Mr Paul Field (Australian Federation of Air Pilots) v Royal Flying Doctor Service of Australia Central Operations

[2015] FWC 8034

[2015] FWC 8034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Mr Paul Field (Australian Federation of Air Pilots)
v
Royal Flying Doctor Service of Australia Central Operations
(C2015/3061)

ROYAL FLYING DOCTOR SERVICE CENTRAL OPERATIONS PILOTS AGREEMENT 2014

[AE413765]

Airline operations
COMMISSIONER HAMPTON	ADELAIDE, 21 DECEMBER 2015

Dispute under the terms of an Enterprise Agreement – agreed arbitration in accordance with provisions – pilots – operation of rosters and “grey days” – approach to interpretation discussed – relevance of enterprise bargaining process considered – common objective intention determined from the terms of the instrument when read in context – liberty granted for orders to be made if appropriate.

1. The context for the dispute

[1] Mr Paul Field has made an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure. Mr Field is a member of the Australian Federation of Air Pilots (AFAP) and the AFAP has represented Mr Field in this matter.

[2] The application relies on the dispute resolution procedure set out in clause 44 of the Royal Flying Doctor Service Central Operations Pilots Agreement 2014 1(the Enterprise Agreement).

[3] The Enterprise Agreement covers the respondent in this matter, the Royal Flying Doctors Service of Australia, Central Operations (RFDS). The Enterprise agreement also covers the AFAP and all full-time and part-time Line Pilots, Senior Base Pilots (SBPs) and Line Pilots approved as Training and Checking Pilots, employed by the RFDS Central Operations based in Adelaide and Port Augusta, South Australia, and in A1ice Springs, Northern Territory.

[4] The Enterprise Agreement does not apply to pilots who are appointed as the General Manager Aviation Services, Chief Pilot or Flight Training and Standards Manager, whilst holding those appointments.

[5] The dispute was the subject of conciliation in the first instance in June 2015. 2 Ultimately, the matter was not resolved and as a result the parties agreed that the Commission should determine the dispute by arbitration in accordance with clause 44.4 of the Enterprise Agreement. This matter was then assigned to me for that purpose.

[6] The parties have followed the process required by clause 44 of the Enterprise Agreement and, subject to one caveat, I am satisfied that the Commission is empowered to determine this dispute as agreed by the parties. That caveat arises from the fact that the events surrounding the applicant, Mr Field, which had led to this application, occurred prior to the commencement of the Enterprise Agreement. The events have, however, led to the dispute as to how the Enterprise Agreement should be applied should those circumstances arise in the future. I will return to this aspect at the conclusion of this decision.

2. What the dispute is about

[7] The dispute essentially concerns the proper application of clause 8 Grey Days of the Enterprise Agreement and related provisions, including clause 16 Rosters. A Grey Day is a rest period under the roster arrangements operating at the RFDS. In particular, the dispute involves a disagreement about whether the RFDS is able to alter a Grey Day, once designated on the roster, to become a rostered on-call period, personal leave day or actual duty day in certain circumstances. These circumstances include, as in the case of Mr Field, where the pilot is on personal leave, and is not therefore on actual duty or on-call, in the rostered work period preceding the designated Grey Day.

[8] Clause 8 of the Enterprise Agreement provides as follows:

“8. GREY DAYS

8.1 A “Grey Day” is a rest period that is not considered a rostered day off duty. It is a rest period to ensure a Line Pilot/SBP is free of all duty and on-call associated with their employment by no later than 2200 hours on the day preceding a duty free day.

8.2 Grey Days will be provided on days following any completed rostered on-call period or actual duty that finishes later than 2200 hours on the day preceding a duty free day.”

[9] Clause 16 of the Enterprise Agreement provides as follows:

“16. ROSTERS

16.1 Rosters will be compiled and will be promulgated in writing not less than seven days prior to the commencement of the roster period.

16.2 Notwithstanding the provisions of CAO 48 or any other prescription of the CASA, the following conditions shall apply:

16.2.1 The roster of duties at each Base will be as agreed between the General Manager Aviation Services, the Chief Pilot and the majority of RFDS Line Pilots (including the SBP) at the Base.

16.2.2 Any change to the roster of duties must be agreed by the RFDS and the majority of Line Pilots (including the SBP) at the affected Base. No change will take effect until the majority of Line Pilots (including the SBP) at the Base agree to the change.

