Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia) v Transport Workers' Union of Australia
[2014] FWC 8211
•25 NOVEMBER 2014
| [2014] FWC 8211 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia)
v
Transport Workers' Union of Australia
(C2014/6958)
COMMISSIONER CLOGHAN | PERTH, 25 NOVEMBER 2014 |
Application to deal with a dispute.
[1] On 24 October 2014, Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia) (Applicant or Employer) made application to the Fair Work Commission (Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP).
[2] The application has been made in accordance with s.739 of the Fair Work Act 2009 (FW Act).
[3] The Employer is in dispute with Operations Officers (OPSOs) employed at its Broome base and who are represented by the Transport Workers’ Union (TWU).
[4] The application was the subject of a conference on 11 November 2014. The Employer and the TWU were unable to reach a resolution of the dispute. As a consequence, the dispute was listed for a hearing on 14 November 2014.
[5] At the hearing, the Employer was represented by Mr S Bakewell, EMA Consulting Pty Ltd. Evidence was given on behalf of the Employer by:
- Mr S Cyr, Base Manager, Broome.
- Ms M Coutinho, Base Manager, Karratha.
[6] The employees subject of the dispute were represented by Mr A Dzieciol, the TWU’s Senior Legal/ Industrial Officer. Evidence was given on behalf of the employees by Ms L Mueller, Operations Officer.
[7] This is my decision and reasons for decision.
RELEVANT BACKGROUND TO THE DISPUTE
[8] The Employer employs OPSOs at its Broome, Karratha and Darwin bases. While this dispute is focussed on OPSOs at Broome, an OPSO at Darwin has raised similar concerns to that of her colleagues at the Broome base. Accordingly, my decision and reasons for decision are generally applicable to the workplace whether in Broome, Karratha or Darwin.
[9] There are six (6) OPSOs at the Broome base.
[10] There are three shifts of OPSOs at the Broome base which provide 24 hour coverage:
- Shift 1: 0600 - 1800
- Shift 2: 0800 - 2000
- Shift 3: 1800 - 0600
[11] Shift 2 presently performs the majority of the Broome base operational administrative work.
[12] The Employer has requested that the OPSOs rotate through Shifts 1, 2 and 3.
[13] OPSOs on Shifts 1 and 3 have refused to rotate through Shift 2 as the duties are mainly Broome base administrative work.
[14] The OPSOs on Shifts 1 and 3 previously refused to train the OPSOs on Shift 2 in the full range of their duties. The OPSOs on Shifts 1 and 3 argued that the OPSOs on Shift 2 should be professionally trained. The employees on Shift 2 have been professionally trained and are now competent to perform all OPSO duties.
[15] To introduce the shift pattern in paragraph [10], the Employer employed two additional OPSOs.
[16] Without the benefit of an outline of submission, the Commission during the hearing, in discussion with the TWU, distilled the dispute down to the following:
- that the OPSOs on Shifts 1 and 3 have no objection to the shift pattern introduced by the Employer;
- there is no objection by Shifts 1 and 3 to rotating through Shift 2 on the grounds of equity; however,
- there is an objection by the OPSOs on Shifts 1 and 3 to the range of administrative duties that have to be carried out by the OPSOs on Shift 2.
[17] Notwithstanding that the Employer has the view that it is lawful and reasonable to allocate administrative/clerical tasks to the OPSOs on Shifts 1 and 3, it initiated a consultation process to introduce those tasks. As a result of the consultation process, the Employer added Shift 2 and employed a further two OPSOs 1.
[18] At a consultative meeting on 21 October 2014, Ms Mueller on behalf of the OPSOs on Shifts 1 and 3, asserted that they should be rotated through those shifts only and the newly recruited OPSOs be rostered on Shift 2 only.
[19] As I apprehend the evidence of Ms Mueller, she attempted to distinguish between “operational” administrative duties and “Broome base administrative duties”.
[20] The Employer has maintained a non-rotating arrangement pending resolution of the dispute in the Commission. Consequently, the Employer seeks an order from the Commission that it is lawful and reasonable that an employee classified as an OPSO be required to comply with the Employer’s reasonable and lawful directions to perform administrative work that is within their skills and competencies.
