Mr David Croal v CHC Helicopters (Australia)
[2014] FWC 5620
•15 AUGUST 2014
| [2014] FWC 5620 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mr David Croal
v
CHC Helicopters (Australia)
(C2014/4105)
DEPUTY PRESIDENT BOOTH | SYDNEY, 15 AUGUST 2014 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].
[1] The Australian Federation of Air Pilots (AFAP) lodged applications pursuant to s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with disputes in accordance with a dispute settlement procedure in relation to three employed pilots of CHC Helicopters (Australia) (CHC) on 17 April 2014. The dispute in relation to one of these employed pilots was resolved prior to the conciliation on 29 April 2014 and the dispute in relation to the second was resolved following this conciliation. The dispute in relation to the third, Mr David Croal, was not resolved and is the subject of this decision.
[2] The matter came before me for directions on 12 May 2014 and for hearing on 2 July 2014. Mr Croal was represented by Mr Stephens from the Australian Federation of Air Pilots and CHC was represented by permission of the Commission, pursuant to s.596 of the Act, by Mr Bakewell, Principal Consultant EMA Consulting Pty Ltd.
[3] Witness evidence was given by Mr Croal on his own behalf and by the following people on behalf of CHC
[4] CHC operates helicopters throughout Australia and Timor Leste at various locations, for various clients, and using different helicopters. CHC operations are broadly classified into four operational streams. These streams are Offshore Oil and Gas, Emergency Medical Services (EMS), Search and Rescue (SAR) and Offshore Search and Rescue. CHC is required to comply with regulatory obligations in respect to safe flying as a condition of its Aircraft Operators Certificate. To put this into practice CHC has a flight standards department whose job it is to ensure that pilots comply to the required standards, that client contractual standards are met, and that CHC quality standards (which may sit over and above civil aviation and client standards) are also met.
[5] The CHC Helicopters (Australia) Pilots Enterprise Agreement 2013 - 2016 1 was approved on 14 January 2014 and provides for what is known as a standing bid system. An employee may elect up to three new locations or one new operational stream that they would like to be considered for when vacancies arise.
[6] Mr Croal is a pilot of 29 years standing and is currently a captain at the RAAF SAR base at Williamtown, NSW operating the S76 aircraft. In February 2014 he returned to work after a period of 2 1/2 years unpaid leave that he took to fulfil his family responsibility of caring for his young son. He complains that he was not afforded the opportunity to transfer from his existing employment base of Williamtown to an employment base in Wollongong notwithstanding that he had a standing bid with the Wollongong base and is number 4 on the seniority list with numbers 1 -3 not having standing bids for Wollongong.
[7] In late January 2014 CHC determined a need for the employment of an additional pilot in the Wollongong base so as to allow it to meet its contractual obligations to the Ambulance Service of NSW. That single vacancy was extended to two pilots as a consequence of a pilot then employed at the Wollongong base being transferred to Bankstown. The Wollongong EMS operation consists of four pilots on roster operating the AW 139 aircraft.
[8] CHC made a written offer of employment to Mr Dixon dated 7 March 2014 to fill one of the vacancies. By letter of 21 March 2014 Mr Frankel was offered employment to fill the second vacancy.
[9] Mr Croal was not offered the opportunity to fill either vacancy. In this proceeding he seeks orders in the following terms:
“The applicant be provided with training on the AW139 aircraft in order to obtain the necessary engagement at the Wollongong EMS base.
Such training shall be provided at Wollongong.”
Questions to be addressed
[10] The parties agree that the issues between them are encapsulated in the following questions:
Enterprise agreement
[11] The answer to these questions requires an interpretation of the effect of clause 24 of the Agreement which reads as follows:
“24. Filling of Vacancies
24.1 Pilot Standing Bids
24.1.1 Every full-time permanent Pilot has the opportunity to place a standing bid for Transfer to any future permanent vacancies at current or prospective Company bases. Bids may include a desire for work involving touring from a nominated capital city airport.
24.1.2 Those bids will be utilised to determine and plan likely staff movements as operational requirements change.
24.1.3 Pilots may have up to three (3) standing bids at any one time, which for the purposes of selection will be deemed equal in preference. For the purpose of this clause, '3 standing bids' means either:
a. a selection of three (3) current specific Home Base locations from which the Company operates; or
b. the selection of one (1) operational stream (EMS, SAR Onshore, SAR Offshore, Offshore Oil and Gas), which means any vacancy at any Home Base (or Touring)within that operational stream.
