Matthew Lyon v Jetstar Airways Pty Ltd T/A Jetstar Airways
[2020] FWC 4826
•16 SEPTEMBER 2020
| [2020] FWC 4826 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Matthew Lyon
v
Jetstar Airways Pty Ltd T/A Jetstar Airways
(C2020/968)
COMMISSIONER WILSON | MELBOURNE, 16 SEPTEMBER 2020 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]. Principles for construction of an enterprise agreement. Meaning of defined term; “Tour of Duty”. Whether a Tour of Duty once commenced may be changed.
[1] This decision concerns a dispute over a provision of the Jetstar Airways Pilots’ Enterprise Agreement 2015 1 (the 2015 Agreement) and whether a pilot may refuse a roster change advised after commencing a series of flights referred to in the agreement as a “Tour of Duty”, but before a specific period of duty commenced. The application was made pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute arising under an enterprise agreement.
[2] The Applicant in these proceedings is Matthew Lyon, a Flight Officer who has been employed by Jetstar for around 6 and a half years. Mr Lyon was represented by Andrew Molnar, Legal Counsel of the Australian Federation of Air Pilots (AFAP). As an employee of a registered organisation, Mr Molnar did not require permission to represent the AFAP’s member. Jetstar Airways Pty Ltd (Jetstar) was represented by Jonathan Forbes, of Counsel, instructed by Emma Vautin of Herbert Smith Freehills, solicitors, who were granted permission by me pursuant to s.596 of the Act, in a decision issued on 6 August 2020. 2
[3] Witness evidence was received from Mr Lyon and, on behalf of Jetstar, Leah Everton, Manager EBA Support & Analytics – Flying Operations.
[4] The application was made by Mr Lyon on 19 February 2020 and was the subject of conciliation before me on 4 March 2020. After the matter was unresolved and the Commission was advised that Mr Lyon desired for the dispute to be arbitrated, it was programmed for arbitration, with the hearing taking place by video on 10 August 2020.
QUESTION FOR DETERMINATION
[5] In short form, the dispute concerns a situation in which Mr Lyon set out from his home base in Melbourne and expected to do two days’ work, followed by a Designated Day Off on the third day. Shortly before undertaking work on the second day, he was notified of a change in his roster. The dispute relates to whether he may have refused the change.
[6] A single Question for Determination was proposed by Mr Lyon, being: Was Mr Lyon entitled to refuse the roster change?
[7] For the reasons set out below, I have determined this question as insufficiently comprehensive and consider an additional question requires being posed relating to the consequence of him having his roster changed.
[8] As a consequence, the Questions for Determination posed and addressed in this decision are set out below, as are the answers determined by me:
Q1: Was Mr Lyon entitled to refuse the roster change?
A1: No.
Q2: 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 or to a Worked Day Off payment in accordance with the provisions of clauses 35.5 and 35.6?
A2: Mr Lyon was entitled to a replacement Designated Day Off as provided for by clause 42.16.5.
BACKGROUND
The 2015 Agreement; “Misconnections”
[9] The 2015 Agreement commenced operation on 28 April 2015, and its nominal expiry date was 21 April 2019.
[10] Central to the dispute is a circumstance known as a “misconnection” which causes disruption to flying operations. Jetstar argued that the cause of the change in Mr Lyon’s roster was a misconnection. 3 Mr Lyon’s evidence was that the flight he had been expecting to crew from Queenstown, New Zealand, to Melbourne, Australia had become unserviceable upon arrival in Queenstown.4 “Misconnection” is defined in the 2015 Agreement as “disruptions caused by mechanical malfunction, weather, industrial dispute, or for any reason that is beyond Jetstar's control” (clause 7.47). A misconnection could conceivably arise before an employee commences their work or after. Jetstar argued that not all operational delays may involve or be caused by misconnections; there may be other delays such as those caused by passengers, late aircraft arrivals or refuelling delays.5
[11] The dispute in this matter relates to the impact of a misconnection on Mr Lyon’s work and the consequence of that impact, including whether he could be directed by Jetstar to undertake different work involving a change to his roster.
[12] The 2015 Agreement and the parties to the dispute each refer to the work performed by Mr Lyon’s as being “duty” or “duties” within a “Tour of Duty”. While “duty” and its plural are not defined by the Agreement, “Duty Time”, “Tour of Duty” and “Duty Free Day” are defined in the following ways:
“7.24 "Designated Day Off" means a rostered calendar day free of duty at home base, or at other ports if requested by the pilot and agreed by the Company, and shall include the nominated duty free period as described in the Roster Protocol.
7.25 "Duty Free Day" means a period free of duty at home base.
7.26 "Duty Time" means any task (including Positioning) that a pilot is required to carry out associated with the business of the Company.
7.64 "Tour of Duty" means 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.”
[13] The Roster Protocol referred to in the passage above is “the document covering rules pertaining to roster build and day of operations as amended in accordance with clause 11.2” (clause 7.58), however the Protocol is not a part of the 2015 Agreement as a result of this term of the Agreement:
“11. ROSTER PROTOCOL AND ACALS AGREEMENTS
11.1 The Company has developed a Roster Protocol and ACALS in consultation with the JPC and unions covered by this Agreement. These agreements do not form part of this Agreement.
11.2 The above agreements may be varied by the Company provided that:
11 .2. 1. the changes are agreed by all the unions covered by this Agreement; or
11.2.2. the changes are endorsed by a majority of pilots by vote covered by this Agreement, after consultation with the JPC and unions covered by this Agreement.”
[14] The Roster Protocol was attached to Mr Lyon’s originating application, and clauses 13, 14 and 15 of the Protocol are extracted at ATTACHMENT 2.
[15] It was argued by Jetstar that disruptions caused by misconnections are an unavoidable feature of aviation and usually occur at least once in any normal operating month, and sometimes more often. 6
Mr Lyon’s concerns and the changes to his roster
[16] Mr Lyon flies A320 aircraft from his home based in Melbourne. When he signed on for duty on Saturday, 13 April 2019 he was to perform a Tour of Duty ending at 2240 the following night, with the day following, Monday, 15 April 2019, as a Designated Day Off. Despite what was planned, a misconnection intervened, and the original arrangements were changed. Having overnighted in Sydney on Saturday, 13 April 2019, on the following day:
“At approximately 11:26 on 14 April, I received a call from crewing. I was advised that there might be a change to my roster that would involve me overnighting again that night. The only detail that crewing could provide was that JQ224 (ZQN-SYD) was currently not going because it had become unserviceable upon arriving in ZQN from MEL. I told crewing that I had a designated day off rostered the next day, and that I had a doctor’s appointment scheduled. I also told crewing that I might be able to change that appointment and help out the company by doing a second overnight for a Work Day Off (WDO) payment. The call then ended, and I called my doctor and changed the appointment.” 7
[17] Mr Lyon records the details of his original and amended Tours of Duty in the following way: 8
• Original
13 April 2019 | Sign-On 1415 Pax QF442 MEL-SYD Operate JQ725-JQ724 (SYD-HBA-SYD) Terminate 2205 in SYD |
14 April 2019 | Report for duty 1320 Operate JQ223-JQ220 (SYD-ZQN-MEL) Sign Off 2240 in MEL |
15 April 2019 | Designated Day Off |
• Amended
14 April 2019 | Report for duty 1320 Operate JQ223-JQ224 (SYD-ZQN-SYD) Terminate 2205 in SYD |
15 April 2019 | Pax JQ513 SYD-MEL Sign-Off 1440 in MEL |
[18] When he was told of the change, Mr Lyon reminded the person to whom he spoke that he was due to have a Designated Day Off on which he had scheduled a medical appointment. He told them he “might be able to change that appointment and help out the company by doing a second overnight for a Work Day Off (WDO) payment”. 9 Mr Lyon recollects the reasoning for this was because he had already signed on for his Tour of Duty in Melbourne the previous day. He recollects being told in a later conversation that his roster was changing, so he would have to overnight again in Sydney, and then be a passenger home on his day off.10 Having told his employer he would change his work arrangements if a Worked Day Off was granted to him instead of being given a Designated Day Off, Jetstar informed him a day in lieu would be provided, but not a Worked Day Off payment.11 Although the 2015 Agreement does not define “Worked Day Off”, it is taken to be a reference to the entitlements provided for by clauses 35.5 and 35.6 and the reference to a day in lieu is to the provision in clause 42.16.5 for a replacement Designated Day Off.12
[19] Despite not agreeing with his employer’s reasoning, Mr Lyon performed the assigned duty regardless. 13 The following day, he was told by Allison Rafei, the Melbourne Senior Base Pilot “the change did not require mutual agreement, simply because of EBA section 42.16.5. We disagreed on the definition of what “extends” means in relation to that clause. I was adamant that the duty change was a re-assignment, not simply an extension. We could not come to a resolution on the phone, so she asked if I could put my logic in writing and email it to her”.14 Mr Lyon sent an email Ms Rafei detailing his concerns, and she responded. Mr Lyon’s correspondence:15
• Drew attention to the definition of “Tour of Duty” being the period of time between Sign-On and Sign-Off at Home Base;
• Asserted there was no ambiguity in the Roster Protocol’s statement at clause 13.1 of the document that “[t]he 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”;
• Relied on clause 13.2 of the Roster Protocol for his view that he had not commenced duty when notified of the change in the amended Tour of Duty, noting the clause provides that ‘[i]f a pilot commences a duty which is subsequently operationally delayed beyond 2300 LT prior to a Designated Day Off, the provisions of clause 42.16.5 of the Agreement apply”. This was because he was in his hotel “prior to reporting for my JQ223/JQ220 duty”, thereby being “free of all duty and standby associated with my employment”. Since he had not “commenced a duty”, neither the Roster Protocol nor clause 42.16.5 of the 2015 Agreement applied to his circumstance;
• Submitted that clause 42.16.4 also did not apply to his situation;
• Argued that since he was “on a Tour of Duty”, and while accepting the Roster Protocol’s clause 13.5 applied to him “the company was entitled to change my rostered Sign-Off time, but only in accordance with the three avenues provided: section 14, section 15, or by mutual agreement.” He then submitted that on his interpretation neither clauses 14 or 15 of the Roster Protocol applied to his circumstance; and
• Concluded the only avenue available for changes to be made to his Tour of Duty was through agreement.
