[2019] FWC 2611

FAIR WORK COMMISSION

DECISION

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

Australian Municipal, Administrative, Clerical and Services Union-Queensland Together Branch; Ms Marjorie Edwards; Ms Leonie Waterhouse
v
Qantas Airways Limited
(C2017/2647)

COMMISSIONER SPENCER

BRISBANE, 16 APRIL 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

INTRODUCTION

[1] An application pursuant to s.739 of the Fair Work Act 2009 (the Act) was made by Ms Marjorie Edwards and Ms Leonie Waterhouse in relation to a dispute arising under the Australian Services Union (Qantas Airways Limited) Agreement 11 (the Agreement), with Qantas Airways Limited (the Respondent). By agreement, the Australian Municipal, Administrative, Clerical and Services Union-Queensland Together Branch was joined as an Applicant to the proceedings (collectively, the Applicants).

[2] The dispute concerned the consideration of the classification of Airline Officers under the Agreement who perform the task of “Premium Lounge Entry Host” (at the recently developed), Premium Lounge Entry (PLE) and Premium Queue at the Respondent’s Brisbane Airport domestic and international terminals. The Applicants, however confirmed it was not a reclassification case; but an assessment of whether particular duties were aligned with a classification.

[3] The parties agreed on the following questions for arbitration:

“1. Are the duties performed by employees who are allocated to perform the task of “Premium Lounge Entry Host” within the Premium Lounge Entry at Brisbane Domestic Terminal classified at Level 3 of the Agreement (as proposed by Qantas) or Level 4 (as proposed by the Applicants)?

2. Are the duties associated with checking-in passengers in the premium queue at Brisbane International Terminal classified at Level 3 of the Agreement (as proposed by Qantas) or Level 4 (as proposed by the Applicants)?”

[4] The matter was listed for conference however was unable to be resolved. Directions were issued for the filing of material and the matter was listed for Hearing in Brisbane. Prior to the Hearing, the Commission by consent conducted an inspection of the Domestic and International Terminals, co-ordinated by the parties.

[5] The Applicants were represented by Mr Michael Thomas, Director Industrial Services of the Australian Municipal, Administrative, Clerical and Services Union-Queensland Together Branch, and the Respondent was represented by Mr Yaseen Shariff, Counsel instructed by Ms Kathy Srdanovic, Partner of Ashurst Australia. Pursuant to cl.15.9 of the Agreement, the parties are entitled to be represented in proceedings before the Fair Work Commission, (the Commission).

[6] Whilst not all of the submissions and evidence are referred to in this Decision, all of such have been considered.

RELEVANT PROVISIONS OF THE ACT

[7] Pursuant to s.739 of the Act:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

RELEVANT PROVISIONS OF THE AGREEMENT

[8] The Dispute Settlement Procedure is set out at cl.15 of the Agreement:

“15. DISPUTE SETTLEMENT PROCEDURE

15.1. In the event of a dispute arising in the workplace about matters arising under this agreement or in relation to the National Employment Standards the procedure to resolve the matter will be as follows:

15.1.1. The employee and the employee's supervisor meeting and conferring on the matter.

15.1.2. If the matter is not resolved at this meeting, the parties must arrange for further discussions between the employee and more senior levels of management.

15.1.3. If the matter cannot be resolved it may be referred by either party to the FWC for resolution. This does not affect the right of either party to a dispute to take other action to resolve the dispute.

15.2. An employee may choose to have an employee representative of their choice, including a Union representative, to represent and support them at any stage of the dispute resolution procedure. Any representative nominated by the employee pursuant to this dispute resolution procedure will be allowed, at a place designated by the Company, the necessary time during working hours to support the employee.

15.3. While the parties attempt to resolve a dispute employees must continue to work as normal in accordance with this agreement and their contracts of employment unless an employee has a reasonable concern about imminent risk to safety or health. In this case, an employee must not unreasonably fail to comply with a direction of the Company to perform other available work, whether at the same or another workplace that was safe and appropriate for the employee to perform.

15.4. If a dispute is referred to the FWC for resolution, the FWC can take any or all of the following actions as it considers appropriate to resolve the dispute:

• convene conciliation conferences of the parties or their representatives at which the FWC is present;

• require the parties or their representatives to confer among themselves at conferences at which the FWC is not present;

• request, but not compel, a person to attend proceedings;

• request, but not compel, a person to produce documents;

• where either party requests, conciliate or make recommendations about particular aspects of a matter about which they are unable to reach agreement;

• where the matter, or matters, in dispute cannot be resolved (including by conciliation) and one party or both request, arbitrate or otherwise determine the matter, or matters, in dispute.

15.5. The FWC must follow due process and allow each party a fair and adequate opportunity to present their case.

15.6. Any determination by the FWC under paragraph 15.4 must be in writing if either party so requests, and must give reasons for the determination if either party so requests, and must give reasons for the determination.

15.7. Any determination made by the FWC under paragraph 15.4 must be consistent with applicable law and must not require a party to act in contravention of an applicable industrial instrument or law. Where relevant, and circumstances warrant, the FWC can consider previous decisions of the FWC.

15.8. The FWC must not issue interim orders, ‘status quo’ orders or interim determinations.

15.9. The parties are entitled to be represented eg: by legal representatives and/or the union in proceedings pursuant to this dispute resolution procedure.

15.11 [sic] For the purposes of this clause, a party means the company, or an employee or a number of employees covered by this Agreement who are involved in a dispute about matters arising under this Agreement.”

[9] Pursuant to Schedule 1 of the Agreement:

“SCHEDULE 1 - CLASSIFICATION STRUCTURE AIRLINE OFFICERS

…

LEVEL 3 DESCRIPTORS:

KNOWLEDGE:

• Understands routine standardised work procedures requiring product knowledge within a single functional area.

• The ability to adapt and transfer skills to related applications of a similar scope or complexity to achieve position goals.

• Has communication skills at the level required to explain a process or promote a product within set procedures and guidelines.

PROBLEM SOLVING:

• Has the opportunity to choose between limited prescribed options.

• Work usually has pre-determined instructions that detail both sequence of tasks, timing of tasks and a clearly defined choice of alternative procedures.

• Assistance is available for unfamiliar or non-routine circumstances.

ACCOUNTABILITY:

• Responsible for achieving the required standards and results usually within short time-spans, for example within the shift concerned.

• Work is regularly checked or monitored and is subject to regular evaluation.

• Approval must be sought before deviating from procedures.

• May assist staff in own work group or team, including buddy training, but is not accountable for the work of others.

Typical duties within Airports at Level 3:

• Identify passenger profile/s; and,

• Check-in (including groups) - collect ticket coupons, tag baggage to destination, issue boarding passes, check passports and visas including editing system details, assess excess baggage, ensure baggage security procedures have been completed perform Queue combing functions, assist passengers checking in at self-service kiosks or other forms of “e –check” including bag drop functions; and,

• Transfers including Qantas Domestic/International, International/ Domestic, Interline; and,

• Create baggage irregularity reports; and,

• Perform simple editing (pre-flight); and,

• Perform domestic check-in functions at departure gate; and,

• Assist passengers boarding through front and rear aircraft doors including marshalling on tarmac.

• Assist with International arrivals and departures; and/or,

• Apply Qantas Club access policy and greets passengers at reception.

…

LEVEL 4 DESCRIPTORS:

KNOWLEDGE:

• Utilises a greater depth or breadth of knowledge of product, Company policies, procedures and standards within a single functional area than previous levels.

• Understands how their work area processes interact with other related areas.