24.1.4 Pilot bids will remain in place until the Pilot cancels or changes them in writing.
24.1.5 Every Pilot may change his or her standing bid twice yearly. Such changes must be submitted to the Company Human Resources Manager during and by the last day of March and September each year. Additionally, if newly created permanent positions become available, they will be notified to Pilots and a period will be allocated to allow bid changes in relation to those specific positions.
24.1.6 A new hire Pilot will not be entitled to make a standing bid within their first two (2) years of service (calculated from the first day of employment).
24.1 7 An existing Pilot will not be entitled to make a standing bid for a period of one (1) year from the date of endorsement in respect of a new type course .
24.1.8 Pilot bids are not transferable between Pilots.
24.1.9 A documented log will be kept to record standing bids.
24.2 Filling of Permanent Position Vacancies
24.2.1 The Company shall fill permanent position vacancies in classifications contained in this Agreement in accordance with this clause.
24.2.2 Pilots will be notified of all vacancies.
24.2.3 The Company, at its sole discretion, may appoint any Captain to the positions of Chief Pilot, Senior Base Pilot or Check and Training Pilot.
24.2.4 Newly created permanent positions and current permanent positions that are vacated will be filled from the list of applicants who have expressed interest in the position using their standing bid, and who meet the criteria.
24.2.5 Pilots shall be selected on the basis of qualifications, experience, relative seniority, and adherence to Company standards and who are considered operationally suitable for the role. Where two or more Pilots are considered equal in terms of experience, qualifications and operational suitability, selection will be based on seniority. Preference will be given to permanent Pilots who are on site and meet the requirements of the vacancy.
24.2.6 If a Pilot declines an offer of a position for which he or she had a standing bid, that particular position will be removed from the bid log and the Pilot will be ineligible to renominate for it until the process and dates in sub-clause 24.1.5 occur.
24.2.7 If there are no standing bids current for a permanent position (and, in the case of a newly created permanent position, after the process in sub-clause 24.1.5, the Company may, at its sole discretion, fill the vacancy either by internal advertisement or external recruitment.
24.2.8 When a position is advertised internally, it will be displayed on the Company Intranet and/or on notice boards at each base for a period of seven (7) days. The format of advertisements shall include:
a. location(s) of vacancy/vacancies and whether 'touring Offshore Oil Gas' or 'fixed base SAR' or 'fixed base EMS'.
b. Contract requirements including:
(i) type endorsement;
(ii) aircraft hours requirements;
(iii) type and numbers of TR renewals, and
(iv) role specific requirements.
c. Other general requirements.
d. Closure date of applications.
24.2.9 Should a situation arise in which observance of sub-clause 24.2.5 would not meet the needs of the Company and a solution cannot be agreed between the Company and the Pilots, a conference shall be convened between the parties to achieve a solution.
24.2.10 A Pilot awarded a position which results in a change of aircraft type or Home Base shall lose the right to be appointed to a subsequent vacant position at a different Home Base or with a different aircraft type for a period of twenty four (24) months from arrival at the new Home Base or from commencement of duty on the new aircraft type.
24.2.11 Notwithstanding sub-clause 24.2.10, a Pilot who loses the right to be appointed to vacancy as a result of sub-clause 24.2.10 may be appointed to a subsequent vacant position at a different Home Base or with a different aircraft type within a shorter period provided that:
a. the Company agrees to the Transfer; and
b. the Company and the Pilot agree on relocation costs to be paid
for by the Company.
24.2.12 A Pilot awarded a position may be required to undergo a Transitional Training and assessment period of not greater than three (3) months to determine suitability and competency for the new role or position prior to permanent Transfer. The Transitional Training and assessment will normally occur at the Pilot's prospective new 'Home Base'; however, circumstances may dictate that training occurs away from the Pilot's prospective new 'Home Base'.
24.2.13 Rostered days off and field leave shall be accrued as follows:
a. During the period(s) that the training and/or assessment occurs at the Pilot's prospective new 'Home Base', the Pilot shall be entitled to all rostered days off in accordance with the respective work practise normally rostered at that base. No further field leave is accrued while the Pilot is conducting Transitional Training and assessment, until the Pilot is 'cleared to the line'. At least two (2) rostered days off per month may be taken at the Pilot's normal place of residence, the travel being at Company expense.
b. During the period(s) that the training and/or assessment occur away from the Pilot's prospective new 'Home Base':
(i) a Pilot first joining the Company and undertaking his or her initial Transitional Training with CHC shall be entitled to 0.4 days field leave for each day away from Home Base; and
(ii) all other Pilots ('existing Pilots') shall be entitled to 0.87 days field leave for each day away from Home Base. “
Agreed facts
[12] Helpfully the parties developed a set of agreed facts in relation to the dispute. The agreed facts are as follows:
1. The parties are covered by the terms and conditions of the CHC Helicopters (Australia) Pilots Enterprise Agreement 2013 to 2016 (Agreement).