16.2.3 Where, due to a roster change, a full-time Line Pilot agrees to work and works on what would otherwise be a rostered day off, the full-time Line Pilot will be entitled to a substitute day free of rostered duties within a month of the day upon which the full-time Line Pilot is required to work due to the roster change plus a payment of $105. Other arrangements may be mutually agreed by the SBP, including deferral of the substitute day off to the full-time Line Pilot's annual leave.

16.2.4 Except where mutually agreed between the particular Line Pilot and the SBP of the Base, Line Pilots will be rostered to work an average of not more than five periods of duty for each seven day period. Averaging will be calculated over the normal roster cycle applicable at each respective Base. A 24-hour rostered standby period will be counted as two 12-hour standby periods for purposes of the calculation.

Furthermore, SBPs and Line Pilots are reminded of their responsibility with reference to Civil Aviation Regulation 233(e), which requires them, as the pilot in command, not to commence a flight if they have not received evidence, and taken such action as is necessary to ensure, that the required operating and other crew members are on board and in a fit state to perform their duties.

16.2.5 The amount of $105 referred to in Clause 16.2.3 will increase in alignment with annual salary increases effective 1 July each year.

16.3 A Line Pilot/SBP, who is eligible for a substitute day off in accordance with Clauses 13.3, 13.4 or 16.2.3, may make application to the General Manager Aviation Services or Chief Pilot to have the substitute day off cashed out.

16.3.1 The General Manager Aviation Services or Chief Pilot will have absolute discretion when deciding on the Line Pilot's/SBP's application to cash out and regard will be considered in accordance with the RFDS' fatigue management policy;

16.3.2 The General Manager Aviation Services or Chief Pilot will make their decision within the same payroll period as the application is received;

16.3.3 If the full-time Line Pilot's/SBP's application is granted, the Line Pilot/SBP agrees that they will:

16.3.3.1 Receive the following payment;

Base	1 July 2014	1 July 2015	1 July 2016
Adelaide	$390	$405	$420
Port Augusta	$400	$415	$430
Alice Springs	$415	$430	$445

16.3.3.2 Forgo a substitute day off; and

16.3.3.3 Receive payment in the payroll period within which the application is made or the following payroll period (depending upon when the application is granted).

16.4 Roster Reserve Periods

16.4.1 Line Pilots/SBPs may be rostered for reserve periods to provide additional coverage in case of Line Pilot/SBP unavailability to undertake or complete a rostered on call period or other assigned Duty. Rostered reserve periods will not be greater than 12 hours and the total period of any rostered reserve periods followed by an activated duty period shall not be planned to extend beyond 18 hours.

16.4.2 In order to provide maximum notification to Line Pilots/SBPs of a rostered reserve periods activation, telephone calls to individual crew may be made during off duty periods. Telephone calls to Reserve Pilots during their off duty periods shall not be made within the period of eight hours before commencement of the rostered reserve periods.

16.4.3 While every endeavour will be made to provide a Line Pilot/SBP with the maximum appropriate notice period for activation ('activation' being assignment to a specific Standby shift) from a rostered reserve periods, the notice period will be not less than one hour for the first three hours of the rostered reserve period, and two hours thereafter. If the rostered reserve period commences between 2200 and 0600 local time the activation period will be two hours.”

[10] The AFAP contends that once a Grey Day is rostered, it cannot be altered except in accordance with the agreed change arrangements of clause 16 of the Enterprise Agreement and that a pilot cannot be made re-assignable in the circumstances that have occurred with Mr Field.

[11] The RFDS contends that a pilot is only entitled to a Grey Day where the pilot has completed a rostered on-call period or actual duty that finishes later than 2200 hours on the day preceding a Rostered Day Off (RDO). Where this does not occur, the Grey Day does not apply and the day will become whatever is appropriate in the circumstances of the pilot concerned.

3. The facts concerning Mr Field and the rosters more generally

[12] The primary facts setting the context for the dispute are not in contention. There is however some dispute about the process of negotiations leading to the Enterprise Agreement and I will deal with that later in this decision.

[13] Mr Field is a Line Pilot with the RFDS at the Port Augusta base and works on a roster cycle.

[14] The RFDS operates three separate bases; being Adelaide, Port Augusta and Alice Springs. The roster cycle for each base is dependent on the size of the agreed roster “template” and each roster has a number of “lines” (role allocations) which are rotated over a regular number of weeks. For example, Port Augusta has six lines for Line Pilots and these are rotated over a six week period. In Alice Springs the roster is over nine weeks and Adelaide is eight weeks. The construction of the roster itself is subject to the agreement between the Chief Pilot, the majority of RFDS Line Pilots at their respective base, and Mr Docking, the RFDS’s General Manager Aviation Services.

