Megan Gerrish v Virgin Australia Airlines Pty Ltd
[2024] FWC 679
•15 MARCH 2024
| [2024] FWC 679 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Megan Gerrish
v
Virgin Australia Airlines Pty Ltd
(C2023/4312)
| DEPUTY PRESIDENT EASTON | SYDNEY, 15 MARCH 2024 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)] – classification – pay rate – whether Applicant an ‘Existing Team Member’ – whether Applicant was entitled to fast advancement arrangements under long haul agreement – previous employment under short haul agreement – whether prior service should be recognised – whether Applicant correctly classified under the 2021 Agreement.
This decision relates to a dispute referred to the Fair Work Commission under the terms of the Virgin Australia Cabin Crew Agreement 2021. Ms Gerrish is employed by Virgin Airlines Australia Pty Ltd as a Cabin Crew member. The dispute relates to Ms Gerrish’s current classification and pay rate. Ms Gerrish was represented in the dispute by the Transport Workers’ Union of Australia.
The dispute necessarily requires consideration of four enterprise agreements:
(a)the Virgin Australia Cabin Crew Agreement 2021 (the 2021 Agreement);
(b)the Virgin Australia Long Haul International Cabin Crew Agreement 2016 (the 2016 Long Haul Agreement);
(c)the Virgin Australia Short Haul Cabin Crew Agreement 2015 (the 2015 Short Haul Agreement); and
(d)the Virgin Australia Long Haul International Cabin Crew Agreement 2011 (2011 Long Haul Agreement).
Ms Gerrish said that she is currently mis-classified because she should have progressed faster through the grades under the 2016 Long Haul Agreement and transitioned to the 2021 Agreement at a higher level than she did.
Ms Gerrish has worked for Virgin Australia Airlines Pty Ltd (Virgin) since June 2015 and was employed under the 2015 Short Haul Agreement. In November 2016 Ms Gerrish transferred to long haul operations and commenced working under the 2016 Long Haul Agreement. Ms Gerrish said in these proceedings that the transition provisions of the 2016 Long Haul Agreement gave her access to faster progression through the classification grades because of her previous employment under the 2015 Short Haul Agreement.
Virgin said that Ms Gerrish was not entitled to the faster advancement arrangements under the 2016 Long Haul Agreement because those advancement arrangements, understood in the context of the 2011 Long Haul Agreement that it replaced, did not recognise prior service under the 2015 Short Haul Agreement.
Ms Gerrish’s relevant employment history can be summarised as follows:
(a)Ms Gerrish commenced employment with Virgin on 22 June 2015 and was covered by the 2015 Short Haul Agreement;
(b)Ms Gerrish’s initial training finished on 27 July 2015 and she progressed to the Cabin Crew Level 1 classification under the 2015 Short Haul Agreement;
(c)After 12 months Ms Gerrish progressed to Cabin Crew Level 2 under the 2015 Short Haul Agreement on 27 July 2016;
(d)Ms Gerrish undertook some additional training and commenced working on long haul operations on 7 November 2016;
(e)upon transferring to long haul operations Ms Gerrish was covered by the 2016 Long Haul Agreement;
(f)when Ms Gerrish transferred to long haul she was not subject to a probation period and was classified as a “New Team Member” for the purposes of the salary progression provisions of the 2016 Long Haul Agreement;
(g)Ms Gerrish was classified as Cabin Crew 1 under the 2016 Long Haul Agreement. Ms Gerrish queried at the time why she was classified as Cabin Crew 1 instead of Cabin Crew 2, and was told that her salary had been preserved in the transfer but that Cabin Crew 1 under the 2016 Long Haul Agreement was a higher rate than Cabin Crew 2 under the 2015 Short Haul Agreement;
(h)on 30 March 2020 she was stood down due to the COVID-19 pandemic;
in 2020 long haul operations were closed altogether and staff including Ms Gerrish were offered voluntary redundancy or to remain stood down;
(j)Ms Gerrish chose to remain employed and in March 2021 and was offered redeployment to short haul operations;
(k)Ms Gerrish resumed working on 17 May 2021 in short haul operations covered again by the 2015 Short Haul Agreement;
(l)when Ms Gerrish resumed in short haul operations and she was classified as Cabin Crew 3 under the 2015 Short Haul Agreement;
(m)nine days later on 26 May 2021 the 2021 Agreement commenced and replaced the 2015 Short Haul Agreement;
(n)since then Ms Gerrish has worked under the 2021 Agreement; and
(o)at the commencement of the 2021 Agreement the Applicant was classified as Senior Crew Level 1.
The Claim
Under clause 48 of the 2016 Long Haul Agreement there were two pathways for salary progression, one for "Existing Team Members" and one for "New Team Members".
