[2019] FWC 69

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 739—Dispute resolution

Josh Edmunds
v
Qantas Airways Ltd
(C2018/3797)

DEPUTY PRESIDENT SAMS

SYDNEY, 14 JANUARY 2019

Application to have the Commission deal with a dispute under an enterprise agreement –Aviation/Medical Security Trainer (AMST) – dispute concerns correct entry point level for training - progressive classification structure (Table 1G) – whether Aviation Safety Trainer must be fully qualified before progressing to AMST levels – Hay methodology – meaning of words ‘entry level’ in context of the clause and of the Agreement as a whole – ‘Berri Principles’ – absurd and unlikely outcomes – Table of classifications must be read sequentially and progressively – exceptions do not prove inconsistency – Table 1G to be read as requiring an employee to hold Level 4E AST as a prerequisite before being classified at Level 5A AMST – dispute determined and concluded.

BACKGROUND

[1] On 11 July 2018, Mr Joshua Edmunds, a member of the Australian Licensed Aircraft Engineers’ Association (‘ALAEA’ or ‘the Association’), filed an application pursuant to s 739 of the Fair Work Act 2009 (‘the Act’) seeking to have the Fair Work Commission (‘the Commission’) deal with a dispute in accordance with the Dispute Settlement Procedure (‘DSP’) under the Qantas Airways Limited (Technical Salaried Staff) Enterprise Agreement 10 [AE912914] (‘Agreement 10’). Mr Edmunds is employed by Qantas Airways (‘Qantas’ or ‘the respondent’) as an Aviation Medical and Security (‘AMS’) Trainer in Sydney.Shortly stated, the dispute concerns the interpretation and application of Table 1G of Appendix G in the Agreement, specifically the appropriate entry point and pay level of Mr Edmunds. At this juncture, it is helpful to set out below the terms of Table 1G Appendix G (for convenience, I shall refer hereafter to this as ‘Table 1G’):

FLIGHT TRAINING

1G FLIGHT TRAINING – Aviation safety training

Classification levels and progression rules for Aviation safety training instructors are set out in Table 1G

Technical Officer	Position	Hay Band
Level 1	10
Level 2	11
Level 3A	12
Level 3B	12
Level 3C	AST Instructor Entry level AST Instructor will progress to level 4C after completion of the 1. Instructor Assessment - AEP and Refresher module in the ASTI training program. 2. Upon receiving the CASA CAO 20:11 Instrument, certified to deliver any recurrent course, requalification course and support training. 3. Human Factors Facilitator training program for recurrent cabin crew courses.	12
Level 3D	12
Level 3E	12
Level 4A	13
Level 4B	13
Level 4C	AST Instructor AST Instructor will progress to level 4E after completion of 1. Instructor Assessment -Cabin Crew Initial Course module in the ASTI training program 2. Completion of Human Factors Facilitator training program for Cabin Crew Initial.	13
Level 4D	13
Level 4E	AST Instructor- Fully Qualified An AST Instructor who undergoes the Aviation Medical/Security Instructor Training program will progress to level 5.	13
14
Level 5A	AMST Instructor Entry level AMST Instructor will progress to level 5C after completion/sign off 1. To deliver AvMed/Security Recurrent courses.	14
Level 5B	14
Level 5C	AMST Instructor will progress to level 5E after 14 completion/sign off 1. MPS Course 2. AvMed/Security Initial courses	14
Level 5D	14
Level 5E	AST Instructor/AMST Instructor- Fully Qualified	14
AST Senior Instructor will progress to level 6 on the appointment of Senior Instructor role.
Level 6A	15
Level 6B	15
Level 6C	Entry level AST Senior Instructor AST Senior Instructor will progress to level 6E after 1. completion of the AST Senior Instructor training program 2. Upon receiving the CASA approval Instrument to a. Undertake the role and responsibilities of a Senior ASTI as documented in the Qantas Operations Manual b. To act on behalf of CASA, to assess proficiency and competence of persons who will be recommended for approval as instructors of Emergency Procedures, under the requirement of Civil Aviation Order 20.11.	15
Level 6D	15
Level 6E	AST Senior Instructor- Fully Qualified	15
Level 7A	16
Level 7B	16
Level 7C	16
Level 7D	16
Level 7E	16

[2] Mr Edmunds seeks to have the Commission determine that according to Table 1G:

• he should be paid at Level 5C;

• the entry point for his position was Level 5A; and

• he be back paid at Level 5A from 14 August 2017 to 26 December 2017 and Level 5C from 27 December 2017 to date.

I note that there are no jurisdictional issues as to the Commission’s powers to arbitrate this matter, as the parties have conferred that power on the Commission by virtue of clause 6.4 of the DSP of Agreement 10. I will proceed on that basis.

[3] The dispute was listed for two conferences convened by me in order to explore settlement of Mr Edmunds’ claims. As the dispute was unable to be resolved, I issued directions for the filing and service of evidence and outlines of submissions for a hearing on 11 October 2018. At the hearing, Mr G Sowter with Mr J Edmunds appeared for the ALAEA. Mr B Popple, Solicitor, Herbert Smith Freehills, with Mr M Fedeli, appeared for Qantas, as of a right conferred by Clause 6.11 of Agreement 10, for either party to be legally represented under the DSP.

THE EVIDENCE

[4] The following persons provided statements and oral evidence in the proceeding:

• Mr Joshua Edmunds (the applicant);

• Mr Simone Locke (Principal Technical Officer, Councillor ALAEA);

• Mr Brian Tabar (Aviation Safety Trainer); and

• Mrs Caroline Turnbull (Manager, Aviation Safety Training, Qantas Flight Training).

Joshua Edmunds

[5] In Mr Edmunds’ statement, he described his duties in the delivery of AMST courses as including instruction, practical training and assessment of Qantas aircrew. He joined Qantas on 10 July 2017 after having been a Senior Cabin Crew Instructor for the RAAF. His contract discloses a salary at the time of $74,553 per annum at Level 3C. At the time, Mr Edmunds said he was informed as to his training path, primarily from his discussions with other staff who had completed, or were undergoing training. He had asked his then manager what path he should follow. He was told that as he was undertaking Medical/Security courses concurrently, he could quickly ‘knock over’ the training path times. He claimed he was never fully aware of his duties and the expectations of him continued to change.