[15] The RFDS operates under a certificate of exemption issued under Civil Aviation Order 48 (the CA048 Exemption). This exemption 3 was most recently issued by the Civil Aviation Safety Authority (CASA) in February 2015, and in the same manner as earlier exemptions, requires that certain flight and duty time limits as set out in schedule 2 of the exemption are applied by the RFDS and its pilots. This requires that in any consecutive 14 day roster period:

● A flight crew member must have two periods free of all duty, each of which is a minimum of 36 consecutive hours duration comprising two local nights; and
● In any consecutive eight nights, a flight crew member must have one period free of duty, which is a minimum of 36 hours duration; with the above periods to start no later than 2200 hours and finishing no earlier than 0500 hours local time.

[16] The combined effect of these conditions is that in the context of the rosters operating at the RFDS, the Line Pilot/SBP must be free of all duty and on-call obligations associated with their employment by no later than 2200 hours on the day preceding a duty free day. This requirement underpins clause 8 of the Enterprise Agreement.

[17] Given the structure of the roster cycle, it is possible in general terms to know in advance the work allocations on any given day, unless the rotating structure is altered in some way. However, day-to-day operational changes do occur, for example, where a pilot takes accrued leave entitlements or unexpected absences occur. These absences include where a pilot takes personal leave. In addition, operational demands may mean that pilots work longer than the scheduled shifts.

[18] During the period 11 April 2015 to 14 April 2015, the relevant roster assigned Mr Field to the following work allocations:

● 11 April 2015 – Night shift
● 12 April 2015 – Night shift
● 13 April 2015 – Grey Day
● 14 April 2015 – RDO.

[19] Mr Field performed his night shift on 11 April 2015. On 12 April 2015, Mr Field informed RFDS that he was unfit for the duties for the assigned night shift on 12 April 2015 and as a result did not work this shift and was granted personal leave.

[20] Following this, the RFDS changed Mr Field’s assigned Grey Day. That day was designated by the Senior Base Pilot to be a personal leave day.

4. The detailed positions of the parties

4.1 Paul Field - AFAP

[21] The AFAP contends that the Enterprise Agreements does not permit the RFDS to alter the roster by making a Grey Day re-assignable at the election of the RFDS where a pilot is on personal leave for the previous rostered work period giving rise to the Grey Day. The only way a Grey Day can be altered is if it is done in accordance with the Enterprise Agreement and this is specifically dealt with in clause 16. In the case of Mr Field, this was not been done in accordance with the Enterprise Agreement.

[22] The AFAP further contends that clause 16 of the Enterprise Agreement exhaustively deals with the way rosters might be changed. Clause 16.1 states that the rosters are set seven days in advance, and subject to certain exclusions, are then locked in. Clause 16.2.2 and 16.2.3 provide how the roster might be changed once it is published, which can only occur with a majority of Line Pilots agreeing, or by agreement of a single Line Pilot in certain circumstances. Clause 16.2.3 allows for when a Pilot takes personal leave or annual leave and deals with the circumstances where an individual Pilot is affected by a roster change because they have agreed to work on a rostered day off. Furthermore, there is an implied term of the Enterprise Agreement that covers when leave is required to be taken by a Pilot at short notice. 4

[23] The Enterprise Agreement exhaustively deals with the way a roster might be changed once it has been set and there is no reference to a roster change in relation to Grey Days once they have been rostered. There is no express provision in the Enterprise Agreement and such a provision should not be implied.

[24] The AFAP also contends that clause 8 of the Enterprise Agreement requires a Grey Day to be provided to a pilot following a personal leave day taken in place of a rostered on-call period or actual duty. This arises because personal leave taken by a pilot is the same as completing a rostered period. That is, where a pilot is rostered for a period of any sort of duty that finishes later than 2200 hours, that period is rostered and even if taken as personal leave, is treated as work time for other purposes. In addition, the personal leave is taken by a pilot for a particular rostered period and not for the Grey Day.

[25] Furthermore, the AFAP submits that the history of the enterprise bargaining negotiations for this Enterprise Agreement support the AFAP’s interpretation of clause 8. That is, discussions occurred during the negotiations for the Enterprise Agreement that specifically related to Grey Days and proposed provisions, which would have provided the RFDS with the specific ability to make a Grey Day re-assignable, were rejected by the AFAP and were not included in the final agreement.

