’ claim is for $37,400, being the balance owing for the nights he spent away from him home base. The claim is made pursuant to clause D of the employment agreement by which Jayrow agreed to pay Mr Jenkins $50 per day (tax free) for each night spent away from his home base.
42There is no dispute about the basis for calculating Mr Jenkin’s entitlement. Jayrow concedes that Mr Jenkins’ spreadsheet records each day he spent away from his home base. Jayrow says that the sum of $24,000 paid to Mr Jenkins on 18 June 2008 and the further sum of $4,000 paid on 1 April 2008, represented the whole of Mr Jenkins entitlement to the allowance up to 18 June 2008 and that for the remaining period of employment, Mr Jenkins became entitled to be paid the further sum of $10,700.
43Until an amendment was made to the defence on the last day of the trial, Jayrow asserted that the payments totalling $28,000 constituted an accord and satisfaction. When that defence was withdrawn, Ms Bingham submitted that the amount of $28,000 should be set off against any amounts owed to Mr Jenkins as the overnight allowance and this sum constituted his total entitlement to 18 June 2008.
44The evidence of payment of the sum of $4,000 on 1 April 2008 was a cheque butt with the following details: “travel allowance and meals” and a bank statement showing that the cheque had been paid. The evidence of payment of the sum of $24,000 was a “pay slip” for Mr Jenkins on 18 June 2008 showing that the sum was included, with his other entitlements that day, for “daily travel allowance”.
45In cross examination, Mr Jenkins was taken to these payments and further payments of $10,000 on 24 April 2008, $6,000 on 11 July 2008 and $2,170.90 on 11 December 2008. Mr Jenkins did not deny that he had received those sums. In re-examination, he said that none of these payments were to reimburse him for his entitlement to overnight allowance. Mr Jenkins’ evidence was that the cheque for “daily travel allowance” was quite distinct from the overnight allowance. He said that substantial payments had been made to him by Jayrow to repay loans he had made to the company and to redeem annual leave entitlements in order to provide lump sums to him so that he could purchase motor vehicles for his two daughters. He said that the payment of $4,000 on 1 April 2008 followed a trip to the United States, and the payment was to reimburse travel expenses.
46Mr Casey said in evidence that although Mr Jenkins had told him about a loan to Jayrow, he had been unable to find any documents about a loan in the company’s records. I consider, in the circumstances, that there is insufficient evidence upon which I can conclude that the payments, including the $24,000 on 18 June 2008, were made to Mr Jenkins in respect of the $50 per day overnight allowance. Even if I had been satisfied that the payment of $24,000 made on 18 June 2008 was made to reimburse Mr Jenkins for his overnight allowance entitlements, it is not clear in respect of what period the payment of $24,000 relates or whether it covers the whole of the period prior to 18 June 2008.
47I consider, in the absence of more compelling evidence, that it would be unlikely the payment of $24,000 covered Mr Jenkins’ entitlement to the overnight allowance up to 18 June 2008, for the following reasons:
a.the last time Mr Jenkins was away from base, before 18 June 2008, was between 1 and 13 June 2008;
b.the total of Mr Jenkins’ claimed entitlement for the first three years of his employment totalled $24,000 precisely - $7,200 in 2002, $6,900 in 2003 and $9,900 in 2004;
c.Mr Jenkins also claimed an entitlement to $13,400 in 2005, $1,000 in 2006, $2,100 in 2007 and $1,850 in the year to 18 June 2008.
Statute of Limitations defence
48The proceeding was issued on 8 February 2013. Claims which accrued prior to 8 February 2007 would be statute barred. Mr Jenkins’ counsel, Mr Champion, submitted that the cause of action would not have accrued until a request was made by Mr Jenkins for the payment of the overnight allowance to which he was entitled, and Jayrow’s refusal of that request. I consider, however, that the benefit accrued immediately following “each night he spends away from Home Base” and that there is no basis for importing into the contractual term a requirement for Mr Jenkins to make a formal claim for the benefit.
49Accordingly, Mr Jenkins is only entitled to the benefits which accrued after 8 February 2007. Between that date and 18 June 2008, Mr Jenkins’ spreadsheet records 79 days or an entitlement to $3,900. Between 18 June 2008 and the cessation of his employment, Jayrow has conceded that Mr Jenkins is entitled to the further sum of $10,700.