RELEVANT LEGISLATIVE PROVISIONS
[21] There was no dispute between the parties that the Commission could deal with the dispute pursuant to ss.738 and 739 of the FW Act.
RELEVANT PROVISIONS OF THE LLOYD HELICOPTERS PTY LTD T/A CHC HELICOPTERS (AUSTRALIA) GROUND CREW ENTERPRISE AGREEMENT 2013-2016 (the Agreement)
[22] The relevant provisions of the Agreement are as follows:
- Subclause 7.1 - “Employees agree to perform work as required by the employer provided that the employee is competent to perform the work...”
- Schedule 1 - “It is agreed by the parties that the following descriptions of the classifications is a guide only and that these will be subject to a review during the life of the agreement...
Operations Officer | ● Ensure the operations room is equipped with the necessary publications and other relevant information is available to enable flight crews to conduct pre-flight planning; ● Maintain the status and movement boards to reflect: Ø Aircraft serviceability states and present configurations; Ø Aircraft movements and present base of operations. ● Ensure that the daily flying program is completed by: Ø Liaison with location base manager; Ø Liaison with the customer for their individual flight requirements; Ø Liaison with the engineering department; Ø Liaison with support personnel. ● Ensure the base radio facilities are serviceable prior to the commencement of the daily flying program (to include meteorological gathering equipment; ● Maintain a continuous flight following watch during the period of duty. Flight following may include flight track; ● Administer ASIC passes for visitors and contractors; ● Provide other administrative and clerical support; ● International travel may be required; ● May perform other duties as assigned. |
Base Administrator | ● Monitor and assist with safety, security and quality in accordance with the job safety analysis, safety management system, base operating procedures, local airport and environmental regulations, customer and industry standards; ● Conduct base safety inductions for staff and contractors; ● Administer ASIC passes for visitors and contractors; ● Manage communication protocols, processes and content with customers, other employer locations, staff, vendors and local service providers and authorities; ● Prepare customer and employer operational reports and manage underlying documentation and data; ● Prepare prompt and accurate invoicing reports for contract and other charter customers; ● Co-ordinate accommodation and employer transport requirements; ● Arrange local supply requirements and payments through base account; ● Confirm delivery and authorise invoices for goods/services received by the base; ● Maintain base petty cash; ● Conduct internal audits; ● Provide other administrative and clerical support; ● International travel may be required; ● May perform other duties as assigned. |
(my emphasis)
CONSIDERATION
[23] Broome is described as an “oil and gas” base.
[24] Broome, Karratha and Darwin form the Employer’s oil and gas bases.
[25] While the Agreement provides for a Base Administrator, the Employer, with the exception of the Bankstown base in New South Wales, does not employ Base Administrators. The reason for this arrangement will be explained later in this Decision.
[26] The duties complained of by the OPSOs on Shifts 1 and 3 in Broome and by Ms Addison in Darwin, are carried out by the remaining OPSO in Darwin and the OPSOs in Karratha.
Training
[27] The Applicant asserted, and this was not disputed by the TWU, that the Employer has trained employees on Shifts 1 and 3 in the administrative duties in dispute. There is some outstanding training to be completed - the relevant OPSOs have refused to be trained in those duties 2.
Administrative Duties
[28] All employees are required to perform a range of administrative duties at the Broome base. These employees include: pilots, engineers, ramp staff and the Base Manager.
[29] The amount of administrative duties varies amongst employees. The Employer acknowledges that administrative duties have increased in recent years as a result of new systems and procedures, and expanded operational requirements. Shortly put, increased activity and operational functions requires additional administrative operational support 3.
[30] Ms Mueller commenced employment on or about 26 March 2012.
[31] In her offer of employment it states:
“Your employment will be covered by the Airline Operations Ground Staff Award 2010 (Modern Award) and your classification will be Level 4 of the Clerical, Administrative and Support Stream as set out in the Award” 4.