[26] In addition, the AFAP contends, in effect, that the inclusion of the word “completed” in clause 8.2 of the Enterprise Agreement was done without due process in the negotiations. The AFAP submits that the RFDS cannot substantiate whether the word “completed” is necessary in the clause, and this leads to an ambiguity in the provision. Furthermore, the RFDS is unable to agree on what the word “completed” means for the purpose of clause 8, in that on one hand the evidence is that without the word “completed” the clause does not work and other the other hand, if the word “completed” is not in the clause it does not change its intent. This gives rise to a degree of ambiguity.

[27] The AFAP contends that in previous enterprise agreements there was no reference to Grey Days, however they were used in practice and were never re-assignable, and that pilots did not undertake stand-by or flying duties on a Grey Day. That is, Grey Days were allocated in the roster and were not changed, unless agreed with the Pilot

[28] The AFAP contends that a reasonable person would interpret clause 8 as meaning that once a Grey Day is assigned, it will remain assigned regardless of whether a Pilot has had a personal day prior to the Grey Day. On that basis, the AFAP submits that a Grey Day cannot be reassigned without the Pilot’s approval.

[29] The AFAP led evidence from Mr Philip Remilton, Senior Base Pilot at the Port Augusta base of the RFDS. Mr Remilton has previously been a line pilot at each of the bases operated by the Central Division of the RFDS and was directly involved in the negotiations leading to the present Enterprise Agreement.

4.2 RFDS

[30] The RFDS contends that a Grey Day does not operate in the circumstances of Mr Field in March 2015. It does so on the following basis:

● The interpretation of clause 8 is clear and unambiguous;
● A pilot is entitled to a Grey Day only where the pilot has completed a rostered on-call period or actual duty that finishes later than 2200 hours on the day preceding a RDO;
● A Grey Day is not an automatic entitlement and therefore is not, and cannot be, assigned;
● A Grey Day occurs by virtue of active duty and is not a day off but a working day;
● The purpose of a Grey Day is to ensure minimum breaks of active duty are provided to pilots, and this ensures compliance with relevant aviation legislation;
● An employee on personal leave is not performing active duties that compromise minimum breaks pursuant to the relevant aviation legislation; and
● An employee on personal leave, for the purposes of Clause 8.2 of the Agreement:

• does not ‘complete’ the roster period;



• automatically ceases to be “rostered” on a published roster;



• is automatically not “on-call” due to the sick leave; and



• performs no “actual duty” as stipulated by the provision.

[31] Furthermore, the RFDS contends that:

● The AFAP proposition that a Grey Day cannot be reassigned is irrelevant and was never a point raised during the enterprise bargaining negotiations, or thereafter;
● Clause 8 does not implicitly or explicitly stipulate that a Grey Day cannot be reassigned;
● All rosters and Grey Days are published, but “prefaced on the basis that the employee will remain fit to perform the duties”;
● It is misconceived to argue that personal leave, or other form of leave, does not or cannot alter a published roster;
● A Grey Day is not a day of approved leave - it is a day where flight duties are not assigned to a pilot on account of insufficient rest being had, in anticipation that a pilot will have worked past 2200 on the previous shift when the roster was constructed;
● If the pilot has not engaged in duties (as anticipated by the roster), the RFDS may utilise that pilot as a resource where operational circumstances dictate;
● Being an aero-medical emergency services provider, the RFDS must have the ability and flexibility to make day-to-day adjustments to individual pilots’ rosters in order to satisfy its operational needs; and
● A change to a rostered Grey Day is not a matter dealt with exhaustively by Clause 16 of the Enterprise Agreement.

[32] In terms of the word “completed” in clause 8, the RFDS contends that it is clear that for this purpose it means that a pilot must have been available for rostered duty (on-call) or performed actual duty that finishes later than 2200 hours. Should a pilot not fulfil these requirements, the pilot will not be entitled to a Grey Day as the related time free of duty provisions of CA048 will not apply in those circumstances. A Grey Day occurs by virtue of active duty and that with the word “complete” in the clause, the provision intends that the Pilot must finish the shift.

[33] The RFDS submits that should the Commission consider admissible evidence of surrounding circumstances, the definition and purpose of Grey Days was an objective background fact known by all parties. Further, the fact that Grey Days were only to apply upon the completion of a rostered on-call period or actual duties was in common contemplation and knowledge of all parties. In that regard the RFDS contends that the AFAP had agreed to the Grey Days clause and did not question the requirement of a pilot to have “completed rostered on-call period or actual duty” in order to be assigned a Grey Day. Further, the word “completed” had been in the agreement throughout the whole negotiation process.