PROBLEM SOLVING:

• Achieves prescribed goals using varied techniques, systems, methods or processes within established procedures or operating guidelines, with some latitude to consider which solution might be most appropriate.

ACCOUNTABILITY:

• Responsible for achieving the required standards and results usually within short time-spans, for example within the shift concerned.

• Approval must be sought before deviating from procedures or operating guidelines.

• May provide technical advice. May provide on the job training to employees at level 4 or below, for example, demonstration or explanation, but is not accountable for the work of others.

• Work is regularly checked or monitored and is subject to regular evaluation.

Typical duties within Airports at Level 4 include:

• Domestic fares and ticketing enquiries and ticket issue/re-issue; and,

• Issue Domestic Miscellaneous Charges Order I Multi-Purpose Documents vouchers; and/or,

• Perform check-in and customer service functions for Qantas Club and other loyalty program members; and/or,

• Plan and prepare Group check-in; and/or,

• Perform functions at Customer Service Desk including flow forward, standby, upgrades, and implement delay handling procedures; and/or,

• Organise Qantas crew travel and accommodation, book transport and issue meal allowances; and/or,

• Report and trace lost and damaged baggage through World Tracer System.”

SUMMARY OF THE APPLICANTS’ SUBMISSIONS AND EVIDENCE

[10] The Applicants submitted that the dispute relates to the classification of Airline Officers who perform check-in and other duties at the PLE and Premium Queue at the domestic and international terminals at Brisbane Airport. Schedule 1 of the Agreement provides that classifications should be assigned and each position should be “evaluated as a whole after being: reviewed against each of the descriptors for knowledge, problem solving and accountability, and tested against the typical duties, starting with the relevant business area and then looking at other areas as required.”

[11] The Applicants referred to the typical duties relating to check-in functions within classifications Level 3 and Level 4 within Schedule 1 of the Agreement, these provisions set out as follows:

“Typical duties within Airports at Level 3:

…

Typical duties within Airports at Level 4 include:

…

• Perform check-in and customer service functions for Qantas Club and other loyalty program members; and/or,

…”

[12] The Applicants argued that the Agreement differentiated between the check-in and customer service functions for Qantas Club and other loyalty program members at Level 4, and check-in and related tasks at Level 3.

[13] The Applicants submitted that the focus of the dispute was on the duties performed by staff, rather than the classification of staff that historically perform those duties. The Applicants submitted that this necessarily involved an interpretation of the provisions of the Agreement as they related to duties within the classification structure in Schedule 1. Accordingly, the Applicants submitted that the “principal purpose test” (referred to later in this decision) was not relevant to this assessment.

[14] The Applicants submitted that the explicit reference to “Qantas Club and other loyalty program members” check-in at Level 4 was representative of a core function and activity of that level. In relation to check-in duties at the international terminal, the Applicants submitted that the Respondent expects a “higher level higher level of knowledge, accountability and customer service for the premium passengers than that required for non-premium passengers. Staff are only allocated Premium check-in with sufficient experience and knowledge to provide a complete service and they are expected to be able to deal with issues rather than refer them. Additionally, uniform expectations are greater at Premium Check-in, with staff required to wear the scarf and jacket. These uniform items are not expected for staff dealing with non-premium passengers.” 1

[15] The Applicants submitted that the entirety of the check-in function for Qantas Club and other premium customers (including Business Class, Qantas Club Platinum One, Platinum and Gold, and One World Sapphire members) were currently performed entirely by Level 3 Customer Service Agents.

[16] In relation to check-in at the domestic terminal, the Applicant submitted that the segregation of Qantas Club and other premium customers was more prevalent than at the international termination and was achieved architecturally through a separate entry, referred to as the Premium Lounge Entry (PLE).

[17] It was submitted that similarly to the international terminal, the Respondent expected a, “higher level of knowledge, accountability and customer service for the premium passengers than that required for non-premium passengers.” 2 The Applicants stated that this included resolving, issuing and rectifying faults without the intervention of management, providing a higher level of service, and the wearing of additional designated uniform items.

[18] The Applicants noted that there was “no technical difference in the process that occurs when a passenger is checked in regardless of whether they are a “QANTAS Club or other loyalty program” member as compared to checking in other customers.” 3 The distinction, the Applicants submitted, was in how check-in was “facilitated” (i.e. through the PLE) and the level of service required by employees, discernible only with reference to the level of customer class rather than the actual duties or service provided.

[19] The Applicants referred to the ordinary principles of the interpretation of provisions in an enterprise agreement, relying on the decision in Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd (Golden Cockerel), 4 and stated that the first step is to determine whether an ambiguity exists in the terms of the Agreement.

[20] The Applicants made reference to instances where it was submitted that such ambiguities were identified, 5 and stated that no ambiguities exist in the present dispute. Accordingly, the Applicants submitted that the Agreement should be interpreted as follows:

“28. On the face of it, the Agreement is clear; the duty of performing, “check-in and customer service functions for Qantas Club and other loyalty program members” is a typical duty at Level 4. Which, in the words of the agreement means the duty is representative of a core function and activity at Level 4. The duty requires the higher-level skills relating to knowledge, problem solving and accountability anticipated by the Agreement.

29. The duty of performing “check-in and customer service functions for Qantas Club and other loyalty program members” is a discrete one at both the Domestic and International terminals and is deliberately designed to be so given that at both terminals there is a clear separation of the class of passenger, architecturally in the case of the Domestic Terminal.

30. In fact, if the words of the agreement “check-in and customer service functions for Qantas Club and other loyalty program members” are to be given meaning at all (and they must have been intended as having some meaning) then it is difficult to imagine a better example of such a duty than now exists at the Domestic Terminal. After all, Qantas have developed the Premium Lounge Entry for that express purpose.” 6

[21] It was submitted that the onus is on the Respondent to demonstrate that an ambiguity exists if it seeks to rely on any evidence of the circumstances surrounding the making of the Agreement, and in the absence of any such ambiguity, in accordance with the principles of Golden Cockerel, this evidence must not be admitted.

[22] In referring to “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri), 7 the Applicants asserted that no ambiguity in the Agreement exists to require the Commission to consider extrinsic materials. The Applicants submitted:

“42. On the face of it, the Agreement is clear; the duty of performing, “check-in and customer service functions for Qantas Club and other loyalty program members” is a typical duty at Level 4. Which, in the words of the agreement means the duty is representative of a core function and activity at Level 4. The duty requires the higher-level skills relating to knowledge, problem solving and accountability anticipated by the Agreement.

43. The duty of performing “check-in and customer service functions for Qantas Club and other loyalty program members” is a discrete one at both the Domestic and International terminals and is deliberately designed to be so given that at both terminals there is a clear separation of the class of passenger, architecturally in the case of the Domestic Terminal.

44. In fact, if the words of the agreement “check-in and customer service functions for Qantas Club and other loyalty program members” are to be given meaning at all (and they must have been intended as having some meaning) then it is difficult to imagine a better example of such a duty than now exists at the Domestic Terminal. After all, Qantas have developed the Premium Lounge Entry for that express purpose.” 8

[23] The Applicants filed four witness statements in these proceedings. Referring to this evidence in summary form; the statement, Ms Waterhouse deposed that in 2007, premium check-in at the domestic terminal was performed by Level 4 “Airports”. She referred to the higher expectations and accountability for staff performing check-in duties for premium passengers. Ms Waterhouse detailed the more customer-centric approach needed for premium check-in, stating, “I resolve issues, using whatever means available to me, without passing the passenger on to another area or person.” 9

[24] Mr Billy Colless, Organiser of the Together Branch of the ASU, in his statement detailed his involvement in negotiations for the Agreement. He stated that premium check-in at the domestic terminal was specifically address during these negotiations. He stated that following bargaining meetings, on 29 September 2016, “…ASU delegates received an undertaking from QF management that the QF Club Lounge Staff would staff the PLE counter, as Staff working in the Lounge are minimum Level 4.” 10 Mr Colless stated that the Respondent reneged from this undertaking in later correspondence,11 and that whilst staff at the premium lounge reception (to complete the lounge entry and eligibility check) would be classified at Level 4, the premium lounge check-in counter would be staffed by Level 3 staff. Mr Colless outlined the ongoing dispute between the ASU and the Respondent in relation to this issue, which later intersected (and was joined) to the present dispute filed by Ms Edwards and Ms Waterhouse.