Claim No. 2 – Payment of untaken field leave entitlements pursuant to the awards
50Mr Jenkins has claimed the sum of $520,914.42 in the Statement of Claim as the monetary equivalent of his entitlement to field leave: pursuant to the “offshore work” provisions of the awards. The plaintiff submits that this figure is in error and that the Court should proceed on the basis of the total claim recorded in the spreadsheet of $427,989. Mr Jenkins confirmed in evidence that his entitlement was valued at the latter figure.
51Clause E.6.5(d) of the Air Pilots Award (and the similar provision in the Helicopter Pilots Award) entitles a pilot to “13 days off” after being engaged in offshore work for “15 days on duty” as part of a “28 day cycle of duty”. The awards provide that, “such days off to be taken at the pilot’s home base”.
52 The following facts are relevant to Mr Jenkins claim:
a.he did not work 28 day cycles;
b.he did spend 893 days on duty away from his home base;
c.he did not always work a continuous “15 days on duty”;
d.for the field leave claimed, he did not take a period of leave following the days “on duty”;
e.at most times, even when he was on duty for periods in excess of 15 days, Mr Jenkins did not return to his home base to take leave;
f.apart from the period after mid-October 2011, when he was stood down as chief pilot, there is no evidence that Mr Jenkins sought to take the field leave;
g.Mr Jenkins claims, in the documents which were submitted whilst he was employed, were for the monetary equivalent of the leave days based upon his average daily rate of pay.
53The section of the awards containing the provisions under which Mr Jenkins claims are headed “offshore helicopter pilot specific provisions”. The term “offshore” is not contained in the definition provisions. However, the heading of the section is immediately followed by the sub-heading, “E.6.1 Minimum salaries”, and a clause reading, “The following must be the minimum annual salaries for helicopter pilots engaged in offshore hydrocarbons and gas operations, marine pilot transfer, search and rescue (as defined)”. It was accepted by the parties that Mr Jenkins, to be entitled to field leave, must bring himself within this description of the “offshore” work. At different times, Mr Jenkins engaged in flying involving each of the activities of hydrocarbons and gas operations, marine pilot transfer and search and rescue.
54However, that is not the primary basis on which Mr Jenkins’ claims were put. It was submitted by Mr Champion that, “A chief pilot may be ‘engaged in offshore hydrocarbons and gas operations, marine pilot transfer, search and rescue (as defined)’ without actually flying the helicopter in circumstances in which his work is integral to the flying of the helicopter on hydrocarbons work, MPT or SAR”.
55Mr Champion relied upon the fact that the main activities of the business of Jayrow involved “offshore” work as defined, and the fact that Mr Jenkins’ work as chief pilot was essential to the successful operation of Jayrow’s business. Mr Champion submitted that, “The weight of the evidence was that the ‘major and substantial’ part of the plaintiff’s work concerned offshore operations: that is, his work reflected Jayrow’s business. The ‘major and substantial’ work of Jayrow’s business in 10 ports around the country was offshore work. Necessarily, the chief pilot’s work was [an] integral part of the offshore operation”. Therefore, it did not matter whether Mr Jenkins was engaged in flying helicopters to platforms in Bass Strait or to the north-west of Western Australia, search and rescue missions out of Rockhampton or pilot transfers off the Western Australian coast, or whether he was engaged in administrative duties, training pilots or preparing tenders, so long as he was located away from his home base at the relevant time.
56Ms Bingham relied upon a strict reading of clause E.6.1 (and its equivalent in the other award). Unless Mr Jenkins was performing one or more of the three activities set out in the clause, by actually flying a helicopter, he was not engaged offshore. Ms Bingham referred to the definition in the Air Pilots Award of the latter two activities (“hydrocarbons and gas operations” was not defined).
57In the definitions clause of the award, “marine pilot transfer (MPT) means a pilot whose main duties involve transfer of marine pilots both day and night” and “search and rescue means a pilot primarily engaged in search and rescue operations involving twin engine aircraft both by day and night” (emphasis added). Ms Bingham submitted that these definitions confirmed that “offshore” work involved a qualitative assessment of the specific flying operations and could not be satisfied by simply undertaking support activities.