[34] If there is any ambiguity that exists within clause 8, it is due to the removal of proposed sub-clauses 8.3 and 8.4 from an earlier draft of the agreement, which was done at the request of the AFAP (without any reasons being given) and that the agreement to remove clause 8.3 and 8.4 did not constitute the RFDS’ acceptance to forgo its ability to reassign a pilot’s rostered Grey Day where necessitated for operational reasons.

[35] In relation to clause 16, the RFDS submits that it is not exhaustive in terms of changes to rostered days and there are no implied terms as contended by the AFAP. The RFDS disputes the AFAP’s assertion that a change to a pilot’s rostered Grey Day is a matter arising from Clause 16 of the Agreement. Clause 16 does not require the RFDS to seek approval from the pilot to alter a published Grey Day. Clause 16 provides for the creation of, and changes to, a roster cycle that is published every six to nine weeks, depending on the various bases. The roster cycle is applicable to all pilots at their respective bases. The RFDS submits that the type of change envisaged by clause 16.2.2 is one that relates to a change to the overall structure of the roster cycle at the affected base.

[36] Furthermore, clause 16 does not purport to deal with the day-to-day roster changes made in order to meet the operational requirements of the RFDS, as an emergency aero-medical service provider. The application of clause 16 in these situations would be neither practical nor reasonable. Day-to-day operational changes to the roster are made regularly where a replacement pilot is required due to a rostered pilot taking approved leave, or for other unforeseen circumstances.

[37] The RFDS led evidence from Mr Anthony Vaughan ASM, its Chief Operating Officer, and Mr Peter Docking, General Manager Aviation Services. That evidence went to the negotiation process leading to the present Enterprise Agreement and to the operations of the RFDS.

5. Consideration

5.1 The approach to the interpretation of enterprise agreements

[38] A Full Bench of the Commission has outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. In The Australasian Meat Industry Employees Union v Golden Cockeral Pty Limited 5 the Full Bench summarised the position in the following terms:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.  6

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) 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;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is 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.

10. 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.”

[39] I have applied this approach in determining this dispute.

[40] In Geo A Bond & Co Ltd (In Liq) v McKenzie, 7 Street J said:

"...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."

[41] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:

“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”8

[42] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd 9 in the following terms:

“6. No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.

… …

8. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.”

[43] These observations are consistent with the approach taken in Golden Cockeral. In the end result, my present task is to ascertain the common objective intention based upon the language and terms of the Enterprise Agreement, when read as a whole, and considered having regard to its context and purpose.

5.2 The context

[44] For reasons outlined above, it is important to consider the context in which the Enterprise Agreement was made and is to operate. That context is potentially relevant to the assessment of whether there is any ambiguity about a provision as well as to how any ambiguity should be resolved.

[45] Context in this present matter includes the operation of the RFDS, the history of the provision, and the terms of the Enterprise Agreement when read as a whole.

5.2.1 The operations of the RFDS

[46] The RFDS Central Operations operates a significant 24/7 emergency aeromedical service and provides essential primary health care services to people living, working and travelling in rural and remote South and Central Australia.

[47] The nature of its operations is such that the air crew are rostered from particular bases and in particular line roles and there are some regular services provided. However, the degree of actual flying will vary significantly depending upon call outs and other work. In addition, when there are flying duties performed above the rostered hours or where a pilot takes leave or is unavailable due to illness, other pilots will cover the consequent absence and changes are made to the allocated shifts in the published roster to accommodate those changes.

[48] These changes must be consistent with the CA048 Exemption and other regulatory requirements, and with the terms of the Enterprise Agreement.

5.2.2 The history of the Grey Day practice and agreement provision

[49] The concept of Grey Days has been utilised within the RFDS for some time. The concept arose from the implications of the CAO48 exemption as outlined earlier in this decision. However, it was not regulated through previous industrial instruments or formal RFDS policy.

[50] The evidence about the use of Grey Days reveals that the custom and practice included that such days were not a regular feature but used when necessary as a rostering tool to return pilots to their home base or to limit actual flying time when their flying hours or on-call commitments meant that they would not get sufficient rest. It was a common position that Grey Days were not treated as a day off. The evidence also reveals that on occasions, pilots had been required to attend meetings on base or to perform administrative duties on such days.

[51] The evidence about how Grey Days operated in the context of personal leave, prior to the making of the Enterprise Agreement, is unclear.

