National Jet Systems Pty Ltd v Australian Federation of Air Pilots
[2021] FWC 6197
•12 NOVEMBER 2021
| [2021] FWC 6197 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
National Jet Systems Pty Ltd
v
Australian Federation of Air Pilots
(C2020/504)
NATIONAL JET SYSTEMS PTY. LTD. PILOT ENTERPRISE AGREEMENT 2017
[AE428517]
Airline operations | |
COMMISSIONER HAMPTON | ADELAIDE, 12 NOVEMBER 2021 |
Dispute about matters arising under the enterprise agreement – Pilots’ activation from Reserve – whether right to refuse duty – whether allowance payable and in what circumstances – determination made – recommendation issued.
1. The dispute and its context
[1] This decision concerns an application brought under s.739 of the Fair Work Act 2009 (the Act) by National Jet Systems Pty Ltd (NJS) concerning the proper interpretation and application of the National Jet Systems Pty. Ltd. Pilot Enterprise Agreement 2017 1 (Agreement); being an enterprise agreement approved by the Commission on 25 May 2018.2
[2] NJS operates Boeing 717 aircraft under the QantasLink branding throughout the regional and domestic Qantas market on the east coast of Australia, between all capital cities and to regional destinations.
[3] At the time of the hearing in this matter, NJS employed approximately 184 pilots, made up of approximately 96 Captains and 88 First Officers (collectively the Pilots). All Pilots employed by NJS are covered by the Agreement.
[4] The dispute concerns a number of related matters including the payment of a “Duty Change Allowance” (DCA) in certain circumstances when a Pilot is “activated” from a period of Reserve, being a period when a pilot is not allocated (active) duty, but rather remains prepared to be called to duty, if required. There are also related issues in dispute, including whether the Pilots have a right to refuse an activation in these circumstances. It is common ground that the Commission is empowered by the dispute resolution procedure 3 (DRP) of the Agreement to determine the matter.
[5] I observe that the final determination of this matter has been delayed for many months, predominately due to 2 factors. Firstly, the impact of the Covid-19 Pandemic effectively meant that the operations conducted by NJS were significantly reduced for long periods and the parties, not surprisingly, concentrated on the more immediate issues. Secondly, NJS, which was previously owned by the Cobham Aviation Services Australia Pty Limited (Cobham), was acquired by Qantas Airways Limited (Qantas) during 2020. In that light, the parties to this matter – including Qantas for the first time, appropriately reviewed the issues and attempted to resolve the dispute by direct discussions before eventually seeking this arbitration.
[6] I understand that as a result of the operation of the DRP, the DCA has continued to be paid by NJS in certain circumstances following the initiation of this dispute at the workplace by the AFAP.
[7] Ultimately, I have now conducted a hearing in this matter and determined the issues in dispute as set out in this Decision. This included inviting supplementary submissions in light of some preliminary views that I had formed about the proper construction of the Agreement. This also involved some issues about the apparent focus in many of the agreed questions and elements which challenged the apparently common view of the parties on some implications about the consequences of the drafting of clause 31.11 of the Agreement. In that regard, as will become clear, I consider that both parties have adopted some positions on individual drafting issues that suit their immediate positions in this case; but which fail in my view to have regard to the coherent application of the Agreement when read as a whole. Further, some of the drafting evident in the Agreement is less than ideal and terms are not always used consistently. These aspects are important for the objective ascertainment of the meaning of the instrument and have been raised by the Commission in a manner that has provided natural justice to both parties.
2. Issues to be determined by the Commission
[8] The parties have agreed to put the following questions to the Commission for determination:
“Having regard to clauses 4.1, 31 (including 31.11) and 35 of the Agreement, in circumstances where a pilot that is rostered for consecutive days of Reserve is activated for flight, flight related or ground duty during that Reserve period:
1. Does the pilot, for the purposes of the Agreement, have a “sign-on port” or "sign-off port" whilst on Reserve, before being activated for flight, flight related or ground duty?
2. If the answer to question 1 is “yes”, and if the duty requires the pilot to change the pilot’s sign-on or sign-off port:
a) Does that pilot have a right to refuse such activation?
b) Is the pilot entitled to a duty change allowance in those circumstances?
3. If the answer to question 1 is “no”, does the activation for duty nevertheless involve a change to the pilot's sign-on or sign-off port?
If so:
a) Does that pilot have a right to refuse such activation?
b) Is the pilot entitled to a duty change allowance in those circumstances?
4. If the duty requires the pilot to overnight away from their home base:
a) Does the pilot have a right to refuse such activation?
b) Is the pilot entitled to a duty change allowance in those circumstances?”
[9] As would be clear from the above, the questions presuppose that the Pilot concerned has been rostered for consecutive days of Reserve. Further, each question is related to, or directly focused upon, the payment or otherwise of the DCA or the related right of the Pilot to refuse duty. Question 1 is associated with the existence of a Sign-on or Sign-off Port whilst the Pilot is on Reserve, and questions 2 and 3 are directly connected – collectively the sign-on and sign-off questions. Question 4 concerns the circumstances where the duty requires the Pilot to overnight away from their home base and the rights and entitlements that may arise in that context – the overnight question.
[10] I note that there are circumstances where the parties agree that a right to refuse activation from a period of Reserve and/or the payment of the DCA may arise – including in the case of what is described as a ‘Displaced Reserve” as defined in clause 1.4 (13) of the Agreement. In addition, NJS accepts that the DCA will also be payable if the Pilot is on a single day of Reserve and agrees (with less than seven days' notice) to be activated to an overnight Duty which involves a change to the Pilot's rostered Duty the next day, as that will involve a change to the Pilot's allocated Sign-on Port for the second day. I will briefly return to this aspect at the conclusion of the Decision but observe here that the questions and the determination of the Commission are not directed to those agreed circumstances.
[11] In broad terms NJS contends that there is no sign-on and Sign-off Port during the Reserve period and as a result, questions 2 and 3 do not arise. NJS further contends that the Pilots do not have a right to refuse duty (an activation off Reserve) including when the duty involves an overnight away from their home base and that the DCA is not payable.
[12] The Australian Federation of Air Pilots (AFAP) is covered by the Agreement and represents the Pilots in this matter. The AFAP contends that question 1 should be answered in the affirmative and that the Pilot’s home base will be the default port in all instances. The AFAP also contends that when activated there is a change in port and when this occurs, the Pilots concerned have a right to refuse activation and are entitled to the DCA where they agree. Further, the AFAP contends that each of the issues in the overnight question should be answered in the affirmative.
[13] Ultimately, I have determined that the DCA is payable in limited circumstances where a Pilot is activated from Reserve as contemplated in the agreed questions. The basis for, and consequences of, that finding are set out in the Decision that follows. A Recommendation to the parties is also outlined at its conclusion.
3. The relevant terms of the Agreement
[14] Without detracting from the terms of the Agreement more generally, the following provisions have a direct bearing upon the issues in dispute.
“4.1 Definitions
In this Agreement unless a contrary definition appears:
(5) "CAO" means a Civil Aviation Order.
… …
(7) "CAR" means Civil Aviation Regulation.
(8) "CASR" means Civil Aviation Safety Regulation.
(10) "Company Operations Manual" means approved Company Operations Manuals, including the Group Safety and Quality Manual "GSQM".
