Matthew Lyon v Jetstar Airways Pty Ltd t/a Jetstar Airways
[2021] FWCFB 960
•23 FEBRUARY 2021
| [2021] FWCFB 960 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Matthew Lyon
v
Jetstar Airways Pty Ltd t/a Jetstar Airways
(C2020/7469)
VICE PRESIDENT HATCHER | SYDNEY, 23 FEBRUARY 2021 |
Appeal against decision [2020] FWC 4826 of Commissioner Wilson at Melbourne on 16 September 2020 in matter number C2020/968
Introduction and background
[1] Mr Matthew Lyon has applied for permission to appeal and appealed a decision of Commissioner Wilson issued on 16 September 2020 1 (decision) concerning the interpretation and application of provisions of the Jetstar Airways Pilots’ Enterprise Agreement 2015 (Agreement) relating to changes in rostered working arrangements for pilots. The decision arose from a dispute application lodged by Mr Lyon pursuant to s 739 of the Fair Work Act 2009 (FW Act), and was made pursuant to the arbitral powers conferred on the Commission by the dispute resolution procedure in clause 8 of the Agreement. Mr Lyon is a pilot employed by Jetstar Airways Pty Ltd (Jetstar) and the Agreement applies to him and to Jetstar. On 14 April 2019, while performing a tour of duty, Mr Lyon was directed to undertake a changed flying roster which led him to return home to Melbourne a day later than originally planned. The specific questions which the Commissioner was asked to resolve were:
(1) Was Mr Lyon entitled to refuse the roster change?
(2) When Mr Lyon’s roster was changed was he entitled as a consequence to a replacement Designated Day Off as provided for by clause 42.16.5 [of the Agreement] or to a Worked Day Off payment in accordance with the provisions of clauses 35.5 and 35.6 [of the Agreement]?
[2] The Commissioner answered “No” to the first question. The Commissioner’s answer to the second question was: “Mr Lyon was entitled to a replacement Designated Day Off as provided for by clause 42.16.5”. 2 In his appeal, Mr Lyon contends that the Commissioner’s answer to the first question was in error, and that Mr Lyon’s consent was required for a change to his roster. Mr Lyon accepts that the answer to the second question was correct.
[3] The circumstances in which the contentious roster change occurred are as follows. Mr Lyon was rostered to undertake a tour of duty flying an A320 aircraft which was to commence at 2.15pm on Saturday, 13 April 2019 and was to end at 10.40pm on Sunday, 14 April 2019. Mr Lyon was rostered on the first day of the tour of duty (13 April) to fly from Melbourne (his home base) to Sydney as a passenger, and then operate a Sydney-Hobart-Sydney flight terminating in Sydney at 10.05pm, where he was to stay overnight. On the second day (14 April), he was rostered to report to duty at 1.20 pm, and operate a Sydney-Queenstown-Melbourne flight terminating in Melbourne at 10.40pm. The next day, 15 April, was rostered as a “designated day off” and, on that basis, Mr Lyon had booked a medical appointment for that day.
[4] The first day of the roster went according to plan. However, on the second day, at about 11.26am, he was contacted by Jetstar and informed that his rostered flight for that day could not proceed as planned because of an unserviceable aircraft. It is not in dispute that this constituted a “misconnection” within the meaning of the Agreement. Instead, he was required to perform a Sydney-Queenstown-Sydney flight commencing at 1.20pm on 14 April 2019 and terminating in Sydney at 10.05pm that evening. He was then required to stay overnight in Sydney and to return to Melbourne as a passenger the following day (15 April), terminating in Melbourne at 2.40pm.
[5] When he was told about the altered roster, Mr Lyon said that, notwithstanding his medical appointment, he was prepared to undertake it provided he was paid a “Worked Day Off payment” (which the parties agree was a reference to the entitlements provided for in clauses 35.5 and 35.6 of the Agreement). However, he was informed that he would only receive a day off in lieu. Mr Lyon then performed the altered roster “under protest”. Jetstar gave him a day off in lieu, but he initiated a dispute about this pursuant to the dispute resolution procedure in clause 8 of the Agreement.