[20] Ms Rafei took some time to consider Mr Lyon’s views and eventually responded in June 2019, briefly and to the point:
“Hi Matt,
I have received confirmation that you are entitled to a DIL for the disruption you encountered, which remains consistent with both our initial conversations and those you had with crewing.
Once you have commenced a Tour of Duty, any resulting misconnection or disruption extending into a DDO, whether or not it results in an unscheduled overnight, entitles the crew member to a replacement DDO (or DIL).
The crew member may be required to fly directly to a port for maintenance or so the aircraft can continue a planned line of flying. Following this, the crew member will be paxed home.
In your case, you were required to operate to SYD, not MEL, due to operational requirements and then paxed home and thus, the allocation of DIL is appropriate.
Ally”. 16
[21] Insofar as Mr Lyon is concerned he was entitled to refuse the roster change with him being of the belief that Jetstar did not have the power to extend his duty into his Designated Day Off without his agreement under clause 42.16.1 of the 2015 Agreement and clause 13.1 of the Protocol. 17
Jetstar’s view about the roster change
[22] Jetstar were concerned about the consequences of Mr Lyon’s arguments; it would be required to obtain his agreement to the roster change and if there was no agreement it could not require him to complete the Tour of Duty in accordance with the changed roster. If he had agreed to perform the duties, he would be entitled to a Worked Day Off payment, not a replacement Designated Day Off. 18
[23] Jetstar’s submissions in this matter dealt with the serious implications that might flow from a construction of pilot agreement being required for a Tour of Duty to be changed. Its witness, Leah Everton, Manager EBA Support & Analytics - Flying Operations, gave evidence that in her experience “the operational imperative of a pilot completing a Tour of Duty disrupted by a misconnection has always taken precedence over the lifestyle needs of pilots”. This was because of the impact of what was a personal decision on the airline’s customers as well as the consequential effect of further disruptions in the network:
“The reason why Jetstar’s operational needs take precedence over pilot’s lifestyle needs in the event of a misconnection extending a Tour of Duty is because, when a disruption of this kind occurs:
(a) there will be a large number of passengers whose travel plans have been disrupted (up to 180 passengers on a narrow body aircraft and up to 330 passengers on a wide body aircraft);
(b) the aircraft will not be available for its next scheduled flights, which has a knock on effect in the flying schedule and will disrupt travel plans for potentially hundreds or thousands more passengers;
(c) If the cause of the misconnection is a technical fault with the aircraft, the crew, including the pilots and cabin crew, will be out of base and delayed from returning to home base and the next event in their roster (which could be a DDO, leave, training or another duty, depending on the extent of the delay);” 19
[24] In Ms Everton’s view, the need to override personal needs was driven by the need to find the most efficient way to retrieve the airline from what could be significant disruption:
“44. When a misconnection occurs, recovering passengers and aircraft and crew becomes the dominant operational driver for responding to the disruption and Jetstar must look for most efficient way to achieve this. In most cases the most efficient way to recover passengers, the aircraft and our crew is for the original crew to complete their Tour of Duty by:
(a) operating the same aircraft with the same passengers at the earliest opportunity either to the same base that the aircraft left from or to another location, with the pilot then being positioned to their home base (If the misconnection is not related to a technical fault with the aircraft and the aircraft is still available); or
(b) operating an earlier or later fight on a different aircraft, with the pilot then being positioned to their home base if the flight does not return to the pilot’s home base.
45. On occasion, the operational imperative to recover passengers, aircraft and crew in scenarios triggered by misconnections will require the pilot to work into a DDO. But this operational imperative is reflected in clause 42.16.5 of the 2015 Pilots EA, a clause which is specifically directed to that situation.” 20
[25] Ms Everton also pointed to some real examples of how misconnections disrupted the airline’s schedules and rosters: 21
• Her first example was of a series of flights to and from Phuket which commenced on 5 March 2020, involving 3 pilots. The pilots were originally to commence at 1120 on 5 March 2020 and return at 0620 on 7 March 2020, followed by a Designated Day Off on 8 March 2020. Instead, owing to delays, the flight piloted by the original crew left 15 hours late and returned on 8 March 2020 at 0115. Having arrived back on 8 March, being their Designated Day Off, the pilots were credited with a day in lieu. Ms Everton then speculated about what may have occurred if the pilots involved refused to work in accordance with a request to change their Tour of Duty:
• In order to travel home, the pilots would have had to find their own way home, which may include them travelling back on the same flight they declined to operate;
• With no pilot crew base in Phuket, Jetstar would have had to obtain pilots from elsewhere, which would likely take a minimum of 14 hours travel time, followed by a minimum 10-hour rest period;
• Instead of the actual delay of 15 hours, there would be a minimum 27-hour delay.
• The second example concerned flights between a pilot’s home base in Sydney and Bali and is not dissimilar to Mr Lyon’s circumstances. Prior to a misconnection a pilot would have been required to fly from Bali to Melbourne and then Sydney. However, owing to a flight cancellation the pilot instead operated an alternative flight which arrived in Melbourne late at night, well after the original Melbourne arrival time. That in turn required the pilot to overnight in Melbourne before returning to Sydney on what would have otherwise been their Designated Day Off in return for which they received a day in lieu.
Ms Everton then took the view that if the pilot had refused to operate the Bali to Melbourne flight, the flight would have been delayed because it would not have had the necessary crew to operate it and passengers would be impacted by the delay. Making arrangements to crew the delayed flight would have in turn delayed others and the shortage of pilots to operate flights from Denpasar would have continued.
RELEVANT PRINCIPLES FOR DETERMINATION OF THE DISPUTE
[26] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third party. The resultant arbitrator’s award is not binding of its own force but instead its effect depends on the law which operates with respect to it. 22 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.23
[27] The Commission is required to examine whether an enterprise agreement’s dispute settlement procedure “requires or allows” the Commission to deal with the dispute. In order to do so, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 24 The scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed; “to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement.”25
[28] In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute. 26 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.27 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.28 The character of the dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute.29 However, the relief sought may cast light on the true nature of the dispute in some cases.30
[29] The Commission may deal with a dispute only if it is expressly authorised to do so. 31 If the Commission has jurisdiction to deal with the dispute, the nature of the relief that the Commission may grant will depend on the limitation in s.739(5)32 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.33
[30] The Full Court summarised the principles for the interpretation of enterprise agreements in Workpac v Skene as follows:
“The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 at 378 (French J). The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”: Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).” 34
[31] From within the Commission, the principles enunciated by the Full Bench in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 35 (Berri) usefully summarise the approach which should be taken in the task of ascertaining the construction of the words of an enterprise agreement. After an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way:
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised 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.” 36
[32] The application of these principles, and especially to those in which ambiguity may be considered was further considered by the Full Bench in United Firefighters Union of Australia v Emergency Services Telecommunications Authority:
“[35] As stipulated in Berri, the starting point for interpreting an enterprise agreement is to have regard to the ordinary meaning of the words used. Further, the text must be interpreted in the context of the agreement as a whole. Principles 7 and 10 elicited in Berri emphasise that ambiguity in a provision within an enterprise agreement must be identified before one is to have regard to evidence of the surrounding circumstances. However, principle 8 makes it clear that, in determining whether ambiguity exists, one may have regard to evidence of the surrounding circumstances. That is, such evidence can be used to identify and resolve any ambiguity.” 37
CONSIDERATION
[33] The Question for Determination, as framed in Mr Lyon’s submissions is this: was FO Lyon entitled to refuse the Roster Change? 38 Jetstar did not object to the matter to be arbitrated being framed in this manner.39
[34] There is a need in consideration of any dispute to properly characterise the dispute before arbitral powers may be exercised, including for the reason the Commission must be satisfied the matter may be dealt with under Part 6 – 2, Division 2 (Dealing with disputes), within which s.739 is found.
[35] The question proposed by Mr Lyon – was he entitled to refuse the roster change – is likely insufficiently comprehensive of the matters in dispute between the parties, as demonstrated through their respective submission, materials and evidence.