… …
(12) "Dead Head Travel" means all travel performed by a Pilot at the direction of the Company not associated with the actual operation of an aircraft, but required for the purpose of positioning for a tour of duty, or returning to Home Base or base of temporary transfer after a tour of duty. Dead Head travel constitutes Duty, Duty Time and Duty Travel.
(13) "Displaced Reserve" means a Reserve Duty which has been allocated in lieu of an originally rostered Duty.
(14) "Duty" means any task (including positioning} that a Pilot is required to carry out associated with the business of the Company.
(15) "Duty Time" means all duty time in accordance with CAO 48 and so far as the law otherwise permits.
(16) "Duty Travel" means any travel, other than as a crew member of an aircraft, which a Pilot undertakes at the Company's direction and includes Dead Head Travel, travel for the purpose of taking up a new base, either permanent or temporary, and any other travel for any purpose required by the Company. Duty Travel shall count as Duty Time.
… …
(19) "Flight Duty Period" (FDP) means a period of time that:
a) starts when a Pilot is required to report for a duty period in which they undertake one or more flights as part of an operating crew, and
b) ends at the later of:
i. the Pilot's completion of all duties associated with the flight, or the last of the flights; or
ii. 15 minutes after the end of the Pilot's flight, or the last of the flights.
… …
(24) "Home Base" means the city or town in which the Employer maintains a base and to which the Pilot is permanently assigned.
… …
(28) "Non-Flying Duties" means all rostered Duty Time not directly associated with operating a flight, including administration duties, Ground Training Duties, Dead Head Travel, and Duty Travel, but excludes waiting time as defined in clause 31.23.
(29) "Off Duty Period" means a period of time during which a Pilot is free of all duties and Reserve associated with their employment.
… …
(34) "Reserve" means a period during which a Pilot is rostered to be available to be assigned Duty.
(35) "Roster" means the published list of each Pilot's Duty.
(36) "Roster Period" means a complete calendar month. In the event of moving to a 28 day Roster Period, a set 28-day period as determined by clause 35.24.
(37) "Rostered Day Off" (ROO) means an Off Duty Period of at least 36 hours including two consecutive Local Nights.
… …
(42) "Substitute Day Off" (SDO) means a substitute Rostered Day Off that is earned and acquitted by a Pilot in accordance with the terms of this Agreement.
… …
31. Allowances and Benefits
31.1. Where for reasons of rostering or unserviceability of aircraft the Company requires a Pilot to remain overnight at a location other than the Pilot's Home Base, the Company, at the Company expense, shall provide for each Pilot Suitable Sleeping Accommodation and the applicable meal allowance.
31.1.1. The standard of accommodation will be a four star hotel. Specific facilities required and/or desirable in Company supplied accommodation will be detailed in Operations Manuals.
31.1.2. On any occasion that the standard of accommodation is not available at the overnight location, accommodation of a standard as near as possible to the required standard may be substituted.
31.1.3. In either event a layover allowance as prescribed at clause (1) of Schedule 2 shall be paid to the Pilot.
31.2. Where a Pilot stays at any designated place away from their Home Base the Company will at its expense provide the Pilot with transport, between the airport and their place of accommodation and return at the required time.
31.3. A Pilot, by giving the Company 48 hours written notice, shall be paid an Own Accommodation allowance as specified in clause ill of Schedule 2 in return for which the Pilot shall be responsible for securing their own accommodation and transport, and the Company shall be deemed to have discharged its obligations under clauses 31.1 and 31.2. The combined overnight allowance shall comprise considerations for accommodation, meals, transport and layover expenses.
31.4. If a Pilot is on Duty away from Home Base or is on a Flight Duty Period for more than 30 minutes of a meal period as defined in Schedule 2, either a meal of business class standard will be provided or the applicable meal allowance paid. Each Pilot shall be provided 1.5 litres of commercially prepared and bottled water, or an equivalent, per sector pair.
… …
31.9. If a Pilot, at the request of the Company, agrees to undertake Duty on a Rostered Day Off, DFD or while on recreation leave a Pilot shall be paid a Callout Allowance as per Schedule 1 clause (5). At sign on for Duty, the Pilot roster shall be amended to show a callout. A callout does not apply where the Company has merely enquired as to a Pilot's availability. The following provisions apply to the Callout Allowance:
(1) where a Pilot undertakes to Dead Head Travel the minimum Callout Allowance will be paid.
(2) where overtime rates of pay are applicable in addition to a Callout allowance, the Pilot is entitled to one allowance only, that being either the callout allowance or overtime rate, whichever is the greater.
(3) where a Duty extends into a Rostered Day Off, DFD or extends into a recreation leave day, the Callout Allowance will apply for the period worked from 2400 and a Substitute Day Off will be rostered as provided in clause 35.15. If Duty extends beyond 2200 hrs, but not beyond 2400 hrs before a Rostered Day Off, DFD or recreation leave day or if Duty is allocated after 2400 but before 0600, after a Rostered Day Off, DFD or a recreational leave day no Callout Allowance will apply, but a Substitute Day Off will be rostered or as agreed in Schedule 4.
(4) where a Pilot is called out on a Rostered Day Off, DFD or a recreation leave day, which subsequently extends into a day of Duty, Reserve, subsequent Rostered Day Off, DFD or Recreation Leave, the Callout Allowance shall be paid for the total Flight Time worked during the callout period.
(5) Where a Reserve period is activated and the Duty subsequently extends into a Rostered Day Off, DFD or recreation leave day, the Callout Allowance will be applicable from midnight at the commencement of the Rostered Day Off, DFD or recreation leave day.
31.10. If a Pilot agrees to undertake Duty on a Rostered Day Off or whilst on recreation leave the Pilot shall receive a day in lieu for each day worked (either a SDO or reallocation of recreation leave). Reimbursement for out-of-pocket expenses incurred can either be agreed in advance, or the Pilot can have reasonable out of pocket expenses reimbursed after the fact.
31.11. A Pilot shall be paid a Duty Change Allowance, the amount of which is detailed in Schedule 2, clause (8), where the Pilot agrees to change a rostered shift within seven (7) days and one of the following conditions apply:
• a Duty worked varies from the originally rostered shift through a sign-on time more than 15 minutes earlier than originally rostered; or
• the Duty worked results in a sign-off time which is four (4) hours or more later than originally rostered; or
• there are changes to the sign-on or Sign-off Port; or
• a Pilot agrees to extend a Duty to perform additional sector(s) to those originally rostered; or
• a Pilot agrees to start a Duty within the minimum notice required for a Reserve Period as specified in clause 35.6.
This clause does not affect a Pilot's right to refuse a Duty Change in accordance with clause 35.3.
Duty swaps made in agreement with another Pilot in accordance with clause 35.20 will not attract a Duty Change Allowance.
31.12. A Pilot shall be paid a Duty Change Allowance, the amount of which is detailed in Schedule 2, clause (8), where:
• the Duty worked results in a sign-off time which is four (4) hours or more later than the planned Duty; or
• there are changes to the Sign-off Port.
31.13. A Pilot will only be paid one (1) Duty Change Allowance per Duty Period.
31.14. Where a Pilot elects to and is approved to travel in their own time and Company crew transport is not available, the Pilot shall be entitled to use Company funded Cabcharge transport between the Company provided hotel and the airport.