Relevant provisions of the Agreement and the Roster Protocol
[6] Pilots under the Agreement work in accordance with a “Pilots Roster”, defined in clause 7.54 to mean “a scheduled arrangement of Flight Time (inclusive of proficiency flying, simulator and positioning), Sign-On, Sign-Off times, Standby periods and days off for a specific period as determined by the Company”. The detailed procedure concerning the rostering of work under the Agreement is dealt with in clause 42, Normal Hours of Work and Rostering. Clause 42.1 provides:
42.1 Pilots will be rostered to perform duty in accordance with the roster limit and rest period provisions of CAO Part 48, or any exemptions relevant to pilots’ duties that CASA may approve, including an FRMS.
[7] In the above provision, “CAO” refers to the Civil Aviation Order, “CASA” to the Civil Aviation Safety Authority and “FRMS” to Fatigue Risk Management System. These terms reference the regulatory framework governing the hours of flight and duty which may lawfully be worked by pilots.
[8] Clauses 42.4, 42.5 and 42.6 prescribe the number of designated days off which a pilot is entitled to receive in each roster period. The roster periods are set out in clause 42.3, and consist of 12 periods through the year consisting of 30 or 31 days which broadly but not precisely correspond with calendar months. Clause 42.13 is concerned with the construction of rosters, and clause 42.13.1 provides that rosters are to be prepared in advance of the calendar month roster period and that pilots are to be provided with a copy of the roster not less than 10 days prior to the beginning of a new roster period. Clause 42.14 prescribes the circumstances in which pilots can arrange for changes to their rosters, either by making specific requests to Jetstar for such changes or by mutually agreed roster duty swaps with other pilots.
[9] Clause 42.16 deals with roster changes requested by Jetstar, and provides:
42.16 Company Roster Changes
42.16.1 The Company will not change a pilot's Designated Days Off without the agreement of the pilot.
42.16.2 The Company will only change a pilot's roster in accordance with the Roster Protocol. The pilot will be given as much notice as possible of any change to their roster.
42.16.3 The Company may request a pilot to work on a Designated Day Off and where the pilot agrees clauses 35.5 and 35.6 will apply.
42.16.4 A duty period already commenced may be extended for misconnections in accordance with the CAO 48 exemption or an FRMS.
42.16.5 Where, prior to a pilot's Designated Day Off, their Tour of Duty extends beyond the times stipulated in the Roster Protocol as a result of misconnections, the pilot will be deemed to have worked on a Designated Day Off. In this circumstance the pilot will be entitled to a replacement Designated Day Off however clauses 35.5 and 35.6 will not apply
[10] Clauses 35.5 and 35.6 (referred to in clauses 42.16.3 and 42.16.5) provide, in broad terms, for payments in the nature of a penalty rate to be made to pilots when they agree to work on a designated day off.
[11] A number of the terms used in clause 42.16 are defined in clause 7. “Misconnections” is defined in clause 7.47 to mean “disruptions caused by mechanical malfunction, weather, industrial dispute, or for any reason that is beyond Jetstar's control”. Clause 7.64 defines a “Tour of Duty” as meaning “the elapsed period between Sign-On and Sign-Off at Home Base, including but not limited to, time spent in emergency procedure practices, simulator training, conversion, re-conversion or upgrade training, meetings, examinations and courses organised by the Company”. “Duty period” is not defined, but clause 7.34 contains the following definition:
"Flight Duty Period" means a period which starts when a pilot is required by the company to report for a duty period in which flight as an operating crew member is undertaken, and finishes no less than fifteen (15) minutes after the end of the Block Time of the final flight.
[12] The “Roster Protocol” (Protocol) referred to in clauses 42.16.2 and 42.16.5 is a document exterior to the Agreement. The introduction to the Protocol in clause 1.1 relevantly provides that the Agreement will “take precedence to the extent of any inconsistency except where this Roster Protocol is more restrictive as it addresses specifics that are either more limiting than, or not addressed by these other publications”. The Protocol is divided into three parts: “Preliminary Matters” (clauses 1-3), “Protocol (Roster Build)” (clauses 4-10) and “Protocol (Day of Operations)” (clauses 11-17). Clause 1.2 provides that the Protocol (Roster Build) will apply to the production of pilots’ monthly rosters but will cease to have effect once the roster has been published, when the Protocol (Day of Operations) will take effect, except in relation to the correction of errors in the roster. Clause 13 of the Protocol is concerned with roster changes, and relevantly provides:
13. ROSTER CHANGES
13.1 The Company will not change a pilot’s rostered Designated Days Off or direct a pilot to work on a Designated Day Off. However, the Company may request and a pilot may agree to work on a Designated Day Off (Note: For the purpose of this clause a Designated Day Off is considered to commence at 2300LT).