Whether a chief pilot can engage in “offshore” operations
58Mr Champion referred to the fact that the awards distinguished between “offshore” and “onshore” helicopter operations; clause E.5 contained the “onshore helicopter operations specific provisions” and clause E.6 the “offshore helicopter operations specific provisions”. In each section of the award, the first provision related to “minimum salaries” (clauses E.5.1 and E.6.1). For onshore pilots, the base annual minimum salaries ranged from $42,684 to $55,580 depending on years of service and the type of aircraft flown. For offshore pilots, the range was from $44,580 to $63,580. A chief pilot was, pursuant to clause A.4.1(c), entitled to “additions to salary” of either 10 or 12% of the minimum salary. Sub-clause (a) of clause A.4.1 refers specifically to the entitlement being “in addition to the salary prescribed in clause E.5.1” (the minimum salary of an onshore pilot). However, no such references to clause E.5.1 is contained in sub-clauses (b) or (c).
59Mr Champion submitted that as “there are two applicable salary scales – one within E.5 (onshore operations) and the other within E.6 (offshore operations)…and the additional salary [10% for a chief pilot]…must be applied to the appropriate salary scale…in the helicopter operations sector: either the onshore [E.5] or the offshore sector [E.6]. The chief pilot must come within one or the other. He must be onshore or offshore, otherwise the minimum salary cannot be ascertained”.
60Ms Bingham referred to the fact that clause E.6, “Offshore helicopter specific provisions”, does not refer to a “chief pilot” and simply to a “pilot”. In the definition clause, “pilot” and “chief pilot” are specifically defined. “Pilot” is defined as meaning a “person who is the holder of a commercial pilot’s licence or airline transport pilot’s 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”. Mr Champion submitted that the Court should look at the evidence of what constituted Mr Jenkins’ “major and substantial” employment in order to determine whether he worked “onshore” or “offshore”.
61Ms Bingham noted that the definition of “pilot” does not refer to a “chief pilot”, “although it does expressly include a check pilot, training pilot, first officer and second officer which are classifications defined in clause 3.1 together with the term chief pilot”.
62Ms Bingham submitted that the “offshore helicopter specific provisions” could not apply to a chief pilot, for the following reasons:
a.as a matter of construction, field leave under clause E.6.5 is restricted to a “pilot” as that term is defined, which does not include a chief pilot;
b.“reading the contractual responsibilities together with the responsibilities under COA82.0, it should be concluded that the position of the chief pilot was a staff or executive position outside the definition of pilot” in the awards.
Conclusions – Whether a chief pilot can engage in offshore operations?
63As a matter of construction of the awards, I do not consider that a chief pilot would be excluded from the “offshore helicopter operations specific provisions” in clause E.6. I rely upon the following reasons:
a.the definition of “pilot” in the awards does not expressly exclude a chief pilot;
b.the express inclusion of “check pilot, training pilot, first officer and second officer”, in the definition of pilot, seems to be intended to put the issue beyond doubt. Otherwise, it might be considered that, as the duties of those positions do not include straightforward flying activities or primary responsibility for the aircraft, a person in those positions should not strictly be regarded as a “pilot”. A “check pilot” is involved in “testing” other pilots; a “training pilot” performs “route endorsing and or training duties”; a “second officer” and “third officer” can only “act as second or third in command [or only “third in command”] of an aircraft requiring more than two pilots”;
c.a chief pilot’s minimum salary, to which “additions to salaries” are added, if engaged in “helicopter operations”, must be calculated by reference to either the onshore specific provisions in clause E5 or the offshore specific provisions in clause E6;
d.there appears to be no obvious practical reason why a chief pilot would not be classified as engaging in onshore or offshore operations, depending upon the nature and scope of the chief pilot’s duties;
e.whilst the “obligations” of the chief pilot, as set out in paragraphs 1-4 of Mr Jenkins’ employment agreement and the “responsibilities” of a chief pilot set out in appendix 1 of COA 82.0, do not specifically refer to “flying activities”, that would ordinarily be implicit in the role of a person with the title, “chief pilot” and a necessary incidence of the performance of the obligations and responsibilities of the position;
f.as a matter of fact, it appears that Mr Jenkins was, during his employment, engaged in flying operations over extended periods of days or weeks which would fit within the description of “offshore hydrocarbons and gas operations, marine pilot transfer, search and rescue (as defined)”. It should be noted that the award conditions anticipate that, when engaged onshore or offshore over an extended period, “hours of work, days off and rest periods” are strictly regulated so that the actual flying time is limited;
g.no evidence or legal authority relevant to the issue of what type of employment should be defined as a “staff or executive position” was presented by Ms Bingham in support of her submission that the “position of the chief pilot was a staff or executive position”.