31.15. Where a Pilot is required to carry out Duty Travel by road as directed by the Company, the Company will at its expense provide a premium taxi service.
31.16. The Company will provide Home Base car parking facilities for a Pilot's use for work related business, and where necessary will arrange transport free of cost to the Pilot between the car park and the terminal.
31.17. Duty Travel on international flights in excess of four (4) hours flight time shall be confirmed business class.
31.18. The Company will provide Pilots with an upgradeable code ticket for any schedule or training related Duty Travel by air. The granting of an upgrade by Qantas will be in accordance with the Qantas Policy for the granting of an upgrade for the Company Pilots. (Note: Qantas Policy does not form part of this Agreement)
31.19. All other Duty Travel by air will be commercial fares with Qantas group airlines.
31.20. The travel referred to in clauses 31.17, 31.18 and 31.19 must be by the most expeditious route available unless agreed by the Pilot.
31.21. If a Pilot is required to reposition for, or following, a Duty and requests to travel in their own time, such a request will be considered and may be approved where:
• There are no financial penalties incurred by the Company; and
• Sufficient notice is given to the Company.
31.22. It is acknowledged that Qantas provides, at its discretion, travel benefits to Pilots employed under this Agreement. Where these benefits are provided, the Company shall advise the details of those arrangements to Pilots and their representatives. These travel benefits do not form part of this Agreement. The following provisions apply to these arrangements;
31.22.1 No Company administrative fee will be charged for access to any Qantas travel benefits.
31.22.2. In the event of advice from Qantas that there will be a change to the travel benefits, the Company will consult with Pilots and their representatives.
31.23. A Pilot is entitled to a Waiting Allowance as provided in Schedule 2 for waiting time between operating sectors, or between operating sectors and paxing sectors.
31.24. The Company will provide each Pilot with an iPad by 1 July 2019. If an iPad is not provided by this date, an iPad Allowance as provided in Schedule 2 will apply.
… …
34. Hours of Duty
34.1. The Company shall roster and each Pilot shall fly a roster in accordance with the most restrictive of the Rostering Protocols contained in Schedule 4 to this Agreement, CAOs as amended or any concessions granted in writing by CASA as reflected in the Company Operations Manuals, and according to any other special considerations as specified at clause 35.
34.2. Flight Time
The Pilot's maximum Flight Time per Roster Period is 71 hours for a monthly Roster Period. In the event of moving to a 28 Day Roster Period, the Pilot's maximum Flight Time per Roster Period will be 65 hours.
35. Pilots Roster
35.1. Each Pilot agrees to work in accordance with a Pilot Roster, which will be prepared and published by the Company in accordance with this Agreement. The Roster may include hours in excess of the maximum Flight Time provided in clause 34.2
35.2. The Roster shall be distributed to each Pilot not less than 7 days before the beginning of the new Roster Period.
35.3. The Company will not change any RDOs, SDOs or GDOs after the Roster is published without prior agreement with the Pilot.
35.4. The Pilot agrees to accept Roster changes where at least 7 days' (168 hours) notice is given. However, once published, a Pilot must not be displaced without agreement from their rostered Duty period except for the following reasons:
• Disruption to service
• Check and Training
• Cancellation of a flight
• The Pilot has insufficient hours to complete the flight
Unless the Pilot and the Company agree, a Pilot does not have to accept a Roster change where less than 7 days' (168 hours) notice is given.
35.5. If a rostered Duty is changed within 7 days (168 hours) and the Pilot is placed on Displaced Reserve, this Displaced Reserve period must be within the original rostered period and may include a two hour buffer before that period. If a Duty is subsequently assigned that results in a Duty outside of the Displaced Reserve, the Pilot is entitled to refuse the Duty.
35.6. The minimum notice required to sign-on during a Reserve Period at home, or in suitable accommodation provided, is two hours. Where a Pilot's Reserve period is activated within 7 days, a Pilot may refuse a Duty that commences within the first two hours of the Reserve period.
35.7. The total period of any Reserve Period followed by an activated Flight Duty Period shall not extend beyond 18 hours.
35.8. If a Flight Crew member is called out from a Reserve Period, the Reserve Period will cease and the Flight Duty Period will begin at sign-on.
35.9. A Pilot must be contactable by telephone while on Reserve. Flight Duty assigned during a Reserve Period may commence up to 2 hours after the rostered end of the Reserve Period, however, the subsequent Flight Duty Period commencement time shall begin at the end of the Rostered Reserve Period. In any case the Flight Crew member must be notified by telephone within the Reserve Period.
35.10. The Company will not contact the Pilot during the 8 hours immediately prior to the commencement of a Reserve Period.
35.11. If a flight is delayed after sign on or within two hours prior to sign on, the original rostered sign on time shall be considered as the commencement of Duty for the purposes of the limitations of the CAO 48 Exemption (as amended), including extensions based on resting and sleeping facilities as appropriate. Operations will advise the Pilot of delays if they have not signed on and advise an amended time they are to report for Duty.
35.12. After the Pilot's roster has been published, the Company shall not allocate Duty to the Pilot on a Rostered Day Off other than by an agreed callout in accordance with clause 31.9.
35.13. A Pilot is entitled to take their Rostered Days Off at their Home Base.
35.14. For Trainee Pilots, Rostered Days Off may be allocated away from Home Base until completion of their endorsement training.
35.15. When a Pilot accepts a callout, the Company will roster a Substitute Day Off (SDO) in the current Roster Period to ensure compliance with CAO 48 or Exemption, as amended. Where the rostering of an SDO is not required to meet the requirements of the exemption it can, by agreement, be rostered in the Roster Period it was due to fall. Otherwise, the SDO will be rostered in consultation with the Pilot in the following Roster Period. Where the rostering of an SDO cannot be arranged in consultation with the Pilot in the following Roster Period, the Pilot will be permitted to have the day 'banked' for use at a later date.
35.16. Where a Pilot has provided the Company with notice of termination and has accrued unused SDOs that have been 'banked' for use at a later date, the Pilot's Roster during the period of notice shall be amended to facilitate the acquittal of the accrued SDOs during the notice period.
35.17. Pilots can seek specific Guaranteed Days Off (GDOs), to a maximum of four days per Roster Period in any combination with a maximum of nine days per calendar year. Application for a GOO must occur in advance of the normal roster build process and up to 12 months in advance of the requested days. A response to the application will occur within 10 days and will not be unreasonably refused. Once approved, the GOO can only be altered with the consent of the Pilot.
35.18. If a Pilot is unavailable for part of a Roster Period due to recreation leave, the Pilot may be rostered as normal for the remainder of that Roster Period. The Pilot's maximum Flight Time, as detailed in clause 34.2, will be reduced by 2 hours and 20 minutes for every day that the Pilot is on recreation leave.
35.19. The Company will publish simulator and line check due dates for each Pilot. Such checks will be rostered through the normal rostering system.
35.20. A Pilot may arrange mutual exchanges of Rostered Duty Period(s) with other Pilots. In all such cases not less than 48 hours' notice is to be given to operations staff. Automatic approval of exchanged Duty should not be assumed, however provided the exchange has no significant effect on the current or anticipated rosters, approval shall not be unreasonably refused.
