Jetstar Airways Pty Ltd v The Australian Licensed Aircraft Engineers Association
[2021] FWCFB 1696
•6 APRIL 2021
| [2021] FWCFB 1696 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Jetstar Airways Pty Ltd
v
The Australian Licensed Aircraft Engineers Association
(C2020/8002)
DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 6 APRIL 2021 |
Appeal against decision [2020] FWC 5197 of Deputy President Sams at Sydney on 7 October 2020 in matter number C2020/58 – permission to appeal granted – appeal upheld.
Introduction and Background
[1] In early January 2020, the Australian Licensed Aircraft Engineers’ Association (Association) applied under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement term in the Jetstar Airways Engineering & Maintenance Enterprise Agreement 2018 (Agreement). The Agreement covers the Association, Jetstar Airways Pty Ltd (Jetstar) and its employees who are engaged as Apprentices, Aircraft Maintenance Engineers (AMEs) and Licensed Aircraft Maintenance Engineers (LAMEs). The dispute arose in the context of the Agreement introducing a three-tiered supervisory structure by inserting a new role of Second in Charge (2IC) between Supervisors and Leading Hands. Each of these positions is described in clause 2.35 of the Agreement. Shortly after the Agreement came into operation, Jetstar began internally advertising by seeking expressions of interest from relevantly qualified and interested LAMEs to fill Supervisor and 2IC roles. The advertisements and letters of offer set out a maximum term of 24 months and indicated that the appointment could be terminated at any time, on two weeks’ notice.
[2] A dispute arose over the appointment of employees to 2IC and Supervisor roles under the Agreement for a fixed (or maximum) term. The Association contended that this was not permitted by the Agreement. It contended that these appointments must, in accordance with clause 2.35 of the Agreement, be made on a permanent basis. Jetstar contended to the contrary. Before then Deputy President Sams both parties framed a question for determination. The Association’s proposed question was:
“Do the terms of the 2018 Agreement require Jetstar, where it appoints LAMEs as:
(a) Supervisors, as defined in Cl 2.46.1 (sic); or
(b) 2ICs, as defined in Cl 2.35.2,
to do so on a permanent, rather than temporary or fixed term basis?”
[3] Jetstar proposed:
“Do the terms of the 2018 Agreement prohibit Jetstar from appointing an employee to the role of Supervisor or 2IC for a fixed period?”
[4] On 7 October 2020, the Deputy President issued a decision determining the dispute.1 Having observed earlier in his decision that, in substance, answering either question would amount to the same thing – that is, do the words in clause 2.35 definitions of Supervisor and 2IC allow or alternatively, prevent Jetstar from appointing a Supervisor or 2IC to the role on other than a permanent basis? – the Deputy President determined the dispute by deciding that in appointing a Supervisor or 2IC in accordance with clause 2.35 of the Agreement, Jetstar must do so on a permanent basis.2
[5] By its notice of appeal lodged on 28 October 2020 Jetstar seeks permission to appeal, and if granted, appeals against this part of the decision. It does not challenge that part of the decision in which the Deputy President decided against Jetstar’s jurisdictional objection.
[6] The Deputy President’s decision the subject of the appeal is not a discretionary decision. The Deputy President determined the dispute by construing the Agreement. If permission is granted the task on appeal is to consider whether the Deputy President’s construction of the Agreement was correct. Error of the of the kind identified in House v King3 need not be shown.
The Decision
[7] The Deputy President’s decision is lengthy, but the essential reasoning is contained in the paragraphs extracted below:
“[99] Both parties submitted that the words in the Definitions are not ambiguous, uncertain or susceptible to more than one meaning. With this, I concur. However, given the circumstances surrounding this dispute, they obviously cannot both be right.
[100] In my view, ascertaining the meaning of the words in the Definitions of Supervisor and 2IC are not only pellucidly clear on their face, but their plain, ordinary meaning is further informed by reference to the Definition of Leading Hand and to other clauses in the Agreement. This is entirely consistent with the interpretative principle of establishing the meaning of the words in their context and in the context of the Agreement, when read as a whole.
[101] In my view, the clear distinction between a permanent 2IC role and an ad hoc Leading Hand role, is readily apparent from the different ‘support’ they both provide to Supervisors as is plainly expressed in the language used in the two definitions:
• A 2IC who provides a ‘permanent and ongoing support function’; and
• A Leading Hand who provides an ‘ad hoc or temporary support’.