[25] Ms Natasha Heymann had been employed by the Respondent since 1993, firstly in the role of Telephone Sales Agent at Level 4 and then later as a Customer Service Agent (check-in) at Level 3. She stated that she had performed in various different roles at Level 4. In her statement, Ms Heymann detailed the evolution of the responsibilities of staff operating various check-in counters. She referred to the higher level of responsibility of staff at the PLE and the requirement to attempt to resolve issues themselves, prior to involving management. She stated that this placed greater individual responsibility on staff performing at these areas.

[26] Mr Anthony Scott, Customer Service Agent (Level 3) of the Respondent, provided a statement in these proceedings. Mr Scott also works in a Level 4 position at the Service Desk and “Check In Senior” (also Level 4) on a regular basis. As such, he stated he was familiar with the duties of both Level 3 and Level 4 “Airports”.

[27] Mr Scott stated that, regardless of which position he was working, there was always a higher level of service required for premium customers. He stated that he believed, although other staff would also be required to interact with premium customers (for example, if they decided to check-in elsewhere), the staff working exclusively at the PLE were required to adhere to this higher standard consistently and should be remunerated accordingly. 12

[28] The Applicants submitted that the Respondent expected a “higher level of knowledge, accountability and customer service for the premium passengers than that required for non-premium passengers,” 13 and referred to the following requirements:

“a. Staff are only allocated Premium check-in with sufficient experience and knowledge to provide a complete service and they are expected to be able to deal with issues rather than refer them to other areas. [PN798]

b. There is an expectation that the passengers in the Premium Queue will be provided a higher level of customer service. [PN648 and PN667]

c. The presentation of CSAs with respect to uniforms is greater at Premium Check-in, with staff required to wear the scarf and jacket. These uniform items are not expected for staff dealing with non-premium passengers. [PN865]” 14

[29] For these reasons, the Applicants submitted that the questions for arbitration should be answered as follows:

“a. The duties performed by employees who are allocated to perform the task of “Premium Lounge Entry Host” within the Premium Lounge Entry at Brisbane Domestic Terminal are properly classified at Level 4 rather than Level 3.

b. The duties associated with checking-in passengers in the premium queue at Brisbane International Terminal are properly classified at Level 4 rather than Level 3.” 15

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[30] The Respondent submitted that since at least 2003, the check in functions at the Brisbane Domestic and International Terminals had been performed by Level 3 Customer Service Agents, irrespective of passenger class.

[31] It was submitted that this position was reflected by the applicable industrial instrument in operation at that time, the Airline Officers (Qantas Airways Limited) Award 2000. The Respondent referred to the classification structure in this award, as set out:

“7. Relevantly, at the time that the 2000 Award was made, there was no “Premium Lounge Entry” at Brisbane Domestic Terminal or any other port. Despite this, the typical duties descriptors for a Level 3 “Airport” included the following text:

Check-in (including groups) - collect ticket coupons, tag baggage to destination, issue boarding passes, check passports and visas including editing system details, assess excess baggage, ensure baggage security procedures have been completed; and,

…

Apply Qantas Club access policy and greets passengers at reception.

8. At that time, the descriptors for Level 4 “Airport” included the following text:

Perform check-in and customer service functions for Qantas Club and other loyalty program members

9. At the time that the 2000 Award operated, Level 3 Customer Service Agents served customers of all classes irrespective of their Club membership or otherwise. In practical terms, this involved Level 3 Customer Service Agents greeting and attending to the customer service associated with checking-in all classes of passengers within the “main check-in hall” and counters at both Brisbane Domestic and International Terminals. Level 4 Customer Service Agents performed a broader range of duties, which included duties with higher levels of authorisation and the performance of checking-in functions for passengers within or inside the Qantas Club area at Brisbane Airport.

10. The classification structure from the 2000 Award was transferred into the applicable Qantas Enterprise Agreement in 2002, being the Australian Services Union (Qantas Airways Limited) Enterprise Agreement VI (ASU EA VI). Importantly, under ASU EA VI, it was acknowledged that all classifications had been benchmarked and agreed by the parties. As part of the making of ASU EA VI, Qantas developed a position matrix outlining positions and gradings that were covered by the 2000 Award as at 1 September 2002. The document was marked 'Commercial in Confidence' and sent to the AIRC; the document remains confidential. The benchmarked position descriptions were examples of how the descriptors within the classification structure should be applied to substantive positions. Copies of the benchmarked position descriptions were provided to the AIRC with the Union’s knowledge for Levels 3 and 4 within Airports and included a position description at Level 3, Customer Service Agent as a “Qantas Club Receptionist”. The duties of this Level 3 Customer Service Agent included to:

Greet Qantas Club members and guests, check access credentials and maintain a pleasant and professional Club atmosphere.

11. It is plain from this that, when positions were benchmarked and agreed to as between the Respondent and the Union, the agreed position was that Level 3 Customer Service Agents have always had responsibilities in greeting and checking-in Qantas Club members, including in an appropriately professional manner.” 16

[32] The Respondent submitted that this classification structure was carried forward until 2008, with the introduction of self-service kiosks and the only change to the classification structure included references to assisting passengers with checking in at the kiosks. The Respondent posited no other changes were made in relation to the roles in “Airports” classified at Levels 3 and 4.

[33] The Respondent stated that “Premium Lounge Entry Host” was not a substantive position and was merely a task that may be assigned to a pool of Level 3 Customer Service Agents for a particular roster and at a particular time. It was submitted that in practice, this task involved nothing more than standing outside of the Qantas Club area and assisting passengers with checking-in. The Respondent submitted that staff assigned this task were not provided with any additional training, did not assess the eligibility of passengers to access these areas and did not regulate entry into the actual Qantas Club. The Respondent posited that these tasks were performed by Level 4 Lounge Hosts at the entry to the PLE.

[34] It was submitted that the tasks performed by Level 3 Customer Service Agents were identical to the tasks performed that had always been carried out in the main hall area.

[35] The Respondent also referred to the ordinary principles of construction of industrial instruments in Golden Cockerel and as recently adapted in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Berri Pty Ltd (Berri). 17

[36] The Respondent submitted that in dispute concerning classifications it was relevant to take into account the principles applicable to the “principle purpose test” as advanced in Merchant Service Guild of Australia v J Fenwick & Co Pty Ltd. 18 The Respondent summarised that test as follows:

“…In considering the nature of an employee’s classification (or what industrial instrument or classification within an instrument applies to a particular employee's employment), it will not be based on an assessment of where the majority of time is spent by that particular employee, but rather the principal purpose for which the worker is employed. That is, it is a qualitative assessment rather than a quantitative assessment of the time spent on particular duties.” 19

[37] In Layton v North Goonyella Coal Mines Pty Ltd the Full Bench of the Commission held that the test requires “a qualitative assessment of the primary purpose of the position” rather than a “quantitative one based upon time spent performing certain types of duties.” 20

[38] The Respondent submitted that the classification descriptors applicable to Level 3 include extends to applying the “Qantas Club Access Policy and greets passengers at reception.” It was submitted that the Applicants’ reliance on the final dot point in Level 4 (“[p]erform check-in and customer service functions for Qantas Club and other loyalty program members…”) was not the “sole determinant” of whether a classification was at Level 4 and merely recognised that Level 4 employees also perform this function.