[6] It was Mr Edmunds’ evidence that he had not been informed of his pay level and was told by a Qantas HR person, Mr Ming Chong, to sign his contract. Mr Chong simply said ‘that should have been outlined in the interview’. Mr Edmunds said he did not know the details of his role’s pay scale until 17 December 2017 when he and Mr Tabar were discussing his progress as an Instructor. On 27 December 2017, he completed the AVMED/Security Recurrent Training. Mr Edmunds claimed that Appendix G of Table 1G was never explained to him and it was not until Mr Tabar did so on December 2017, that he believed he was being paid incorrectly. In early 2018, the ALAEA became involved in the dispute.

[7] On 23 May 2018, Mrs Turnbull advised Mr Edmunds that his position had been reviewed by the Qantas Remuneration and Benefits Team and determined at Level 4 and he would progress to level 4C (Salary $81,993 per annum). He received a letter confirming this offer on 1 August 2018, and while he did not accept his dispute had been resolved, he accepted the position on 14 August 2018. Mr Edmunds described his AMST role as follows:

An AMST Instructor is a solo instructor that instructs Medical/Security training. The course lengths range from four hours to a complete eight-hour course. The duration of the course, delivered independent of any other instructors or assistance, indicates the trust placed in the Instructor’s knowledge and competence, preparation of course resources, and the instructor’s ability to independently run a course for up to eight hours with 16 students. An AST course generally has two instructors, depending on course size, running a course.

[8] Mr Edmunds believes that two other Instructors, who had not completed all the training he had, are paid more than he is, and Senior Instructors not qualified as AMST are paid higher than Level 6. Further, he understood that Melbourne based Instructors, hired after he was, have started directly on the AST training path. Mr Edmunds claimed he had repeatedly been told by management that he must complete the AMST training path before getting too far down the AST pathway. He had originally been told that he would be commencing AST training, as he had been hired to fill in for other AMST Instructors when they went on Defence Leave (Mr Tabar agreed with this). In April 2018, Mr Edmunds was told he could start AST training, but he must focus on obtaining all sections of his medical training first. This has become long and very confusing because Mr Doueihi (Aviation Medical Supervisor) told him four times of different training path requirements. He claimed that the changes are individually based, with no monitoring during the process. He described the Recurrent Combined Medical Security two year training.

[9] Mr Edmunds was not required for cross-examination.

Mr Brian Tabar

[10] Mr Tabar has been employed by Qantas as an Aviation Safety Trainer since 16 January 2002. A member of the ALAEA, Mr Tabar was a bargaining representative for the current Agreement. Mr Tabar described the history of the AMST positions, after it moved to Qantas Flight Training in mid-2012, from the Qantas College. He outlined the distinction between Medical and Security Training and said that an AMST Trainer can be trained in both fields or separately. However, the position requires approximately 12 months training, before sign-off. Mr Tabar was aware that in early 2016, three AMST only Instructors accepted employment and to date none of the three had been qualified as AST Instructors.

[11] Mr Tabar had reviewed his notes of negotiations for Agreement 10 which introduced Appendix G. He and Mr Doueihi were responsible for creating Table 1G in Appendix G. The intention was to cover AST Instructors, AMST Instructors, AST/AMST Instructors and AST Senior Instructors, with clear entry levels of AMST at Level 5A and AST at Level 3A. The table expressly provides for Level 5A AST Instructor/AMST Instructor to be fully qualified. This was to show the highest level for a fully qualified AST/AMST, or a fully qualified AMST, will progress to 5E as the highest level.

[12] Mr Tabar could not find any reference, and could not recall Qantas’ intention with Table 1G being only available to employees for progression when a Trainer performed all of the lower level functions and their current functions. He said that if this was so, AST Senior Instructors would not be entitled to Level 6, as none of them have completed Level 5 AMST training. He identified two examples to demonstrate this proposition. Accordingly, he said that Qantas’ interpretation of Appendix G – that it is to be read from left to right, top to bottom – does not make sense. He believed each entry level ‘stands alone’ (for either AST or AMST). He further understood that the AMST position description does not require AST qualifications or previously holding an AST qualification.

[13] Mr Tabar was involved in recent discussions with the Union and Qantas as to Mr Edmunds’ pay level being at Level 3, rather than 5C. At one meeting, Mrs Turnbull said that ‘we believe he is only entitled to Level 4’, that ‘the business was different when Appendix G was agreed’, ‘the table must be read left to right, top to bottom, and ‘the entry points don’t really apply’. A follow-up letter from Mrs Turnbull read:

‘Further to my email on Wednesday where I acknowledged response of your letter, I am now in a position to respond in more detail to your letter regarding higher duties and table 1G under the Qantas Airways Limited (Technical Salaried Staff) Enterprise Agreement 10 (‘TSS Agreement’).

Consistent with earlier emails setting out the Company’s position, the Company remains of the view that employees performing Aviation Medical /Security Instruction, who are not fully qualified AST instructors, are properly graded at level 4. Consequently, higher duties are not paid to level 4 employees performing this function.

As discussed in our meeting, the Company has created the attached position description, which is reflective of the duties performed by Aviation Medical/ Security Instructors. This position has now been graded ,it is a Hay Band 13 and is consistent with Level 4 rates of pay.

I further note the Company’s view that Table 1G of the TSS Agreement is to be read conjunctively, i.e. a grade 5 employee is required to be able to perform all lower functions, as well as the functions indicated within grade 5.’

[14] Around 15 June 2018, Mrs Turnbull advised Mr Tabar that the AMST position had been Hay reviewed and classified at Level 4. Mr Tabar subsequently sought the results and scoring of the review. He was advised by Ms Katherine King (HR Manager) that as the role was graded by the internal Remuneration and Benefits Team, there was no report to explain the grading. Mr Tabar claimed that in a meeting with Qantas on 19 August 2016, Mr Saunders (Senior Manager, Industrial Relations at the time) explained that:

‘Clause 7.4 doesn’t apply to the Senior Instructors as they are covered by Appendix G” and “only positions that are subject to Hay banding have the capacity to seek a review under clause 7.4. Flight Training positions are not subject to Hay banding”’.