35.21. The Company will maintain and operate a rostering system of work which will allow the Pilot to express rostering preferences, and which will take account of those preferences in roster building.
35.22. Split Duties will only be requested in order to meet short term emergency operational requirements. Where required for short term operational requirements, Split Duties will only be rostered with the Pilot's consent.
35.23. The Company agrees that effective Roster bidding is an important factor to improve Pilot roster satisfaction. To that end, the Company and the PRF will agree to the terms of a trial that will be implemented within three (3) months of this Agreement coming into force. The trial will:
• Allow Pilots to bid for specific times at or away from work
• Allow Pilots to bid for specific overnight ports
• Allow Pilots to bid towards minimizing or maximizing overnights
The Company commits to working with the PRF towards a process of continuous improvement in bidding processes and outcomes.
35.24 28 Day Roster
35.24.1. Following demonstrated completion of the matters below, the Company may implement a fixed 28 Day Roster by giving at least 3 months' notice to the Pilots and their representatives.
• That a changeover date and transition period is determined to enable a smooth transition from a monthly Roster to a 28 Day Roster Period; and
• That the Company is able to implement a 28 Day timesheet and fortnightly pay cycle that is aligned with the 28 Day Roster Period; and
• That Company Pilot roster software and associated systems are able to apply and manage a 28 Day Roster Period; and
• That Pilots haven been consulted about the pending implementation of the 28 Day Roster and any associated administrative arrangements.
35.24.2. Upon implementation of the 28 Day Roster, the following terms of the Agreement will change to give effect to the 28 Day Roster;
• clause 4 Definition (36)- Roster Period
• clause 29.2 - Remuneration
• clause 34.2 - Flight Time”
[15] The DCA is set out in Schedule 2 and is $500 for Captains and $325 for First Officers and would apply per occasion where due.
[16] Schedule 4 of the Agreement provides the roster protocols. Amongst other provisions, the schedule sets out:
4. Time Free of Duty
An RDO shall be at least 36 consecutive hours free from Duty. Two (2) consecutive RDOs shall be at least 60 consecutive hours free from Duty. Three (3) consecutive RDOs shall be at least 84 consecutive hours free from Duty.
5. Off-duty Periods
At Home Base, a Pilot's Off Duty Period must be the greater of 12 hours, or 12 hours plus 1.5 times the time that the previous FDP exceeded 12 hours.
Away from Home Base, a Pilot's Off Duty Period must be the greater of 11 hours or 11 hours plus 1.5 times the time the previous FDP exceeded 11 hours.
Before beginning a FDP or Reserve period, a Pilot must have had at least 36 consecutive hours off duty, including 2 local nights at home base, in the 168 hours before the projected end time of the assigned FOP or assigned Reserve period.
6. Reserve Periods
Reserve periods will be rostered in blocks no greater than three (3) consecutive days.
A Pilot will not be rostered continuous Reserve period longer than 12 hours.
A Reserve period which is completed without being activated must be followed by an Off Duty Period of at least 10 consecutive hours free of Duty.
7. Six Consecutive Duties
2 consecutive ROO's will be rostered before and after a run of 6 duties including Reserve periods.
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11. Maximum Duty Periods
The maximum number of rostered Duty hours and sectors in a Duty period shall be in accordance with the following table. These limits apply up until the commencement of Duty, after which, the limitations of the CAO 48 Exemption or successors apply in order to complete the objective of the rostered Duty. Number shown in brackets is the maximum Flight Time for that FDP.
Local time at Start of FDP | Maximum FDP and flight time (in brackets according to sectors flown | |||
1-2 | 3-4 | 5 | 6+ | |
0500-0559 | 11 (9) | 9 (8) | ||
0600-0659 | 12 (9) | 11 (9) | ||
0700-0759 | 12 (9) | 12 (9) | 11 (9) | 10 (8) |
0800-1059 | 12 (9) | 12 (9) | 12 (9) | 11 (9) |
1100-1359 | 12 (9) | 12 (9) | 11 (9) | 10 (8) |
1400-1459 | 12 (9) | 11(9) | 10 (8) | 9 (8) |
1500-1559 | 11 (9) | 10 (8) | 10 (8) | 9 (8) |
1600-2259 | 10 (8) | 9 (8) | 9 (8) | 8 (7) |
2300-0459 | 10 (8) | |||
All Positioning duties count towards the sector count in the above table.
12. Day Free of Duty (DFD)
DFD is a period of time during which the Pilot has not been assigned Duty nor required to be contactable. However, Duty changes in accordance with the clause 35.4 and clause 31.9 apply, including allocating a Duty.
4. The positions of the parties
4.1 National Jet Systems Pty Ltd
[17] NJS contends that the Commission should answer the agreed questions in the following terms:
“5. For the reasons set out below, NJS submits that the agreed questions ought to be answered as follows:
1. Does the pilot, for the purposes of the Agreement, have a “Sign-on Port” or “Sign-off Port” whilst on Reserve, before being activated for flight, flight related or ground duty?
ANSWER: No, the pilot does not have a sign-on or Sign-off Port whilst on Reserve.
2. If the answer to question 1 is “yes”, and if the duty requires the pilot to change the pilot’s sign-on or Sign-off Port:
a) Does that pilot have a right to refuse such activation?
ANSWER: Does not arise.
b) Is the pilot entitled to a duty change allowance in those circumstances?
ANSWER: Does not arise.
3. If the answer to question 1 is “no”, does the activation for duty nevertheless involve a change to the pilot's sign-on or Sign-off Port?
ANSWER: No.
If so:
a) Does that pilot have a right to refuse such activation?
ANSWER: Does not arise.
b) Is the pilot entitled to a duty change allowance in those circumstances?
ANSWER: Does not arise.
4. If the duty requires the pilot to overnight away from their home base:
a) Does the pilot have a right to refuse such activation?
ANSWER: No, there is no right to refuse, as there has been no roster change.
b) Is the pilot entitled to a duty change allowance in those circumstances?
ANSWER: No. No DCA is payable as there is no change on either day to the Pilot's sign-on or Sign-off Port because they never had one while on Reserve.” 4
[18] As to the intended operation of the Agreement more generally, NJS contends that a period of “Duty” is defined in clause 4.1 of the Agreement to mean “any task (including positioning) that a Pilot is required to carry out associated with the business of the Company.” As a result, a Pilot may be rostered for a variety of forms of Duty, the most common being “Flight Duty”, which is when the Pilot is required to operate an aircraft. Other rostered Duty includes (but is not limited to):
(a) attending courses or meetings;
(b) attending training, including flight simulator training; and
(c) “positioning”, which is where a Pilot is required to travel on a passenger flight for work purposes, including travelling to the location where the Pilot's Duty will commence or repositioning after Flight Duty.
[19] “Reserve” is defined in clause 4.1 of the Agreement to mean “a period during which a Pilot is rostered to be available to be assigned Duty.” NJS contends that a Pilot is not on Duty during Reserve. Further, when a Pilot is rostered for Duty, the Pilot's roster will include an assigned sign-on and Sign-off Port. The Sign-on Port is the allocated place at which the Pilot must physically sign on for Duty. If a Pilot's Duty involves positioning, the Pilot's Sign-on Port will be the location from which the positioning flight departs.