[32] I do not propose to go through the characteristics and typical duties/skills of a Level 4 employee in the Modern Award, however, I consider it important to set out the preamble to the various classifications in the Clerical, Administrative and Support Steam as follows:
“The classification criteria in this schedule provides guidelines to determine the appropriate classification level of persons employed pursuant to this award. In determining the appropriate level, consideration must be given to both the characteristics and typical duties/skills. The characteristics are the primary guide to classification as they indicate the level of basic knowledge, comprehension of issues, problems and procedures required and the level of supervision or accountability of the position. The totality of the characteristics must be read as a whole to obtain a clear understanding of the essential features of any particular level and the competency required. The typical duties/skills are a non-exhaustive list of duties/skills that may be comprehended within the particular level. They are an indicative guide only and at any particular level employees may be expected to undertake duties of any level lower than their own. Employees at any particular level may perform/utilise one such duty/skill, or many of them, depending on the particular work allocated.
The key issue to be looked at in properly classifying an employee is the level of competency and skill that the employee is required to exercise in the work they perform, not the duties they perform per se. It will be noted that some typical duties/skills appear in more than one level, however when assigning a classification to an employee this needs to be done by reference to the specific characteristics of the level. For example, whilst word processing and copy typing are first specifically mentioned at Level 2 in terms of typical duty/skill, it does not mean that as soon as an employee operators a word processor or typewriter they automatically become Level 2. They would achieve a Level 2 classification when they have achieved the level of skill and competency envisaged by the characteristics and the relevant indicative duty(ies)/skill(s) of a Level 2. Level 1 in this structure is to be viewed as the level at which employees learn and gain competency in the basic clerical skills required by the employer, which in most cases would lead to progression through the classification structure as their competency and skills increase and are utilised.” (my emphasis)
[33] While Ms Mueller can now rightly say that the Agreement applies to her employment, in my view the preamble is still apposite.
[34] It is trite, but worth repeating that a direction given to an employee by an employer must be lawful and reasonable.
[35] I find that the Employer’s direction to OPSOs on Shifts 1 and 3 to train the OPSOs on Shift 2 was both lawful and reasonable. I find, on the evidence of Mr Cyr, that the refusal by the OPSOs on Shifts 1 and 3, on the grounds that “it is not part of their job” breathtakingly wrong.
[36] While the description of the classification in the Agreement is a guide and subject to a review during the “life” of the Agreement, the following are highlighted:
- May perform other duties as assigned.”
“ Provide other administrative and clerical support; and
[37] The parties to the Agreement have agreed that the OPSOs will carry out “administrative and clerical” duties. To offer, as the OPSOs on Shifts 1 and 3 have done, to carry out partial performance of administrative and clerical duties, is tantamount to a repudiation of their contract of employment.
[38] By way of example, if an industrial instrument provides that an employee is required to work 38 hours on any five days from Monday to Sunday and an employee refuses to work on a Saturday, he or she is in breach of their contract of employment. It is not sufficient to comply with their contract of employment for the employee to say, I am ready, willing and available to work on the other six (6) days but not Saturday. If the employer wants them to be available on a Saturday, the employee must make themselves available. Unless there is a mutual agreement to the contrary, an employee cannot unilaterally change the terms of their contract of employment.
[39] In these circumstances, the relevant employees have unilaterally declared that they are not prepared to carry out certain administrative and clerical functions.
[40] Ms Mueller gave evidence that “when I was appointed to the position, I always knew that some admin duties were included in the role, and over time these admin duties have increased” 5.
[41] The OPSOs work a two week on, two week off roster.
[42] Ms Mueller gave evidence of a scenario where an OPSO “having 2 weeks off, 1 week of admin, 1 week of nights, then 2 weeks off and 1 week of admin which is 7 weeks without being in the flight dispatching chair”. The scenario is self serving and has no validity in view of the fact that four (4) of the seven (7) seeks are rostered weeks off as part of the OPSOs rostered swing.
[43] On a rotating shift basis proposed by the Employer, the employees will be required to undertake two (2) weeks of dedicated administrative work in every lapsed time period of 12 weeks. The OPSOs will only be working six (6) weeks. And of those six (6) weeks, two (2) weeks will be dedicated solely to administrative and clerical functions. I am not able to detect, from the evidence, that the Employer’s roster proposals would have a detrimental impact on the ability of OPSOs to carry out their duties as asserted by Mr Mueller 6.
[44] In contrast, it is notable that if the roster position asserted by Ms Mueller remained in place, it would result in those OPSOs in Shift 2 having limited or restricted experience in the total work of the position of an OPSO. Simply put, the proposed arrangement would have a negative work experience and skills impact on their two colleagues on Shift 2.