13.2 If a pilot commences a duty which is subsequently operationally delayed beyond 2300LT prior to a Designated Day Off, the provisions of clause 42.16.5 of the Agreement apply.
13.3. A pilot who is requested by the Company to commence a duty that will finish beyond 2300 LT into a Designated Day Off, and agrees to that duty, will be entitled to the Worked Day Off payment under clause 35.5 and clause 35.6 of the Agreement.
. . .
13.5 On any tour of duty the Company may change a pilot’s rostered duties within the original sign-on and sign-off time, however the Company will not change a pilot’s rostered sign-on and sign-off time for the tour of duty other than by displacement or re-assignment in accordance with clause 14 and clause 15, or mutual agreement.
. . .
13.7 If before a single Designated Day Off, a duty extends beyond the original rostered sign-off time as a result of misconnections or re-assignment the subsequent Designated Day Off time free of duty will be for a minimum of thirty-six (36) hours duration commencing no later than 23 hours. This may be extended to no later than 2400 hours with an extra one (1) hours rest for every thirty (30) minutes or part thereof in excess of 2200 hours
The decision
[13] In his consideration of the dispute, the Commissioner first dealt with the interaction between the Agreement and the Protocol and concluded that “While it follows that the 2015 Agreement generally prevails it is to be read in conjunction with the Roster Protocol and other documents, to the extent referred to within the Agreement”. 3 The Commissioner then said:
“[84] What clause 42.16.2 does is restrain a company change to a pilot’s roster in a manner which is ‘in accordance with the Roster Protocol’. The general proposition that a company change must be in accordance with the Roster Protocol is added to with the deemed event in clause 42.16.5, which establishes that a pilot will be deemed to have worked on their Designated Day Off in a defined circumstance, namely if their Tour of Duty extends beyond the times stipulated in the Roster Protocol.
[85] The circumstance by which a pilot’s Tour of Duty ‘extends beyond the times stipulated in the Roster Protocol’ may logically arise as a result of many different situations, however a circumstance which arises because of a Jetstar initiated change may only arise if the change has been made ‘in accordance with the Roster Protocol’.
[86] I do not find ambiguity in the key term ‘[w]here prior to a pilot’s Designated Day Off, their Tour of Duty extends beyond the times stipulated in the Roster Protocol’. To understand that phrase in light of its industrial context and purpose is to view it as providing for the situations in which the variables and exigencies associated with a day’s work conspire to push the work requirements associated with a Tour of Duty beyond some limit.
[87] The condition within the clause, of the events occurring prior to a Designated Day Off, is plainly connected with what should be done for the pilot in the event the Tour of Duty extends and impacts the Designated Day Off. What is to be done, is the deeming indicated within the clause. Those aspects are not ambiguous.”
[14] The Commissioner observed that clause 42.16 contains five paragraphs, of which three (clauses 42.16.1, 3 and 5) deal with the subject of changes to a Designated Day off and the other two (clauses 42.16.2 and 4) provide for circumstances broader than Designated Days Off. 4 In relation to clause 42.16.2, the Commissioner said:
“[93] Although clause 42.16.2 provides that Jetstar ‘will only change a pilot’s roster in accordance with the Roster Protocol’, that restriction is in relation to a defined matter with the context of the clause and the 2015 Agreement leading to the conclusion that it refers to changes contemplated to a forward looking, but not yet worked, published or notified roster. The term ‘Pilots Roster’ is defined in the 2015 Agreement as follows: “7.54 "Pilots Roster'' means a scheduled arrangement of Flight Time (inclusive of proficiency flying, simulator and positioning), Sign-On, Sign-Off times, Standby periods and days off for a specific period as determined by the Company.”