[20] In relation to the Sign-off Port, NJS contended that is the allocated location at which the Pilot's Duty ends. That is, the Sign-off Port will be the same as the Sign-on Port if the Pilot's Flight Duty consists of a return journey on the same day. However, the Sign-off Port can be different from the Sign-on Port in some instances. By way of example, the Sign-off Port will be different from the Sign-on Port where a Pilot is required to overnight as part of their Flight Duty.
[21] Further, NJS contends that a Pilot who is on Reserve is required to be available to be assigned Duty. The Pilot may be assigned any type of Duty during his or her Reserve period, but is most typically assigned Flight Duty. The main purpose of Reserve is to ensure there are a sufficient number of Pilots available to be assigned Duty to cover any unplanned absences or other delays or disruptions which would otherwise have the potential to affect operations.
[22] NJS contends that the Pilots are paid for being on Reserve as part of the annual salary they receive in accordance with Schedule 1 of the Agreement. Further, when a Pilot is rostered to be on Reserve for a particular day, they are only required to be on Reserve for a maximum period of 12 hours on that day. In accordance with the roster protocols contained in Schedule 4 of the Agreement, a Pilot is only able to be rostered on Reserve for a maximum of three consecutive days. Where a Pilot is rostered for two consecutive days of Reserve, it is typically referred to as being on “Double Reserve”.
[23] In relation to sign-on and sign-off associated with Reserve, NJS contends that:
• A Pilot is not required to sign-on or sign-off from Reserve. The Pilot is only required during their Reserve period to be contactable by phone and available to be assigned Duty. Assigning Duty to a Pilot during the Reserve period is typically called "activating" the Pilot off Reserve.
• The Pilot is expected by NJS to be at their Home Base when first activated off Reserve because the Pilot will be required to sign-on for Duty at the Pilot's Home Base. If the Pilot is activated off Reserve, the Pilot's Home Base will become the Pilot's Sign-on Port.
• Occasionally, a Pilot may be placed on Reserve while the Pilot is in an “away port” (that is, where the Pilot is staying in company-provided accommodation away from the Pilot's Home Base). In that case, again, the Pilot is not required to sign-on or sign-off from Reserve and is only required to be contactable by phone and available to be assigned Duty for the Reserve period.
• A Pilot will be notified that they are being activated off Reserve by either:
(a) receiving a phone call from Operations informing them that they are required for Duty and advising them of the relevant details of that Duty; or
(b) by logging into CrewNet themselves and seeing that they have Duty assigned to them which they are required to acknowledge through CrewNet.
• In either of the above cases, once the Pilot has been assigned Flight Duty, the Pilot will be aware of their:
(a) sign-on and sign-off time;
(b) Sign-on Port, which will be either the Pilot's Home Base or the away port if the Pilot is on Reserve at an away port; and
(c) Sign-off Port, which will be the location where the Pilot's last flight for the day ends.
• None of the above concepts is applicable to a Pilot on Reserve who is not activated during their period of Reserve because the Pilot is not required to sign-on or sign-off from Reserve.
[24] In that light, NJS further contends that under clause 35.6 of the Agreement, a Pilot must be given at least two hours' notice of being assigned Duty during Reserve, unless they agree to a lesser period of notice. Further, as also set out in clause 35.6 of the Agreement, a Pilot is also able to refuse any Duty assigned to them within the first two hours of their Reserve period, unless that Duty was assigned as part of a roster change which occurred with more than seven days' notice to the Pilot. In addition, if a Pilot agrees to either start Duty off Reserve with less than two hours' notice, or agrees to start Duty within the first two hours of their Reserve period where they have been activated with less than seven days' notice, NJS accepts that the Pilot will be entitled to a DCA payment.
[25] NJS also explained its position by reference to the concept of a “Displaced Reserve”. That is, where the Pilot was originally assigned to Duty which is subsequently cancelled. For example, where a Pilot was assigned to Flight Duty for a flight that is then cancelled, the Pilot may be placed on Displaced Reserve. In that connection, NJS contends that:
• The Displaced Reserve period is whatever time the cancelled Duty was scheduled for, plus an additional two hours at the beginning (as set out in clause 35.5 of the Agreement).
• During the Displaced Reserve period, unless the Pilot agrees otherwise, the Pilot must be given at least two hours' notice of being required for Duty.
• During Displaced Reserve, the Pilot is also able to refuse Duty where it results in the Pilot working outside his or her original Duty period (that is, outside the Displaced Reserve period), as set out in clause 35.5 of the Agreement. This includes where:
(a) the Pilot would be required to work past his or her original sign-off time; and
(b) there is a change to the Pilot's originally scheduled Sign-off Port.
• Displaced Reserve is different from Reserve for the purposes of the payment of the DCA because when a Pilot is placed on Displaced Reserve from a flying duty, the Pilot will have had an originally rostered Flight Duty. If the Flight Duty the Pilot is subsequently activated to off Displaced Reserve varies from the originally rostered Flight Duty in the ways specified by clauses 31.11 and 31.12 of the Agreement, the DCA is payable.
[26] NJS acknowledged that from time to time, changes are made to a Pilot's roster after it is published in CrewNet. Generally, a Pilot must be given seven days' notice of any changes to their roster. It posits that if the Pilot does accept the roster change with less than seven days’ notice, they may be eligible to receive the DCA. This is where (as set out in clause 31.11 of the Agreement) the roster change results in one of the following circumstances:
(a) the Pilot is required to sign-on for Duty more than 15 minutes earlier than originally rostered;
(b) the Pilot is required to sign-off from Duty four or more hours later than originally rostered;
(c) the Pilot's Sign-on Port or Sign-off Port changes;
(d) the Pilot works an additional flight sector than originally rostered; or
(e) the Pilot agrees to start a Duty with less than two hours' notice when activated off Reserve.
[27] However, NJS contends that the circumstances described in (a) to (d) above do not apply where a Pilot has been activated off Reserve because:
(a) the Pilot has no “originally rostered” Duty while on Reserve (because a Pilot on Reserve is not on Duty but is instead available to be assigned Duty); and
(b) the Pilot has no Sign-on or Sign-off Port while on Reserve, as described above.
[28] As a result, NJS posits that the only circumstance in which the DCA is payable under this provision is where a Pilot is activated off Reserve where the Pilot agrees to start a Duty with less than two hours' notice.
[29] More generally, NJS contends that there are two circumstances, where the Pilot is entitled to the DCA even where the Pilot's roster has been changed with more than seven days’ notice as set out in clause 31.12 of the Agreement. This is, where the Pilot's Duty changes so that:
(a) the Pilot is required to sign-off from Duty four or more hours later than the planned Duty; and
(b) there are changes to the Pilot's Sign-off Port.
[30] However, neither of these circumstances is applicable where a Pilot is activated off Reserve because the Pilot does not have any "planned Duty" where the Pilot is on Reserve, but is only available to be assigned Duty; and the Pilot has no Sign-off Port while on Reserve, as described above.
[31] NJS also contends that the Agreement specifies where consent is required and the activation off Reserve is not one of them (except Displaced Reserve).