[102] To my mind, nothing could be clearer – surely, in the present context, ‘Permanent’ is opposite to ‘ad hoc’, and ‘ongoing’ is opposite to ‘temporary’. If the distinction needed further consideration, it is glaringly obvious that the 2IC is paid ‘at all times’, and a ‘Leading Hand’ is only paid the Leading Hand rate ‘for the relevant shift’.
[103] Similarly, the definition of a Supervisor in Cl 2.35.1, includes reference to an employee appointed as a Supervisor will be paid the Supervisor rate in Table 4 in Cl 26 ‘at all times’. Again, this stands in distinction to the Leading Hand who is only paid ‘for the relevant shift’; further demonstrating the distinction between a permanent appointment and an ad hoc appointment.
[104] A further distinction is evident in the manner of payment of the allowances for Supervisors and 2ICs by reference to an annual payment paid on a daily basis. This is to be further distinguished to ‘Incidental Allowances’ at Cl 26.8 which, as the title suggests, are paid on a weekly, daily or per occurrence basis (except for the Specialist Towing Allowance which is paid an annual allowance), pro-rated on a fortnightly basis.
[105] For these reasons, I would determine the questions posed by the parties as follows:
In appointing a Supervisor or 2IC in accordance with Cl 2.35 – Definitions – of the 2018 Agreement, Jetstar must do so on a permanent basis.”4
Appeal grounds and summary of contentions
[8] Jetstar’s notice of appeal contains two appeal grounds. The first contends that the Deputy President erred by failing to apply the principles of construction of enterprise agreements. The particulars of the first appeal ground disclose the substance of the complaint made on appeal, namely that the Deputy President misconstrued the proper meaning and effect of clause 2.35 of the Agreement.
[9] As to the first ground, Jetstar contends in essence that although the Deputy President correctly identified the principles of construction (which were not in contest in any event) he did not apply them. It says that had the Deputy Properly applied himself properly to the task of construing the relevant provisions of the Agreement he should have come to the opposite conclusion by considering:
• the structure and arrangement of the Agreement;
• the place and purpose of clause 2.35 within the Agreement;
• the attributes and characteristics which define the content of Supervisor and 2IC roles on the one hand, and the nature of the appointment of Employees to those roles on the other;
• inconsistency in language between the definitions of “Supervisor” and “2IC”;
• the industrial context and negotiation of the Agreement during which there was established a new 2IC role in the supervisory structure which would ensure that supervisors would enjoy regular, consistent and ongoing support from a 2IC, rather than ad hoc “higher duties” support from leading hands as they had had in the past.
[10] Jetstar also contends the Deputy President misconstrued or failed to properly consider the meaning of the word “permanent” in the context of the composite phrase “permanent and ongoing support” in clause 2.35.2 of the Agreement.
[11] The Association contends that the evident purpose of the provisions is to establish an ongoing, stable supervisory structure that can only be sensibly facilitated by permanent engagement. It contends that the Deputy President’s conclusions rested on his finding that the relevant provisions did not contain an ambiguity, and on their plain and ordinary meaning required the creation and maintenance of a permanent supervisory structure. It says that:
• Clause 2.35.2, dealing with 2ICs, could not be clearer: the job description involves the provision of not just support, but ‘permanent and ongoing support’ to the Supervisor position; and
• As to clause 2.35.1 and Supervisors, although the clause does not include the word ‘permanent’, this is of no consequence because the provision must be read both in the industrial context at the time it was made – which involved a permanently established Supervisor position – and its surrounding clauses. In this light, the position is manifestly intended to be permanent and ongoing - otherwise how could a 2IC position be sensibly said to provide ‘permanent and ongoing’ support to it, if it was temporary?
[12] The second ground contends error because of an inadequacy of reasons. The central complaint here is that the brevity of the Deputy President’s reasons on the construction point do not disclose a consideration of aspects of Jetstar’s written and oral submissions dealing with several critical contextual matters which would have better informed the construction process and we should infer that the Deputy President did not take them into account.
[13] The Association contends that, read fairly, it is perfectly clear the Deputy President concluded that the words ‘permanent and ongoing’ have an ordinary meaning which require the 2IC position and the Supervisor position (which it provides such permanent and ongoing support for) to be, in every sense, permanent and ongoing positions. It says that it is not open to us to infer that the Deputy President disregarded Jetstar’s contextual submissions and says the Deputy President was simply, and correctly, unpersuaded by them.