[36] Mr Lyon contends that the result of the roster change meant he had a right to refuse the change itself:
“In my view, I was able to refuse to agree to do the new duty. This is because the new duty involved a change of city pairings which had the effect of delaying my original duty, and which meant that my designated day off on 15 April would be infringed.” 40
[37] In his correspondence to Ms Rafei on 16 April 2019, he stated he believed the changed duties were subject to mutual agreement. After an indicated analysis of provisions of the 2015 Agreement (chiefly clauses 42.16.4 and 5) and the Roster Protocol (clauses 13.1, 2, 5 and 14 and 15), he advised her of the following: 41
• Clause 42.16.5 did not apply to his circumstance since he was “free of all duty”, resting, and he had not “commenced a duty” meaning that clause and Roster Protocol 13.2 did not apply;
• Since he was on a Tour of Duty, “[s]ection 13.5 does apply in this case and the company was entitled to change my rostered Sign-Off time, but only in accordance with the three avenues provided: section 14, section 15, or by mutual agreement”;
• And in finality, “mutual agreement was the only avenue the company had to direct me to work on my DDO. This in turn puts into effect Section 13.3, entitling me to a WDO payment in accordance with clause 35.5 and 35.6 of the Agreement.”
[38] Taken together with the other material now before the Commission, it is apparent the dispute is more directly concerned not with whether Mr Lyon could refuse to work, but with what should occur if he performed work in accordance with the roster change. Had Mr Lyon actually REFUSED to work in accordance with the notified change of roster the dispute to be resolved would likely be entirely different to how it is now presented. Rather than the dispute being about what he was entitled to receive because he worked, the dispute may well instead be about the application of disciplinary procedures.
[39] Amongst other things, the Commission is authorised by clause 8 of the 2015 Agreement to deal with disputes relating to “a matter arising under this Agreement”. The Commission’s dealing with such a dispute may be through the means set out in clause 8.5, which includes mediation, conciliation, the expression of an opinion or the making of a recommendation and arbitration.
[40] After consideration of these matters and the submissions made by each party, I consider an additional question be posed in order to be satisfied the subject matter of the actual dispute is sufficiently addressed. The Questions for Determination to be addressed in this decision are therefore:
Q1: Was Mr Lyon entitled to refuse the roster change?
Q2: 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 or to a Worked Day Off payment in accordance with the provisions of clauses 35.5 and 35.6?
[41] I am satisfied that each question is a matter arising under the 2015 Agreement, and that such is a dispute for the purposes of clause 8 (Dispute Resolution Procedure).
Disputed terms
[42] As will be discerned from the summary provided of the parties’ respective cases and the Questions for Determination, the disputed terms of the 2015 Agreement are clause 42.16 (Company Roster Changes), which is within clause 42 (Normal Hours of Duty and Rest Periods) and clauses 35.5 and 35.6 (Designated Day Off Allowance). Clause 42 and clauses 35.5 and 35.6 are set out at ATTACHMENT 1.
The 2015 Agreement, the Roster Protocol and other documents
[43] The 2015 Agreement refers to, but does not incorporate the Roster Protocol, with clause 42.16.2 providing that “the Company will only change a pilot’s roster in accordance with the Roster Protocol”, with a pilot to “be given as much notice as possible of any change to their roster”. The Roster Protocol itself was attached to Mr Lyon’s originating application. The Roster Protocol states that it is to be “read in conjunction” with a number of other documents, including the CAO 48 Exemption and the “Company Operations Manuals”. The CAO 48 Exemption is an instrument issued by the Civil Aviation Safety Authority exempting Jetstar and flight crew members from certain limitations provided there is then adherence to nominated flight or duty limitations.
[44] Mr Lyon considered the different uses of the terms “a duty”, “Duty Period” and “Tour of Duty” needed to be taken into account in determining this dispute. While the term “Tour of Duty” is defined in the 2015 Agreement, he noted the other two terms were not, but that both were defined in the CASA CAO 48 Exemption and Jetstar’s Operations Manual. He submitted the Jetstar Operations Manual defined “Duty Period” as “[a] period which starts when a flight crew member is required by an operator to report for a duty, until the flight crew member is free of all duties”. Mr Lyon’s submissions attached both the relevant extract from the Operations Manual (also referred to as “OM 1”) and the CAO 48 Exemption which includes the same definition. 42
[45] The 2015 Agreement makes limited reference to the “Company Operations Manuals”, however there are no references to the Manuals in Clause 42. The CAO 48 Exemption is referred to in Clause 42 in two places; rostering must be within the roster limit and rest period limitations set out in the instrument or its exemptions (clause 42.1); and a Duty Period already commenced may be extended for misconnections in accordance with the instrument’s exemption (clause 42.16.4).
[46] As will be apparent from the summary of Mr Lyon’s case above, the meaning of clause 13 of the Roster Protocol and the extent to which it requires consideration in determining the construction of the 2015 Agreement are matters in dispute between the parties.
[47] Before turning to the Roster Protocol itself, two matters require discussion; the fact that the Protocol’s treatment is different in the current 2015 Agreement when compared with earlier versions; and how the 2015 Agreement and clause 42 in particular make reference to the Roster Protocol.
[48] In relation to the predecessor Agreements, the following matters are noted:
• While the 2005 Agreement 43 did not make explicit provision for a Roster Protocol as such, it provided for consultation with the Jetstar Pilot Council “to formulate a rostering protocol” (clause 25.4.1). The 2005 Agreement included a “Company Roster Changes” term in similar but not identical terms to the current clause (clause 25.6).
• The 2008 Agreement 44 provided more detail on the subject, defining what was meant by the Roster Protocol (clause 2) and also providing for consultation about formulation of the Protocol (clause 23.4.1). The 2008 Agreement also included a “Company Roster Changes” term, in similar but different terms to the 2005 Agreement. In turn the term in the 2008 Agreement is in similar but not identical terms to the current clause.
[49] Pertinent to the 2015 Agreement, the Roster Protocol and its status is referred to in clause 11 with it being provided that the Protocol explicitly does not form part of the Agreement. The Roster Protocol is the subject of a definition at clause 7.58. Clauses 7.24 (definition of Designated Day Off), 10.2.2 (Consultation) and 18 (Pilot Contactability) include incidental references to the Roster Protocol. Substantive references are made to the Protocol in Clauses 42.5 (number of Designated Days Off), 42.10 (Rest Periods), 42.11 (Standby Periods) and 42.16 (Company Roster Changes).
[50] The parties have different interpretations for several of the provisions of the Roster Protocol clause 13, with their submissions summarised in the following manner:
• Mr Lyon argues Roster Protocol 13.1 and 13.3 “mirror” clauses 42.16.1 and 42.16.3, demonstrating the significance of a pilot’s Designated Days Off 45 and the text of Roster Protocol 13.2 and 13.3 reinforce there is to be a distinction between roster changes prior to the commencement of “a duty” and after. In the case of the former, agreement to a roster change is required and in the latter it is not.46 The references in Roster Protocol 13.2 and 13.3 to a pilot commencing “a duty” are in distinction to the phrase “Tour of Duty”, with a Tour of Duty being made up of a series of duties that begin and end at Home Base. This means the entitlements provided for within Roster Protocol 13.2 and 13.3 and the benefits of clause 42.16.5 and 35.5 – 6 are available when “a duty” is delayed or changed, being a duty within a Tour of Duty. Following from this proposition is that while it was open to Jetstar to change Mr Lyon’s “rostered duties within his Tour of Duty” it could only do so “as long as it did not change the rostered sign-on or sign-off time for the tour of duty”.47 If there were to be a change to the Sign-off time, that would have to be done either under Roster Protocol 14 (Displacement) or Roster Protocol 15 (Reassignment).48
• Jetstar note that Roster Protocol 13 is within the third part of the Protocol, entitled Day of Operations. There is significance to the three parts: the first deals with preliminary matters, the second with Roster Build and the third Day of Operations. The second part “applies to the production (or “build”) of pilots’ monthly rosters but will cease to have effect once the roster has been published. Thereafter the Protocol (Day of Operations) (clauses 11-17) will take effect”. 49 This dispute relates to a roster change being made within a particular temporal context, namely after a Tour of Duty has commenced (ie after Sign-on) but before it is completed (Sign-off).50
Pointing to the content of the Roster Protocol, Jetstar argue there is a flawed analysis in the contention that unless Jetstar can point to Roster Protocol 14 or 15 as authorising the change in a roster it must then follow that Jetstar require Mr Lyon’s agreement. After noting Roster Protocol 2.1 sets out the purpose of the document, which it sees as being to balance Jetstar’s operational requirements with pilots’ lifestyle needs, Jetstar argue that the construction of Roster Protocol 13.5 is informed by the definition of Tour of Duty and the provisions of Roster Protocol 14 and 15, which in any event do not apply to Mr Lyon’s circumstances, since they have no application to changes to a Tour of Duty after the tour has commenced. 51 It is then argued the displacement provisions in Roster Protocol 14 have effect when a pilot is “displaced from a rostered Tour of Duty”, meaning they are displaced from an original rostered Tour of Duty before the Sign-on time on the first day of a multi-day Tour of Duty. Similarly a reassignment can only occur when a pilot is displaced from their original rostered Tour of Duty, other than in some limited circumstances dealt with in Roster Protocol 14.2. Jetstar dismisses the distinction drawn by Mr Lyon for the purposes of Roster Protocol 13.2 between “duty” and “Tour of Duty”. It argues Roster Protocol 13 is no mirror of clause 42.16.5, but instead deals with a specific circumstance, which is not of misconnection.52
[51] Mr Lyon draws from Roster Protocol 13.1 the construction that work on a Designated Day Off may occur only if Jetstar has requested and the pilot has agreed. In the alternative, if there has been a direction given, other than by consent, the provisions of Roster Protocol 14 or 15 would apply. 53 He contended that Roster Protocol 14 provides there may be displacement of the pilot from the roster in certain circumstances and Roster Protocol 15 deals with reassignment.