[32] NJS accepts that the DCA will also be payable if the Pilot is on a single day of Reserve and agrees (with less than seven days' notice) to be activated to an overnight Duty which involves a change to the Pilot's rostered Duty the next day, as that will involve a change to the Pilot's allocated Sign-on Port for the second day. However, it posits that the DCA would not be payable, where the same Pilot was on double Reserve for Tuesday and Wednesday. In those circumstances, the Pilot would not be required to agree to the activation from Reserve as there would have been no relevant change to the Pilot's roster or to their Duty (given the Pilot would not have had any allocated sign-on or Sign-off Port for their two Reserve days) to trigger payment of the DCA.
[33] Accordingly, the basis for NJS’s position on the sign-in sign-off questions may be summarised as follows:
• A period of Reserve is very distinct from a period of Duty. A Pilot is not on Duty whilst on a period of Reserve. A period of Duty commences when, and only if, a Pilot is called to Duty during a period of Reserve – commonly referred to as activation. So much is clear from the defined terms in clause 4.1 of the Agreement.
• Whilst on Reserve (as distinct from Displaced Reserve), the Pilot is taken to be at his or her Home Base. There is no requirement (in theory or in practice) for the Pilot to “sign-on” or “sign-off” the Reserve period. The Pilot will only be required to sign-on if and when he or she is activated to Duty, and such Duty will commence at sign-on. So much is clear from the words of clause 35.8.
• The Agreement contemplates the Pilot being assigned Duty from a period of Reserve. That is to be expected. The Agreement does not contemplate a Pilot having a right to refuse activation to Duty except for the limited scenario expressly contemplated by clause 35.5. Namely, the assignment of Duty whilst on “Displaced Reserve” (what was originally a period of Duty), that results in a Duty outside of the Displaced Reserve, i.e. beyond the Duty to which the Pilot was initially allocated. Apart from that limited scenario, the Agreement does not contemplate (nor permit) a Pilot to refuse activation to Duty in circumstances where a Pilot that is rostered for consecutive days of Reserve is activated for Duty during that Reserve period.
• The above observations do not alter in the event that the activation requires the Pilot to overnight away from his or her Home Base. No right of refusal arises under the Agreement in that situation. The Pilot would, of course, be entitled to suitable sleeping accommodation and a meal allowance, in accordance with clause 31.1.
[34] As a result, NJS contend that:
(a) A Pilot does not have a “sign-on” or “sign-off” port during a period of Reserve, unless activated for Duty. If activated for Duty from the Pilot’s Home Base, the Home Base will be the “Sign-on Port” at the commencement of the Duty Period;
(b) A Pilot activated from a period of Reserve to a period of Duty does not change his or her “sign-on” or “sign-off” port, as there was no “sign-on” or “sign-off” port for the duration of the Reserve period until the Pilot was activated and assigned a sign-on and Sign-off Port;
(c) the answer to the first and third agreed questions must be in the negative; and
(d) the second agreed question does not arise.
[35] In relation to the overnight question, NJS contends that both components of agreed question 4, being questions (a) and (b), must also be answered in the negative, for the following reasons:
• The circumstance contemplated by the agreed question is a Pilot’s activation to Duty from consecutive (at least two) days of Reserve. Question 4 assumes that the activation to Duty will involve the Pilot remaining overnight at a port other than their Home Base during what was previously a Reserve period.
• The Agreement does not contemplate (nor permit) a Pilot to refuse activation to Duty in the circumstances contemplated by question 4. This is of course entirely consistent with the purpose of a Reserve period, whereby a Pilot must remain contactable and available to commence duty on the provision of the requisite notice. To read into the Agreement the ability for a Pilot to refuse such activation to Duty (through words that are not there), would be inconsistent with the purpose of Reserve and the scheme established by the rostering provisions in clause 35.
• The payment of a DCA only arises in the circumstances expressly contemplated, relevantly, by clause 31.11 of the Agreement. Those circumstances, or pre-conditions, are:
• 1. The Pilot agreeing to change a rostered shift within 7 days of the shift; and
• 2. Two: one of the listed scenarios applying to the agreed change.
• Dealing with the first of those pre-conditions, the scenario contemplated by question 4 simply does not satisfy the condition. This is because, implicit in clause 31.11 is the right of the Pilot to agree (or not) to the change to the rostered shift. No such agreement is required when a Pilot is activated from Reserve. There is simply no change to the rostered shift.
• The second pre-condition is similarly not met. This is because the only listed scenario which could be said to apply (there are changes to the sign-on or Sign-off Port) does not arise for the reasons articulated above. There is simply no change on either day to the Pilot's sign-on or Sign-off Port because the Pilot never had one while on Reserve.”
[36] In response to supplementary questions posed by the Commission, NJS contended, in effect:
• Clause 31.12 of the Agreement might inform the proper construction of the Agreement but is not relevant to the immediate issues.
• Clause 35.6 reinforces that it is only in 2 scenarios set out in that provision that the Pilot has a right to refuse activation off Reserve.
• The reference to an activation off Reserve in the last item of clause 31.11 was an example of imperfect drafting and not an indication that such an activation was a change to a rostered shift – which should be considered under the roster provisions of the Agreement.
[37] NJS relied upon evidence from the following:
• Gavin Irving – General Manager; 5 and
• Linda Gentilcore – Former Human Resources Business Partner with Cobham. 6
4.2 The Australian Federation of Air Pilots
[38] The AFAP contends that the agreed questions should be answered in the following terms:
“4. For the reasons set out below, the AFAP submits that the agreed questions ought to be answered as follows:
1. Does the pilot, for the purposes of the Agreement, have a “Sign-on Port” or “Sign-off Port” whilst on Reserve, before being activated for flight, flight related or ground duty?
Yes. The home base will be the default sign on and sign off port in all instances.
2. If the answer to question 1 is “yes”, and if the duty requires the pilot to change the pilot’s sign-on or Sign-off Port:
a) Does that pilot have a right to refuse such activation?
Yes.
b) Is the pilot entitled to a duty change allowance in those circumstances?
Yes.
3. If the answer to question 1 is “no”, does the activation for duty nevertheless involve a change to the pilot's sign-on or Sign-off Port?
Not in every instance, it will depend on the duty assigned
If so:
a) Does that pilot have a right to refuse such activation?
Yes.
b) Is the pilot entitled to a duty change allowance in those circumstances?
Yes.
4. If the duty requires the pilot to overnight away from their home base:
a) Does the pilot have a right to refuse such activation?
Yes
b) Is the pilot entitled to a duty change allowance in those circumstances?
Yes. 7
[39] Fundamentally, the AFAP’s position is that a period of Reserve is a form of Duty. It must be detailed in a Pilot’s roster. The roster must list the duties of a Pilot, and for CASA regulatory reasons Reserve must be monitored and recorded and the Pilot is clearly not “off duty”. Therefore, a period of Reserve is a form of Duty in accordance with the relevant agreement definitions and CASA Regulations.
[40] Further, the AFAP contends that all parties and witnesses agree that a pilot is assigned a home base, and unless indicated otherwise, a Pilot will be deemed to be on Reserve at their home base and if activated will sign-on and off at their Home Base. Accordingly, while a Pilot will not physically sign-on for a Reserve (but for every practical and industrial sense they have), any form of subsequent assignment works on the premise or default position that it would be from their home base. For the purposes of this dispute, as soon as the pilot then faces a night away from their home base the DCA clause is enlivened as the Sign-off Port will not be the Pilot’s home base, nor will be the subsequent sign on.