[15] The Commissioner said in relation to the use of the term “Pilots Roster” in clause 42.16.2:
“[94] …I am satisfied that the use of the term in clause 42.16.2 is with the intention that what Jetstar will only change in accordance with the Roster Protocol is the ‘scheduled arrangement of Flight Time (inclusive of proficiency flying, simulator and positioning), Sign-On, Sign-Off times, Standby periods and days off for a specific period as determined by the Company’. This in turn leads me to be satisfied that clause 42.16.2 is not inconsistent with clause 42.16.5 since the two clauses deal with different subject matter. Whereas clause 42.16.2 deals with the Company making changes to a pilot’s roster, being the ‘scheduled arrangement’ etc, clause 42.16.5 deals with a separate and confined subject matter being an extension to a Tour of Duty. Whereas the right given to Jetstar by clause 42.16.2 of making a change to a pilot’s roster is tempered by the need for the change to be in accordance with the Roster Protocol, that is not the case with the right allowed by clause 42.16.5. In that latter clause, a pilot is deemed to have worked on a Designated Day Off if, prior to that day, their Tour of Duty extends beyond the times stipulated in the Roster Protocol as a result of misconnection.”
[16] The Commissioner found that the requirement in clause 42.16.2 that any change to the roster be in accordance with the Protocol is “amplified” by clauses 13.1 and 13.5 of the Protocol, which require the agreement of the pilot. 5 In relation to clause 42.16.5, the Commissioner found that the reference to “the times stipulated in the Roster Protocol as a result of misconnections” is most likely a reference to clauses 13.2 and 13.7 of the Protocol.6 The Commissioner then said:
“[100] Roster Protocol 13.2 makes clear that if delayed after commencing a duty and that delay is beyond 2300 LT prior to a Designated Day Off, then the provisions of clause 42.16.5 will apply. Roster Protocol 13.7 is more elaborate, but may be parsed as follows:
• The entitlement arises when, before a single Designated Day Off, a duty extends beyond the original Sign-off time;
• The extended duty must arise because of either misconnections or re-assignment;
• In such a case the pilot is deemed to have worked on their Designated Day Off;
• Having been deemed to have worked on their Designated Day Off, the pilot is entitled to a replacement Designated Day Off but is not entitled to the provisions of the 2015 Agreement’s clauses 35.5 and 35.6.
[101] For the purposes of the 2015 Agreement’s clause 42.16.5, and particular to Mr Lyon’s circumstances, the ‘times stipulated’ are two-fold; an event which took place temporally before his scheduled Designated Day Off and an event which caused him to work beyond his original Sign-off time. The first ‘time stipulated’ is Monday, 15 April 2019, his original Designated Day Off. The second ‘time stipulated’ is the time identified in his pilots’ roster as his original Sign-off time, 2240 Sunday, 14 April 2019. Because Mr Lyon’s Tour of Duty extended beyond the times stipulated in the Roster Protocol he is to be deemed as having worked on a Designated Day Off and was entitled to a replacement day off.
[102] In cases where clause 42.16.5 operates, with there being an entitlement to a replacement day off where a pilot is deemed to have worked on their Designated Day Off, the provision in clause 35.6 will not apply. The latter provision applies to the occasion of a pilot working on their Designated Day Off and then being entitled to the payments specified in clause 35.6.1. The general event of that clause, of ‘[w]hen a pilot works on a Designated Day Off …’ stands in distinction with the specific event described in clause 42.16.5, of when a ‘Tour of Duty extends beyond the times stipulated in the Roster Protocol.’ The consequence is that the specific provisions of clause 42.16.5 will be preferred in Mr Lyon’s case.”
[17] The Deputy President noted that, in reaching his conclusion, he had taken into account the potential for disruption in the event of misconnections if pilots could refuse to complete a delayed or alternative duty. 7 The Deputy President concluded:
“[107] For the reasons set out above, the protection afforded to Mr Lyon when his roster was changed at short notice on Sunday, 14 April 2019 was that set out in clause 42.16.5. When the work he proceeded to perform meant he was deemed to have worked on his Designated Day Off, he was entitled to a replacement Designated Day Off.”