Did Mr Jenkins qualify for “field leave” under clause E.6.5?
64I do not consider that it is necessary for me to decide whether Mr Jenkins was entitled to the minimum salary as a pilot engaged onshore or offshore. Mr Jenkins was at all times paid significantly more than the highest minimum salary for a pilot engaged offshore plus an additional supervisory allowance of 10 or 12%. What is necessary to decide is whether Mr Jenkins was entitled to “field leave” pursuant to clause E.6.5(d).
65The elements of the clause giving rise to the entitlement are as follows:
a.“a pilot on tour of duty”;
b.“employed on the basis of twelve 28 day cycles of duty per annum”;
c.“consisting of 15 days on duty and 13 days off”.
66“Tour of duty” is not defined in the Award. However, in the context of clause E.6.5, it would appear to mean the period during which the pilot is “on duty away from home base”, although this period will include “duty free days”. Further, under clause 24.7(i) of the Award, “when a pilot on assignment away from home base is not required for duty on any rostered duty day, such day will not be deemed to be a day off”.
67Ms Bingham submitted that in the context of clause E.5.6, “tour of duty” must refer to “a continuous job rather than a one off trip” and that this meaning was “consistent with a pilot being rostered on the basis of twelve 28 day cycles of duty per annum”.
68On the evidence, I consider that there were periods of time during Mr Jenkins’ employment when he was “on tour of duty” and was engaged in activities defined as “offshore”. I do not consider that the other parts of clause E.6.5 require the construction for which Ms Bingham contends.
69By clause E.6.5(b), a tour of duty may be “up to 28 days duration”, although this period would, under sub-clause (d), include “13 days off. Such days off to be taken at the pilot’s home base”. The tour of duty, under sub-clause (b), may “be extended a further 14 days by mutual agreement”. In addition, sub-clause (c) provides for the deferral of “duty free days” which can be taken, “immediately”, “on return to home base”.
70These provisions seem to anticipate conditions far more flexible than application to an employee pilot who was “employed on the basis of twelve 28 day cycles of duty per annum”. Sub-clause (d) itself provides that the offshore pilot’s annual leave of 42 days per annum (provided for in clause 27.2 of the award, inclusive of weekends and public holidays) “will consist of one period of 13 days off associated with a duty cycle plus 29 days”. A pilot working a 15/13 cycle [“15 days on duty and 13 days off” on a 28 day cycle] would complete no more than eleven cycles of duty per annum. Adjustments would also be necessary if a tour of duty was less than 28 days duration or was extended to a further 14 days (or presumably up to a further 14 days).
71I do not consider that clause E.6.5(d) of the award was only intended to grant “days off” (or “field leave” as both parties referred to it) to pilots who engage in regular 15/13 cycles. So long as a pilot is on a “tour of duty” offshore, his entitlement to “days off” or “field leave” will accrue on the basis that the pilot was employed for “twelve 28 day cycles of duty per annum, consisting of 15 days on duty and 13 days off”. The provision for annual leave that follows, makes it clear that the entitlement of 42 days annual leave (inclusive of weekends and public holidays) includes “one period of 13 days off associated with a duty cycle”.
72There are similar provisions in the Award at clause E.5.5(b) under the heading “Multiple day tours” in relation to a pilot engaged onshore. Tours of duty of up to 28 days with the possibility of a further 14 day extension, are provided for. Sub-clause (iv) provides that whilst working on a tour of duty onshore, “a pilot away from home base will accrue an entitlement to one day off at home base for each five days away”. Portions of the five day periods, which have not accrued a day off, will be added to a subsequent period of duty. The days off are “not included as part of annual leave” and “will be taken immediately upon return to home base” or may be deferred by mutual agreement.