[52] Negotiations leading to the present Enterprise Agreement were long, and at times, problematic. They included many bargaining meetings, the taking of protected industrial action, and at least two votes of the pilots before the final agreement was approved. In addition, there were multiple conferences before this arm of the Commission, however, the issue of the Grey Days was not an issue considered during those conferences.

[53] When bargaining commenced in 2013, the AFAP raised the issue of Grey Days as part of its logs of claims/discussion points document 10 and sought, in effect, that these days remain as a day off to be used only to get crews back to home base. There were no claims from the RFDS in relation to Grey Days at that point. During the course of a bargaining meeting on 26 September 2013, the operation of Grey Days was also raised on behalf of the AFAP however no specific proposals were advanced by any of the parties. Each party did however indicate a view as to how they had operated including the following:

“3.8 Grey days

LC (Laurie Cox – AFAP) indicted that it was his understanding that a grey das (sic) is not something to be used on a regular basis, it was generally to be used to get crew members back to their home base. It is not a day off.

AB (Allen Ben – Chief Pilot ) indicated that a grey day is a fatigue management tool before rostering.

Traditionally, within reason, pilots have been required to attend meetings on base on a grey day

PR (Philip Remilton) suggested that if there was going to be a requirement for pilots to undertake duties on a grey day, there must be clarity surrounding its definition.

SD (Legal representative of RFDS) indicated that management would have to consider whether a definition to be included in the agreement was appropriate. 11”

[54] In due course, it was agreed that the parties would consider an agreement with a definition of a Grey Day included for clarity. In June 2014, the RFDS included a proposed definition in the following terms:

“5.10 “Grey Day” is a rest period that is not considered a rostered day off duty. It is a rest period to ensure a Line Pilot/SBP is free of all duty and on-call associated with their employment by no later than 2200 hours on the day preceding a duty free day.

Grey Days will be provided on days following any rostered on-call period or actual duty that finishes later than 2200 hours on the day preceding a duty free day.”

[55] I note that this is the same provision as finally found its way into the Enterprise Agreement at clause 8, with the exception that the term “completed” was not in the second paragraph of the draft proposal.

[56] In November 2014, the RFDS proposed a revised draft agreement and this included a proposed clause 8, in lieu of the proposed definitions clause. The draft clause 8 contained the first two sub-clauses as found in the final Enterprise Agreement, including the term “completed” in clause 8.2, and the following additional provisions:

“8.3 Where the Line Pilot/SBP has not completed the preceding rostered on-call or duty period later than 2200 hours in accordance with Clause 8.2, the Line Pilot/SBP may be reassigned for rostered duty or the rostered Grey Day may be reassigned as a rostered day off.

8.4 Where a Grey Day falls within a block of personal or URTI leave absence, it will be treated as an absence from work and the Line Pilot/SBP’s relevant leave accrual will be debited accordingly.” 12

[57] The AFAP advised the RFDS that it considered the original draft definition of Grey Days (in the June draft) had been agreed and it could see no reason to change that definition. The AFAP did however indicate that it had no objection to the definition provision being included as a stand-alone clause. 13

[58] In early December 2014, the RFDS advised as follows:

“4. Grey Days
The RFDS will honour the previous drafting of the Grey Days clause and confirms the removal of the two paragraphs under Clause 8.2 (Clauses 8.3 and 8.4 in the draft Agreement which was sent to the Committee on 13 November 2014).” 14

[59] The clause then included by the RFDS in the next draft agreement set out the terms of the clause 8 as now found in the Enterprise Agreement. This included the terms “completed” in clause 8.2, which was not found in the June 2014 draft, with the deletion of the draft sub-clauses 8.3 and 8.4 from the November 2014 draft.

[60] An agreement including those terms was put out by the RFDS for approval but was rejected by a majority of the pilots. After a series of further discussions and Commission conferences, a revised version of the agreement in the current terms was approved by a significant majority of the pilots. The changes made between the “rejected” version and finally approved agreement did not involve clause 8 and the issue of Grey Days was not discussed by the parties after the exchanges in November and December 2014.

[61] I will return to the significance and relevance of the negotiation process to the decision to be made in the present matter, in due course.

5.2.3 Other provisions of the enterprise agreement

[62] I have set out the full terms of clauses 8 and 16 earlier in this decision.