[39] Whilst the Respondent submitted that none of the conclusions it advanced were at odd with the plain and ordinary meaning of the classification structure, if ambiguity did arise, the historical application of the classification structure was consistent with its approach.

[40] It was submitted that the Applicant’s approach would lead to a situation whereby the classification of Customer Service Agents would change frequently throughout the day depending on the level of passenger they were interacting with.

CONSIDERATION

[41] In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri), 21 the Full Bench summarised the approach to be adopted with respect to the interpretation of enterprise agreements, as set out:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

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

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

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

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

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

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

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

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

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

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

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.” 22

[42] The Applicants submitted that the focus of the dispute is on duties undertaken by Airline Officers at the PLE at the domestic terminal and Premium Queue at the international terminal, and in particular whether the task of checking-in “premium” passengers (that is, Qantas Club, Business Class, Qantas Club Platinum One, Platinum and Gold, and One World Sapphire members) was a duty that should be performed by Level 4 “Airports” as opposed to Level 3 “Airports” who currently performed the duty. It was argued that meaning must be given to all the words in the Agreement, and as the checking-in of premium passengers was specifically cited in Schedule 1 of the Agreement as a typical duty of Level 4 staff who perform that duty should therefore be classified as Level 4.

[43] The Applicants noted that the Agreement differentiated between the check-in of non-premium passengers (as a typical duty of Level 3), and the check-in of premium passengers (as a typical duty of Level 4.) In the case of the international terminal, the Applicants submitted that the only place premium passengers and their guests were able to exclusively check-in at the terminal was using the Premium Queue, staffed by a Customer Service Agent classified at Level 3. It was stated that this was even more apparent at the domestic terminal with the somewhat recent opening of the Premium Lounge Entry (PLE). The Applicants submitted that the PLE architecturally segregated passengers, and that only premium passengers were entitled to check-in through this area.

[44] Mr Thomas on behalf of the Applicants conceded that with the introduction of the PLE, there had been no change to the duties performed by Level 3 Customer Service Agents, as the duty of checking-in customers remained unchanged. However, it was emphasised that the Agreement made the distinction between premium and non-premium passengers. 23 It was posited that whilst infrequently these staff would check-in non-premium passengers, the core function of staff placed at the PLE and Premium Queue was to check in premium passengers.

[45] The Applicants submitted that the onus was on the Respondent to prove ambiguity existed to overturn the otherwise, what it argued was the plain meaning of the words of the Agreement. In terms of remedy, the Applicants stated that they sought an interpretation of the Agreement, but that this was not presented to the Commission as a reclassification dispute. Further, whilst they did not seek to intervene in the operations of the business, should the staff who perform those duties be considered commensurate with classification as Level 4 “Airports”, their position would be that Level 3 “Airports” not be rostered to perform those duties. However ultimately, they submitted this would be a matter requiring further discussions between the parties.

[46] Counsel for the Respondent agreed that meaning must be given to the words in the descriptors in Level 3 and Level 4, and submitted that their construction was consistent with the literal meaning of the words, and in the event that ambiguity did exist, such should be assessed consistent with the history and context of the provisions.

[47] The Respondent argued that immediately prior to the introduction of the PLE, premium passengers were checked-in alongside non-premium customers and staff rotated from one counter to another. It was submitted that the introduction of the PLE effectively moved the premium check-in line to a dedicated area, however no additional training, no additional skills, no additional competencies were required. The evidence of Ms Heymann was that whilst the check-in lines are now separate, Level 3 Customer Service Agents continue to rotate from the check-in counters in the main hall area to the check-in counters in the PLE during a shift.

[48] Counsel for the Respondent argued that accepting the Applicants’ interpretation would mean that “any time an employee covered by this agreement serves a premium passenger in some kind of segregated function, they are performing level 4 duties.” 24

[49] Finally, in referencing the agreed statement of facts tendered in the proceedings, 25 counsel noted that the vast majority of premium passengers (who were entitled to check-in using the PLE) were checking-in using the main hall area. Accordingly, it was submitted that if the Applicants’ construction was correct, all staff who check-in premium passengers, regardless of whether this occurred at the PLE, Premium Line or on the floor in the main hall area, were performing a duty typical of Level 4.

[50] In referencing the principle purpose test as set out, the Respondent submitted that the descriptors for Level 4 must be read in context and that whilst the dispute only concerned the duty of checking-in premium passengers, it was incumbent on the Commission to consider this duty in context of the entire Agreement. Counsel examined this requirement in the following terms:

“So when one is looking at the typical duties, one is looking at them as representative of core functions and one of the problems with isolating one particular bullet point, to the exclusion of others, is that it is at odds, we say with respect, with the principles of interpretation.

But if one even looks at the particular bullet point, if we go to page 92, the actual text is:

to perform check-in and customer service functions for Qantas Club and other loyalty program members.

And Mr Thomas has spent a lot of time orally addressing the check-in component of that without focusing upon the text, the words “and customer service functions”. The word “and” is a conjunctive expression.

The limbs of this clause are that in order to classify within this particular bullet point, the person must be performing check-in and customer service functions, two limbs, for Qantas Club and other loyalty program members. The important words that are, if I can say with respect, being ignored other words “and customer service functions”.” 26

[51] In this regard, it was argued that staff performing check-in duties at the PLE and Premium Queue were not performing customer service functions for premium passengers. The Applicants submitted that the evidence demonstrated these staff were performing a “higher level of customer service,” with reference to a higher required dress standard, referring to customers by their surname, and offering a faster, more efficient service. The Respondent posited that the correct construction of the term “customer service functions,” refers to actual duties performed by Level 4 employees, such as dealing withdelays, re-bookings, cancellations and issuing of new tickets. It was submitted that Level 3 Customer Service Agents do not have the appropriate authorisation within the Respondent’s system to (and accordingly cannot) perform these “functions.” Furthermore, the Respondent advanced that this limitation on authorisation had remained the case since 2002.

[52] The Respondent submitted that this interpretation was consistent with the principles of interpretation as set out. The Respondent referred to the decision in Short v F W Hercus, 27 where Burchett J held:

“The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is part, or to other documents with which there is an association. Context may also include, in other cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used. Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.” 28

[53] The Respondent further referred to the judgment of the Full Court of the Federal Court in United Firefighters’ Union of Australia v Metropolitan Fire & Emergency Services Board, 29 where it was held:

“A narrow or pedantic approach is not to be taken. The intention of the framers of the document is to be ascertained objectively, bearing in mind that they are likely to have been people of a practical bent of mind. Their intention may well have been expressed in ways likely to have been understood in the relevant industry, rather than in “legal niceties or jargon.”; see Kucks at 184.

Clearly enough, the language of the instrument must be construed in its context, having regard to the subject matter and the wording of the entire agreement; Short v FW Hercus Pty Limited [1993] FCA 51; (1993) 40 FCR 511 at 518. The context will include the statutory context in which the agreement is made.” 30

[54] Accordingly, it was argued that the provision must be read in context and in the manner of a “reasonable person in the position of the parties would have understood the language used by the parties.” 31

[55] It was not in serious dispute between the parties that the nature of the duties of staff who check-in premium passengers had changed with the introduction of the PLE, nor was it in serious contention that the task of checking-in premium passengers required any higher level of skill compared to staff that check-in non-premium passengers.