[41] The basis of the AFAP’s approach may be summarised as follows:
• There was an agreed intention at the time of the making of the Agreement, which was confirmed prior to its approval and subsequently, and NJS is only seeking now to argue a contrary view due to operational changes leading to cost issues.
• The context, content and conduct all supported the approach contended by the AFAP.
• The approach now contended by NJS involves a “a very narrow, sterile and overly pedantic interpretation of terms within the Agreement and their application” and disregards the agreed operational practice of the respective clauses.
• The ‘Definitions’ detailed within the Agreement and the Regulations and Orders made by the Civil Aviation Safety Authority (CASA) to which NJS (and any airline) must comply with, give both the parties to the Agreement and the Commission a clear position of just how a period of reserve should be viewed. In particular (with emphasis provided by the AFAP added):
“(14) “Duty” means any task (including positioning) that a Pilot is required to carry out associated with the business of the Company.
(15) “Duty Time” means all duty time in accordance with CAO48 and so far as the law otherwise permits.
(29) “Off Duty Period” means a period of time during which a pilot is free of all duties and Reserve associated with their employment.
(34) “Reserve” means a period during which a pilot is rostered to be available to be assigned a duty.
(35) “Roster” means a published list of each Pilot’s Duty”
• The above definitions are then read in conjunction with the relevant CASA Regulations and Orders which are addressed within the evidence provided to the Commission and include:
• A binary perspective that a Flight Crew Member (FCM) is either on duty or off duty, would lack accuracy to the point where it could be said that this is untrue.
• The three definitions listed above [duty, off-duty and standby] have overlapping aspects. An accurate reading of these should conclude that work arrangements for FCMs do not fluctuate between a binary on or-off-duty arrangement.
• “Standby” is a work function associated with an air operator’s business and the relationship between standby/reserve and subsequent flying duties to the extent that holding oneself ready for a flight duty is a function of a standby period and it is associated with an FCM’s employment. From a fatigue management perspective, this results in specific regulations that require changes to the Flight Duty Period (FDP) when an FCM has been called out from a period of standby.
• It is necessary for an AOC holder to hold certification to operate includes that “AOC holders must provide the regulator a compliance statement that outlines that they acknowledge their responsibility to abide by the applicable fatigue management regulations and adopt them into their own operations manuals and practices.”
• Accordingly, the AFAP submits that it is abundantly clear that when on a period of Reserve, a pilot is not ‘Off Duty’. The pilot must have periods of Reserve detailed in their personal roster. The rosters list each ‘Pilot’s Duty’. In addition, periods of Reserve must be monitored and recorded arising from CASA regulations (further reinforcing that a Pilot is not off duty), and a duty is any task required of the company. As a Pilot on Reserve is paid to be ready for activation (they are not free to conduct themselves in any manner other than to be “activated”). This period of Reserve has direct implications on subsequent periods of flight duty and therefore every factor points to Reserve being (a form of) duty.
• Despite NJS’s ‘expectation’ that the Pilot will be at their home base and that activation from Reserve will be from the Pilot’s home base its position then seemingly centres their submission on the sole fact that that a pilot does not physically sign-on for a period of Reserve. However, it is clear that by virtue of their roster, to which they must comply, they have in every logical sense “signed on” (for duty). However, nothing defines “signing-on” as the being the determinant of whether a Pilot is on duty. Performing duty is the determinant of being on duty. Similarly, a Pilot who has not been activated during a period of Reserve duty is also not required to “sign-off” at the end of that Reserve period. The logical, but non-sensical, extension of the applicant’s submission is that if the Pilot neither “signs-on” nor “signs-off” in that circumstance, does that mean they were never on Reserve? The AFAP submits that the Pilots were always on duty, and that duty was a Reserve period.
• The construction of the Agreement in relation to clause 31.11 is such that when a Pilot is rostered on consecutive Reserves and is assigned a Duty necessitating an overnight away from the Home Base then the third bullet point (changes to sign-on and off ports) is automatically enlivened enabling the receipt of the DCA payment. Furthermore, the AFAP has provided witness evidence that clearly confirms this specific DCA payment was enabled with the third bullet point of clause 31.11, was intended by all parties and paid as intended.
• The evidence of the negotiations for the Agreement, goes to the heart of intention of the Agreement. This includes how:
• the establishment of the DCA was “linked to the right of refusal of an activation off a Reserve” and was designed “as an initiative to militate against pilots refusing”.
• prior to the Agreement the pilots “enjoyed the right to refuse an activation off Reserve where that activation involves multiple sign on/off ports”.
• the Agreement had the “objective of providing an incentive by way of compensation when a pilot agrees a duty change, being an incentive to agree the duty change”.
• the lead NJS negotiator, Russell Dyer of Cobham, when answering questions from a pilot in a pre-agreement approval pilot roadshow in relation to DCA off Reserve, “confirmed to that pilot that the DCA was payable in that circumstance and for each event of sign on/off”
• “We were met with this challenge in a limited number of matters involving the Agreement, one of which was the payment of the DCA involving multiple ports off a Reserve Duty and the right of refusal”.
• There was an accepted understanding from the AFAP and NJS negotiators that, all issues were resolved in accordance with the understandings reached during the negotiations including in relation to the subject matters of the dispute – both a right to refuse and the payment of the allowance following an activation off Reserve Duty involving multiple sign on/off ports.
[42] In response to supplementary questions posed by the Commission, the AFAP contended, in effect:
• Clause 31.12 of the Agreement might inform the proper construction of the Agreement but is not relevant to the immediate issues but for different reasons than those stated by NJS.
• The right to refuse an activation off Reserve is governed by Clause 35.4 and this reinforces that such an activation is a change in rostered shift so as to fall within clause 31.11.
• The reference to an activation off Reserve in the last item of clause 31.11 is not designed to address, or relate to the issues in dispute, namely overnights away from home base from a Reserve activation. This is due, in part, to the fact that this item refers to a change in Duty rather than a roster change. In that regard, “the parties were attempting to address specific operational matter, while simultaneously relying upon understood practice and regulation to underpin other clauses. Not ideal, merely a fact of life in the tortuous task of drafting Agreements.” 8
[43] The AFAP relied upon evidence from the following:
• David Stephens – AFAP Senior Industrial Officer; 9
• Lachlan Gray – AFAO Safety and Technical Officer; 10
• Matt Scott – NJS Captain (Boing 717); 11
• Travis Smith – NJS Captain (Boing 717); 12 and
• Travis Cook – NJS Captain (Boing 717). 13
4.3 NJS in reply
[44] NJS further posits that each of the propositions advanced by the AFAP should not be adopted. It contends that:
• Post agreement conduct can only be relied upon where it evinces a clear and mutual subjective intention as to what the instrument meant. There was no mutual intention as to when the DCA would be payable at the time the Agreement was made. There is an explanation as to why the DCA allowance was paid contrary to view being adopted by it.