73I do not consider that the differences in clause E.5.5(b) should be the basis for a rigid interpretation of clause E.6.5(d). Such an approach would, in my view, be unduly restrictive and would be likely to frustrate what appears to be the clear intention of the provision, particularly when regard is had to the other sub-clauses. Accordingly, if Mr Jenkins were otherwise entitled to “field leave”, I do not consider that the fact that he did not regularly undertake 15/13 cycles of duty would debar him.
74I consider, however, that Mr Jenkins would only qualify for field leave if he were physically engaged in a tour of duty offshore. I do not accept Mr Champion’s submission that it was sufficient simply for Mr Jenkins’ work to be “integral to the flying of the helicopter on hydrocarbons work, MPT or SAR” in the sense that he was, by the performance of his duties, “without actually flying the helicopter” supporting the work of Jayrow, which was primarily offshore.
75Schedule D to the Air Pilots Award relates to “Aerial applications operations”. Aerial application is defined in the Award as meaning; “a flight for the purpose of applying application material, including any flight in support of such operations such as inspection of a work area, pilot training or checking, training of another crew member, travel from a landing area to a work area and back, carriage of a passenger as permitted by CASA regulations, or preparation for any of the above activities. Aerial application includes all operations previously called agricultural operations”.
76I consider that, in the absence of similar expansive words, the words defining offshore operations should be given their ordinary and obvious meaning which would limit them to a tour of duty involving actual flying operations offshore.
Was the employment agreement salary intended to include “field leave” entitlements?
77Ms Bingham submitted that, under the employment agreement, Mr Jenkins “was paid a ‘rolled up rate’ which incorporated any entitlement to field leave, a duty travel allowance and unstructured hours”. I have earlier rejected Ms Bingham’s submission that the facsimile dated 24 April 2001 and the attached letter should be used to assist in the construction of the employment agreement. I do note, however, that the letter dated 23 November 1998 specifically provided that, “In consideration to the above financial package I would expect this would be a staff position, therefore the following pilot claims would be forgone:
· Duty Travel Allowance whilst away on all required tours e.g. Northern Bases
· Field Leave
· Structured working hours [e.g., be available 24hrs/7 days for client requests, flexible with flight commitments (within the confines of COA 48)]”.
78No such term is contained in the employment agreement. Its absence, if anything, suggests that the parties when entering into the employment agreement did not intend to restrict or discharge Mr Jenkins’ entitlements under the award.
79Ms Bingham relied upon the fact that Mr Jenkins’ starting salary under the employment agreement was “at least $26,400 above the award rate” and his salary at the time his employment ceased was even more generous. Ms Bingham also referred to Mr Jenkins’ concession in evidence that “his hours were unstructured”. Ms Bingham submitted that “the annual salary in excess of the award was paid for specific purposes including the duty travel allowance, field leave and structured working hours”. Accordingly, it was submitted, Mr Jenkins having been “remunerated above the award specifically for these matters cannot now seek to claim from the defendant some kind of payment for field leave when he had foregone and had been remunerated for that entitlement”.
80In my view, there is no evidence to support the defendant’s submission that the remuneration paid to Mr Jenkins as salary under the employment agreement “for ordinary time worked” was intended to “be applied in satisfaction of an obligation [by Jayrow] to make a payment in respect to some other incident of employment, even if the payment made for ordinary time was more than the amount due under the award in respect of that ordinary time” (see James Turner Roofing Pty Ltd v Peters [2003] WASCA 28; (2003) 132 IR 122 at 127 per Anderson J and with whom the other two members of the Western Australian Industrial Appeal Court agreed).
81I consider that the fact that Mr Jenkins’ “ordinary time worked” may have involved unstructured working hours does not lead to the conclusion that the salary Jayrow paid Mr Jenkins in excess of the award minimum, discharged different award obligations, including the requirement to provide “field leave”.