[56] Schedule 1 of the Agreement states that:

“Typical duties within Airports at Level 4 include:

…

• Perform check-in and customer service functions for Qantas Club and other loyalty program members; and/or,

…”

[57] In dealing with the words of the relevant descriptor for typical Level 4 duties it is considered that there is no ambiguity to this provision. The provision is clear in that the duty involves both: functions relating to checking-in and functions related to customer servicefor Qantas Club and other loyalty program members. The evidence demonstrated that Level 3 Customer Service Agents were performing functions relating to checking-in premium passengers. However, as stated, this alone will not be sufficient to be a typical duty of Level 4.

CONCLUSION

[58] In considering the matter overall it is relevant to review that the Agreement was approved by Decision of 23 November 2016. 32 Written undertakings were offered by Qantas in relation to the Agreement, which were accepted by the Commission and are taken to be a term of the Agreement.33 The Agreement commenced to operate from 30 November 2016 and has a nominal expiry date of 30 June 2020.34 The ‘parties’ to the Agreement are obliged, by clause 3.2, to commence negotiations for a new enterprise agreement three months prior to the nominal expiry date.

[59] The Agreement expresses that it “will be binding on”:

• Qantas Airways Limited, Q Catering Limited, Q.H. Tours Limited and Qantas Information Technology Limited;

• All employees employed in Airline Officer classifications contained in Schedule 1 or in the QFIT classifications in Schedule 2; and

• The ASU.

[60] The Agreement replaces the Australian Services Union (Qantas Airways Limited) Enterprise Agreement 10 35 and does not exclude or displace the National Employment Standards36. The Agreement is stated to be a comprehensive agreement that is made in settlement of all enterprise bargaining claims and extra claims will not be pursued.37 Whilst the Applicants have emphasised this is not a reclassification exercise, this dispute reasonably amounts to an extra claim, if taken to its conclusion in seeking a reclassification, on the basis of the question for arbitration.

[61] In relation to Airline officers, employees must perform duties in lower grades of the Agreement if and when required, but do so without any reduction in salary. 38

[62] The classification structure for Airline Officers is outlined in Schedule 1 of the Agreement. 39 If required by the Respondent, an employee may temporarily act in a higher position or classification and the Respondent must pay the employee an allowance in accordance with the table contained in clause 25.1.1. Proportional higher duties allowances are payable for a partial requirement to complete higher duties in Level 5 or above.40

[63] Clause 35 of the Agreement deals with the classification structure in relation to Airline Officers and interacts with the salary structure in Schedules 3.1 and 3.2. The salary structure in Schedules 3.1 and 3.2 were introduced by EBA 3 and came into effect on 1 March 1997. 41 Clause 35 includes “translational arrangements” that continue to apply under “this Agreement”.

[64] Clause 35.2.5 provides:

“The entry level for positions in airports will be Level 3 except where level 2 airport activity is explicitly identified in the ‘typical duties’ in the descriptors for level 2, provided that employees (other than employees already classified at level 3 or above under this Agreement who transfer to a level 3 position in Airports) commencing in a level 3 position in Airports will commence at Level 2, year 1, and will be engaged at this level for a six month period. At the completion of six month’s (sic) service, an employee in this classification shall move to Level 3 year 1, and shall remain at Level 3, year 1 for a period of twelve months.”

[65] Clause 36 deals with anomalies and work value in relation to airline officers. Clause 36 states:

“As part of negotiating EBA 6 the parties reviewed the classification of positions covered by that Agreement. The outcome of this review was that a number of positions were reclassified or redesigned. The parties agree the outcome of this review addressed all anomalies and work value changes as at 1 September 2002 and as a consequence the parties agree that all positions covered by this Agreement are correctly classified.”

[66] Schedule 1 deals with the classification structure for Airline Officers. The Schedule:

“…contains descriptors covering level one to Senior Professional level two. Each level consists of generic descriptors of the skill level required and some typical duties performed at the level.”

[67] The ‘generic descriptors’ of each skill level of the Schedule are broken down into constituent parts:

“GENERIC DESCRIPTORS

The generic descriptors are broken down into three parts: knowledge, problem solving and accountability. The scope of each part is as follows:

KNOWLEDGE

This part covers the knowledge and skill required to complete the job in a satisfactory manner. It includes both the level and type of knowledge and experience.

PROBLEM SOLVING

This part covers the complexity inherent in the problem solving. It includes:

• The extent to which guidance is available and the extent to which rules and precedents apply,

• The level of analysis required and

• The extent to which judgement is required.

It includes both degree of difficulty and freedom to think.

ACCOUNTABILITY

This part covers the extent to which the position:

• Is accountable for producing an identifiable, measurable end result, and

• Has the authority to act and to approve or make decisions.

It includes:

• The type and extent of impact over organisational resources,

• Freedom to act,

• Impact on end result, and

• The scope and breadth of responsibility, including degree of responsibility for the work of others.

TYPICAL DUTIES

By providing examples and contextual information, the typical duties provide assistance in interpreting the generic descriptors.

Typical duties are representative of core functions and activities performed at a particular level in the business area concerned. This clause does not contain an exhaustive list of duties.”

[68] The Schedule provides some guidance on how the skill descriptors in the Schedule should be applied:

“APPLYING THE SKILL DESCRIPTORS

Positions should be evaluated as a whole after being:

• Reviewed against each of the descriptors for knowledge, problem solving and accountability , and

• Tested against the typical duties, starting with the relevant business area and then looking at other areas as required.

The evaluation should be consistent with other evaluations conducted using these skills descriptors. The evaluation will also take into account the bench line established by clause B4 of the Australian Services Union (Qantas Airways Limited) Enterprise Agreement VI.

The descriptors for knowledge, problem solving and accountability are graduated scales. Positions should be rated on these scales at the level of best fit, working up the scale. The typical duties are cumulative, so skills required at a lower level may be required at a higher level even though they are not specifically mentioned.

Where a skill is repeated at different levels it is mentioned at the higher level for context. Where this occurs the skill concerned should not be used as the differentiating factor to place a position above the first level where the repeated skill is mentioned.

These skill descriptors describe substantive roles, not training roles. A current or new employee who is training for entry to a position in a work area may be classified at a lower level until they acquire the skills and knowledge required for performance at the substantive level.

Functions that are undertaken in accordance with Qantas performance management requirements may continue to be performed at the level in each operational area that accords with practices as at September 2002.

The criteria detailed in this clause have been developed for the sole purpose of classifying positions. They do not circumscribe the right of the Company to arrange the work to meet operational needs and to require appropriate standards of behaviour and compliance with Company procedures and legislative instruments. Rearrangement of work by the Company does not preclude the reassessment or reclassification of positions.”

(underlining added)

[69] This guidance refers to clause B4 of the Australian Services Union (Qantas Airways Limited) Enterprise Agreement VI, which provides:

“ANOMALIES AND WORK VALUE

As part of negotiating this Agreement the parties have reviewed the classification of positions covered by this Agreement. The outcome of this review is that a number of positions have been reclassified or redesigned. The parties agree the outcome of this review has addressed all anomalies and work value changes as at 1 September 2002 and as a consequence the parties agree that all positions covered by this Agreement are correctly classified.”

[70] It is immediately apparent that this clause is in almost identical terms to clause 36 of the Agreement.