[15] In cross-examination, Mr Tabar agreed that the AMST only Instructor role had not been Hay assessed at any time prior to June 2018. The dual AST/AMST role had been assessed in 2013 at point 14 and is reflected at Level 5 entries in Table 1G (5A, 5B, 5C, 5D and 5E). Mr Tabar had no knowledge of , or who was involved in any of the Hay assessments at the time.

Mr Simon Locke

[16] Mr Locke has been employed by Qantas since 2003 and in his present role since July 2013. In his Union role, Mr Locke was a bargaining representative for the current Agreement and its predecessor. Mr Locke was also involved in the review of the Technical Salaries Staff (TSS) in 2012 by the Hay Group. During the enterprise bargaining negotiations, a joint Hay Review Committee was established, and met every two to four weeks to assess the Hay results and provide a recommendation for the TSS classification structure. Four areas, including the Aviation Training Instructors, were identified as not fitting the mainstream model for progression and career paths, and were reviewed separately. This resulted in the AMST classification being introduced into Appendix 1G in Agreement 10.

[17] Mr Locke continued his involvement in the Hay Review Committee which only reviewed requests from employees under clause 7.4 of Agreement 10. There was no request for a review relating to the AMST role since formed. Mr Locke corroborated Mr Tabar’s recollection of the meeting with Qantas on 19 August 2016 and what Mr Saunders said at the time; see: [14] above. This position was reiterated by Mr Saunders on 27 September 2016 in an email. This led to a dispute being lodged with the Commission on 23 March 2017. That dispute sought the following:

1. That the Commission make a ruling that Clause 7.4 applies to all staff covered by the Qantas Airways Limited (Technical Salaried Staff) Enterprise Agreement 10 where the conditions of 7.4 (a) are met.

2. That the Respondent refers the “Senior Instructor Aviation Safety Training” position to the “TSS Classification Review Committee” for resolution in accordance with Clause 7.4 (c).

[18] Mr Locke was not required for cross-examination.

Mrs Caroline Turnbull

[19] Mrs Turnbull has been employed by Qantas for 20 years and for the last nine years as Manager, Aviation Safety Training. Mrs Turnbull has seven direct reports (five Senior AST Instructors and two Coordinators). There are 60 people falling under her management. All employees of Qantas who are Cabin Crew (7,500) and Flight Crew (2500) must undergo both AST and AMST. Mrs Turnbull set out in detail the importance of AST and AMST and the regulatory environment which requires operating crew to be appropriately and competently trained in emergency procedures. This training involves both a practical component and theoretical knowledge component and crew must successfully pass an annual proficiency test.

[20] Mrs Turnbull set out the details of the initial and recurrent AST training and attached various training documents relevant thereto. Mrs Turnbull explained the AST training path, as approved by the Civil Aviation Safety Authority (CASA), as follows:

(a) the initial provision of a training manual that provides an overarching review of all matters that will be covered by the Instructor over the course of the training path. The Instructor will also be assigned a mentor (a fully qualified AST Instructor) at this stage who will provide guidance and instruction to the Instructor over the following months, and will allow the Instructor to observe their classes, as well as direct them to deliver mock up training or other specific practical practice. An AST Senior Instructor is fundamental in structuring the training program for the Instructor to ensure that they get all of the adequate experience and knowledge required to successfully complete their training path;

(b) participating in an initial Cabin Crew AST course, as outlined in paragraph 23 above, in order to learn the course content and requirements, as well as to understand the various facilitation styles and techniques of current AST Instructors employed by Qantas. An applicant who is already employed by Qantas as a Cabin Crew and is seeking to re-train as an AST Instructor would only be required to undertake a shorter refresher course in this aspect;

(c) emergency procedure training, which provides training on the relevant emergency procedures across each of Qantas’ aircrafts, including requirements around how to manage people during an emergency and how to operate the relevant emergency equipment (such as slides, rafts, life jackets, fire extinguishers, oxygen equipment and survival beacons), as well as complex land and ditch survival methods and scenarios. Training is also provided in relation to how to operate all of the applicable training facilities, including basic water rescue training should the instructor encounter a situation of a course participant running into difficulty during a pool exercise;

(d) dangerous goods training, in relation to how to manage appropriate dangerous goods for both Cabin Crew and Flight Crew (the subject matter of which is outlined in paragraph 23(c)). Competency in this specific training is determined when the Instructor is able to present a three hour initial Flight Crew module to a specified CASA-appointed dangerous goods instructor (whom is employed by Qantas, but has a higher-level training in relation to the management and handling of dangerous goods);

(e) human factors, which is designed to improve Crew members’ problem solving and conflict resolution skills via using appropriate communication strategies, leadership techniques, suitable decision making and working effectively in a team, in order to exercise effective control over passengers, generally and especially during emergencies. Such training is consistent with Civil Aviation Order 82.5: Conditions on Air Operators’ Certificates authorising regular public transport operations in high capacity aircraft, which provides that an airline operator must establish and use a safety management system approved by CASA, having regard to a number of guidance materials provided by CASA, including ‘CAAP SMS-3(0) – Human Factors and Non-Technical Skills Training for Regular Public Transport Operations’; and

(f) following completion of the above training, a participant is then required to undertake a number of discrete components and modules that cover fundamental aircraft knowledge. In the first instance, these usually cover broad topics such as the physiology of flight, standard operating procedures (being the steps taken by Cabin Crew during any commercial flight), handling dangerous goods, and generic training on doors and flight equipment. Following the high-level general training, the applicant would then undertake more specific training for specific aircrafts types that seek to build upon the more general modules. For instance, they would be allocated a specific aircraft type (such as Boeing 747) and would be given reference material and opportunities to walk the aircraft several times in order to study its arrangement, location of equipment and other specific aspects of the aircraft.