[52] For its part, Jetstar rely for its construction on the whole of clause 42.16, 54 with the terms of the Agreement taking precedence over the Roster Protocol to the extent of any inconsistency. Nonetheless, the Jetstar submissions accept that where the Roster Protocol is more restrictive it may prevail.55
[53] Jetstar submitted that Roster Protocol 13.5 has not been engaged in Mr Lyon’s circumstances. Instead Jetstar argue that Roster Protocol 13.5 relates to a change to a future rostered Tour of Duty. With 13.5 stating Jetstar “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/or sign-off time for the tour of duty other than by displacement or re-assignment” a change to a pilot’s Sign-on time could only be prior to the Tour of Duty commencing. 56
Construction of clause 42.16
[54] The 2015 Agreement is stated to be comprehensive replacing otherwise applicable Awards and Agreements (clause 6.1). Clause 42, entitled Normal Hours of Work and Rostering is lengthy with 16 separate sub-clauses, and is shown in full at ATTACHMENT 1.
[55] The following may be drawn from the language of the clause itself:
• Amongst other things clause 42 provides that rostering is to be in accordance with CAO 48 and exemptions given by CASA (clause 42.1). It provides that roster periods will be of one averaged calendar month duration (clause 42.2) with pilots to be rostered a minimum number of Designated Days Off, namely a minimum of 10 in each of six roster periods and then 11 in the remaining six roster periods (clause 42.4). Additional Designated Days Off will be rostered “in a manner that recognises the peak/trough cycles of the business” with the days to be allocated “in accordance with the Designated Day Off procedures of the Roster Protocol” (clause 42.5).
• Pilots will be allocated rest periods in accordance with certain limitations, except where rest periods may have been extended in accordance with the Roster Protocol (clause 42.10.1). Standby periods may be rostered (clause 42.11).
• Rosters are to be prepared in advance in accordance with clause 42.13 and may take into account pilot requests for “a particular flight or Standby duty and request specific days off” (clause 42.14.1).
• Pilots “may arrange mutual exchanges of rostered duty period(s) with other pilots”, however the changed details must be advised with at least 72 hours’ notice unless otherwise approved by Jetstar (clauses 42.14.3 – 4).
[56] Clause 42 as a whole makes plain that the rosters are to be built and deployed within the context of several things, including the limitations of CAO 48 and exemptions that may have been given, or an FRMS 57 (clause 42.1); the need to program Designated Days Off (clause 42.4) and rest periods as well as company needs (clause 42.4) and pilot preferences (clause 42.14).
[57] Clause 42.16 adds to the equation by providing certain protections and limitations on roster changes initiated by Jetstar, with the text of the clause generally consistent with its title: “Company Roster Changes”. The clause contains five paragraphs, three of which deal with the subject of changes to a Designated Day Off (clauses 42.16.1, 3 and 5). The other two paragraphs provide for circumstances broader than Designated Days Off (clauses 42.16.2 and 4).
[58] As set out above, the Roster Protocol is not a part of the 2015 Agreement (clause 11.1). While that is so, it is nonetheless a document which must be referred to in order to ascertain certain rights or for Jetstar to make certain decisions arising under the 2015 Agreement. In relation to the matters involving Mr Lyon’s roster in April 2019, the terms of the Roster Protocol require consideration with it impacting upon him in the following ways:
• Jetstar may only change Mr Lyon’s roster – the one prepared in accordance with clause 42.13 – “in accordance with the Roster Protocol”. What must be in accordance with the Roster Protocol is a Jetstar initiated change to the roster (clause 42.16.2); and
• Mr Lyon will be deemed to have worked on a Designated Day Off if his Tour of Duty “extends beyond the time stipulated in the Roster Protocol as a result of misconnections” (clause 42.16.5). In such eventuality he would be entitled to a replacement Designated Day Off however, would not be entitled to the things provided for within the 2015 Agreement’s clauses 35.5 and 35.6 (clause 42.16.5). This latter circumstance stands in distinction to a Jetstar request of the pilot to work on a Designated Day Off, in which case the provisions of clauses 35.5 and 35.6 would apply (clause 42.16.3).
[59] For the purposes of this consideration there is no particular dispute about what actually happened to Mr Lyon:
• His roster had been published on an unknown date. There is no argument that the roster was not developed or published in accordance with the 2015 Agreement’s roster build provisions;
• He commenced his rostered Tour of Duty on Saturday, 13 April 2019 signing on in Melbourne at 1415, with his duties being to fly from Melbourne to Sydney as a passenger and then pilot an aircraft from Sydney to Hobart and return;
• He completed his first day’s work ending at 2205 in Sydney, where he overnighted;
• He expected the next day, Sunday, 14 April 2019, to pilot aircraft from Sydney to Queenstown, New Zealand and then Queenstown to Melbourne and conclude the Tour of Duty at 2240. However, while preparing for work on Sunday, he was notified of a change of plan. He accepts there was a valid reason for his displacement from his rostered Tour of Duty. 58
• The duties he then actually undertook involved him flying from Sydney to Queenstown and return, ending that night at 2205 in Sydney, requiring further overnighting in that city.
• On the following day, Monday, 15 April 2019, Mr Lyon returned to Melbourne as a passenger and signed off at 1440.
• Having worked on his Designated Day Off, Mr Lyon was given a day off in lieu, 59 described by Jetstar as a replacement Designated Day Off.60
[60] Mr Lyon also invited consideration of the fact that the statutory declaration filed by Jetstar at the time of seeking approval of the 2015 Agreement, the Form F17, did not identify Jetstar’s ability to direct a pilot to work a Designated Day Off and should have been noted as a detriment when compared to the Award. Jetstar tabled correspondence between the parties after the 2015 Agreement was approved detailing what appear to be the antecedents to this dispute. While each of those matters may explain why this dispute has been brought to the Commission, they do not ultimately illuminate the meaning of the disputed term.
[61] What is evident from the ordinary meaning of the words in clause 42.16.5 is that the term provides an entitlement based upon a deemed event. The entitlement is to a replacement Designated Day Off, with no application of clauses 35.5 and 35.6 if a pilot has been deemed to have worked on their Designated Day Off. The deemed event is referred to in the first sentence as the situation in which, “prior to a pilot's Designated Day Off, [the pilot’s] Tour of Duty extends beyond the times stipulated in the Roster Protocol as a result of misconnections”. The event therefore is dependent on each of three parts being present: (1) the Tour of Duty must extend beyond the times stipulated in the Roster Protocol; (2) the extension must be as a result of misconnections; and (3) the extension must be prior to the Designated Day Off.
[62] It is clear the second and third criteria have been met in Mr Lyon’s case.
[63] Consideration of the first element, of whether the “Tour of Duty extends beyond the times stipulated in the Roster Protocol” draws attention to how the term “Tour of Duty” is used within the 2015 Agreement, as well as the status of the Roster Protocol.
[64] The term “Tour of Duty” as defined in the 2015 Agreement, as set out in full above, refers to “the elapsed period between Sign-on and Sign-off at Home Base”. Mr Lyon’s “Home Base” – being the geographical place from which he operates – is Melbourne. His “Sign-on” is the time he commenced duties associated with the Tour of Duty and his “Sign-off” is the time of completion of all duties associated with his Tour of Duty (clauses 7.61 and 62). Other than being referred to in the definition of Sign-on and Sign-off, the term “Tour of Duty” is used only in three of the 2015 Agreement’s clauses:
• Clause 34.3, which provides reimbursement to cover the expense of “basic incidentals necessary for completion of the Tour of Duty” in the event a pilot’s baggage does not arrive at their accommodation within two hours;
• Clause 42, in the rest period provisions (clause 42.10); standby (clause 42.11); and the company roster change provisions (clause 42.16);
• Clause 53.3, referencing the circumstance of a pilot requiring one day of personal leave for a single rostered Tour of Duty.
[65] The definition of Tour of Duty includes several other defined terms; “Sign-on”, “Sign-off”, “Home Base” and “Company”. Each of these terms is used in different places in the 2015 Agreement however those terms do not appear to provide anything of particular relevance to the determination of this dispute.