[14] The first ground of appeal, at least insofar as it contends error in the construction of relevant provisions of the Agreement, is the material issue requiring determination. The Deputy President was either correct or he was not. The second appeal ground, even if made out, would unlikely provide a basis for the grant of permission to appeal once the construction controversy is resolved. Determining the proper construction of the Agreement ground of appeal would render the inadequacy of reasons appeal ground of academic interest only.
Consideration
Permission to Appeal
[15] Section 739(5) of the Act has the effect that the Commission is prohibited from making a decision which is inconsistent with the terms of an enterprise agreement (being a species of “fair work instrument”), properly construed. This means that where an appellant raises a seriously arguable contention that a decision made pursuant to s 739(4) involves a misconstruction of the enterprise agreement to which the decision relates, it may be necessary to grant permission to appeal to ensure compliance with s 739(5). In the present case, for the reasons which follow, we consider that the answer given by the Deputy President to the question posed for determination in the decision under appeal is inconsistent with the terms of the Agreement, properly construed. Accordingly, we consider that permission to appeal should be granted.
Merits of the Appeal
[16] The resolution of the appeal, like the resolution of the dispute at first instance, turns on a proper construction of the Agreement.
[17] The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.5
[18] Turning first to the provisions of the Agreement. Clause 5 of the Agreement sets out the scope of and “parties” bound by the Agreement. It is the coverage clause and relevantly provides that the Agreement is binding on “[a]ll Employees of Jetstar employed under the classifications set out in Schedule A”. That schedule contains three classifications as follows:
“Employee Classifications
• Apprentice
• Aircraft Maintenance Engineer (AME)
• Licensed Aircraft Maintenance Engineer (LAME)”.
[19] Clause 2 is titled “Definitions which apply in this Agreement”. Each of the terms “Employee”, “Apprentice”, “Aircraft Maintenance Engineer (AME)” and “Licensed Aircraft Maintenance Engineer (LAME)” finds definition in clause 2. Relevantly “Employee" means or refers to all Aircraft Maintenance employees employed by Jetstar in the classifications contained in this Agreement.
[20] Clause 16 of the Agreement deals with the requirement to provide an offer of employment letter and relevantly provides:
“16.1 Classification
16.1.1 Employment classification, licence type and salary will be advised in the offer of employment letter.
16.1.2 In the event of a classification and/or licence type change the Employee will be advised in writing of the terms of the appointment, salary to be paid, and any allowances applicable to the appointment.
16.1.3 For the purposes of this clause, permanent means that Jetstar has appointed the Employee to the classification on a permanent basis; and temporary means for a specific period of time.”
[21] Clause 23 of the Agreement provides for the categories of employment under which employees may be engaged. The categories in which an employee may be engaged are as a “Casual Employee”, as “Apprentices, as a “Permanent Full-time Employee” or as a “Permanent Part-Time Employee”. Relevantly the latter two categories are described as follows:
“23.3 Permanent Full-time Employee
23.3.1 This means the Employee is engaged to work full time hours for the Company on an on-going basis.
. . .
23.4 Permanent Part-Time Employee
23.4.1 A part-time Employee is an employee who works less than full-time hours. The Company may employ part-time Employees in any classification contained in this Agreement.
. . .”
[22] Clause 26 deals with “Remuneration” providing for base salaries (for AMEs -Table 1 and for LAMEs - Table 2) and additional allowances depending on an employee’s classification and license type which are found in table 3. Table 4 contains various general allowances including allowances payable to some employees, including those appointed as a Supervisor, 2IC or Leading Hand. For Supervisors and 2ICs the allowance is expressed as an annual amount and for Leading Hands as a daily amount.
[23] Clause 26 also deals with “Higher Duties” and provides:
“26.4.1 Where an Employee is appointed by the Company to perform the duties of a 2IC on any shift, they will be paid the daily equivalent 2IC rate for the entire shift.
26.4.2 Where an Employee is appointed by the Company to perform the full duties of a Supervisor on a whole shift, they will be paid the daily equivalent Supervisor rate for the entire shift.”