[45] The position of OPSO has a title and description of duties and responsibilities assigned to it. It is not uncommon for enterprise agreements to include only the essential characteristics of the duties and responsibilities of a position.
[46] In today’s workplace, it is almost inconceivable to consider that an employee would not be required to carry out some administrative and clerical functions. For this reason, many job descriptions have generic statements such as he or she is required to provide clerical and administrative support. This is what is contained in the OPSO duty description in the Agreement.
[47] In the Agreement, the description of the position having to undertake clerical and administrative duties does not distinguish between operational duties and base operational functions. It would appear that the parties drafted the description of clerical and administrative duties in non-specific terms because it was not readily apparent or needed to define otherwise.
[48] Finally, it is generally recognised that all positions have, what can be described as higher or lower levels of duties. In such circumstances, what matters is that there is a proper evaluation for salary purposes of the primary duties and responsibilities of the position in the totality of all duties and responsibilities. It is on this basis, that the salary arrived at is commensurate with the position.
[49] It would appear that the real objective of this dispute is to limit the type of administrative and clerical duties performed by an OPSO on Shifts 1 and 3.
[50] I find that the Agreement does not limit or exclude the type of administrative and clerical duties set out in Appendix A to Ms Mueller’s witness statement 7. I further find that the Agreement does not limit administrative and clerical work to “being directly linked to operations” as given in evidence by Ms Mueller8.
[51] The position of an OPSO is broad ranging and I am sure it has elements which are far more complex than some of the duties contained in Appendix A attached to Ms Mueller’s witness statement.
[52] However, I am satisfied that subject to its review, the job description in Schedule 1 of the Agreement fairly reflects what an OPSO does. A job description is what it says - a description. It would appear that the parties never intended it to be a long list of all activities to be achieved. The job description contains broad and generic functions which appear to be what the parties intended. This approach is no different to that contained in the relevant Modern Award.
[53] In conclusion, I now want to the turn to the submission by the TWU that this issue is “not a case where the employees in question are refusing to undertake administrative duties...the issue is one of degree” 9. Put plainly by Mr Dzieciol:
“There comes a point where we say that the role, the component of admin work becomes such that the role is no longer an operational role but more of an administrative role...We say that that is not what they want to - they weren’t employed as admin officers...They were employed as operational officers...” 10 (my emphasis).
[54] I have no evidence to suggest that the Employer has or intends to convert OPSOs into Base Administrators. The Employer only employs OPSOs with the exception of one person in NSW. The base annual salary of an OPSO is approximately 25% more than that of a Base Administrator. The Employer has recently employed two additional OPSOs at Broome at the higher salary.
[55] The Employer’s reasons for adopting this occupational profile are not determinative of the matter. However, by employing two additional OPSOs and having additional coverage for Shifts 1 and 3 is a sound and sensible approach in view of the nature of the services provided by the Employer.
CONCLUSION
[56] For the above reasons, I am satisfied that pursuant to the Agreement, the Employer’s request at the Broome base to carry out clerical and administrative duties as set out in Attachment A of Ms Mueller’s witness statement 11 was, and is, a reasonable and lawful direction.
[57] The Employer’s direction was and is consistent with Clause 7 and Schedule 1 of the Agreement.
[58] Sensibly, the TWU does not take issue with the Employer’s roster or any objection to the OPSOs being rostered through Shifts 1, 2 and 3.
[59] In my view, an order from the Commission is not necessary. Unless the Employer considers it necessary, I do not propose to make an order. I suggest the Employer discusses this matter with the TWU. The Employer will have until 4:00 pm AWST 26 November 2014 to advise the Commission if an order is necessary.
COMMISSIONER
Appearances:
S Bakewell on behalf of the Applicant.
A Dzieciol on behalf of the Respondent.
Hearing details:
2014:
Perth,
14 November.
1 Exhibit A1
2 Exhibit A2
3 Exhibit A4
4 Exhibit A4
5 Exhibit R4
6 Exhibit R4
7 Exhibit R2
8 Exhibit R2
9 Transcript PN184
10 Transcript PN185
11 Exhibit R2
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