2. The Agreement provides a process by which a pilot may make a standing bid for a position covered by the Agreement.
3. The Agreement provides a process by which a permanent vacancy will be filled.
4. The Agreement has a dispute settlement procedure that empowers the FWC to settle disputes about matters arising from the Agreement. The subject in dispute is a matter arising from the Agreement.
5. The parties have complied with the dispute settlement procedure in respect to this matter but have been unable to resolve the dispute.
6. CHC had two vacancies for Captain positions at its Wollongong operations in early 2014 (Wollongong vacancies).
7. The Wollongong operation is an EMS base, carried out for CHC’s client ASNSW.
8. The Wollongong base is one of 3 ASNSW contract bases, the others being Bankstown and Orange. CHC has other EMS operational bases in Canberra (ACT), Bendigo and Latrobe Valley (VIC) and Jandakot (WA).
9. The Wollongong operation deploys AW139 aircraft in a single pilot, crewman, paramedic and medical doctor crew configuration.
10. CHC did not advise CHC pilots about the Wollongong vacancies as required by the Agreement at clause 24.2.2.
11. Captain David Croal is presently employed by CHC as a Captain at the RAAF SAR Base at Williamstown, NSW.
12. The RAAF SAR Base operates S76 aircraft for search and rescue purposes in multi-crew (Captain and First Officer) configuration.
13. Captain David Croal took a period of unpaid leave from CHC of approximately 2.5 years and returned to work as a pilot at Williamstown in early February 2014.
14. At the time of the Wollongong vacancies, Captain David Croal had a standing bid with the Wollongong base.
15. Wollongong is an EMS base in the EMS stream.
16. CHC did not select Captain David Croal for either of the Wollongong vacancies.
17. The Agreement provides at clause 24.2.9 that the parties hold a conference to achieve a solution in circumstances where in observing clause 24.2.5 the needs of the respondent may not be met. Clause 24.2.9 was not activated.
18. The Agreement provides at clause 24.2.12 an opportunity for pilots to undergo “transitional training” to determine suitability and competence for a new role or position. Clause 24.2.12 was not activated.
19. CHC appointed pilots externally to the Wollongong vacancies, being Captains Andrew Dixon and Tim Frankel.
20. Neither Captain Dixon nor Captain Frankel were, at the time of their appointments, endorsed (i.e. licensed to operate) on the AW139 aircraft. Subsequent to commencing employment the respondent provided Captains Dixon and Frankel with training and endorsements on the AW139 aircraft.
21. It is common practice within the industry and with the respondent that in order to comply with standing bids pilots not endorsed on the relevant aircraft are provided with training (endorsement) on that aircraft.
22. As at the date of hearing, Captain David Croal is still performing work on the RAAF SAR Base at Williamstown, and still has a standing bid in place for a vacancy at the Wollongong base.
Applicant’s Submissions
[13] The applicant’s submissions raise the following points:
- It did not act upon valid standing bids.
- It did not seek to find a resolution.
- It did not offer training or assessment, and
- It recruited an external applicant.
Respondent’s Submissions
[14] The respondents submissions raise the following points:-
- He did not meet the 500 hour requirement on contract type aircraft (AW139); and
- He did not hold a current Night Vision Goggle (NVG) qualification; and
- He had not flown regularly for the last three (3) years and not at all in the last 2 ½ years.
- The respondent did not fulfil its obligations pursuant to sub-clause 24.2.2 as it did not notify pilots of the two vacancies;
- As the applicant did not meet the criteria for the vacancy the respondent was therefore required to take no further steps with regard to sub-clauses 24.2.4 and 24.2.5 and therefore properly applied the remaining provisions of the Agreement;
- As there were no valid bids for the vacancy, the respondent was at liberty to recruit pilots externally in accordance with sub-clause 24.2.7 and therefore was not obliged to advertise the position internally pursuant to sub-clause 24.2.8.
- The applicant did not have a valid bid and is not entitled to the position of Captain at Wollongong.
- Failure by the respondent to notify of the vacancy does not affect the applicant’s bid being determined to be invalid on the basis of the applicant not meeting the vacancy criteria.
- If the applicant’s bid had been valid he would not in any event be entitled to the position of Wollongong Captain.
- In that circumstance the applicant would in accordance with sub-clause 24.2.9 be invited to discuss the matter with the respondent to determine if a solution could be agreed.