Appeal submissions
[18] Mr Lyon submitted that the correct construction of clause 42.16 of the Agreement is as follows:
• the “leading and general provision” is clause 42.16.2, which requires changes to the roster to be made in accordance with the Protocol;
• clause 42.16.1 prohibits Jetstar from changing designated days off without the pilot’s agreement;
• where there is agreement pursuant to clause 42.16.1, clause 42.16.3 spells out the payment consequences;
• clause 42.16.4 deals with the consequence of misconnections when a duty period has already commenced, with “duty period” to be construed as no more than the period of time in which a specific duty is to be performed; and
• clause 42.16.5 deals with the consequences of a tour of duty extending by reason of misconnections.
[19] In relation to the Protocol, Mr Lyon submitted that:
• Jetstar has no power to direct a pilot to work on a designated day off;
• Jetstar has no power to unilaterally change the sign-off time for a tour of duty other than through clauses 14 and 15 of the Protocol, neither of which applied to the circumstances of the dispute; and
• a pilot could only have the sign-off time for a tour of duty extended (and effectively then extended into their designated day off other than through agreement) only if the duty period had already commenced.
[20] Applying its construction of clause 42.16 of the Agreement and the Protocol to the circumstances of the dispute, Mr Lyon submitted that:
• the effect of the roster change was to alter Mr Lyon’s sign off time on his tour of duty, which was not permitted by the Agreement to be done unilaterally and could only be done pursuant to clause 42.16.4 of the Agreement and clause 13.2 of the Protocol;
• because Mr Lyon’s tour of duty extended beyond the rostered sign-off, he was taken under clause 42.16.5 to have worked on his designated day off;
• clause 42.16.5 of the Agreement and clause 13.7 of the Protocol govern the consequences of that extension, but neither confers on Jetstar a power to compel that extension, which was only permissible as a result of agreement pursuant to clause 42.16.1 of the Agreement and clause 13.1 of the Protocol;
• there was no agreement on the part of Mr Lyon in this case, and clause 42.16.4 of the Agreement and clause 13.2 of the Protocol were inapplicable because the extension did not occur after he had commenced a duty or duty period; and
• Mr Lyon had the benefit of clause 42.6.5 of the Agreement because, prior to his designated day off on 15 April 2019, his tour of duty was extended beyond the rostered time as a result of misconnections.
[21] Mr Lyon submitted that the Commissioner erred in his answer to the first question posed for determination because he did not identify the entitlement or power of the respondent to direct Mr Lyon to undertake work different to that for which he was rostered in a way which extended his tour of duty, treated clause 42.16.5 as if it defeated Mr Lyon’s argument when in fact Mr Lyon relied on it, failed to make any useful distinction between “duty” and “Tour of Duty”, failed to recognise the significance of a rostered tour of duty, and adopted an artificial and incorrect interpretation of the term “pilot’s roster”.
[22] It was submitted that permission to appeal should be granted because the appeal raised a pure question of law, the proper interpretation of the Agreement was a matter of public importance because the Agreement governs the employment of numerous employees, this is the first proceeding to consider clause 42.16 of the Agreement, the entitlement of a pilot to preserve their discretionary day off was important for the pilot’s and ultimately the public’s well-being, and the decision is attended by sufficient doubt to warrant appellate review. Mr Lyon submitted that the appeal should be upheld and the answer “Yes” substituted for the Commissioner’s answer to the first question.