[71] The Union has accepted that the phrase in relation to level 4 does involve two limbs; check-in and customer service. 42 The Union accepts that the duties presently undertaken by a level 3 and level 4 officer, at least as they relate to check-in and customer service, has not involved a change to their duties.43 The Union submits that the words of the Agreement must be given meaning and the interpretation it commends to the Commission gives the words their plain and ordinary meaning; quite literally, check-in and customer service functions for Qantas Club and other loyalty program members. The interpretation commended by the Respondent, it was submitted, would ignore the plain and ordinary meaning of the words.

[72] Rather, the Union stipulates that the wording of the Agreement directs attention to the class of customer to which the discharge of those duties is directed. 44 It is accepted that presently the level 3 officers have limited access or authority in relation to some matters and if issues arise during check-in they may need to be referred to a level 4 officer.45 The officers presently undertaking check-in duties in the PLE were previously undertaking check-in duties on the premium queues in the main hall of the domestic airport.46

[73] The Union submits that the effect of clause 36 does not preclude their argument. The Union submits that the introduction of the PLE was the impetus for this dispute; the PLE was only introduced after the Agreement was concluded and cannot, therefore, be caught by clause 36 (the PLE was the subject of an exchange of correspondence on this basis between the parties). However, the Union submitted that had the practice been that level 3 employees were solely performing check-in functions on the premium queue in the main hall it would have been “the catalyst for raising this dispute sometime in the past” 47.

[74] In relation to remedy, the Union has accepted that it is not intending to advise the Respondent how it should conduct its business and there is no claim for back pay in relation to higher duties. 48 Rather, the Union’s position was that currently, if the proper interpretation of the Agreement is that the duties are properly classified as falling within level 4, then level 3 employees would cease to be rostered to perform those duties or, higher duties may be payable within the terms of the Agreement.49

[75] The Respondent has embraced some of the concessions made by the Union that, in practical terms, there has been no change in the way that the check-in function of premium or loyalty members has occurred, other than a geographical change with the move of the premium queue. The Respondent submits that the flaw with the Union’s argument is that the work being performed in fact by the employees is not level 4 because it does not involve both check-in and customer service functions. Mr Shariff in final submissions and in comparing level 3 and 4 stated

“…and level four Qantas agent includes "Updates passengers regarding delays, re-books passengers in the event of delay/cancellation, provides advice", so that's picking up what I took you to in the position description, "These activities relate to the core functions including perform functions at customer service desk". What he's referring to there is if you go back to the agreement in those bullet points for level four descriptors, we've all been focussing on that one that says "perform check-in" but if you look at the other ones on page 93, they include, for example, the third last one "Perform functions at customer service desk including flow forward, stand-by, upgrades and implement delay handling procedures".

There is evidence from both Mr Scott, who's an acting level four from time to time and he gave you evidence that he sometimes works at the service desk upstairs, up the other escalators from the main hall, and he also sometimes works down on the manager's desk in the main hall area and he gave you, Commissioner, evidence about the fact that when he's working as a level four he has higher authorisations and permissions that permit him to do certain functions that level three CSAs don't have permissions to do. 50

…

As we point out, there was some conjecture, I think. We accept that from time to time, level four CSAs also perform check-in functions, certainly in the domestic terminal, by coming down from the lounge roles, we accepted that, but our point is that level three CSAs have always been doing check-in functions, including in dedicated premium lines.” 51

[76] The Respondent does not dispute that the officers are performing check-in functions and that they are or may perform those functions in relation to Qantas Club or other loyalty program members. The essence of the argument is that the clause indicates it is an indicative duty of a level 4 employee that also involves customer service functions and that this must mean something more than simply performing any kind of customer service function in reference to a Qantas Club or other loyalty program member. 52

[77] Mr Shariff explained the differences and referred to Ms Waterhouse’s evidence as follows:

“She said that premium check-in had not always been performed by level three CSAs but she did accept that level threes had always performed check-in even though level four CSAs had also done so. Over the page, we deal with what the various matters that Ms Waterhouse dealt with and then at paragraph 53(n), level three CSAs, this was her evidence, cannot perform upgrades. They can vary seats within the passenger's class and this can be done at the premium counter or from the floor and they can't deal with all ticketing issues.

When Ms Waterhouse first commenced, both level three CSAs and level four CSAs performed check-in for premium customers but thereafter level four CSAs performed only some check-in at the domestic terminal as the majority is done by a level three. In the international terminal, level three CSAs have always performed the check-in since Ms Waterhouse commenced employment. Ms Waterhouse has been around since EBA8 was made in January 2008 and has been involved in subsequent negotiations and throughout this time level three CSAs have been performing check-in at the international and domestic terminal.

Why's all of this important? Because it's establishing all the objective facts of context and surrounding circumstances as to what level threes were doing. At (r), there has been no change in the duties of level three CSAs and there's been no further training provided for competency and skills. Despite the introduction of PLE, there has been no change to the work at the international terminal. She herself hasn't worked in the PLE area.

Ms Heymann's evidence is then dealt with at paragraphs 55 to 57 and, again, you'll see that it's much along the same theme but can I just especially draw your attention to paragraphs (f), "The area in which the PLEs work is in the area in front of the eligibility pods". I think we all know what that means. Subparagraph (g), "Before March 2017, there were two to three counters in the main hall of premium check-in". At this time, Ms Heymann would commonly check-in customers at premium counters and at non-premium counters.

"Level three CSAs would move from counter to counter. The only difference now from pre-March is that what used to be a premium queue is now the PLE area. Qantas Club reception desk would determine eligibility and this was done by a level three CSA", so this was the way it existed. "No training is being provided, the functions performed in PLE is check-in. These are the same functions in the main hall area".

"There is no additional function performed in checking in at the PLE area", as Mr Thomas, I think, accepts the check-in function is exactly the same. Ms Heymann is courteous, of course, and we don't take issue with any of that. Then you heard some evidence from Mr Scott. Subparagraph (a) "There are major differences between what level three CSAs and level four CSAs can do by way of authorisations and permissions. Despite the introduction of PLEs, there's been no change to the check-in function, roles and permissions, the kind of level of interaction with service levels and provision of the service".

"Level three CSAs have performed check-in for premium customers since 2002" and I think Mr Scott, from recollection, had been employed, I think, for 28 years and that's back in paragraph 58. Then we had Mr McKenzie's evidence and I've dealt with what was in his statement. In paragraph 62, we deal with what he said orally in cross-examination. At subparagraph (c), he emphasised that the contested descriptor of level four CSAs was not just check-in but had the additional words "customer service functions"…” 53

[78] The questions for arbitration are directed to specific tasks or duties, and how those tasks or duties fit within the classification structure in an industrial instrument. The task before the Commission is, however, to construe the Agreement in accordance with settled principles and the instrument itself.

[79] The Union’s preferred construction is to say that check-in functions are common to both level 3 and level 4 and the distinction appears to involve consideration by reference to the type of passenger. It is also plainly correct to say that the additional phrase “customer service functions” must have some meaning and play some part in this construction exercise. While this aspect of the clause was emphasised by the Respondent and, to some extent, downplayed by the Union, it was nevertheless not in dispute that it played a function in the clause.

[80] Mr Shariff submitted that the additional customer service functions are important and represented in the job descriptions. He stated:

“…I'm labouring these points is because Mr Thomas says well there hasn't been any common understanding or common agreement. We're saying there was, this was agreed. The level three CSA position was for Qantas Club reception and there was also a customer service function of that role.