[63] The aims of the Enterprise Agreement are set out in clause 6 in the following terms:

“6. AIM OF THE AGREEMENT

It is the objective of the parties to this Agreement to implement workplace practices that provide for flexible working arrangements, which improve the efficiency, effectiveness and quality of services provided by the RFDS, enhance skills and job satisfaction and assist positively in ensuring the RFDS becomes a more competitive enterprise.”

[64] Clause 17 Hours of Work provides the hours of work arrangements and these also set some of the context for the consideration of the immediate provisions. Clause 17 is as follows:

“17. HOURS OF WORK
17.1 Flight & Duty Time Limitations

Hours of duty will be in accordance with:

17.1.1 The provisions of the GAO 48, as amended from time to time; and
17.1.2 Any other exemption originated by and issued by GASA, which applies to RFDS operations in addition to or in lieu of GAO 48.

17.2 Response Times

17.2.1 Line Pilots who are rostered on duty are not required to attend their normal place of work (other than as required to attend to day-to-day administrative, operational and house-keeping requirements), but are required to be:

17.2.1.1 Contactable and available for duty at all times during their rostered on-call period;
17.2.1.2 Present at the RFDS airport office at least 20 minutes prior to nominated 'doors close' for the first sector; and
17.2.1.3 At 'doors close' within 45 minutes of being tasked, except where longer response times are operationally specified.

17.3 Tasking

17.3.1 The RFDS undertakes to continue to monitor tasking guidelines that have been adopted as policy in consultation with Line Pilots/SBPs and other stakeholders.
17 .3.2 The Line Pilot/SBP shall be rostered to perform standby and/or duty in accordance with the requirements of CAO 48, or any exemption or approval that is issued to the RFDS pursuant to Part 48, as varied, amended or substituted from time to time

[65] The personal leave entitlements are set out in clause 20 Personal Leave of the Enterprise Agreement however there are no specific elements of that provision which appear to bear upon the immediate dispute.

[66] Although it is the provisions of the Enterprise Agreement read as a whole that must be considered, it is convenient to initially deal with the submissions of the parties as they apply to the two most immediately relevant provisions.

5.3 The intended operation of clause 16

[67] Having regard to the terms of the provision and the Enterprise Agreement more generally, and the context in which the provision was made and operates, I consider that the common objective intention of clause 16 is as follows.

[68] Clause 16 is not intended to deal with all of the circumstances in which a rostered line or duty allocation to a pilot may change. The requirement that changes to the roster of duties must be agreed between the RFDS and the majority of Line Pilots (including the SBP) at the affected base has not been applied, in practice, to require that changes arising from operational or personnel changes occur through that process. To do so, would lead to a situation that was unworkable in the context of the RFDS and is not the objectively intended import of the provision.

[69] Rather, the collectively agreed roster change requirements in clause 16.2.1 and 16.2.2 are intended to relate to changes in the structure and general operation of the rosters. This is reinforced by the provisions of clauses 16.2.3 and 16.2.4 which contemplates that roster changes may occur with individual agreement with a full-time line pilot and in circumstances where there is no mutual agreement.

[70] Clause 16 also does not comprehensively deal with changes that must be made due to annual and personal leave absences and it could not have been intended that such would need to be dealt with through the collective agreed roster change process.

[71] Clause 16 must also be read in conjunction with the hours of work provisions and clause 8.

5.4 The intended operation of clause 8

[72] Clause 8 operates in two parts, which must be read together. Sub-clause 8.1 defines the purpose and meaning of a Grey Day and sub-clause 8.2 establishes when a Grey Day will be provided.

[73] The purpose of the day is clear. That is, it is a rest period to ensure a Line Pilot/SBP is free of all duty and on-call commitments associated with their employment by no later than 2200 hours on the day preceding a duty free day. Further, it is not a rostered day off duty. This is the plain and ordinary meaning of the sub-clause when read in context.

[74] On face value, the prerequisites for the Grey Day as provided in sub-clause 8.2 are also reasonably clear. Grey Days will be provided on days following any completed rostered on-call period or actual duty that finishes later than 2200 hours on the day preceding a duty free day.

[75] Having regard to its purpose, the Grey Day is intended to apply when the pilot concerned has undertaken a rostered on-call or actual duty period that finishes later than 2200 hours. That is, given that evident purpose and having regard to the context, including that set by the CA048 Exemption, it is clear that the provision intends that the duty, or on-call period, be actually undertaken. In that light, the inclusion of the term “completed” only reinforces the intention.