[23] Jetstar submitted that Mr Lyon’s proposed construction of the Agreement, whereby clause 42.16.2 had the status of a “leading” provision and clause 42.16.5 was relegated to being a functional provision outlining a pilot entitlement which was untethered by any duty on a pilot to complete a tour of duty because of a misconnection, was “artificial and unattractive”. It would, it was submitted, produce an industrially incongruous outcome whereby Jetstar’s main option of recovering services disrupted by misconnections would depend on the grace and favour of individual pilots. Jetstar submitted that:
• clause 42.16.5 is predicated upon and implies the duty of a pilot to complete their tour of duty when extended in the circumstances described in the clause (and a concomitant right of Jetstar to direct the pilot);
• a company-initiated roster change to which clause 42.16.2 and the Protocol apply is distinct from, and does not apply to, a tour extension under clause 42.16.5;
• Mr Lyon’s construction could produce the unreasonable result whereby the refusal of a single officer in a two or three-person flying crew to complete an extended tour of duty to recover a service disrupted by a misconnection could leave the aircraft, the other officers, the cabin crew and the passengers stranded in port, including in an international port;
• clause 42.16.1, which includes a requirement for the pilot’s consent, deals with a change to the designated day off in the published roster, as distinct from work performed on a designated day off;
• clause 42.16.5 describes an extension of the tour of duty “as a result of misconnections”, and the more natural reading of these words is the extension owes itself to the exigency of misconnections and not pilot agreement or an extension to a duty period already commenced;
• clauses 42.16.4 and 42.16.5 both deal with extensions resulting from an exigency beyond Jetstar’s control and, for compelling operational reasons, neither require the pilot’s agreement;
• Mr Lyon’s construction created overlap between clauses 42.16.3 and 42.16.5 without resolving the inconsistencies in respect of pilots’ entitlements created as a result;
• the reference in clause 42.16.5 to the time stipulations in the Protocol would be irrelevant if mutual agreement is required, and the better reading is that the reference is to those clauses in the Protocol which contain a time stipulation relevant to the specific circumstances covered by clause 42.16.5;
• the preferable construction is that clauses 42.16.2 and 42.16.5 are dealing with different circumstances, in that clause 42.16.2 is distinct from and does not apply to an extension of a pilot’s tour of duty as a result of a misconnection described in clause 42.16.5;
• clause 13.7 of the Protocol is drafted in the same way as clause 42.16.5, and operates distinctly from clause 13.5; and
• additionally, or in the alternative, clause 13.5 of the Protocol applies to company-initiated roster changes made prior to sign-on for a tour of duty.
Consideration
[24] There is no dispute between the parties that clause 42.16.5 applied to the circumstances pertaining to Jetstar and Mr Lyon on 14-15 April 2019. The issue of construction that is required to be resolved is whether clause 42.16.5 operates in conjunction with clause 42.16.2 such as to require a pilot’s consent to an extension of their tour of duty or, instead, operates independently of clause 42.16.2.
[25] We accept the submission of Jetstar that the construction advanced by Mr Lyon has the potential to lead to practical outcomes which are so irrational and absurd that they cannot possibly have been intended by those who made the Agreement. Clause 42.16.5 applies to a situation in which, because of a “misconnection” as defined in clause 7.47 - that is, a disruption caused by a mechanical malfunction, weather, an industrial dispute or anything else beyond Jetstar’s control - Jetstar is forced to change its timetabled services in a way that leads to a tour of duty of a pilot on an aircraft having to be extended. Its priorities in that situation will necessarily include making sure its passengers reach their destination, returning the aircraft to a port where it can be used for its next scheduled flights, and returning the flight and cabin crew to their home port. The proposition that a single pilot/flight crew officer who has already commenced their tour of duty can, in such an exigency, simply refuse to perform the work necessary to allow Jetstar to recover its operations from disruption would severely restrict the capacity of Jetstar to respond efficiently to circumstances which arise that are beyond its control. As Jetstar pointed out in its submissions, a misconnection may affect a wide-bodied aircraft with a flight crew of three operating on an international route. In circumstances where the delayed aircraft is in a foreign port and Jetstar has no capacity to locate any local alternative crew, Mr Lyon’s interpretation of the Agreement would mean that just one of the flight crew, by refusing to agree to extend their tour of duty, could effectively leave the flight stranded there.
[26] We also accept Jetstar’s submission that, on Mr Lyon’s proposed interpretation of the Agreement, if clause 42.16.5 operates subject to clause 42.16.2 as the “leading” provision, it is difficult to see why clause 42.16.4 would also not operate subject to clause 42.16.2. Clause 42.16.4 applies to a “duty period already commenced”. The expression “duty period” is not defined, but it is apparent that it includes a “flight duty period” as defined in clause 7.34 - that is, a rostered period of duty involving the operation of a flight or flights. Thus clause 42.16.4 will apply when the extension of a flight duty period already commenced is required because of misconnections. The proposition that in such a case the consent of the pilot is required, in circumstances where the pilot may be operating an aircraft on a flight, is clearly irrational and absurd and could not have been intended. It begs the question as to what practically is to occur if the pilot refuses to agree to the extension.