However, Mr McKenzie explained the different functions of level four CSAs by indicating that there is a higher customer service function performed by level fours to the additional functions, it's doing all the associated things, past checking, managing delays, liaising with the customer, dealing with delays, dealing with re-booking, dealing with cancellations, all of these things that you would expect a level four service desk function to be performing outside the club and so on.

Ms Chapman then gave evidence… where she said, and I think Mr Thomas accepts, "There are no real differences associated with checking in a premium or non-premium customer" and I think Mr Thomas, in fairness to him this morning, accepted the actual function of check-in is no different which rather highlights the point.

Commissioner, you've been invited to interpret an agreement that applies beyond Brisbane airport. The agreement has two classifications in it, level three and level four. Mr Thomas accepts that the check-in function at level three and level four is exactly the same but says but if you're checking in a premium customer, you're a level four, which kind of begs the question why?

It's exactly the same duty, doesn't require any additional skill or competency and we say the answer doesn't lie in what Mr Thomas says to you. We say the answer lies actually in a text which has been glossed over which is it's not just perform check-in function. It's perform check-in and customer service functions and that's the missing piece and you'll see at paragraph 57 of that extract, Ms Chapman says the same process for checking in applies at international, there's no difference between what level three and level fours do there.” 54

[81] Construction of an enterprise agreement, as per the principles referred to, includes having regard to the language, its context and purpose. Context may include the text of the Agreement viewed as a whole, the provision’s place in the agreement and other matters. Contextual matters play some importance in this dispute. The Respondents submitted the interpretation exercise considers the ‘difference between constructional choice and ambiguity’. 55

“…to ascertain the objective common intention of the parties and that still requires you to have regard to the circumstances to determine whether there is ambiguity and they still require you to have regard to surrounding circumstances as an aide. There is ambiguity but not otherwise but they still require you, by reference to the High Court authority I took you to, to have regard to surrounding circumstances to determine objective purpose and context and that's the additional bit that I ought to have added there.

Then in final proposition there is then about the principle purpose test. I think I accept what Mr Thomas says about well we're not focussed on the person, whether the person's duties are principally within level three or level four, I accept that proposition, but what we're saying about the principle purpose test is you look at the classification of level three with all of its dot points and you look at the classification of level four with all of its dot points, not in isolation.

Then, in terms of contentions at 86, yes, we ask you to give ordinary meaning to the relevant words. What do the words "perform check-in and customer service functions for Qantas Club members" mean? We say you know what the meaning of the words "check-in" is because they're adumbrated in the descriptor in level three. It's all those things that are set out.

I think we're at agreement as to what the physical task of check-in - so you have the meaning of that, so the question then is you're doing all of that but you also have to do something else and it's the something else in the customer service function which is the real area of dispute. My friend has said we've put a gloss on the text check-in. Well, that's because we rather apprehended that there isn't any dispute about what the words "check-in" mean.

We know what they mean. The question is the composite phrase "check-in and customer service functions for Qantas Club members and other Loyalty program members". It's the meaning of the composite phrase that needs to be given effect to and my friend hasn't, in my respectful submission, really grappled with that and what we say about that is the words "customer service function" is not customer service, per se. If it was customer service, per se, then all the people - and you don't want to be disrespectful to all the people who work as level three CSAs who do perform customer service.

The word "function" has been introduced there objectively for an important purpose and Mr McKenzie gives you background to that. That types of functions that were being contemplated is an objective fact. It's an objective fact not because of what he says as to what the subjective intentions of Qantas were. It's an objective fact because of what the parties agreed in the benchmark process and so as we say, the word "function" suggests it's not just customer service, it's got to be you're able to do something.

You're able to do something that a level three can't do. What is that? Well they're the types of things for which level four have got permissions and authorisations.” 56

[82] Counsel for the Respondent emphasised the combination of check-in and customer service functions. 57 Counsel in support of this stepped through the higher levels of permission and authority relevant to level 4.

“That's right, and that has actually, as my instructor's reminding me, that's also the subject of that separate bullet point in the level four position descriptors. Then he's asked - in the EBA. At PN1392:

Improving seating allocation, can I suggest to you that level three CSAs can only improve seating allocation within the class or tier of ticket held by the customer?---When we're talking about seating allocation on that particular flight, again, not all level three CSAs have the roles and permissions within the Amadeus, et cetera, to be able to move customers around. The system can inhibit by showing vacant seats, et cetera, but that may not be the seat the customer wants.

PN1393:

What I'm really putting to you is that level four CSAs have a high level of authority to change seating allocations on any given flight?---Correct.

In terms of resolving baggage issues, would you agree with me that there's a specific task on the level four roster to deal with baggage issues?---Right. I'm not referring to those baggage issues, I'm referring to baggage allowances because the Amadeus Altea Check-in system is not always correct.

What I'm really putting to you is that when you say in paragraph five that you're graded to have the skills and knowledge to try and resolve problems, some of the things that you're mentioning are things that level four CSAs do, correct?---Correct.

The final sense of that paragraph, you say no matter where you serve you're expected to deal with the service

and we know that point, that was done at length. The customer service is the same everywhere.” 58

THE COMMISSIONER: “Just in regard to that, I'm not sure the evidence went that far but in terms of 1395, those Amadeus Altea Check-in issues with baggage, if that occurred within the PLE, whether level three, would they have to call for a level four?” 59

MR SHARIFF: “I think Ms Heymann's evidence was that she would need to call the manager and that manager was down the hallway, if you recall she pointed back at the counter 19 service desk.” 60

[83] Significant portions of the Agreement have been included earlier in the decision. Those extracts establish that the industrial parties in the past settled the operation of the classification structure which provided guidance in applying that structure. Of important note is that the guidance states that:

• Typical duties provide examples and contextual information;

• The typical duties are provided to give assistance in interpreting the generic descriptors;

• The typical duties are representative of core functions and are not an exhaustive list of duties.

[84] These propositions are not unusual in terms applying to classification structures in industrial instruments. However, the guidance goes on to establish that:

• Positions should be evaluated as a whole after review against each of the descriptors and testedagainst the typical duties;

• That evaluation “should be” consistent with other evaluations and “will” take into account the benchline established at the time of EBA6;

• The descriptors relating to knowledge, problem solving and accountability are graduated scales and positions are rated on these scales at the “level of best fit” working up the scale;

• Typical duties are cumulative such that duties in lower levels may accumulate and be required at higher levels even if not specifically mentioned;

• Where a skill is repeated at different levels, it is mentioned at the higher level “for context”;

• Importantly, where the skill is repeated at different levels the skill “should not be used as the differentiating factor” to place a position above the first level where it occurs; and

• The guidance has been developed for the sole purpose of classifying positions.

[85] The specific clauses that have been the focus of this dispute must be interpreted in the context of the clause and Agreement more broadly and its place in the Agreement. Whilst the Applicants have emphasised the class of passenger, the Schedule in which the clause is placed consists of “generic” descriptors. The typical duties are examples and contextual information. They provide assistance in interpreting the broader generic descriptor. The broader skill descriptors are for the purpose of classifying positions; and by inference not duties. Repetition of a skill “should not” be used as the differentiating factor to place the position in the higher level. Any evaluation “will” take into account the benchline that has existed for many years.