[21] During this training the AST Instructor is classified as Level 3C. In order for an AST Instructor to become classified as a Level 4C in Table 1G they must:

(a) receive sign-off from a Senior AST Instructor and then I, as the applicable Manager, will make an application to CASA for them to be granted a CAO 20.11 Instrument. As part of this application, CASA will review all of the applicable paperwork identifying that the Instructor has completed their training. If CASA is satisfied that the Instructor has met the relevant requirements, it will issue the individual with a 20.11 Instrument;

(b) demonstrate an ability to teach ‘AEP’ courses (which historically meant ‘Annual Emergency Procedures’, and is now known as recurrent training) and ‘refresher’ courses (which are now known as requalification courses); and

[22] Mrs Turnbull said movement from 3C to 4C can be achieved within a six month timeframe.

[23] Mrs Turnbull then set out the progress through the classification structure to a senior AST Instructor, who performs senior managerial and supervisory responsibilities, as follows:

An AST Instructor will progress to the next classification level (i.e. from a Level 4C to a Level 4E) once they are able to deliver initial AST on their own. To achieve this competency, the AST Instructor must successfully:

(a) demonstrate a strong proficiency in the AST content and the ability to adequately deliver training. For this purpose, Qantas requires AST Instructors to have successfully instructed in at least 40 recurrent courses on their own to ensure they have sufficient experience to deliver AST competently, as well as some experience in delivering conversion training; and

(b) complete an ‘Instructor Assessment – Cabin Crew Initial Course module in the ASTI training program’ and ‘Human Factors Facilitator training program for Cabin Crew Initial’, which is a reference to working as a ‘secondary’ instructor on a Cabin Crew Initial AST course. Generally, an AST Instructor must complete at least two courses as a ‘secondary’ instructor and then one further course as a ‘lead’ instructor (and therefore demonstrate a capability for being responsible for managing paperwork and the logistics of running such a course) before a Senior AST Instructor will confirm that they have met this requirement.

Once a level 4C AST Instructor is assessed as being competent in the above aspects, they will then progress to being a Fully Qualified AST Instructor, and progress to level 4E classification under the 1G Classification Table. A Fully Qualified (level 4E) AST Instructor has achieved all competencies required of an AST Instructor. Save for an individual who wants to attain additional qualifications as an AMST Instructor, they will not as a matter of course progress any further through the classifications. Typically, it takes an AST Instructor approximately 18 months to progress from a level 4C classification to 4E takes an AST Instructor.

The 1G Classification Table does include a ‘Senior AST Instructor’ position, however, this level does not operate as an ordinary further increment that all AST Instructors could ultimately progress to, but rather, as stated in the 1G Classification Table, classification as Senior AST Instructor is made by ‘appointment’. The Senior AST Instructor position is classified under level 6 of the 1G Classification Table, and there are only five people whom currently hold the title. Appointments are made on merit, and are not a guaranteed career progression for AST Instructors. Generally speaking, Training Instructors with extensive experience, who have volunteered to undertake additional responsibilities which would not ordinarily form part of their role, have exhibited a strong engagement and enthusiasm for teaching, excellent people management skills and strong human factor skills are those that tend to be appointed to such classification.

[24] Mrs Turnbull then turned to the AMST which all crew must undergo at initial training and again every two years for recurrent AMST. The AMST involves two components, which are:

(a) a medical component, which teaches Cabin Crew basic first aid medical assistance, such as the use of a defibrillator, performing CPR, managing injuries and caring for passengers who may suffer medical issues during a flight; and

(b) a security component, which teaches Cabin Crew and Flight Crew measures required to keep the aircraft secure whilst in flight and before and after take-off, such as protecting the flight deck, self-defence tactics and restraint of persons.

[25] Mrs Turnbull described the AMST as less complex, requiring no specialist equipment and initial training is covered over two days in the classroom. Generally AMST is delivered by one Instructor, rather than two, for initial AST. Nor is there any formal assessment or appraisal process required (unlike AST). Medical training is not regulated by CASA and there are no mandatory annual requirements or failure repercussions, unlike AST. Mrs Turnbull detailed the requirements for AMST Instructors as follows:

The first step for an Instructor who wants to be able to deliver AMST is to undergo the Aviation Medical/Security Instructor Training Program. This involves approximately 6-8 weeks of training in order to deliver recurrent AMST (which is considerably shorter than the approximate six months duration to deliver recurrent AST), encompassing the study of written materials, observing other AMST Instructors perform such training, and co-facilitating AMST courses with fully-qualified AMST Instructors. Upon the completion of the program, the Instructor will be signed off as being competent to deliver such training by another fully-qualified AMST Instructor (and there is no requirement for such sign-off to come from a Senior AST Instructor).

An AST Instructor who is undergoing the Aviation Medical/Security Instructor Training Program will progress to Level 5A from Level 4E under the 1G Classification Table, that is, they will be classified as an ‘AMST Instructor Entry level’.

Once this instructor has achieved competency to deliver recurrent AMST (as determined by reference to accreditation requirements) they will progress to level 5C under the 1G Classification Table. This requires them to deliver a number of AMST recurrent courses to Cabin Crew and Flight Crew in order to demonstrate their proficiency in teaching such courses (which can ordinarily be undertaken in a period of approximately eight weeks, depending on circumstances and availability).

In order to progress to the next classification level, being a Level 5E, an AST Instructor must be able to successfully complete the following:

(a) delivery of an MPS Course, as described in paragraph 53 above; and

(b) delivery of an initial AMST course. Competency to deliver such a course is determined by Qantas’ subject matter experts, such as David Pool (in relation to the security aspects) and Jan Brereton (in relation to the medical aspects).

It is possible for an AST Instructor to progress from a Level 5C to a Level 5E qualification within a couple of months, depending on the availability of courses (because, courses such as the MPS course, are not run on a regular basis).

Whilst all of the assessments required of a Training Instructor to deliver AST require certification from an Instructor whom holds a 20.11 Instrument (generally being a Senior AST Instructor), there is no equivalent stringent approval process attached to the medical and security training programs, but rather certification of competency in relation to these training programs is determined by the relevant instructor.

[26] Mrs Turnbull described the history of the movement of AMST from the Qantas College in 2012 to the Aviation Safety Training Team. In 2013, a Hay assessment of the AST/AMST Instructor position was allocated at Hay Point 14. She explained that as existing fully qualified AST instructors were actually classified at the higher level of 5E under Agreement 9, a decision was made to ‘grandfather’ these employees, although they did not hold both AST and AMST qualifications. However, any new AST Instructor was required to commence at Level 3C.