Ms Gerrish said that she should have been treated as an “Existing Team Member” under the 2016 Long Haul Agreement when she transferred to long haul operations in 2016. If she had been treated as an existing team member she would have then progressed to subsequent Cabin Crew levels after completing each 12 months of service instead of every 24 months as a new team member (see below).
Ms Gerrish said that as a consequence she should now be classified as Senior Crew Level 5 under the 2021 Agreement, instead of Senior Crew Level 3.
Ms Gerrish formulated the following questions for determination:
Was the Applicant an ‘Existing Team Member’ for the purposes of clause 48.4(a) under the 2016 Long Haul Agreement?
Was the Respondent obliged to progress the Applicant’s classification every 12 months pursuant to clause 48.4(a) of the 2016 Long Haul Agreement?
Is the Applicant’s correct classification under the 2021 Agreement Senior Crew Level 5?
The competing submissions
The crucial phrases that distinguish existing team members from new team members under the 2016 Long Haul Agreement are “a Cabin Crew Team Member employed prior to the Commencement Date [of the 2016 Long Haul Agreement being 26 October 2016]” and “a Team Member employed on or after the Commencement Date.” Existing team members were those who were employed prior to the Commencement Date, and new team members were those employed on or after the Commencement Date.
Ms Gerrish argued that the ordinary meaning of these phrases are clear and unambiguous. Ms Gerrish argued that “a Cabin Crew Team Member employed prior to the Commencement Date” refers to an employee who is a cabin crew team member and who was employed by Virgin Australia Pty Ltd prior to 26 October 2016 in any capacity.
Ms Gerrish relies on the fact that her employer has remained the same since her commencement on 22 June 2015, even though she worked on short haul operations and then long haul operations before returning to short haul.
Ms Gerrish argued that:
“The clear and specific purpose of clause 48.4 is to provide different and more beneficial arrangements and recognition of service for Cabin Crew who have previously been employed by Virgin by progressing their salaries at a rate faster than those who have not had any prior service or have not previously been employed by Virgin.”
Ms Gerrish also argued that her construction of clause 48 of the 2016 Long Haul Agreement is harmonious with the clause 16.3 of the 2016 Long Haul Agreement that recognises continuity of experience, viz:
“If you have transferred your employment to Virgin Australia from another company in the Virgin Australia Group, your employment at Virgin Australia is not subject to a probationary period except in the following circumstances:
(a)you have been employed for less than six (6) months by a company within the Virgin Australia Group before transferring to Virgin Australia. If that happens, then your probationary period at Virgin Australia will be the difference between what you served at the other Virgin Australia Group company and six (6) months; or
(b)if your new role within Virgin Australia is substantially different to your previous role in the Virgin Australia Group, in which case your employment will be subject to the six (6) month probationary period unless otherwise agreed between you and Virgin Australia.”
Virgin submitted that the reference to “existing team members” in clause 48 of the 2016 Long Haul Agreement is a transition provision for employees moving from the 2011 Long Haul Agreement to the 2016 Long Haul Agreement. The transition provisions reflect the significant difference in how team members progress through classification levels within each agreement. Virgin submitted that the intention of clause 48 of the 2016 Long Haul Agreement is to treat team members who were previously covered by the 2011 Agreement differently to team members who were not ever covered by the 2011 Agreement. Team members who were employed under the 2011 Long Haul Agreement can progress through the classifications in the 2016 Long Haul Agreement a similar way to the progression under the older agreement.
Understood this way clause 48 does not give a different benefit to any or every person who was employed by Virgin prior to the start of the 2016 Long Haul Agreement – only to those who were employed under the 2011 Long Haul Agreement.
In her written submissions in reply Ms Gerrish conceded that a worker employed as a guest services officer, head office worker or baggage handler prior to the commencement of the 2016 Long Haul Agreement would not be regarded as an Existing Team Member for the purposes of clause 48 (if they were to become a Cabin Crew Team Member). Instead Ms Gerrish argued that staff employed as cabin crew prior to the commencement of the 2016 Long Haul Agreement would be regarded as an existing staff member because they performed “comparable and transferrable duties.” Ms Gerrish argued:
“… it is precisely because the Applicant was employed by Virgin Australia as Cabin Crew, in Short Haul Operations, that she should be recognised as an "existing Team Member" for the purposes of salary progression.”
Consideration
The relevant sub-clauses of clause 48 of the 2016 Long Haul Agreement is reproduced in full as Annexure A to this decision.
In construing the terms of the Agreement I have applied the standard interpretation principles from AMWU v Berri Pty Ltd[2017] FWCFB 3005 at [114], (2017) 268 IR 285 at 310 (Berri).
Subclause 48.1 frames the context for understanding the progression provisions in clause 48, stating that “this agreement reduces the number of classification levels and introduces a new Senior Crew Classification.” Subclause 48.1 includes a comparative table aligning the 12 classifications under the 2011 Long Haul Agreement with the eight classifications under the 2016 Long Haul Agreement.