Mr Jenkins’ field leave entitlement
82As a consequence of the findings I have made, I consider that:
a.Mr Jenkins was entitled to “field leave” pursuant to clause E.6.5(d) on the occasions he was on a tour of duty as an offshore pilot away from his home base;
b.the offshore activities are limited to a tour of duty involving flying activities “offshore”, as that term is defined in clause E.6.5;
c.the tour of duty may be as short as one day. I note that on each of the days claimed as “field leave”, Mr Jenkins has also claimed that he spent a night away from his home base and therefore also qualified for the overnight allowance under the employment agreement. I consider in these circumstances, Mr Jenkins was on those occasions engaged on a tour of duty “of up to 28 days duration”. I find it unnecessary to decide what the position would have been if an offshore activity were completed without being away from base overnight. There would be a strong argument for suggesting that a “tour of duty” had not been undertaken as required by the clause;
d.Mr Jenkins would be entitled to 13 days “field leave” for every 15 days of duty, whether or not the 15 days were performed over one or a number of tours of duty;
e.it was open to Mr Jenkins and Jayrow to agree, either expressly of implicitly that the taking of the leave might be deferred and not taken as it accrued, or immediately on return to the home base.
83If it becomes necessary, the parties will have the opportunity to agree as to Mr Jenkins’ specific entitlement to “field leave”. If agreement cannot be reached, it may be necessary for the hearing to resume and to permit further cross-examination of Mr Jenkins upon his spreadsheet.
Can the leave entitlements be converted to a monetary equivalent?
84Mr Jenkins’ primary claim is to a monetary sum, being the equivalent of his “field leave” entitlement. He has calculated that sum by applying the calculated daily rate of his salary at the time his employment ceased. No argument was addressed as to the appropriateness of using a rate of pay that only applied to the last two years of Mr Jenkins’ employment, rather than the rates of pay at the time Mr Jenkins became entitled to “field leave”.
85I suspect the reason this issue was not contested was that, in circumstances where annual leave or similar entitlements are converted to a money sum upon termination of employment, the entitlements are generally paid out at the rate of pay which then applies.
86The critical issue is whether the Award intended that “field leave” not taken during the period of employment might be converted to a money sum upon termination. The Air Pilots Award provided specifically that annual leave entitlements not already taken would be paid on termination (clause 27.5(b) and section 90(2) of the Fair Work Act2009 (Cth)). Similarly, “accrued days off not given” during the period of employment will “upon termination of employment be payable to a pilot” (clause E.5.5(a)(vii)).
87Mr Champion conceded that there was no express requirement in the awards for the payment out of untaken field leave. Mr Champion submitted that field leave was a similar entitlement to annual leave – both are earned by the employee; “in the same way as annual leave is earned by service, so field leave is earned by work on a tour”. By contrast, accrued sick leave is not paid out upon termination, it not being an entitlement the employee has “earned”; it is simply an entitlement which is available in certain circumstances and, if not needed to be taken, is not converted to a money sum.
88Mr Champion submitted that it would be “an unjust result” if “Jayrow could take the benefit of the tour of duty without the pilot having the benefit of the compensatory industrial days off”. Mr Champion suggested that such a position may encourage employers “to deny the employee the benefit leave during the currency of the employment”.
89Ms Bingham relied upon section 545(3) of the Fair Work Act which limits the power of a state court, such as the County Court, to make an order other than for an employer “to pay an amount to, or on behalf of, an employee”, if the Court is satisfied “the employer was required to pay the amount”. The requirement to pay must arise under the Act, or under an award where a provision has been contravened.
90In the circumstances, I consider that whether or not Mr Jenkins had an entitlement to “field leave” during his employment, the Award does not provide, either expressly or by implication, that untaken leave must be paid out by Jayrow upon termination. Accordingly, there is no valid claim for an “under payment”. The County Court has no power, as Federal Courts might pursuant to section 545(2), to award “compensation”.
Application of the limitation period
91If I am wrong in the conclusion that untaken field leave entitlements are not required to be paid out upon termination of employment, I do not consider that such a claim would be statute barred, as the payment would not become due until termination of employment on 20 January 2012.
92In ACE Insurance Ltd v Trifunovski (2011) 284 ALR 489, Perram J at paragraph 157 noted in regard to annual leave that, “it is necessary then to identify when the obligation to make the payment arose as this is not the same thing as the obligation to make the leave available”. The entitlement would only crystallise into an underpayment at the end of the employment.
93Any “contravention” of an implied term of the award to pay the sum would have occurred less than six years before the proceeding was brought. The “underpayment” occurred following termination. The fact that the underpayment may relate to leave to which Mr Jenkins became entitled in a period more than six years before the proceeding commenced is not material. Section 545(5) of the Act was similarly not infringed.