[24] The structure of the Agreement discloses that an Employee is engaged in one of the classifications in Appendix A and in one of the categories of employment in clause 23. The offer of employment letter must tell the Employee, inter alia, the Employee’s “Employment classification”, that is, with which of the three classifications in Appendix A of the Agreement is the employment concerned (clause 16.1.1). It seems implicit from clause 16.1.3, that Jetstar is also required to tell the Employee whether the appointment to the classification is on a permanent basis or is temporary (for a specified period of time). The roles of “Supervisor”, “2IC” and “Leading Hand” are not ascribed a wage or salary under the Agreement, but rather Employees appointed to the roles are paid an allowance as set out in Table 4 of clause 26.3. Thus, a person appointed to a relevant role must first be an “Employee” engaged in a classification in Schedule A and in a category of employment under clause 23. An “Employee” who is appointed “as such”, that is as a Supervisor, 2IC or Leading Hand, is paid the relevant allowance in Table 4 of clause 26.3. Employees may also be appointed to perform the duties of a 2IC or Supervisor on a particular shift. Such appointments are not to the role but rather to perform “higher duties” in which case the provisions of clause 26.4 apply.
[25] The adjective “permanent” is found in several places in the Agreement but is not defined. Its ordinary meaning includes “lasting, remaining unchanged, continuing, enduring, abiding, stable and not easily removed or changed”. When used in the Agreement, “permanent” will take its precise meaning from the context in which it is used. For example, when it is used in the phrase “permanent full-time employee” (clause 23.3) or “permanent employee” (30.3), “permanent” means or is likely to mean a continuing or on-going employee as opposed to a temporary or probationary employee. However, the employment of the Employee, though continuing or on-going is not permanent in the sense that it cannot come to an end, because it is terminable by Jetstar on giving 4 weeks’ notice. We apprehend that when the Association contends that an appointment of an Employee to the role of a 2IC or Supervisor must be on a permanent basis, it means on a continuing and on-going basis as opposed to appointment for a fixed or maximum term.
[26] Returning then to the definitions in clause 2. Each of “Supervisor”, “2IC” and “Leading Hand” is ascribed a meaning as follows:
“2.35 “Supervisor”, “2IC” and “Leading Hand” mean the following:
2.35.1 “Supervisor” means an Employee who is appointed by the Company as such and performs all of the duties typically required of a Supervisor, including supervising the safe acquittal of work on their shift on day of operations, supervising compliance with Jetstar and Qantas Group policies and procedures, being responsible for performance of staff on their shift including conducting periodic reviews and performance management, and any additional duties as reasonably required by management. An employee appointed as a Supervisor will be paid the Supervisor rate in Table 4 in Clause 26 at all times.
2.35.2 “2IC” means an Employee who is appointed by the Company as such and who provides a permanent and ongoing support function to Supervisors in their local port, including by assisting with periodic performance reviews and performance management. An employee appointed as a 2IC will be paid the 2IC rate in Table 4 in Clause 26 at all times.
2.35.3 “Leading Hand” means an Employee who is appointed by the Company as such and provides an ad hoc or temporary support by covering an absent 2IC or Supervisor, or who acts as a point of contact in the absences of a 2IC or Supervisor on a shift (for example, during an overnight shift). An employee appointed as a Leading Hand will be paid the Leading Hand rate in Table 4 in Clause 26 for the relevant shift.”
[27] Each of these defined terms serves three purposes. First, to make clear that an Employee cannot be a “Supervisor”, “2IC” or “Leading Hand” unless the Employee “is appointed by [Jetstar] as such”. The second is to describe in a general sense, the overarching role or responsibility of the position. Thirdly, to identify the appropriate additional rate payable to the occupant of the position and when it is to be paid.
[28] The description of “Supervisor” does not contain the adjective “permanent”. The “2IC” description uses “permanent” in the composite phrase “permanent and ongoing support function” to Supervisors. In contradistinction, a “Leading Hand” is described providing “an ad hoc or temporary support by covering an absent 2IC or Supervisor, or who acts as a point of contact in the absences of a 2IC or Supervisor on a shift”. This difference does not point to a different basis for appointment. It does not support a conclusion that appointment to a 2IC role, much less to a Supervisor role, must only be on a permanent basis. Rather, the words “permanent and ongoing” compared to “ad hoc or temporary” are concerned with the nature of the support provided by each role.
[29] When clause 2.35.2 speaks of a 2IC providing “permanent and ongoing support function to Supervisors” it is not concerned with the basis of the appointment, but rather with the functions performed when appointed. So much is clear from the words themselves and the words “and who provides” which immediately precede them. Thus, a 2IC is appointed to provide the support function on a permanent and ongoing basis. This may plainly be done by a person who is appointed to the role for a period of two years. During the period of appointment, the role of the employee appointed as a 2IC is to provide a permanent and ongoing support function to Supervisors. It is not necessary for the role function to be carried out by the 2IC, that an employee appointed as 2IC be appointed permanently rather than on a fixed or maximum term basis. The occupant of the 2IC role provides the relevant support in either case. It is the support function provided by the 2IC role that is permanent and ongoing, not the occupant of the role.