[27] During the negotiations for Agreement 10, Table 1G was developed between Mr Doueihi and Mr Tabar to reflect the ability of the AST Instructor to work as an AMST Instructor. She believed there was general agreement that the joint AST/AMST Instructor progressed from Level 4E to 5A. A final document in September 2013 recorded the following:

On 10 September 2013, I was copied into an email from Ms Levis to Ms Zanello (who was providing industrial relations support to Qantas as part of bargaining for the TSS EA10), attaching a copy of the updated salary progression table that was to constitute the 1G Classification Table in TSS EA10, which included the applicable Hay band allocations and AST/AMST Instructor position. This document was marked as ‘FINAL – September 2013’ and contained the following explanatory information at the top of the page:

Fully qualified AST Instructor was rated as level 13

Fully qualified AST Instructor/Aviation Medical Security Instructor was rated at level 14

Fully qualified AST Senior Instructor was rated as level 15

Mrs Turnbull understood that this progression reflected the positions building upon one another, rather than sitting in isolation. The proposed Agreement 10 was approved by employees on 29 July 2015. The result was that Table 1G for training Instructors would be initially classified as a Level 3C and would then progress through the classification structure once they meet the requirements set out in each pay level, up to level 4E (with the exception of those existing Training Instructors who had been ‘red circled’ or ‘grandfathered’, who were classified at level 5E). However, there have been some exceptions made to this since Agreement 10 has commenced.

[28] Mrs Turnbull explained the exceptions of the two individuals who were graded differently to the intention of Table 1G: the only Perth based AST Instructor (Ms Passmore) with many years of service and another AST Instructor, Mr Lam, with over 20 years’ experience, who was seconded to Perth to cover Ms Passmore’s parental leave. He will revert to his former position and classification in January 2019.

[29] In cross-examination, Mrs Turnbull explained that when Mr Lam was seconded to Ms Passmore’s role in Perth, they were not remunerated the same, as Mr Lam has on additional relocation allowance. In respect to Mr Edmunds circumstances, Mrs Turnbull said:

‘On or about 14 August 2017, Mr Edmunds was employed by Qantas in the role of an AMST Instructor, pursuant to a contract of employment with Qantas dated 10 July 2017. He was employed to deliver AMST recurrent courses on behalf of Qantas whilst another AMST Instructor, Mr Dan Matthews, was on a period of defence force leave.

Mr Edmunds was initially classified as a Level 3C under the 1G Classification Table. This was because Mr Edmunds was not a fully qualified AST Instructor and was only qualified to instruct AMST recurrent courses. Although the role identified at Item 2 of Schedule A of Mr Edmunds’ contract of employment identifies his role as ‘Aviation Safety Training Instructor’, in this context, this is a generic title that is provided to any AST or AMST Instructor that fall within the AST department, regardless of whether their training is as an AST Instructor or AMST Instructor or dual-qualified as both (and, in any case, Mr Edmunds was placed on the training path that would enable him to be qualified as an AST Instructor in due course).

Mr Edmunds successfully completed all of the requirements to conduct AMST recurrent training. On 23 May 2018, Mr Edmunds was formally recognised as being certified to deliver this training, being effective as of 27 December 2017 (and provided with back-pay in recognition of such). At no time has Mr Edmunds challenged the Hay banding of his role.

Mr Edmunds is imminently to complete the requirements to be able to deliver all AMST initial training. It is currently anticipated that within the next 4-6 months, Mr Edmunds will also become a fully-qualified AST Instructor. Upon obtaining such qualification, Mr Edmunds will be able to progress to a Level 5 classification under the 1G Classification Table of TSS EA10.’

[30] In a useful aide memoire, Qantas set out the differences between AST and AMST. I attach this document to my decision as Annexure A.

[31] Mrs Turnbull acknowledged that the AMST Instructor role has not significantly changed since it was introduced in Agreement 10 in 2016. As Mr Edmunds is currently going through the training, and his role was Hay banded, there is no need for him to challenge his role under clause 7.4 of Agreement 10. Mrs Turnbull accepted that the advanced first aid certificate and the RSA certificate are not requirements for the AST role. These are requirements for the AMST role. As to the Hay methodology, Mrs Turnbull believed that each role stands alone for its own assessment. Roles are not compared to each other. However, she is not involved in the Hay Committee and is not closely familiar with the Hay methodology.

SUBMISSIONS

For the Association

[32] In written submissions, Mr Sowter set out the technical background and the factual outline of the dispute and the steps taken by the Association to progress the dispute through the DSP (much of this material is covered elsewhere in this decision). Mr Sowter said that it was the Association’s position that as Mr Edmunds was, and still is employed specifically to carry out AMST duties, he is entitled to be paid as an AMST Instructor. Therefore, by virtue of Table 1G of Appendix G, Mr Edmunds should have been paid at Level 5A ($84,223 per annum) from 14 August 2017 until 26 December 2017 and Level 5C ($90,024 pa) from 27 December 2017. Further, the Association and Mr Edmunds do not agree with Qantas’ communicated position that for an AMST Instructor to be paid at Level 5 they are required to be able to perform all lower functions. If this were the case the ‘Entry Level’ classifications in Appendix G would be rendered obsolete. The clear and unambiguous intention of ‘entry points’ being included in Table 1G is to provide the ‘entry point’ for those employees in those classifications.

[33] Mr Sowter outlined the powers of the Commission to determine this dispute and the relevant authorities to be applied by the Commission in interpreting the words used in Table 1G in Agreement 10; namely, the ‘Berri Principles’; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Berri Pty Ltd[2017] FWCFB 2005. It is common ground that the ‘Berri Principles’ apply to this dispute and I will return to these Principles in due course.

[34] Mr Sowter submitted that the plain text of Table 1G has ‘Entry Level’ at Level 3C for AST, ‘Entry Level’ at Level 5A for AMST Instructors, and ‘Entry Level’ at Level 6C for AST Senior Instructors. The use of the plain language ‘Entry level’ for each classification of Instructor does not support the contention that flight training staff are required to move progressively through each and every level.