Sub-clause 48.2 was the central operative term of clause 48 of the 2016 Long Haul Agreement. Clause 48.2 provided the entitlement to receive salary increases (tabled in clause 48.3) and determined how employees progress through the classification levels: either by the progression provisions in clause 48.4 or the progression provisions in clause 48.5 “whichever is relevant.”
The progression provisions of clauses 48.4 and 48.5 need to be understood in the context of the 2011 Long Haul Agreement progression provisions that they replaced.
One fairly unusual feature of the 2011 Long Haul Agreement was that it set base salaries for particular classification levels and did not provide for increases in salary for those levels over the life of the agreement. Instead, employees received wage increases by automatically progressing through the salary levels as service increments. The 2011 Long Haul Agreement set particular anniversary dates for employees (clause 34) which were either 1 July each year or the employee’s actual anniversary date, depending on when the employee commenced employment. Under these arrangements employees effectively received a pay increase every 12 months when they reached the next anniversary date and progressed to the next level.
These historical arrangements are relevant because the terms of the 2016 Long Haul Agreement were significantly different for new employees. The 2016 Long Haul Agreement partially continued the earlier arrangement by way of a grandfathering provision so that team members who worked long haul operations under the 2011 Long Haul Agreement would continue to progress through the classifications every 12 months but that new team members would progress through the classifications every 24 months. Employees took five years to progress from the lowest to the highest cabin crew classification under the 2011 Long Haul Agreement. Under the 2016 Long Haul Agreement new team members took three years to progress to the highest cabin crew classification and new team members took five years.
Under the 2016 Long Haul Agreement there were two triggers for employees to receive pay increases: the first trigger being increases caused by employees progressing from one classification level to the next, and the second trigger being increases caused by annual increases in the salary for each classification. In other words, under the 2016 Long Haul Agreement, employees were entitled to increases when they progressed to a new classification level, and they were also entitled to increases when they stayed at the same level but the base rates for that level increased.
This was a material change and the grandfather arrangements allowed employees who were covered by the 2011 Long Haul Agreement to progress faster through the levels, and also receive the benefit of increases in the base rates for each level over the life of the Agreement.
It is not apparent from the words used in clause 48.4 and 48.5 that the intention was to provide a higher benefit for longer term employees. That is the effect of clause 48, that longer term employees under the 2011 Long Haul Agreement received a greater benefit, but there are no indicators within the text that the parties intended to confer greater benefits based solely on service (in any role). Rather, the intention of the bifurcated progression provisions was to facilitate a reduction in the number of classification levels (per clause 48.1).
The references to ‘existing employees’ in clause 48 are all consistent with existing employees being employees previously employed by the respondent under the 2011 Long Haul Agreement:
(a)in clause 48.4(a)-(c), under the heading “Progression – Existing Team Members”, specifically refers to people employed as a Cabin Crew Team Member, Cabin Leader or a Flight Manager “prior to the Commencement Date”;
(b)each subclause included the phrase “if you are a [position] employed prior to the Commencement Date”, which I take to be a reference to employment in the named position immediately prior to the commencement of the 2016 Long Haul Agreement;
(c)unsurprisingly, the three positions named in subclause 48.4 are the three positions in the 2011 Long Haul Agreement. The new position introduced in the 2016 Long Haul Agreement, being Senior Cabin Crew, is not referred to in clause 48.4, which is also consistent with understanding existing employees to only be those who employed under the 2011 Long Haul Agreement.
Subclause 48.4 is even clearer. Sub-clause 48.4(d) is central because that subclause picks up the provisions from the 2011 Long Haul Agreement in relation to the determination of each employee’s “anniversary date”.
The point of delineation between employees who have the benefit of the faster progression in clause 48.4 is whether the employee was “employed prior to the Commencement Date” (clause 48.4) or was “employed on or after the Commencement Date” (clause 48.5).
The specification of an “anniversary date” is particular to the 2011 Long Haul Agreement and so clause 48.4 can be more readily understood to be a grandfathering provision that continues a particular aspect of the 2011 regime for those who were employed under the 2011 Long Haul Agreement.
I do not accept Ms Gerrish’s alternate construction that existing staff in clause 48 includes staff who performed “comparable and transferable duties.” This construction has some attraction from a fairness point of view, particularly given the similarities between short haul and long haul operations and the minimal additional training Ms Gerrish undertook when she moved from short haul to long haul. However the text of clause 48 in the 2016 Long Haul Agreement does not support this interpretation. The clear focus of clause 48 is to differentiate between those employed under the previous progression arrangements of the 2011 Long Haul Agreement and employees who did not ever work under those earlier progression arrangements.