[30] It follows from the above that we agree with Jetstar that the Deputy President conflated the attributes of the role with the nature of the “appointment” to the role. We also consider the Deputy President was wrong to conflate the nature of the allowance paid with the nature of the appointment required to be made in his conclusion that permanent appointment of Supervisors and 2ICs was intended because the allowances paid to the Employees in those roles are paid “at all times”. It is correct that an employee appointed to either a 2IC or Supervisor role is entitled to the allowances prescribed in addition to the remuneration the Employee would otherwise be paid for his or her substantive classification. The allowance is to be paid at all times while the Employee holds the appointment. This includes during periods of paid leave. However, it does not follow that because an allowance is to be paid “at all times”, Employees appointed to a 2IC or Supervisor role must be appointed on a permanent (continuing and on-going) basis and not for a fixed or maximum term. That the requisite allowance is to be paid at all times speaks to the requirement that the allowance be paid whilst ever an Employee is appointed to the relevant role. That is, at all times an Employee is appointed as a 2IC or Supervisor, including if the Employee occupying the role is dismissed on redundancy grounds (clause 31.2). It says nothing about the duration of the appointment.
[31] There are of course differences between a Leading Hand on the one hand and a Supervisor or a 2IC on the other. Apart from the obvious differences in the role descriptions in clause 2.35, differences are also reflected in: the way in which the relevant allowance is paid (“for the relevant shift” compared to “at all times”); the inclusion of the relevant allowance in calculating redundancy pay for an employee who is a Supervisor or a 2IC and its exclusion for an employee who is a Leading Hand; and the availability of higher duties payments for the requirement to perform 2IC or Supervisor duties but not for Leading Hand duties. But these differences concern entitlements payable to an Employee while the Employee is appointed to the role or while the Employee is appointed to perform the duties of the role. In the absence of clear words to the contrary, the differing entitlements do not support a construction that appointment to the roles of Supervisor or 2IC cannot not be for a fixed or maximum term. Had such a limitation on appointment been intended clear words prohibiting such appointments or requiring appointment on a permanent (continuing and on-going) basis could have been used but were not. The structure and content of the Agreement contemplates “Employees” already employed in an appropriate classification covered by the Agreement (Appendix A), engaged on a permanent full or part-time basis (clause 16), being appointed to a Supervisor or 2IC role as defined (clause 2.35). The duration of the appointment is not regulated. The words “permanent and ongoing” in clause 2.35.2 are not concerned with the nature or duration of the appointment but rather with the role to be fulfilled while appointed.
[32] We do not consider there is any prohibition found in the Agreement which would prevent Jetstar from appointing Employees to the roles of 2IC or Supervisor on a fixed or maximum term basis. The Deputy President was in error to have concluded otherwise. In the circumstances it is unnecessary to consider Jetstar’s second appeal ground.
Conclusion
[33] For the reasons stated we grant permission to appeal, we uphold the first ground of the notice of appeal, we quash that part of the Deputy President’s decision relating to the construction of the Agreement and we substitute his answer to the questions for the following:
The terms of the Agreement do not require Jetstar to appoint an Employee to the role of 2IC or Supervisor on a permanent (continuing and on-going) basis nor do those terms prohibit Jetstar from appointing an Employee to such roles for a fixed or maximum period.
DEPUTY PRESIDENT
Appearances:
Mr J Forbes of Counsel for the Appellant.
Ms L Saunders of Counsel for the Respondent.
Hearing details:
2021.
Melbourne (by video-link).
27 January.
Written submissions:
Appellant, 22 December 2020
Respondent,18 January 2021
Printed by authority of the Commonwealth Government Printer
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1 Australian Licensed Aircraft Engineers’ Association v Jetstar Airways Pty Ltd[2020] FWC 5197
2 Ibid at [105]
3 [1936] HCA 40, 55 CLR 499 at 505
4 Australian Licensed Aircraft Engineers’ Association v Jetstar Airways Pty Ltd[2020] FWC 5197 at [99]-[105]
5 See WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]-[130] and the authorities referred to therein
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