[35] Mr Sowter said that Qantas’ construction of Table 1G as to be read conjunctively, in that an Instructor must be able to perform all lower functions, as well as the functions in their current level, is not supported by the plain text of the Agreement. Moreover, the actual position is inconsistent with Qantas’ construction in that:

(a) the ‘Entry Level’ indicated for Senior Instructors is at level 6C in Table 1G and all Senior AST instructors are paid at level 6C or above. However, none of the Senior Instructors employed by the respondent are qualified or able to perform Level 5 AMST duties, which are a lower level position; and

(b) the Respondent paying other instructors carrying out AMST duties at level 5 that have not completed all the requirements of Level 4.

[36] Mr Sowter put that Table 1G clearly has separate provisions for four different classes of Instructors; namely:

(a) AST instructors i.e. ‘AST instructor Entry level’ at 3C;

(b) AMST instructors i.e. ‘AMST Instructor Entry Level’ at 5A;

(c) AST instructors that have also completed AMST training i.e. ‘AST Instructor/AMST Instructor – Fully Qualified’ at 5E; and

(d) Senior Instructors i.e. ‘Entry Level AST Senior Instructor’ at 6A.

[37] It was noted that several of the classification levels have the added descriptor of ‘fully qualified’, which would be unnecessary if the employees needed all of the qualifications in the lower levels to progress. Further, the AST Instructor Position Description (PD) does not mention AMST as a career progression, and the AMST Instructor PD does not mention AST qualifications as a pre-requisite for the position. This is to be contrasted to the Senior Instructor PD.

[38] Mr Sowter submitted that the words of Table 1G are clear, plain and unambiguous. They are not uncertain or capable of more than one meaning. However, if the Commission finds ambiguity, then objective background facts support the Association’s position; see: BP Australia Pty Ltd v Nyran Pty Ltd [2003] FCA 520.

[39] Mr Sowter put that:

• there was no mutuality of the parties’ presumed intention;

• Qantas did not dispute Mr Tabar’s construction at the relevant time;

• Qantas has not consistently applied their construction of Table 1G i.e. Senior Instructors not being able to perform all lower functions;

• the AMST PD requires a higher level of education and does not list AST instructor qualifications as a requirement;

• until this dispute, Qantas has never communicated their intended construction or application of Table 1G;

• the ALAEA does not now, nor has it ever agreed with Qantas’ current position regarding the construction or application of Table 1G;

• Table 1G has provisions for four separate classes of instructors; AST Instructors, AMST Instructors, AST Instructors who have also completed AMST training and Senior Instructors; and

• AST and AMST Instructors hold different qualifications and also perform different functions.

For Qantas

[40] Qantas submitted that:

(a) each of the Level 5 classifications (whether it be Level 5A, 5C or 5E) require as a pre-requisite that an employee be ‘fully qualified’ to deliver AST: that is, that they have already met the requirements to advance to Level 4E; and

(b) the 1G Classification Table does not deal with employees who are qualified only to deliver AMST. Such a role was not contemplated under the Agreement at the time it was made. As such, once it was introduced to the Agreement, Qantas correctly classified the role as being at Level 4C in accordance with the process envisaged at clause 7.4 of the Agreement.

It was put that each classification in Table 1G operates sequentially with ascending higher rates of pay. If the answer to the question of whether Levels 5A and 5C require qualification as an AST Instructor as a prerequisite is ‘no’, it would lead to internal inconsistency within Table 1G and produce absurd results.

[41] Qantas rejected the Association’s submission that the Table 1G represents four entirely discrete classes of Instructors. Specifically, Qantas submitted that:

‘The Applicant’s position (as articulated in the Applicant’s Outline) rests almost entirely on the words “entry level” at Level 5A in the 1G Classification Table. Properly understood however, these words are simply to identify that Level 5A is the entry point for an AST Instructor who is commencing the qualifications required to also deliver AMST. This is not in any way inconsistent with the words of the 1G Classification Table’.

[42] It was further submitted that the Association’s construction would lead to highly unlikely and absurd results, that could never have been the intention of the parties; namely:

(a) if these Level 5 classifications are applicable to AMST Instructors, irrespective of whether they are qualified to deliver AST (i.e. including AMST Only Instructors), then there is no difference in classification or pay between an instructor who is undergoing training to deliver AMST (but is not yet capable of delivering any training at all), and a fully qualified AST Instructor who has undertaken the significant training and study (taking approximately 24 months to complete) to deliver the extensive and complex initial AST, and is also undergoing the training to deliver recurrent AMST. They would both be entitled to be classified at Level 5A;

(b) nor is there any difference in pay between an AMST Only Instructor who is only approved to deliver recurrent AMST, and a fully qualified AST Instructor who is capable of delivering recurrent (but not initial) AMST. Both would be classified at level 5C; and

(c) further, there would be no difference in classification between an AMST Only Instructor who can deliver recurrent AMST, and an AMST Only Instructor that can deliver both recurrent and initial AMST. Both would be classified at Level 5C, because Level 5E is clearly applicable only to instructors qualified to deliver both AST and AMST.

[43] Qantas agreed that evidence of ‘surrounding circumstances’ can be called up to assist in determining whether Table 1G is ambiguous or resolve any ambiguity. It was said that almost none of Mr Tabar’s evidence was helpful in this regard, as it was largely commentary, conclusion or opinion, and did not assist the construction exercise. Other of Mr Tabar’s evidence is largely consistent with Mrs Turnbull’s statement. This evidence went to the nature of both the AST and AMST Instructor roles as set out in their evidence (which I will not repeat).

[44] Qantas further submitted that:

‘It is an uncontroversial proposition that the 1G Classification Table must not be interpreted in a vacuum divorced from the industrial reality of the Respondent’s operations. Moreover, the construction of an enterprise agreement should contribute to a sensible industrial outcome such as could be attributed to the parties who negotiated and made the agreement.

In this regard, the absurdity of the consequences of the Applicant’s construction of the 1G Classification Table … is amplified once regard is had to the size, complexity and responsibility of the AST Instructor role in comparison to that of the AMST Only Instructor.