[66] The following may be further observed from the 2015 Agreement’s use of the term “Tour of Duty”, (other than the references in clause 42.16.5, which are dealt with separately):
• The use of the term in clause 34, dealing with the reimbursement of incidental expenses associated with lost baggage, is plainly associated with an eventuality occurring after Sign-on has taken place;
• The use of the term in clause 42.10, relating to rest periods, is in relation to a Tour of Duty which has been completed;
• The use of the term in clause 42.11, dealing with standby periods, is also related to an event after a Tour of Duty has been commenced, with the clause providing that “[w]hen a pilot has commenced a Tour of Duty from a Standby period they will not be required to operate a second tour once the initial duty has terminated” (clause 42.11.6);
• The use of the term in clause 51.3.8, relevant to the taking of personal leave is related to events which take place after a Tour of Duty has been rostered and before it has concluded.
[67] The context of the 2015 Agreement does not support a conclusion that a Tour of Duty is a fixed construct unable to be changed from when it was first notified. The way the term is used in the Agreement supports the conclusion that a Tour of Duty is the elapsed period of time in which work is to be performed, both as notified and as actually worked.
[68] It was submitted on behalf of Mr Lyon that the Applicant’s “duty” does not equate to a “Tour of Duty” 61 and the Roster Protocol makes a distinction between the two terms.62 The distinction is drawn because of how the terms are used in the Roster Protocol, CAO 48 and the Jetstar Operations Manual:
“It is clear then that a tour of duty is necessarily made up of a series of duties that begin and end at home base. This is also made clear in the text of the Agreement and the Protocol itself. When determining whether the roster change has commenced before or after the commencement of duty, the relevant duty is the duty contained within the tour of duty, not the tour of duty itself.” 63
[69] Mr Lyon’s submissions on this matter also relate to those made about clause 42.16.4, with that clause providing that “[a] duty period already commenced may be extended for misconnections in accordance with the CAO 48 exemption or an FRMS.” In Mr Lyon’s case, the clause was not relevant because the duty period had not already commenced. 64 Counsel for Mr Lyon explained the distinction to be drawn in this way:
“MR MOLNAR: Maybe if I can try and explain in this way; there are two terms used in 42.16.4 and 42.16.5. On the one hand we have a duty period in point 4 and on the other hand we have a tour of duty in point 5. In our submission, those two terms mean different things, and this is why the CAO48 exemption is included to show that a duty period does not equate to a tour of duty. A tour of duty is made up of several duty periods. Now the duty period that Matt Lyon was changed from was not a duty period already commenced, and that's why we say 42.16.4 has no relevance to this dispute.” 65
[70] In essence, it was argued that clause 42.16.4 cannot be regarded as an authorisation for Mr Lyon’s roster change, since he had not commenced his Duty Period when he was informed of the change. While Jetstar equates the term Duty Period with Tour of Duty, the two are not equivalent. 66 Mr Lyon saw a link between clauses 42.16.4 and 42.16.5 submitting that clause 42.16.5 did not authorise the roster change, it was submitted the clause “only describes what will happen in the event that clause 42.16.4 is activated such that the misconnection results in a pilot working into their designated day off”.67
[71] Jetstar’s Counsel, Mr Forbes, disputed this analysis, putting forward there was a link between clauses 42.16.4 and 5, with the two having a joint role in resolving issues arising from misconnections:
“… the circumstances in which Jetstar initiates a change in pilot rosters are many and varied, both as to when and why, and those dimensions of when the roster is changed and why the roster might be changed are matters which inform the proper construction of the agreement. When one reads clause 42.16, it is our submission that when it's broken down - and I've dealt with this in the submission so I won't try and do it again - but when it's broken down it will be seen that the different component parts of clause 42.16 deal with the different circumstances in which Jetstar initiates roster changes.
There are circumstances where the company may seek to make a roster change after the roster has been built and published but even before any work in a whole roster month is performed. There will be circumstances where Jetstar might want to change a roster during the roster period, that is, during the monthly roster period but before a certain tour of duty has commenced, and then there will be other circumstances where they might want to change a roster after a tour of duty has commenced, and a subset of that will be circumstances where the company has to change a roster, and the use of the expression "misconnection" in paragraph 42.16.5 - 4 and 5 - set those two provisions apart from the rest of clause 42.16. It's almost as if, in my submission, you could read clause 42 with two subheadings, the subheadings - one at the start which cover 1, 2 and 3, which deal with circumstances other than misconnections, and 42.16.4 and 5, which deal with misconnections. It's only those two provisions that deal with misconnections, and "misconnection" is a term defined in the enterprise agreement, and it's a term which effectively means a circumstance or breakdown, whether - but a circumstance which is beyond the company's control, and the provisions at 42.16.1, 2 and 3 envisage request and agreement from a pilot either expressly or implicitly, but they imply circumstances which don't involve the necessity that comes with a misconnection, and as I've said, the clauses 42.16.4 and 5 in their terms specifically contemplate a misconnection.” 68
[72] The submission regarding a Tour of Duty being “made up of a series of duties” relies in part at least upon the text of the Roster Protocol at clause 13.5, which permits a Company initiated change to “a pilot's rostered duties within the original sign-on and sign-off time”. 69 It also relies upon the fact that the Jetstar Operations Manual and the CAO 48 Exemption each define “duty” and “Duty Period”.
[73] The Operations Manual defines these terms in the following way: 70
“Duty – Any task (including positioning) that a flight crew member is required to carry out associated with the business of an operator.
The following is considered as duty:
• Flight duty;
• Training (on ground or in-flight);
• Instruction;
• Checks (simulator or in aircraft);
• Deadheading time;
• Preparation of aircraft or equipment;
• Meetings required by the Company and scheduled by the Flight Crew Department or Cabin Crew Department;
• Office work assigned by the Company.
Duty Period – A period which starts when a flight crew member is required by an operator to report for a duty, until the flight crew member is free of all duties.”
[74] The distinction drawn by Mr Lyon does not assist resolution of the dispute, at least in relation to the construction of the words used in clause 42. From the way Mr Lyon and Ms Everton each approached their evidence, describing a period in which a pilot was away from home performing separate sessions of work, it is evident that a Tour of Duty, formally defined by the 2015 Agreement as an “elapsed period between Sign-on and Sign-off”, may often comprise more than one Duty Period and no doubt numerous duties. There is no question from the evidence and the way in which the term is defined and used in the Agreement that a Tour of Duty is a construct comprised both of a prior notified range of days and hours in which work is to be performed by a pilot, as well as the days and hours they actually worked. The disputed term itself makes that clear; if the term was intended to relate only to that which had been notified and did not extend to the hours actually worked it would not provide for what should occur in the event something else happened, such as when the hours actually worked on a “Tour of Duty extends beyond the times stipulated in the Roster Protocol as a result of misconnections”.
[75] The debate advanced about the subtleties of “duty” and “Duty Period” does not assist the resolution of this matter. Further, it is noted that the term “Tour of Duty”, which is defined in the Agreement, avoids use of the terms or any derivative.
[76] The contention is also made by Mr Lyon that once notified of a Tour of Duty there are only three ways in which the Sign-off time of his Tour of Duty could have been changed; it would have to be by agreement, or permitted by Roster Protocol 14, or permitted by Roster Protocol 15. 71
[77] His contention about these matters relies upon the status he sees for the Roster Protocol, and for a construction rule within the Protocol:
“1.1. This Roster Protocol should be read in conjunction with the CASA Regulations and Orders, the CAO 48 Exemption, a CASA approved Fatigue Risk Management System (FRMS), the Agreement and the Company Operations Manuals. Where there is any inconsistency, the CASA Regulations and Orders, The CAO 48 Exemption including an FRMS. The Agreement and the Company Operations Manuals 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.” (underlining added)
[78] The rule makes it necessary to “read down to the limits contained in the Protocol” contrary provisions in the Agreement. Against an argument that clause 42.16.4 might assist Jetstar, with the clause providing that “[a] duty period already commenced may be extended for misconnections in accordance with the CAO 48 exemption or an FRMS”, the Applicant contended it did not since the protocol is more restrictive. 72
[79] The Applicant’s submissions conceded that the Roster Protocol does not form a part of the Agreement, however it gives effect to the content of clause 42.16.5, and that it would be meaningless without it giving content to clause 42.16.2. It was argued that the “whole …roster protocol is imported by 42.16.2 to give effect to that subclause”. 73 This appears to be a submission that the entirety of the Roster Protocol is imported by the clause, with the implication that every term of the Protocol must be observed by Jetstar in changing a pilot’s roster.
[80] For its part, Jetstar submitted the “Roster Protocol is to be read in conjunction with a number of industrial and regulatory instruments, including the Agreement. The Agreement will take precedence to the extent of any inconsistency except where the Roster Protocol is more restrictive.” 74
[81] Neither submission may be accepted as strictly accurate. The 2015 Agreement is explicit with it being stated that the 2015 Agreement is comprehensive and “replaces all other awards, orders of industrial commissions or industrial and workplace agreements that would otherwise apply to pilots” (clause 6.1). There is no evidence or admissible extrinsic material before the Commission that would suggest this provision is either ambiguous or means something other than the ordinary meaning of the words.
[82] There is little doubt the Roster Protocol is a workplace agreement as that term may ordinarily be understood. It regulates matters pertaining to the workplace; its formation and threshold requirement for amendment is stated in one of the handful of times the Protocol is directly referred to in the 2015 Agreement. It was developed by Jetstar “in consultation with the JPC and unions covered by this Agreement” and may be varied provided the changes are “agreed by all the unions covered by this Agreement” or endorsed by a majority of pilots by vote covered by this Agreement”. 75
[83] 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.