- Sub-clause 24.2.9 requires the consent of both parties, without the respondent’s consent, to a solution the applicant has no entitlement to the position of Captain at Wollongong.
Consideration
[15] Clause 24 of the Agreement has as its purpose the regulation of intra-company transfers and has as its base the ability for employees of more than two years’ service to express a preference for future employment at up to 3 company bases of operation (clause 24.1.1 to 24.1.9).
[16] Part of this regulation includes restrictions on the filling of permanent vacancies by the employment of pilots external to the company (clause 24.2.1 to 24.2.13).
[17] The principals of interpretation relevant to this matter are well-known and oft stated.
[18] In Amcor Limited v CFMEU (2005) 222 CLR 241, the interpretative process is described by Gleeson CJ and McHugh J (at 246[2]) as:
“The resolution of the issue turns upon the language of particular grammar, understood in the light of its industrial context and purpose….”
And by Kirby J (at 262[67]) as:
“Interpretation is always a text based activity. ”
[19] This approach is reflective of the oft-quoted statement of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184:
“But the task remains one of interpreting a document produced by another or others. A Court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well understood words are in general to be accorded their ordinary or usual meaning. ”
[20] A further step in the process is to attempt to identify what the common intention of the parties is, as that intention is expressed in the terms of the Agreement.
[21] In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, the High Court, when dealing with the interpretation of a commercial contract, stated (at 179[40]):
“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. ”
[22] Turning now to the first question asked by the parties:
“Did CHC properly apply the provisions of the CHC Pilots Enterprise Agreement in respect to the management of vacancies and selection of pilots to fill its two most recent Captain positions at the EMS Wollongong base?
[23] Sub-clause 24.2.2 is in plain terms. It is not in contest between the parties that the respondent did not comply with clause 24.2.2.
[24] Such a failure is a serious matter. The sub-clause is the cornerstone of the scheme described by the remaining parts of clause 24. Without knowledge of existing or proposed vacancies, the subsequent sub-clauses lose their efficacy.
[25] The reasons put forward by the respondent for non-compliance, being, the personal circumstances of the chief pilot, Mr Howe, and a short time frame with regard to the Ambulance Service contract, are not, in my opinion, sufficient to overcome the properly based expectation of CHC’s employed pilots that they will receive relevant information so as to allow them to consider whether or not to make what may well be considerable changes to their and their family’s lifestyle.
[26] The crucial issue in this matter centres on whether or not the respondent did or did not properly apply the provisions of sub-clause 24.2.4 of the Agreement. That sub-clause reads as follows:
“Newly created permanent positions and current permanent positions that are vacated will be filled from the list of applicants who have expressed interest in the position using their standing bid, and who meet the criteria.”
[27] The wording of this sub-clause is such that it allows of very little discretion. If an applicant has expressed an interest in a position using a standard bid and that applicant meets the criteria, then the vacancies referred to in the sub-clause will be filled (my emphasis) from a list of such applicants.
[28] Applying this sub-clause to Mr Croal would mean that CHC had little, if any, discretion if Mr Croal, having expressed an interest through his standing bid, “met the criteria”.
[29] CHC’s submission is that he did not “meet the criteria” of the vacancies. In that regard the respondent defines criteria to “mean the requirements, necessary qualities and/or the conditions of the vacant position as determined by CHC”. Such a definition in my opinion is unexceptional however I would add that such criteria must be relevant, reasonable and objective. In this case the definition of criteria must have regard to what is required by the Ambulance Service of NSW. Those requirements are contained in an extract of the relevant Contract which forms Exhibit Croal 1.
[30] It is not in contest between the parties that as at February and March 2014 (the recruitment period for the vacancies) the applicant did not meet all of the requirements set out in paragraph 2.1.4 of Schedule 7 of the Contract with the Ambulance Service.
[31] The applicant, however, argues that that is not the end of the matter because it is accepted in the industry that pilots might move into a vacancy albeit at the time of being offered the new position that they do not meet all of the requirements of that position. Some support for this position is found in sub-clause 24.2.12 of the Agreement which states, relevantly, as follows:
“A pilot awarded a position may be required to undergo a transitional training and assessment period of not greater than three (3) months to determine suitability and competency for the new role or position prior to permanent transfer…..”
[32] As can be seen from the sub-clause, the assistance of transitional training arises once a pilot has been awarded a position and that assistance is to be provided to a maximum of 3 months.
[33] Regard must then be had to the particular circumstances of Captain Croal. The Chief Pilot Captain Howe at paragraph 53 of his witness statement states:
“I would require Croal to complete a number of months of regular flying before I will consider him ready to undertake further training….”