[86] This dispute is trying to classify a duty rather than a position and is attempting to use a repeated skill as the differentiating factor to place the position in the higher level or to apply a limitation between the different levels. Despite the submissions of the Union to the contrary if the Union’s contentions were accepted it would lead directly to what the Agreement says “should not” be done; differentiating on the basis of a repeated skill. By default the dispute is seeking a reorganisation of work, as a precursor to reclassification. It is noted that Mr Thomas has highlighted the introduction of the PLE. He noted that:

“The definition of 'benchmark', which came up in the hearing last week, in the Macquarie Dictionary, is about the measure of excellence. So, it is a new benchmark for a premium airport departure experience across the Qantas domestic network. For the respondent to simply say, "What we did is we just picked up a queue here and put it over there and nothing else has changed", well, their own words in the material they provided staff and the public belie that. In setting up the PLE, they fundamentally changed the expectations and, therefore, fundamentally changed the expectations on staff in meeting what they told the public they were providing.” 61

[87] The impact of the introduction of the PLE has been given serious consideration; the evidence establishes that the relevant persons are doing check-in functions and that they are doing so in relation to Qantas Club and other loyalty program members. The relevant persons have always done this and continue to do so whether it be in the main hall, premium queue or, more recently, in the PLE. However, the evidence does not establish that those persons are also performing the full level of “customer service functions” as that term must be interpreted in the clause as per the duties of the level 4 descriptor, taking into account the bench line established under EBA 6.

[88] The repetition of “check-in” in the typical duties is, consistent with the Agreement’s language, and context. This has the opposite effect to that submitted by the Union. The skill was included for context in that Level 4 Officers would also be required from time to time to perform, and do perform, check-in functions. Because of the operation of the repetition I am of the view that the focus of the clause is the customer service function in relation to Qantas Club and other loyalty program members. It is this function that is representative of the core functions and activities of the Level 4 and can be done in the context of check-in. I have noted the evidence of the experienced employees on behalf of the Union. 62

[89] Having considered the submissions of the parties, and the evidence on the application of the classifications, there is a more fundamental issue with the questions for arbitration. The questions for arbitration focus on a classification of the particular duties referred to. On a proper construction of the Agreement, and in particular Schedule 1, the classification exercise is done by reference to positions and, inferentially, not duties. It is my view that the questions as posed cannot be constructively answered in the manner proposed because the Agreement does not classify duties.

[90] However, what can be confirmed is that Check-in is a typical duty of both Level 3 and Level 4, Check-in is specifically repeated in both levels, where it appears in Level 4 it is for context. Where check-in appears in Level 4 it should not be used as the differentiating factor to place a position above Level 3 where check-in first appears. Positions must be evaluated as a whole and the evaluation will take into account the benchmark. There has been no change to the way in which check-in has been delivered to Qantas Club and other loyalty program members other than the geographical changes with the PLE and this does not, on its own, alter the interpretation approach to be used against the Agreement provisions.

[91] Due to these fundamental issues and the propositions, recounted above, it is not helpful to answer the questions in the way that they have been framed by the parties. The dispute, properly characterised, is whether Level 3 employees can perform check-in and customer service functions for Qantas Club and other loyalty program members at both the Premium Lounge Entry and the premium queue at the Brisbane International Terminal. On the evidence submitted and taking into account the construction and interpretation matters and, as set out, Level 3 Officers have always been performing the check-in duty as considered in the current matter, there has been no substantive change to this. On this basis I do not presently see any reason on the material why the performance of the check-in functions in the relevant areas by Level 3 Officers is prohibited, or requires re-evaluation, in the current terms of the Agreement. This though, as set out, only assesses the duty, which is contrary to the manner in which the Agreement provisions are framed.

[92] However, given that answers to the questions for arbitration, as set out, have been sought for the aforementioned reasons, the answer to both questions is Level 3.

[93] I Order accordingly.

[94] Whilst the interpretation exercise must be undertaken on the principles of interpretation, I consider it worth noting that the evidence provided by the Level 3 employees in this dispute made the task more difficult given their clear devotion to customer service and their experience and professionalism in discharging their duties.

COMMISSIONER

Appearances:

M. Thomas on behalf of the Applicants.

Y. Shariff of counsel instructed by Ashurst Australia on behalf of the Respondent.

Printed by authority of the Commonwealth Government Printer

1 “Submissions of the Australian Municipal, Administrative, Clerical and Services Union, Queensland Together Branch (ASU) on behalf of the Applicants” dated 23 January 2018 at para 14.

2 Ibid at para 20.

3 “Submissions of the Australian Municipal, Administrative, Clerical and Services Union, Queensland Together Branch (ASU) on behalf of the Applicants” dated 30 April 2018 at para 16; Transcript at PN842, PN1410 and PN1860.

4 [2014] FWCFB 7447.

5 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; RACV Road Service Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[2014] FWCFB 1629; Kucks v CSR Limited [1996] IRCA 166.

6 “Submissions of the Australian Municipal, Administrative, Clerical and Services Union, Queensland Together Branch (ASU) on behalf of the Applicants” dated 23 January 2018 at paras 28 – 30.

7 [2017] FWCFB 3005.

8 “Submissions of the Australian Municipal, Administrative, Clerical and Services Union, Queensland Together Branch (ASU) on behalf of the Applicants” dated 30 April 2018 at paras 42 – 44.

9 Statement of Leonie Waterhouse dated 21 January 2018.

10 Statement of Billy Colless dated 23 January 2018 at para 8.

11 Ibid at para 9.

12 Statement of Anthony Scott dated 22 January 2018 at paras 7 – 8.

13 “Submissions of the Australian Municipal, Administrative, Clerical and Services Union, Queensland Together Branch (ASU) on behalf of the Applicants” dated 30 April 2018 at para 27.

14 Ibid.

15 Ibid at para 56.

16 Respondent’s Outline of Submissions dated 20 February 2018 at paras 7 – 11.

17 [2017] FWCFB 3005.

18 (1973) 150 CAR 99.

19 Respondent’s Outline of Submissions dated 20 February 2018 at para 23.

20 Ibid at para 26; (2007) 166 IR 394 at [26].

21 [2017] FWCFB 3005.

22 Ibid at [114].

23 Transcript dated 25 July 2018 at PN94.

24 Ibid at PN282.

25 Exhibit 14.

26 Ibid at PN348 – PN352.

27 (1993) 40 FCR 511.

28 Ibid at 518.

29 (2006) 152 FCR 18.

30 Ibid at [52] – [53].

31 Respondent’s Outline of Closing Submissions dated 28 May 2018 at para 77.

32 Application by Qantas Airways Limited [2016] FWCA 8418.

33 Fair Work Act 2009 s.191(1).

34 Application by Qantas Airways Limited [2016] FWCA 8418 at [5].

35 Clause 5.1.

36 Clause 5.2.

37 Clause 6.

38 Clause 16.1.

39 Clause 24.1.

40 Clause 24.1.2(a).

41 Clause 35.1.

42 Transcript of 25 July 2018 at PN74.

43 Ibid at PN92 to PN94.

44 Ibid at 93.

45 PN119 – subject to Mr Scott’s evidence about his authorisation level; PN134 to PN153.

46 PN161 to PN168.

47 PN172.

48 PN212.

49 PN220 to PN225.

50 PN533 to PN534

51 PN578

52 PN511.

53 PN583 to PN589

54 PN601 to PN605

55 PN607

56 PN607 to PN613

57 PN1255 and PN1261

58 PN665 to PN672

59 PN673

60 PN674

61 PN844

62 PN833 to PN839

Ms Leonie Waterhouse v Qantas Airways Limited

[2019] FWC 2611

16 APRIL 2019

DECISION

INTRODUCTION

RELEVANT PROVISIONS OF THE ACT

RELEVANT PROVISIONS OF THE AGREEMENT

SUMMARY OF THE APPLICANTS’ SUBMISSIONS AND EVIDENCE

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

CONSIDERATION

CONCLUSION