Because of this focus on the transition from the 2011 to the 2016 arrangements, it does not matter that Ms Gerrish had employment with Virgin performing comparable duties if she never worked under the previous progression provisions.
The answer to the questions posed by Ms Gerrish are:
Was the Applicant an ‘Existing Team Member’ for the purposes of clause 48.4(a) under the 2016 Long Haul Agreement?
No.
Was the Respondent obliged to progress the Applicant’s classification every 12 months pursuant to clause 48.4(a) of the 2016 Long Haul Agreement?
No.
Is the Applicant’s correct classification under the 2021 Agreement Senior Crew Level 5?
No, or at least not because of any misclassification of the applicant as a new employee under the 2016 Long Haul Agreement.
DEPUTY PRESIDENT
Appearances:
S Nasser for the Applicant
P Zielinski of Counsel instructed by B Raby and T Reaburn of McCullough Robertson Lawyers for the Respondent
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
November 23.
Printed by authority of the Commonwealth Government Printer
<PR772401>
Annexure A
SALARY & CLASSIFICATION LEVELS
48.1 Classification levels
This Agreement reduces the number of classification levels and introduces a new Senior Crew classification resulting in the following changes to the classification of existing Team Members at the Commencement Date:
CLASSIFICATION LEVEL PRIOR TO THE COMMENCEMENT DATE (UNDER THE CLASSIFICATIONS IN THE 2011 AGREEMENT) Classification level after the Commencement Date (under the classifications in clause 48.3) Cabin Crew Level 1 Cabin Crew Level 1 Cabin Crew Level 2 Cabin Crew Level 2 Cabin Crew Level 3 Cabin Crew Level 2 Cabin Crew Level 4 Cabin Crew Level 3 Cabin Crew Level 5 Cabin Crew Level 3 Cabin Crew Level 6 Senior Cabin Crew Cabin Leader Level 1 Cabin Leader Level 1 Cabin Leader Level 2 Cabin Leader Level 1 Cabin Leader Level 3 Cabin Leader Level 2 Flight Manager Level 1 Flight Manager Level 1 Flight Manager Level 2 Flight Manager Level 1 Flight Manager Level 3 Flight Manager Level 2 48.2Team Members will receive salary increases in accordance with the table at clause 48.3, and will progress through the classification levels in accordance with clauses 48.4 (for existing Team Members) or 48.5 (for new Team Members) (whichever is relevant).
48.3Salary increases
The salary levels and classifications for full-time Team Members under this Agreement, which apply from the first full pay period on or after the dates specified in the table below, are as follows:
Level 1 July 2016 1 July 2017 1 July 2018 1 July 2019 Cabin Crew Level 1 $42,840 $43,697 $44,571 $45,462 Cabin Crew Level 2 $45,900 $46,818 $47,754 $48,709 Cabin Crew Level 3 $51,000 $52,020 $53,060 $54,122 Senior Cabin Crew $56,097 $57,500 $58,937 $60,411 Cabin Leader Level 1 $62,259 $63,815 $65,410 $67,046 Cabin Leader Level 2 $67,847 $69,543 $71,282 $73,064 Flight Manager Level 1 $74,965 $76,840 $78,761 $80,730 Flight Manager Level 2 $81,693 $83,735 $85,828 $87,974
The hourly rates of pay for the salary levels and classifications for full-time Team Members under this Agreement, which apply from the first full pay period on or after the dates specified in the table below, are as follows:
Level 1 July 2016 1 July 2017 1 July 2018 1 July 2019 Cabin Crew Level 1 $23.54 $24.01 $24.49 $24.98 Cabin Crew Level 2 $25.22 $25.72 $26.24 $26.76 Cabin Crew Level 3 $28.02 $28.58 $29.15 $29.74 Senior Cabin Crew $30.82 $31.59 $32.38 $33.19 Cabin Leader Level 1 $34.21 $35.06 $35.94 $36.84 Cabin Leader Level 2 $37.28 $38.21 $39.17 $40.14 Flight Manager Level 1 $41.19 $42.22 $43.28 $44.36 Flight Manager Level 2 $44.89 $46.01 $47.16 $48.38 48.4Progression – Existing Team Members
(a) If you are a Cabin Crew Team Member employed prior to the Commencement Date, you will progress to the subsequent Cabin Crew level (including to the Senior Cabin Crew level) after you have completed 12 months service at each level.
(b) If you are a Cabin Leader employed prior to the Commencement Date, you will progress to the next Cabin Leader level after you have completed 12 months service at each level.
(c) If you are a Flight Manager employed prior to the Commencement Date, you will progress to the next Flight Manager level after you have completed 12 months service at each level.
(d) For existing Team Members, the anniversary date that determined the date of progression under the virgin Australia Long Haul International Cabin Crew Agreement 2011, will continue to apply
0
1
0