[76] The only potential uncertainty surrounding the provision is how it is to be treated once it has been rostered. That is, the Grey Day is placed in the roster because, according to the roster, leading to that point, the pre-requisites for the provision of the Grey Day will be met. That is, the pilot, in this case Mr Field, was scheduled to be on duty (or on-call) later than 2200 preceding a duty free day (the RDO). In the circumstances that have led to this application, the roster was not worked due to a personal leave day, and on face value, those prerequisites were not met in practice.

[77] The issue then becomes, how should the personal leave day be treated in terms of the qualifications for the Grey Day? The AFAP, in effect, contends that the personal leave day should be treated as a day worked for present purposes. That is, the day concerned should be treated as being a day worked according to the roster, including so as to work beyond 2200 hours.

[78] The RFDS contends, in effect, that the requirement is for the relevant day to be actually worked (on duty or on-call) and that a pilot on personal leave does not qualify.

[79] Personal leave does count as service for some purposes, however, a day of such leave in the present context does not represent the performance of duty or a period of being on-call. This is reinforced by the terms of clause 8 and its evident purpose.

[80] In addition, it would be reasonably clear from the terms of the Enterprise Agreement that where the circumstances contemplated by clause 8.2 arise in practice after the publication of the roster, the pilot concerned would become entitled to a Grey Day even where there is no Grey Day allocated on the roster. This prospect was acknowledged by the AFAP. 15

[81] I set out earlier the history of the negotiations. I would accept that the RFDS should have been more up front about the inclusion of the term “completed” in clause 8.2. However, clause 8 in its current term was present in all drafts that were issued from November 2014 including the significantly redrafted agreement that was offered after the “November” proposal was rejected by the pilots.

[82] I would also accept that the deletion of the sub-clauses 8.3 and 8.4 from the earlier draft, which were entirely consistent with the approach now urged by the RFDS, would have provided some comfort to the AFAP and the pilots. However, there were no discussions between the parties as to how the detail of clause 8 would operate, either with or without these sub-clauses, and I do not consider that the subjective intentions of the parties is relevant for present purposes.

[83] To place undue weight upon these events so as to contradict the plain language of the Enterprise Agreement when considered in context, would be contrary to the approach adopted in Golden Cockerall and is not appropriate.

6. Conclusions

[84] The proper application of the Enterprise Agreement in the circumstances that have led to this application would be evident from the discussion above. The view that I have taken about the intended operation of clause 8 is supported by a consideration of the Enterprise Agreement when read as a whole, including clauses 16 and 17, in the context in which the instrument was made and is to operate.

[85] Accordingly, in order to qualify for a Grey Day, a pilot must have undertaken a rostered on-call or actual duty period that finishes later than 2200 hours on the day before the RDO. Where this does not happen, the Grey Day becomes a day that may, where required, be utilised as appropriate, provided that it does not itself involve a rostered on-call or actual duty period that finishes later than 2200 hours.

[86] Where the circumstances set out in clause 8.2 apply in practice after the roster has been issued, even when the Grey Day does not appear on the (original) roster, a Grey Day is to be provided to the pilot concerned.

[87] The basis of the decision to treat the day in question as a personal leave day for Mr Field is not clear given the evidence before the Commission and I have not been called upon to determine that issue. Those events also took place before the Enterprise Agreement came into operation and are therefore beyond the scope of this present decision.

[88] I do not intend to make orders as a result of my decision, however, liberty is granted for one or both parties to seek that I do so.

COMMISSIONER

Appearances:

A Molnar of Australian Federation of Air Pilots for Mr Field.

S Dasan and V Liu of Norman Waterhouse, with permission on behalf of Royal Flying Doctor Service, Central Operations.

Hearing details:

2015

Adelaide

17 September

19 November.

<Price code C, AE413765 PR574234>

 1   AE413765 Approved 1 May 2015.

 2   Before Watson VP.

 3   Attachment TV-2 to the Statement of Mr Vaughan – exhibit R4.

 4   Submissions of the AFAP - Transcript PN1171.

 5   [2014] FWCFB 7447.

 6   Reference to the AI Act is to the Acts Interpretation Act 1901.

 7 [1929] AR (NSW) 498 at 503 See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].

8 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17. See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.

 9 (1993) 40 FCR 511.

 10   PR – 3 attached to the witness statement of Mr Remilton.

 11   PR – 4 attached to the witness statement of Mr Remilton.

 12   PR – 6 attached to the witness statement of Mr Remilton.

 13   PR – 7 attached to the witness statement of Mr Remilton.

 14   PR – 8 attached to the witness statement of Mr Remilton.

 15   Transcript PN1345.

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