Claim No. 3 - Repayment of wrongly deducted annual leave
94After Mr Jenkins was stood down by Jayrow, “around 14 October” 2011, he remained on leave until his employment ceased on 20 January 2012. This was a total of 98 days. This followed the rejection of Mr Jenkins’ claim for field leave by Jayrow on about 31 August 2011. Mr Jenkins said in evidence that he was not directed by Jayrow to take annual leave at the time he was stood down. He disputed that he had been given a directive to that effect on 10 November 2011. Mr Casey could not recall whether he gave such a directive although his letter to Mr Jenkins dated 23 December 2011 refers to him having done so.
95Based on the findings I have made in relation to Mr Jenkins’ entitlement to “field leave”, I am satisfied that:
a.Mr Jenkins had an entitlement to field leave in respect of the tours of duty which involved flying activities “offshore”;
b.the entitlement was subsisting at the time Mr Jenkins was stood down in mid-October 2011;
c.any limitation period in the Fair Work Act applied only to a proceeding to recover a payment and the right to take “field leave” was not lost by the effluxion of time;
d.Jayrow was aware, in mid-October 2011, that Mr Jenkins had claimed that he was entitled to “field leave”, although he was seeking to be “paid out” for the untaken leave.
96I make the following further findings:
a.it is likely that no directive was issued by Jayrow, at the time Mr Jenkins was stood down in October 2011, that he was to take annual leave;
b.it is possible that a directive was issued by Mr Casey on behalf of Jayrow on or about 10 November 2011. Mr Jenkins apparently did not, at the time, dispute Mr Casey’s reference to the directive in his letter dated 23 December 2011. However, in evidence, Mr Casey has no recollection of the directive and Mr Jenkins disputed that one had been given;
c.in his letter to Mr Casey dated 23 December 2011, Mr Jenkins noted that “My last day with the company will be January 20 2012 “and that, “Complying with your directive, I will remain on Field Leave until that date”.
d.in the letter dated 23 December 2011 in response, Mr Casey made it clear that during the stand down, Mr Jenkins was “to reduce your annual leave”, and as a consequence, “deductions have been made against this accrual”;
e.in his letter in response dated 12 January 2012, Mr Jenkins stated, “I note and agree that the period that I have had off duty reduces my leave entitlement. However, please ensure that the reduction of my leave entitlements has been from my Field Leave Entitlements and not my Annual Leave or Long Service Leave Entitlements”.
97Ms Bingham relied upon clause 27.4(d) of the Air Pilots Award which provided that, “Annual leave must be taken at a time fixed by the employer”. Ms Bingham “conceded that such an unfettered right could not be exercised unreasonably”. In this regard, Mr Champion referred to section 93(3) of the Fair Work Act which provides that an award “may include terms requiring an employee, or allowing for an employee to be required, to take paid annual leave in particular circumstances, but only if the requirement is reasonable”.
98Mr Champion submitted that, if the field leave was “an entitlement non-convertible to money [at] the end of the employment…it was unreasonable for the defendant to insist he draw down upon his annual leave because such a direction rendered the field leave entitlement worthless”.
99Ms Bingham submitted that the previous management of Jayrow having “determined that the plaintiff did not have an entitlement to field leave, it could not be said that the defendant unreasonably exercised the unfettered ability to determine when the plaintiff must take annual leave”. Ms Bingham said that the award did not compel Jayrow “to accept every application for field leave”, and that Jayrow’s “decision to place the plaintiff on annual leave was consistent with its rights under the Award” and it was “fully justified in exercising its rights (within the Award) to its…best advantage”. Ms Bingham submitted that it would “not be open to the Court to re-characterise the leave taken as field leave and determine that more annual leave was due to the employee on termination”.
100The Full Court of the Supreme Court of South Australia in Griggs v Noris Group of Companies (2006) 148 IR 427, considered the question whether a plaintiff with an accrued entitlement to time off in lieu of payment for overtime worked (“TOIL”) should be paid for the value of the entitlement upon termination of his employment. The majority (White J, with whom Perry J agreed) were not prepared to imply a term into the contract of employment that the accrued entitlement would be paid out, although Leyton J, dissenting, was prepared to imply such a term. However, White J stated at paragraph 21, “It could perhaps be inferred that the parties intended that the entitlement to TOIL should not accrue to such an extent that, in practical terms, it became impossible for the appellant [plaintiff] to exercise his entitlement”.