[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.
[88] Neither, for that matter, is the elaborated condition, of the Tour of Duty extending beyond the times stipulated in the Roster Protocol. The reference points of whether the condition is triggered are the things set out in the Roster Protocol within clauses 13, 14 or 15.
[89] Some parts of Roster Protocol 13 may be regarded as stipulating times as working limitations, whether in the sense of a limit specified as an hour of the day, or of a cumulative number of hours that may be worked:
• Roster Protocol 13.1 has some relevance with it providing that “[f]or the purpose of this clause a Designated Day Off is considered to commence at 2300LT)”.
• Roster Protocol 13.2 stipulates a time by prescribing:
“13.2. If a pilot commences a duty which is subsequently operationally delayed beyond 2300 LT prior to a Designated Day Off, the provisions of clause 42.16.5 of the Agreement apply.”
• Roster Protocol 13.3 deals with the circumstance in which there is a request to commence a duty which encroaches into a Designated Day off, however the clause is not otherwise relevant to the disposition of this dispute.
• Roster Protocol 13.4 ensures that “extra duty so assigned” is within regulatory restrictions.
• Roster Protocol 13.5 deals with changes to duties within Sign-on and Sign-off times and prescribes as follows:
“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/or 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.”
• Roster Protocol 13.6 does not contain subject matter which could be regarded as “time stipulated”.
• Roster Protocol 13.7 deals with the circumstance in which a duty extends beyond the original rostered Sign-off time with Roster Protocol 13.8 and 13.9 providing additional material relevant to the implementation of clause 13.7. The primary clause, 13.7, is the only part of Roster Protocol 13 which uses the word “misconnection” and provides the following:
“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 2300 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.”
• Roster Protocol 13.10 provides for a maximum number of consecutive shifts.
[90] Roster Protocol 14 deals with displacement from a Tour of Duty and so far as “times stipulated” may be regarded makes reference only to “duty” and “Sign-on” and “Sign-off”.
[91] Roster Protocol 15 is divided into two parts; Single Day Rostered Tour of Duty (clause 15.1), and Multi-Day Rostered Tour of Duty (clause 15.2), of which only the latter may have relevance to this matter. That part refers to a pilot who is displaced from their original Multi-Day Rostered Tour of Duty becoming re-assignable. However, the references within the clause to matters of time or timing are in the context of a re-assignable pilot being displaced with less than defined periods of notice or having an entitlement to certain amounts of notice for substituted assignments. As a result, the clause lacks relevance to this matter, since what is stated does not align with the references being a “time stipulated” for ascertainment of an extended Tour of Duty.
[92] As observed earlier, clause 42.16 contains five paragraphs, three of which deal with the subject of changes to a Designated Day Off (clauses 42.16.1, 3 and 5). The other two paragraphs provide for circumstances broader than Designated Days Off (clauses 42.16.2 and 4).
[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.”
[94] Several variants of the term “Pilots Roster” are used in several places throughout the Agreement, mostly without capitalisation and inconsistently with and without apostrophes. In each place the term is used it appears consistent with the formal definition above. 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.
[95] That construct in turn assists with understanding Roster Protocol 13.
[96] The qualifier laid out in clause 42.16.2, that the Company will only make a change to a pilot’s roster, being the “scheduled arrangement” etc, if it is in accordance with the Roster Protocol is amplified by the protections in Roster Protocol 13.1 and 13.5. The former records that the Company may request, and the pilot may agree to work on a Designated Day Off. The latter provides that the Company may change a pilot’s duties within the original Sign-on and Sign-off time, but that those times may not be changed by the Company other than through the mechanisms set out in Roster Protocol 14 and 15 or mutual agreement.
[97] In relation to clause 42.16.5 and of course the context of this case, the reference to “the times stipulated in the Roster Protocol as a result of misconnections” is most likely a reference to Roster Protocol 13.2 and 13.7.
[98] Before turning to those matters, it is observable that both the 2015 Agreement’s clause 42.16.5 as well as the Roster Protocol employ different language at different times. In particular, some of the clauses refer to “the Company” initiating an event or making a request (see for example, in the 2015 Agreement, clauses 42.16.1, 2, 3 and in the Roster Protocol clauses 13.1, 3 and 5), whereas other clauses employ language about a circumstance which arises, possibly not instigated by “the Company” (see for example, in the 2015 Agreement, clause 42.16.4 and in the Roster Protocol clauses 13.5).
[99] It is appropriate to note in relation to how Roster Protocol 13.2 and 13.7 should be construed that Mr Lyon contends that the references in Roster Protocol 13.2 and 13.3 to a pilot commencing “a duty” are in distinction to the phrase “Tour of Duty”. 76 While a distinction may usefully be drawn between the two it is unlikely the draftsperson intended for the distinction to be a critical one or for the distinction to mean other than what may be said to be the plain and ordinary meaning of the term “Tour of Duty”, namely that it is comprised of “duty’ or “Duty Period”. When the Roster Protocol uses the term “Tour of Duty” the meaning and context of the term appears consistent with how the term is defined and used in the 2015 Agreement. Likewise, the Roster Protocol’s use of the term “duty” is consistent with how the term is used in the 2015 Agreement.
[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.
The industrial context of this dispute
[103] In finality, the industrial context of this matter must be noted.
[104] Mr Lyon argues that it was open to Jetstar to change his rostered duties within his Tour of Duty, as long as it did not change the rostered Sign-on or Sign-off time for the Tour of Duty. 77 In such instance as the current case, he would be “displaced” and then “re-assignable” with Roster Protocol 14 and 15 applying. Roster Protocol 14.2.2 provides he would be entitled to be released from duty for the day.78 Roster Protocol 15.2 provides several alternatives for a displaced pilot depending on when the displacement occurred and what was then done. The context of these “significant restrictions on how designated days off are dealt with in the Agreement reflects the importance of a pilot’s days off in the industrial context of aviation. In particular, the Air Pilots Award 2010 provides in detail how days off are to be dealt with in rosters.”79 Although reference was made by the Applicant to the provisions of the Air Pilots Award and identified only through a footnote as being clauses 24.6 – 24.7 and 25.4 the submission was not developed and so has not been relied upon by me. In any event, clause 6 of the 2015 Agreement provides it is “a comprehensive agreement and replaces all other awards, orders of industrial commissions or industrial and workplace agreements that would otherwise apply to pilots.”
[105] While not rejecting the importance of designated days off for pilots, Jetstar argue the operational impact of misconnections which could well be “huge” with disruption for passengers and crew with direct and knock-on effects to the airline’s operations and schedule. Its dominant operational driver in such situations is to recover passengers and crew. There will be occasions in which “the operational imperative to recover passengers, aircraft and crew in scenarios triggered by misconnections will require the pilot to work into a DDO”. 80 The way the business is structured means a refusal to accept a roster change would severely impact its ability to recover passengers, aircraft and crew:
“Most of Jetstar’s international flights and some domestic flights require pilots and other crew to have layovers in ports in which Jetstar does not maintain crew bases. Therefore, if a pilot who is already signed on for a Tour of Duty refuses to complete a delayed or alternative duty caused by a misconnection, Jetstar would in many circumstances be left in a position where it is short of crew.” 81
[106] While these matters are not determinative of the construction of clause 42, I have taken them into account. There is a plain tension between the need for a pilot to have a predictable roster and accompanying days off, and the operational and business needs of Jetstar. From the pilot’s point of view this is especially so for the purposes of fatigue management as well as ensuring they may enjoy the benefits of time away from work. From the airline’s perspective, it ordinarily works in a competitive, customer driven environment. There is no capacity to reschedule work to a more convenient time and customers would publicly pillory the airline if it tried to. These tensions are resolved by the bargain achieved between Jetstar and its pilots in the form of the 2015 Agreement.
CONCLUSION
[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.
[108] As a consequence, the Questions for Determination to be addressed in this decision are answered in the following manner:
Q1: Was Mr Lyon entitled to refuse the roster change?
A1: No.
Q2: 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 or to a Worked Day Off payment in accordance with the provisions of clauses 35.5 and 35.6?
A2: Mr Lyon was entitled to a replacement Designated Day Off as provided for by clause 42.16.5.
[109] The dispute is determined accordingly.
COMMISSIONER
Appearances:
Mr A. Molnar for the Applicant
Mr J. Forbes for the Respondent
Hearing details:
Melbourne (via video);
10 August;
2020.
Printed by authority of the Commonwealth Government Printer
<PR722629>
ATTACHMENT 1 – 2015 AGREEMENT, CLAUSES 35.5, 35.6 AND 42 - NORMAL HOURS OF WORK AND ROSTERING.
35.5
The scheduled Credit Hours worked on a Designated Day Off will not count for calculation of any EFA amount under clause 35.4.1 for that Roster Period. However, where their inclusion takes the total Credit Hours past seventy-five (75) hours, the hours in excess of seventy-five (75) will be included in the calculation of the Company Performance Bonus.
35.6 Designated Day Off Allowance
35.6.1. When a pilot works on a Designated Day Off they will be paid both:
(a) The greater of the scheduled Credit Hours flown paid at the EFA rate or a day's pay; and
(b) An additional day's pay.