[27] We consider that, understood in context, each of the provisions of clause 42.16 has a discrete purpose. A roster is a “scheduled arrangement” of the flight and other duties which a pilot is required to perform, the periods on which the pilot is on standby, and the designated days off which a pilot will receive, over a roster period. Clause 42.13.1 requires pilots to be provided with a copy of their roster not less than ten days prior to the commencement of a roster period. Clause 42.14 deals with the circumstances in which rosters may be changed at the request or initiation of a pilot or pilots.
[28] Insofar as the subject matter of clause 42.16 is, as its heading suggests, “Company Roster Changes”, two types of such roster changes are identifiable within the provisions of the clause. In the first category, clauses 42.16.1, 42.16.2 and 42.16.3 refer to changes to the roster at Jetstar’s request, without there being any precondition attached to the reason or basis for such a request. Each of these provisions requires the agreement of the pilot, either by way of an express statement of this in the text of the Agreement (clauses 42.16.1 and 42.16.3) or by a requirement for the change to be in accordance with the Protocol (thus picking up the requirement for pilot agreement for roster changes in clauses 13.1, 13.3, 13.4 and 13.5 of the Protocol).
[29] The second category consists of clauses 42.16.4 and 42.16.5. These provisions are conditioned upon the relevant extension to a duty period or tour of duty being causally related to the occurrence of “misconnections”, being disruptions arising from a category of events that are beyond Jetstar’s control. In these provisions, there is no requirement for pilot agreement and no requirement that any extension must be effected in accordance with the Protocol.
[30] We reject Mr Lyon’s submission that no power to direct a pilot to undertake such an extension may be identified either in the text of clauses 42.16.4 or 42.16.5 or elsewhere in the Agreement. The default position at law is that a pilot employed by Jetstar is required to comply with its lawful and reasonable directions. Nothing has been raised by Mr Lyon to suggest that an extension of duty required by Jetstar to facilitate a recovery of operations rendered necessary by any misconnection that fits within the framework of the regulation of pilots’ flying/duty hours would not constitute a lawful and reasonable direction. The language of clauses 42.16.4 and 42.16.5 assumes the existence of the capacity to make such a direction. The position is the converse of that predicated in Mr Lyon’s submissions in that where there is a departure from the default position, whereby a pilot’s agreement is required in response to an operational request made by Jetstar, that is expressly stated or provided for as in clauses 42.16.1, 42.16.2 and 42.16.3.
[31] As observed in Jetstar’s submissions, if a pilot’s agreement is required for an extension under clause 42.16.5 to a tour of duty that results in a pilot being deemed to have worked on a designated day off, this sets up an inconsistency with clause 42.16.3. Clause 42.16.3 provides that, where a pilot agrees to work on a designated day off, the pilot is to receive the benefits of clauses 35.5 and 35.6. However, clause 42.16.5 provides that a pilot who, on Mr Lyon’s approach, agrees to work on a designated day off because of a misconnection is not entitled to the benefits of clauses 35.5 and 35.6. Mr Lyon accepts in this appeal that he is not entitled to the benefits of clauses 35.5 and 35.6 (and that the Commissioner’s answer to the second question was correct), but it is not clear how this concession logically arises from the interpretation he advances. The identified inconsistency, it appears to us, cannot be resolved unless clause 42.16.5 is read as operating as an exception to clause 42.16.3 or as dealing with a separate circumstance.
[32] We prefer to read clause 42.16.4 and clause 42.16.5 as being discrete provisions concerning the special circumstance of misconnections which operate as exceptions to the general provisions in clauses 42.16.1, 42.16.2 and 42.16.3. This interpretation is reasonably available on the text of the provision read in context, avoids the irrational and absurd consequences we have earlier identified, and harmonises internally the provisions of clause 42.16.
[33] For the above reasons, we consider that the Commissioner’s answer to the first question posed for determination was plainly correct. Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
C Dowling SC with C Tran of counsel for the appellant.
R Dalton QC with F Leoncio of counsel for the respondent.
Hearing details:
2020.
Sydney (video-link).
15 December.
Printed by authority of the Commonwealth Government Printer
<PR727202>
1 [2020] FWC 4826
2 Ibid at [8]
3 Ibid at [83]
4 Ibid at [92]
5 Ibid at [96]
6 Ibid at [97]
7 Ibid at [104]-[106]
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