[34] Mr Croal says in his evidence 2 that his flying hours were as follows:
July - December 2011 | 25.5 |
2012 | 3.9 |
2013 | 0 |
Jan-Feb 2014 | 1.6 |
[35] Whilst differing slightly from the figures provided by Captain Howe they are of the same order and I accept them.
[36] Mr Croal points out that he has been back at work full time since 17 February and now has more flying hours, however it is his status as at the recruitment period in January-February 2014 that I must consider in coming to my decision.
[37] In paragraph 54 of his original witness statement, Captain Howe sets out the additional training that would need to be undertaken by Mr Croal to reach the qualification requirements set out in the Ambulance Service contract.
[38] It would appear from the evidence of Captain Howe that as at the time of recruitment (i.e. February and March 2014) if the applicant had been awarded the position to fill the vacancy in Wollongong he would have required, in addition to the transitional training relevant to specific skills necessary to meet the contractual obligations, some months of flying prior to commencing that specific training. This is particularly so because he would have been changing operational streams and aircraft type. This would necessarily require a delay in the ability of the respondent to meet its contractual obligations.
[39] The AFAP at paragraph 28 of its written submissions submits as follows:-
“The applicant does not have this experience, however, it is widely understood that those responsible for dictating the requirements, the client contacts are often willing to use their discretion and forgive certain “requirements” which are not met by an applicant to the position.”
[40] This submission finds some support in paragraph 2.1.3 of Schedule 7 to the Ambulance Service Contract in the following terms:-
“The following personnel minimum experience requirements are those expected by the ASNSW. It is accepted that there may be occasions when a particular requirement is not met by a person proposed by the contract. On such occasions, the ASNSW will make an assessment of the total experience and make a determination of acceptability or otherwise. The final decision rests with the ASNSW.”
[41] It was therefore open to CHC , if it felt it appropriate, to nominate the applicant to the Ambulance Service for him to be awarded one of the vacancies.
[42] However, CHC did not do so and Captain Howe in his primary witness statement, at paragraph 43, explains the position as follows:-
“Croal’s experience was not presented to ASNSW for consideration because I did not consider him to be a suitable candidate for the position as he was not in current flying practice for the last 2 ½ years. If such an application had been made to the client and they became aware that Croal had not flown regularly, was not in current flying practice, for at least the last 2 ½ years, they would refuse the application on the basis of safety.”
[43] There is no evidence before me which calls into question Captain Howe’s evidence in this regard. In this circumstance it was reasonable for Captain Howe to include Mr Croal’s flying time in the criteria. I particularly note Captain Howe’s role as Chief Pilot of the respondent and the statutory responsibilities that go with that position. I accept the argument 3 put by CHC that the criteria include the Chief Pilot being satisfied, on relevant, reasonable and objective grounds, that the pilot is appropriate to be put forward to the client.
[44] I find that at the time of recruitment for the vacancies relevant to the Wollongong base the applicant did not meet the criteria to fill such vacancies and as such sub-clause 24.2.4 of the Agreement did not apply. As such sub-clauses 24.2.5 and 24.2.9 do not arise.
[45] This is not to say that the applicant and the respondent should not take an opportunity to meet in the way envisaged by sub-clause 22.2.9 to seek a better understanding as to future employment opportunities for Mr Croal. This particularly recommends itself as a course of action in circumstances where employees have been absent on leave to fulfil family responsibilities. A genuine effort should be made to ensure that the employee’s career prospects are not irretrievably set back as a result. This may include training in anticipation of future opportunities.
[46] The answer to the first question posed by the parties then is as follows:-
“The respondent did not properly apply all of the provisions of the CHC Pilots Enterprise Agreement in that it did not apply sub-clause 24.2.2 of the Agreement with respect to the management of vacancies in the selection of pilots to fulfil its two most recent Captains positions at the EMS Wollongong base.”
[47] The second question posed by the parties being:
“Having regard to the answer in question 1, is the applicant entitled to be appointed, in accordance with the Agreement, to the position of Captain at the EMS Wollongong base?”
[48] My answer to that question is No.
[49] Having regard to my findings set out above with regard to the questions posed by the parties, I decline to make the orders sought by the applicant.
DEPUTY PRESIDENT
Appearances:
D. Stephens: Australian Federation of Air Pilots (for the Applicant)
M. Londahl: Australian Federation of Air Pilots (for the Applicant)
S. Bakewell: EMA Consulting Pty Ltd for CHC Helicopters (Australia)
K. Cilento: CHC Helicopters (Australia)
Hearing details:
2014.
Sydney
July 2
1 2014 FWCA 291.
2 Transcript PN 91-97.
3 Transcript PN 944.
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