35.6.2. A day's pay under clause 35.6.1 will be equal to their Annual Salary divided by 231.
PART 5- HOURS OF DUTY AND REST PERIODS
42. Normal Hours of Work and Rostering
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.
42.2 Roster Periods will be of one (1) averaged calendar month duration.
42.3 Roster Periods
Roster Period | Number of Days | |
Start | Finish | |
January 1 | January 30 | 30 |
January 31 | March 1 | 30 / 31 (leap year) |
March 2 | March 31 | 30 |
April 1 | April 30 | 30 |
May 1 | May 31 | 31 |
June 1 | June 30 | 30 |
July 1 | July 31 | 31 |
August 1 | August 31 | 31 |
September 1 | September 30 | 30 |
October 1 | October 31 | 31 |
November 1 | November 30 | 30 |
December 1 | December 31 | 31 |
42.4 Subject to clause 42.6 pilots will be rostered a minimum of ten (10) Designated Days Off in each of six (6) roster periods and eleven (11) Designated Days Off in the remaining six (6) roster periods.
42.5 Pilots will be rostered an additional six (6) Designated Days Off per calendar year to be allocated by the Company in a manner that recognises the peak/trough cycles of the business. Allocations will be made in accordance with the Designated Day Off procedures of the Roster Protocol with no more than two (2) such days per pilot allocated in a single roster period. These days shall be annotated clearly on the applicable roster. Pilots not employed for a full calendar year will be entitled to a pro rata allocation of these days.
42.6 A Highline Pilot may be rostered nine (9) Designated Days Off in two (2) roster
periods per financial year, with no reduction in overall Designated Days Off per calendar year of 132.
42.7 The minimum number of weekends off for each Narrow Body line pilot will be no less than nine (9) per calendar year excluding weekends contained within annual leave. The minimum number of weekends off for each Wide Body line pilot will be no less than eight (8) per calendar year excluding weekends contained within annual leave.
42.8 All duty time limitations in this Agreement apply to full-time and Flexi-Line pilots.
42.9 The maximum number of published Standby periods per pilot in a Roster Period will be determined according to the table below.
Credit Hours | Maximum Number of Published Standby Periods |
<75 hours | 3 |
75 up to 90 hours | 4 |
>90 up to 100 hours | 2 |
>100 hours | 0 |
42.10 Rest Periods
42. 10. 1. Pilots will be allocated rest periods within the limitations imposed by GAO 48 or any exemptions received from CASA, including an FRMS, except where such rest periods have been extended in accordance with the Roster Protocol.
42.1 0.2. Upon completion of a Tour of Duty of five (5) or more consecutive days duration away from home base, a pilot will be rostered for time free of duty at home base, equal to at least 50% of the days spent on that tour. That is a six (6) day tour will be followed by three (3) Designated Days Off or Duty Free Days in any combination. Odd numbered days will be rounded down e.g. a five (5) day Tour of Duty will be followed by two (2) days off, a seven (7) day Tour of Duty will be followed by three (3) days off
42.11 Standby Periods
42.11.1. The Company may roster pilots for Standby periods and these will be notated on the pilot's roster.
42.11.2. If a pilot is called for duty during a Standby period they will be required to Sign-On within 120 or 240 minutes of that call, dependent on type and Standby period as shown in the Roster Protocol.
42.11.3. If a pilot is called for duty during a Standby period the pilot may be required to Sign-On no more than two (2) hours after the end of the rostered Standby period.
42.11.4. The Company will not contact pilots rostered for a Standby period, during the required GAO rest periods immediately prior to that Standby period, except to meet urgent operational requirements (e.g. to avoid cancellation or delay of a flight). Acceptance of a duty will be at the discretion of the pilot called during this rest period. Where a pilot does not accept the duty that pilot may require a new rest period of ten (1 0) hours prior to any further contact.
42.11.5. The Company will contact Standby pilots for duty in the order that will provide the most equitable distribution of duties.
42.11.6. When a pilot has commenced a Tour of Duty from a Standby period they will not be required to operate a second tour once the initial duty has tenninated.
42.12 Available Days (Highline Pilots only)
42.12.1. Eight (8) Available Days may be published on a pilots roster each financial year.
42.12.2. A pilot who is rostered for an Available Day(s) may be allocated a duty (excluding Standby) at any point prior to sign off of the last duty (excluding WOO) prior to that Available Day.
42.12.3. Notwithstanding clause 42.12.2 where a pilot is reassignable, the Company may still contact the pilot (up to the original sign off time) for the purpose of assigning a duty on an Available Day.
42.12.4. Once the last sign off has occurred prior to the Available Day, an Available Day will become a Duty Free Day.
42. 13 Roster Build
42.13.1. Rosters will be prepared in advance of the calendar month Roster Period and pilots will be provided a copy not less than ten (1 0) days prior to the beginning of a new Roster Period.
42. 13.2. Designated Days Off will not normally be in groups of less than two (2) days and not more than two (2) days in a Roster Period will be given as single days except as a result of a request by the pilot.
42.13.3. If a pilot is at a layover port, or assigned temporary duty away from home base, they will be rostered for days free of duty as required. The Company will try to ensure that such days will not detract from the pilot's basic entitlement to Designated Days Off at their home base, except with the pilot's consent or at the pilot's request. Where days off are accumulated in accordance with this clause they will be carried over and rostered in the next Roster Period or as otherwise agreed.
42.13.4. If a pilot is unavailable for part of a Roster Period, due to leave or other commitments as directed by the Company, they may be rostered duty and Flight Times for the remainder of that month on a pro-rata basis. Such duty will be in line with the average duty and Flight Times for that Roster Period or as otherwise provided for by the preferential bidding system.
42.13.5. The Company will publish monthly a list of training and checking events due and, in so far as practicable, schedule such tasks in advance as for normal rostered duty.
42.13.6. Despite anything contained elsewhere in this Agreement, seniority will not be applied when rostering pilots to mixed fleet flying duties.
42.13.7. The Company undertakes to review regularly, in consultation with the JPC, the duty hours that pilots are working.
42.13.8. Within each base the credit hours allocated to a line pilot's roster at roster publication (that includes ten (1 0) or more Designated Days Off) encompassing a full calendar month shall be built within +/- 7.5 credit hours of the average hours of all those line pilots' rosters for that calendar month. This clause will not apply upon implementation of an agreed Preferential Bidding System.
42.13.9. Within each base, the credit hours allocated to a Highline Pilot's roster at roster publication (that contains only nine (9) Designated Days Off), encompassing a full calendar month shall be built within +/- 7.5 credit hours of the average hours of all those High line Pilots' rosters that contains nine (9) Designated Days Off at roster publication for that calendar month. This clause will not apply upon implementation of an agreed Preferential
Bidding System.
42.13.1 0. The hours allocated to a line pilot's roster encompassing only a part calendar month shall be allocated on a pro rata basis of the average hours of all the line pilots' rosters for that calendar month.
42.13.11. With the approval of the JPC, dual bases may be considered separately for the purposes of the above clauses.
42.14 Personal Roster Changes
42.14.1. Pilots may request a particular flight or Standby duty and request specific days off. Granting of such requests must fit within the needs of the Company and be consistent with providing adequate roster coverage.
42.14.2. Requests must be received in writing by Crew Planning no later than three (3) days after publication of the month's roster preceeding the month in which the preferred flight(s) or day(s) off are requested.
42.14.3. Pilots may arrange mutual exchanges of rostered duty period(s) with other pilots holding the same qualification levels as required. The pilots concerned must provide Crewing (via Roster Exchange Process) with such change details not less than seventy-two (72) hours prior to the proposed change. Confirmation that the exchange has been approved by the Company will be provided as early as possible, but no later than twentyfour (24) hours before the commencement of the duty.
42.14.4. Where requested by a pilot, a mutual exchange at shorter notice than seventy-two (72) hours the Company may approve a shorter period provided the Company can verbally confirm agreement from the other pilot concerned. The pilots concerned must submit completed roster request forms within forty-eight (48) hours subsequent to the duty concerned.
42. 15 Star Days
42.15.1. A star day is a priority day off request. Pilots are entitled to nine (9) star days per calendar year. Star days form part of a pilots' entitlement to days off as per clause42.4, 42.5 or 42.6.
42.15.2. Star days will be allocated in accordance with Company policy as amended from time to time.
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.
ATTACHMENT 2 – ROSTER PROTOCOL, CLAUSES 13, 14 AND 15
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 2300L T).
13.2. If a pilot commences a duty which is subsequently operationally delayed beyond 2300 LT 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.
13.4. Any extra duty so assigned shall not cause a pilot to exceed the flight time and duty limitations imposed by CAO 48 or any exemptions granted from CASA. Except by mutual agreement a narrow body pilot will not be required to fly more than 37 Block hours in any seven (7) day period (Note: In the event of any future Wide Body dedicated short haul domestic operations, consideration will be given to apply this same seven (7) day limit).
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/or 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.
13.6. A pilot will be notified as soon as possible of a request to change their roster or regarding any displacement or re-assignment.
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 2300 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.