In light of these considerations, it would also plainly be an illogical outcome if an AMST Only Instructor who is not yet capable of delivering any training at all (but is working toward being able to deliver recurrent AMST), or an AMST Only Instructor who is capable of delivering only recurrent AMST, were entitled to be classified at a higher level than an AST instructor who is fully qualified to deliver initial AST’.

[45] The submission described the history of AMST from mid-2012 when it moved to Flight Training from the Qantas College. Prior to when the AMST role was introduced, there were no AMST only instructors employed under the Agreement until March 2016. It was not until March 2016, after the Agreement assumed operation, that Qantas employed AMST Only Instructors under it. These were the AMST Only Instructors who had transitioned from the Qantas College. At this time, they were appointed to classification level 4C under the Agreement, in accordance with the general classification structure in table 1 of Appendix A to the Agreement, which has an associated Hay rating of 13. The AMST Only Instructor role has been assessed at Hay level 13. Moreover, the pay associated with level 4C is similar, but slightly more generous, than what they were previously paid.

[46] Consistent with this approach, Mr Edmunds was appointed at Level 4C in December 2017, after initially being appointed to Level 3C, given he was not able to deliver recurrent AMST (or AST) unsupervised. He is currently undergoing further training over the next four to six months to be fully qualified to deliver AST and AMST. He will then progress to Level 5. Qantas noted that Mr Edmunds had not sought a review of the Hay rating of his role, as is his right under clause 7.4 of Agreement 10. Qantas relied on the specific reasons why Ms Passmore and Mr Lam had been exempted from their usual classification, in the evidence of Mrs Turnbull.

[47] Qantas sought the following determination be made by the Commission:

‘The FWC ought to conclude that the Level 5 classifications in the 1G Classification Table (that is, levels 5A and 5C) require an employee to hold the qualifications of a Level 4E AST Instructor as a pre-requisite, and dismiss the application’.

[48] In oral submissions, Mr Sowter summarised the Association’s case, and Mr Popple went in some detail to explain the difference between the AST and AMST roles (earlier set out in the evidence of Mrs Turnbull). He emphasised that Table 1G does not contemplate, and was never intended to contemplate an AMST role. It is dealt with elsewhere in Agreement 10 and why Table 1G must be considered in the context of Agreement 10 as a whole. There is no ambiguity, and even if there was, the same outcome would result.

[49] Mr Popple referred to the substantive classifications in the Agreement at Appendix A Table 1. Clause 7.1 refers to rates of pay and allowances in Tables 1, 2 and 4 of Appendix A. Appendix A does not have detailed PDs, as the parties have agreed the Hay methodology will apply. Mr Popple stressed that Table 1G is not a classification structure on its own. It is a cross-referencing exercise. Mr Popple explained the progression through Table 1G which requires a completion of qualifications at each level before logically progressing to the next level. Fully-qualified AST instructors reach level 4E and are then linked to Level 5 by the words ‘[a]n AST Instructor who undergoes the aviation medical safety instructor training program will progress to Level 5’.

[50] Mr Popple identified the absurd results which would flow if the Association’s construction of Table 1G was accepted. It would mean a Level 5 AMST Entry Level employee could be assumed by someone not qualified in AST. This is a ‘tension’ which cannot be resolved except by rejecting the Association’s submissions. Mr Popple referred to the aide memoire that sets the differences between the two roles. It demonstrates the absurd and illogical outcomes if the Association’s interpretation is accepted. Mr Popple dealt in some detail with Mrs Turnbull’s evidence (as set out earlier)

[51] Mr Popple submitted that although the words were unambiguous, their meaning was corroborated by reference to the history of AMST and the negotiations for Agreement 10. Mrs Turnbull’s evidence was largely consistent with Mr Tabar’s evidence. He stressed that at the time Agreement 10 was made, there was no AMST only Instructors under Agreement 10, although they were proposed to be. They were covered by a different agreement.

[52] In reply, Mr Sowter said that Ms Passmore and Mr Lam are clear examples of inconsistencies in Qantas’ case, as they were qualified at Level 4, but are paid at Level 5C and 5E respectively.

CONSIDERATION

[53] Both parties appropriately relied on the ‘Berri Principles’ as being applicable to this matter. The ‘Berri Principles’ are as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.

[54] There is no doubt the ‘Berri Principles’ have as their foundation the long line of historic authority as to the approach to be applied by the Courts, Commissions and Tribunals when called upon to interpret the words in an industrial instrument. Prior to the preponderance of agreements and enterprise agreements, this was usually applied to Awards. Recent iterations of the legislative framework, necessitated a refinement of these principles from The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited[2014] FWCFB 7447 (‘Golden Cockerel’); but some of the basic fundamentals remain. I refer to some of these cases to make good this proposition.

[55] I harken back to some of the early well-known cases which dealt with the construction of Awards. In City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813; 153 IR 426, French J said at [53]:

‘53 The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ – Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia [1998] FCA 249; (1998) 80 IR 345 (MarshallJ).’

Then at paragraph 57, His Honour observed:

‘57 It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

‘Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.’’

[56] Madgwick J in Kucks v CSR Limited [1996] IRCA 1966 opined that a narrow pedantic approach to interpretation should be avoided, a search of the evident purpose is permissible and meanings which avoid inconvenience or injustice may reasonably be strained for, but:

“... [T]he task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”

[57] As the legislative focus shifted towards agreement making, the same principles were recognised to apply to the interpretation of enterprise agreements. In Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 (‘Amcor’), the High Court Gummow, Hayne and Heydon JJ:

‘Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate.’

[58] In Amcor, His Honour Kirby J said:

‘However, certified agreements such as this commonly lack the precise drafting of legislation. As appears from a scrutiny of the provisions of the Agreement, it bears the common hallmarks of colloquial language and a measure of imprecision. Doubtless this is a result of the background of the drafters, the circumstances and possibly the urging of the preparation, the process of negotiation and the omission to hammer out every detail - including possibly because such an endeavour would endanger the accord necessary to consensus and certification by the Commission.

. . .