101In my view, the evidence does not support a positive finding that, prior to the letter dated 23 December 2011, Jayrow had purported to “fix” a time at which Mr Jenkins should take his annual leave. Mr Jenkins had been stood down as chief pilot in mid-October. He continued to assert his entitlement to outstanding field leave, including in an email to Mr Casey on 5 November 2011. Mr Jenkins gave notice of his resignation from Jayrow on 23 December 2011 and noted that he would “remain on field leave” until he left the company on 20 January 2012. Mr Casey’s response later that day on behalf of Jayrow was to accept the resignation and to indicate that, until Mr Jenkins’ employment terminated, deductions would be made against Mr Jenkins’ accrued annual leave. There is no evidence that deductions had been made against Mr Jenkins’ annual leave accrual until the annual leave was paid out on 20 January 2012.
102In these circumstances:
a.Jayrow did not “fix” a time for Mr Jenkins to take annual leave until 23 December 2011;
b.when Mr Jenkins was stood down in mid-October 2011, he was not directed to take annual leave;
c.Jayrow was aware at that time that Mr Jenkins claimed an entitlement to an extensive period of field leave;
d.Jayrow would have known that it had a legal obligation to pay out Mr Jenkins’ accrued annual leave upon termination;
e.there was no express entitlement, whether in the award, the employment agreement or by stature, which would permit Mr Jenkins to claim payment for untaken field leave;
f.any field leave to which Mr Jenkins was entitled, which was not taken before the termination of employment, would therefore be lost;
g.to construe clause 27.4(d) of the Air Pilot’s Award as entitling Jayrow to require Mr Jenkins to take annual leave backdated to mid October 2011, and in circumstances where he would forfeit any benefit of his field leave entitlements, would not be a “requirement” that would be regarded as “reasonable”, and therefore would be unenforceable;
h.accordingly, such a construction of clause 24.4(d) should not be adopted;
i.alternatively clauses 24.4(d) and E.6.5(d) should be construed so that it “became impossible” for Mr Jenkins to “exercise his entitlement” to field leave before the termination of his employment;
j.the attempt by Mr Casey on 23 December 2011 to direct that Mr Jenkins be required to take annual leave rather than field leave from mid-October 2011 was not a lawful direction;
k.Mr Jenkins, being due some field leave, was entitled to take that leave during the period of stand down;
l.Mr Jenkins did not lose his right to be paid his full entitlement to accrued annual leave.
103Mr Jenkins claims the sum of $44,547 as the annual leave wrongly deducted by Jayrow for the period from 14 October 2011 to 20 January 2012. The calculation of this claim was not examined during the trial; the amendment permitting the claim only being allowed by order made by me on the last day of trial.
104 The sum Mr Jenkins is entitled to will depend upon:
a.whether, before the termination of his employment, Mr Jenkins was entitled to 98 days field leave, being the period from 14 October 2011 to 20 January 2012. If Mr Jenkins’ entitlement to field leave was less than 98 days, the balance will need to be made up by reducing his entitlement to be paid out his accrued annual leave upon termination of employment;
b.what sum had been deducted by Jayrow from the payment of Mr Jenkins’ accrued annual leave upon termination in respect of the period he was stood down after 14 October 2011. This sum may have included an annual leave “loading”.
Conclusions
105 Mr Jenkins will be entitled to recover:
a.overnight allowance which accrued after 8 February 2007;
b.accrued annual leave payments wrongly deducted upon termination of employment for the period 14 October 2011 to 20 January 2012, so long as he had sufficient accrued field leave to cover this period
106The claim for a pecuniary penalty order based on the failure by Jayrow to pay the monetary equivalent of field leave must fail as no contravention of the award in this regard was established.
107I will hear further from the parties as to the form of the orders and as to the issues of interest and costs.
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Certificate
I certify that these 31 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 12 November 2013.
Dated: 12 November 2013
Philippa Gilkes
Associate to His Honour Judge Anderson
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