13.8. Each additional day off shall be as per clause 13.7 plus twenty-four (24) hours per day (e.g. two (2) days = sixty (60) hours, three (3) days = eighty-four (84) hours etc.)
13.9. In relation to clause 13.7, the time free of duty may be reduced once per pilot per roster, around three (3) or more consecutive days off and once around two (2) or more consecutive days off, by up to a maximum of six (6) hours (e.g. two (2) days = fifty four (54) hours, three (3) days= seventy-eight (78) hours) except where the roster has been built using the provision of clause 6.3, as applicable.
13.10. Consecutive shifts, signing on prior to 06:00L T or consecutive shifts signing off after 22:00LT will be limited to a maximum of four (4).
14. DISPLACEMENT
14.1 A pilot may be displaced from a rostered tour of duty for a number of reasons including but not limited to the following:
14.1.1 Cancellation of a flight(s) which directly and adversely impacts on their scheduled duty
14.1.2 Published schedule variation
14.1.3 Disruption and/or recovery to service due to misconnections
14.1.4 Short notice sick leave
14.1.5 Publicity
14.1.6 Checking, training and courses required by Jetstar
14.1.7 Interviews or meetings scheduled arising from performance management issues
14.1.8 Duty hour limitations
14.1.9 Rest period requirements
14.1.10 Issues relating to OH&S
14.1.11 Misconnections
14.1.12 Management pilots personal proficiency or recency requirements (twenty-four (24) hours' notice to be given)
14.2 Short Notice Displacement before/at/after Sign On
14.2.1 A pilot displaced from a rostered duty, or a duty assigned from a Standby Duty, at or after sign-on and not re-assigned an alternative duty, will be released from duty for that day, and assigned 3.6 credit hours.
14.2.2 A pilot displaced from a rostered duty, or a duty assigned from a Standby Duty, before sign-on but having left home within two (2) hours of sign-on (or 4 hours for a SNWBP) for the purpose of travelling to sign-on and not re-assigned an alternative duty, will be released from duty for that day.
15. RE-ASSIGNMENT
15.1 Single Day Rostered Tour of Duty
15.1.1 A pilot who is displaced from their original single day rostered tour of duty will become re-assignable.
15.1.2 Where a pilot is displaced from their original rostered duty with less than twelve (12) hours (fourteen (14) hours for SNWBP) notice, they may be assigned a duty commencing no earlier than their original rostered sign-on time and/or terminating no later than their original rostered sign-off time plus one (1) hour.
15.1.3 Where a re-assignable pilot is notified more than twelve (12) hours (fourteen (14) hours for SNWBP) in advance of their original rostered sign-on time, they may be assigned a duty with a sign-on time no earlier than one (1) hour prior to their original rostered sign-on time and/or a sign-off time no more than one (1) hour later than their original tour of duty rostered sign-off time.
15.1.4 Where a re-assignable pilot has not been notified of an assigned duty at least twelve (12) hours (fourteen (14) hours for SNWBP) before their original sign-on time, they must be contactable from two (2) hours (four (4) hours for SNWBP) prior to their original rostered sign on time, until five (5) hours (seven (7) hours for SNWBP) prior to their original rostered sign-off time.
15.1.5 A re-assignable pilot will not be required to be contactable during the prescribed rest periods around a Designated Day Off or following a previous duty.
15.2 Multi Day Rostered Tour of Duty
15.2.1 A pilot who is displaced from their original multi-day rostered tour of duty will become re-assignable.
15.2.2 Where a pilot is displaced from their original rostered duty with less than twelve (12) hours (fourteen (14) hours for SNWBP) notice, they may be assigned a duty commencing no earlier than their original rostered sign-on time on the first day of the tour, and/or terminating no later than their original rostered sign-off time plus one (1) hour on the last day of the tour.
15.2.3 Where a re-assignable pilot is notified more than twelve (12) hours (fourteen
(14) hours for SNWBP) in advance of their original rostered sign-on time, they may be assigned a duty with a sign-on time within the re-assignable period commencing no earlier than one (1) hour prior to their original rostered sign on time on the first day of the tour, and/or a sign-off time no more than one (1) hour later than their original rostered sign-off time on the last day of the tour.
15.2.4 When a re-assignable pilot has not been notified of an assigned duty at least twelve (12) hours (fourteen (14) hours for SNWBP) before their original rostered sign-on time, they will be assigned a standby period commencing no earlier than two (2) hours (four (4) hours for SNWBP) prior to their original rostered sign-on time on the first day of the tour. The maximum standby period will be as prescribed in clause 5.1 of this Roster Protocol.
15.2.5 A re-assignable pilot will not be assigned a standby period nor be required to be contactable during the prescribed rest periods around a Designated Day Off or following a previous duty.
15.2.6 A re-assignable pilot may be assigned standby periods for those days other than the last day of the tour of duty. The appropriate rest period and callout provisions for these standby periods will apply.
15.2.7 Where a re-assignable pilot has not been assigned a duty encompassing the last day of the rostered tour of duty they will, with a minimum of twelve (12) hours (fourteen (14) hours for SNWBP) notice, be assigned a contactable period commencing no earlier than thirteen (13) hours (fifteen (15) hours prior to the original rostered sign-off time and terminating no later than five (5) hours (seven (7) hours for SNWBP) prior to the original rostered sign-off time.
1 AE413585.
2 [2020] FWC 4142.
3 Exhibit R1, Respondent’s Outline of Submissions, 31 July 2020, [8].
4 Exhibit A3, Witness Statement of Matthew Lyon, 3 July 2020, [5].
5 Exhibit R1, [88].
6 Exhibit R2, Witness Statement of Leah Everton, 31 July 2020, [39].
7 Exhibit A3, [5].
8 Exhibit A1, Applicant’s Outline of Submissions, 3 July 2020, [4] – [5]; noting that indicated airport abbreviations are recorded in the IATA airport database as respectively Melbourne, Sydney, Hobart and Queenstown, New Zealand – see Exhibit A3, [5].
10 Ibid, [7] – [8]; see Exhibit R2, Witness Statement of Leah Everton which advises the meaning of “pax” is when “the pilot returns to home base as a passenger on the flight”, [16].
11 Ibid, [5] – [7].
12 Exhibit R1, see [12] and [25].
13 Exhibit A3, [9].
14 Ibid, [11].
15 Ibid, Attachment MAL – 2, email dated 16 April 2019.
16 Ibid, email dated 24 June 2019.
17 Exhibit A1, [30].
18 Exhibit R1, [14].
19 Exhibit R2, [43].
20 Ibid.
21 Ibid, [60] – [71].
22 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30] – [32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [25].
23 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21], cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].
24 CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.
25 SDA v Big W Discount Department Stores PR924554 at [23].
26 AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].
27 Ibid [47].
28 MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.
29 MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21] - [22].
30 United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].
31 Fair Work Act 2009, s.595.
32 The Commission must not make a decision that is inconsistent with the Fair Work Act 2009, or a fair work instrument that applies to the parties.
33 MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31] - [32].
34 [2018] FCAFC 131, [197], (2018) 280 IR 191, [197].
35 [2017] FWCFB 3005.
36 Ibid, [114].
37 [2017] FWCFB 4537.
38 Exhibit A1, [7].
39 Exhibit R1, [15].
40 Exhibit A3, [6].
41 Ibid, Attachment MAL – 2.
42 Exhibit A1, [17] and Attachments.
43 Jetstar Airways Pilots Agreement 2005, AG843278.
44 Jetstar Airways Pilots Agreement 2008, AC313283.
45 Exhibit A1, [13].
46 Ibid, [14].
47 Ibid, [21].
48 Ibid, [22].
49 Exhibit R1, [59].
50 Ibid, [62].
51 Ibid, [75].
52 Ibid, [84] – [87].
53 Exhibit A1, [23] – [30].
54 Ibid, [35].
55 Ibid, [58].
56 Ibid, [77] – [78].
57 FRMS is an abbreviation of Fatigue Risk Management System; see Roster Protocol, clause 1.1.
58 Form F10, Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, 19 February 2020, Attachment C, [21]; Exhibit R1, [8].
59 Exhibit A3, [7].
60 Exhibit R1, [14].
61 Transcript, PN 315.
62 Exhibit A1, [16].
63 Ibid, [19].
64 Transcript, PN 307.
65 Ibid, PN 315.
66 Exhibit A1, [32] – [34].
67 Ibid, [35].
68 Transcript, PN 378 – 379.
69 Exhibit A1, [19].
70 Exhibit A1, Attachment 1; The CAO 48 Exemption defines the terms similarly, other than the omission of the bullet points beneath the headline definition of duty; Exhibit A1, Attachment 2.
71 Ibid, [28] – [31].
72 Ibid, [37].
73 Transcript, PN 291 – 303.
74 Exhibit R1, [58].
75 2015 Agreement, clause 11; see also clause 25 (Jetstar Pilot Committee (JPC) and Jetstar Pilot Consultative Committee (JPCC)), and the definition of “JPCC”, which “means Jetstar Pilots Consultative Council which means the meeting of JPC members with the Company as provided for under clause 25.1”.
76 Exhibit A1, [16].
77 Ibid, [21].
78 Ibid, [26].
79 Ibid, [10].
80 Exhibit R1, [92] – [95].
81 Ibid, [96].
1