The nature of the document, the manner of its expression, the context in which it operated and the industrial purpose it served combine to suggest that the construction to be given to cl 55.1.1 should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement. Approaching the interpretation of the clause in that way accords with the proper way, adopted by this Court, of interpreting industrial instruments and especially certified agreements. I agree with the following passage in the reasons of Madgwick J in Kucks v CSR Ltd, where his Honour observed:

‘It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.’ [references omitted]

[59] Again in Amcor, His Honour Callinan J said there was substance in the observations of Madgwick J in Kucks. His Honour then said:

‘An industrial agreement has a number of purposes, to settle disputes, to anticipate and make provision for the resolution of future disputes, to ensure fair and just treatment of both employer and employees, and generally to promote harmony in the workplace. It is with the third of these that cl 55 of the Agreement is particularly concerned. It is important to keep in mind therefore the desirability of a construction, if it is reasonably available, that will operate fairly towards both parties.’

[60] In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 (‘Codelfa’) Mason J, as he then was, (and with whom Stephen, Aickin and Wilson JJ agreed) said:

‘The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification.

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties’ presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.’

[61] The nature of the present task was emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia[2013] FWCFB 8557 in the following terms:

‘[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’

[62] All of the above observations are concordant with the approach taken in Golden Cockerel and Berri. In short, the Commission’s task is to ascertain the objective intention of the contested words, based upon the language and terms of Agreement 10, when read as a whole, having regard to its context and purpose.

The question to be determined

[63] Although there was no specific question framed by the parties to be answered by the Commission in this dispute, I think it can be determined by either agreeing to the proposition posed by the Association in respect to Mr Edmund’s circumstances (see: para [2] above); or by answering the question posed more generally by Qantas (see: para [47] above).

[64] In my view, the Association’s focus on the words ‘entry level’ is both isolationist and inconsistent with the plain and unambiguous intention of Table 1G Appendix G. Table 1G is no more than a conventional progression system which must be read in conjunction with rates of pay and allowances in Appendix A and the assessment of each level by the Hay methodology. On its own, Table 1G would be meaningless, without reference to other of the Agreement’s provisions. That this must be so, is plainly demonstrated by the express words used in the preamble to the Table:

‘Classification levels and progression rules for Aviation Safety Training instructions are set out in Table 1G’. (my emphasis)

[65] The Macquarie Dictionary definition of ‘progression’ is ‘the process of developing or moving gradually towards a more advanced state’. Synonyms for ‘progression’ include ‘development’, ‘advancement’, ‘evolution’, ‘growth’, ‘sequence’. I note the word ‘progress’ appears no less than seven times in Levels 3 (3C), 4 (4C and 4E), and three times in Level 5 and once in Level 6.

[66] Given the meaning of the word ‘progression’ and that the Hay ranking also moves (progresses) sequentially from 12 – 16, it would be illogical that an employee could be interposed at a higher level in the progression, without completing the qualifications for each of the preceding or lower levels. This would defeat the purpose of a progression system and distort the orderly movement of employees through the system. It would be contrary to the adjoining words ‘rules’ in the preamble by effectively undermining the progression rules.

[67] In my view, the Association’s central focus on the word’s ‘entry level’ is inconsistent with the ‘Berri Principles’, particularly the principle that the meaning of disputed words are determined by their placement in the clause in the context of the Agreement when read as a whole. Interpretation of the words which result in absurd or illogical outcomes should be avoided; see: Amcor. These absurd outcomes are set out in Qantas’ submissions; see: paragraph [42] above. I agree with their characterisation of the result as absurd and unlikely.

[68] My preference for Qantas’ construction of Table 1G is further supported by the sequential and sensible link between an AST fully-qualified Instructor at Level 4E, which includes the words ‘An AST Instructor who undergoes the Aviation Medical/Security Instructor Training Program will progress to level 5’, the next succeeding level of Level 5-AMST Instructor Entry Level. In my opinion, the words ‘Entry Level’ understood in proper context, mean only that the employee enters the AMST Instructor Entry Level as a natural progression from the immediately preceding level of 4E, subject to undergoing the AMST Training Program. Further support for my view derives from a proposition that if Table 1G was not a sequential progression system, there would be TWO separate and distinct streams of progression for AST and AMST, independent of each other. The fact the two are in the same progression system must mean what I have earlier explained.

[69] While both parties are ad idem that the words used in Table 1G are not ambiguous, uncertain or susceptible to more than meaning — with which I concur — I do not accept the construction pressed by the Association. Qantas’ construction is correct and I am satisfied the Level 5 classification in Table 1G requires an employee to hold the qualifications of a Level 4E AST Instructor as a prerequisite.

[70] To the extent support for this conclusion may be helped by reference to ‘surrounding circumstances’ (which it is not), in my view, the largely uncontested and consistent evidence of Mr Tabar and Mrs Turnbull, as to the history of this matter, and the negotiations for Agreement 10 demonstrate that the construction of Table 1G, which I prefer, is correct.

[71] Lastly, in dealing with the Association’s submission as to the inconsistency in Qantas’ position by example to Ms Passmore and Mr Lam, I make the following observations:

(a) both Ms Passmore and Mr Lam were appointed to Perth after the making and approval of Agreement 10. ‘Berri Principle 15’ makes clear that post-contractual conduct cannot be called in aid of the original mutual understandings of the parties; and

(b) Qantas was entitled to make a commercial decision to pay Ms Passmore and Mr Lam more than Agreement 10 provides. It had good reason to do so: to retain the long experience of both Instructors. In any event, such a decision says nothing about how Agreement 10 should be interpreted, or what the mutual intent of the parties was at the time.

CONCLUSION

[72] The Commission determines this dispute by interpreting Table 1G in Agreement 10 as requiring an employee to hold the qualification of a Level 4E AST Instructor as a prerequisite before being classified at Level 5A, AMST.

[73] This dispute is resolved accordingly and the proceedings concluded.

DEPUTY PRESIDENT

Appearances:

Mr G Sowter and Mr J Edmunds for the applicant.

Mr B Popple of Counsel and Mr M Fedeli for the respondent.

Hearing details:

11 October 2018

Printed by authority of the Commonwealth Government Printer

Josh Edmunds v Qantas Airways Ltd