• The notions of “Duty” are not considered at large when interpreting the Agreement. Rather, when reading the provisions of the Agreement, it is important to have regard to the definitions employed throughout the Agreement, as the defined terms – objectively – were used in the Agreement by the parties to connote the meaning attributed to those defined terms. the parties’ objective intention was that in instances where the capitalised terms were used throughout the Agreement, those terms would be given the meaning set out in cl 4.1. Accordingly, a period of “Reserve” is contemplated separate from “Duty” and “Off Duty Period”. “Reserve” is said to be a period where a pilot is rostered to be available to be assigned “Duty”. It follows that “Reserve”, for the purposes of the Agreement – not at large, or for some other purpose – is not a period of “Duty”, as defined in the Agreement. Further, the requirements of a Pilot who is on Reserve do not fall within the definition of “Duty” contained in the Agreement. A Pilot who is on Reserve is only required to be contactable by phone and available to be assigned Duty if required. The Pilot is not required to carry out any “task” for or associated with the Applicant's business during a period of Reserve:
• The third contention calls in aid what is said to be the parties’ subjective intention when negotiating for, and agreeing to, the terms of the Agreement. In that regard, the Respondent’s contentions are both factually and legally flawed.
5 The required approach to the construction of the Agreement
[45] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent comprehensive statement of the principles by the Commission was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited14 (AMWU v Berri) in the following terms:
“[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 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.”
[46] This is a non-exhaustive statement of the principles to be adopted15 and I have applied this approach in determining this dispute.
[47] In Geo A Bond & Co Ltd (In Liq) v McKenzie,16 (Geo A Bond) 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.”
[48] 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.”17
[49] Further, where the meaning of a provision of an enterprise agreement is unclear, a construction which tends to promote the objectives of the Agreement is to be preferred. 18
[50] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd19 in the following terms:
“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.
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 a part, or to other documents with which there is an association. Context may also include, in some 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.
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.”20
[51] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia21 in the following terms:
“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:
‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’”
[52] It is well established that terms are not easily implied into enterprise agreements.22 This is reinforced by the approach adopted in AMWU v Berri, and the implications of s.739(5) of the Act that prevents the Commission from making a determination that is inconsistent with the terms of the approved enterprise agreement and the scheme of the legislation that permits variations only in certain defined circumstances. Implied terms must satisfy a number of prerequisites.23
[53] More recently, as relied upon by both parties in this matter, the Full Court of the Federal Court in WorkPac Pty Ltd v Skene24 (WorkPac) also provided the following convenient summary of the required approach:
“[197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context. The interpretation “… turns on the language of the particular agreement, understood in the light of its industrial context and purpose …”. The words are not to be interpreted in a vacuum divorced from industrial realities; rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament. To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced.”25 (citations omitted)
[54] The above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention of the Agreement based upon the language and terms of the instrument, when read as a whole, and considered having regard to its context and purpose. Context includes legislative framework and the history of the provision. References to common intention of the parties are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement.
[55] For completeness, I observe that the Commission is not empowered to grant some form of declaratory relief.26 Rather, the Commission is determining the proper application of the Agreement in order to determine the dispute between the parties about that instrument under the terms of the agreed dispute resolution procedure.27
6. The practical context
6.1 Observations on the evidence and the basis of certain findings
[56] None of the witnesses were required for cross-examination and the various witness statements were ultimately admitted on a conditional basis. That is, the Commission would subsequently determine relevance and weight considering some objections advanced by the parties. The nature of the objections and my approach to these matters may be summarised as follows.
[57] To the extent that the evidence referenced the bargaining discussions leading to the approval of the 2016 EA or earlier instruments, I have considered that evidence subject to the observations made in the leading authorities about the potential use to which that material may be put in the present context.28 In particular, I have treated the subjective views and other interpretative opinions of those involved in the negotiations as submissions unless that “evidence” fell within the narrow scope of material that properly informs the objective intention.
[58] Further, to the extent that any of the witnesses expressed contemporary views about the proper application of the Agreement to the dispute or the effect of the facts that they depose to, these are matters for the Commission itself to determine and I have also treated that material as submissions.
[59] There were also some factual disputes between several of the witnesses. These included:
• Whether Mr Dyer, Cobham’s lead negotiator, gave a response to a question at a pre-agreement approval roadshow in Canberra during March 2018 that was consistent to the AFAP’s position in this matter – the roadshow response; and
• The circumstances in which Ms Gentilcore issued an email on 10 August 2018 29 clarifying that the Pilots on multiple day Reserves will be entitled to the DCA payment and whether this reflected an agreed understanding as to how the provisions were intended to apply or rather as a concession made as a matter of industrial pragmatism at that time – the 10 August 2018 email.
[60] In relation to the roadshow response, Mr Dyer was not called to give evidence. I was not asked to draw a negative inference from this. Mr Stephens and Ms Gentilcore, who both attended the roadshows concerned, gave differing accounts, but as stated above were not cross-examined. Mr Stephens’ evidence included the following:
“[16] As indicated above, following the negotiations and agreement on drafting, the parties embarked on the roadshow. As indicated, Russell Dyer and I were constant attendees at each venue/base. Relevantly, at the Canberra base meeting of the roadshow which was held in the second week of March 2018 and attended by, to the best of recollection, Russell, Belinda, Rachel, Jani and me (Linda may have been present but I cannot be certain), a specific question was asked by a pilot seeking clarification on the specific question of the DCA payment in circumstances of accepting an activation off where that activation involved multiple ports. Russell confirmed to that pilot that the DCA was payable in that circumstance and for each event of sign on/off. I specifically recall this question and Russell’s response because it was a question that digressed from the standard fare of questions such as (especially) back pay or matters specific to an individual personal circumstances such as part time.” 30
[61] Ms Gentilcore’s evidence about this matter included the following:
“13. There were a total of seven “roadshow” meetings, which were held in each of the locations referred to in paragraph 11 of the Stephens Statement, plus Hobart and Darwin. I attended each of those meetings. I do not recall Mr Dyer giving the response attributed to him in paragraph 16 of the Stephens Statement during the roadshow meeting in Canberra.
14. The statement attributed to Mr Dyer in paragraph 16 of the Stephens Statement is also inconsistent with what I understood, based on my discussions and interactions with Mr Dyer at the time of the negotiation of the Agreement, to be Mr Dyer's view of the purpose of the DCA and the circumstances in which it would be paid. I understood, from those interactions and discussions, that Mr Dyer's view was consistent with what I have set out in paragraphs 7 and 8 above.” 31
[62] For reasons that I will return to, the subjective views of the negotiators are not of itself relevant to ascertaining the proper meaning of an enterprise agreement. Statements, particularly those formally provided to employees as part of the pre-approval stages of such an instrument, may be of assistance to ascertain the common objective intent. 32 In this case, both Mr Stephens and Ms Gentilcore have given evidence of their respective recollections. In the absence of any challenge to that evidence I am required to resolve the dispute based upon the evidence that has been led.
[63] I accept that the DCA issue was discussed during the March 2018 roadshow in Canberra and that Mr Stephens considered that the response was consistent with the view advanced by the AFAP concerning the payment of the DCA in these proceedings. That is, Mr Stevens understood that Mr Dyer accepted that the DCA would be payable where there was an activation off Reserve where that activation involved multiple ports. However, given the contrary evidence of Ms Gentilcore, including that associated with how the Agreement was understood by NJS at the time, the absence of context for the response provided by Mr Dyer, the limited explanation provided for any view that was communicated, and the fact that any response was not given formally across the Pilot group, I cannot be satisfied that this response represents the common contemplation or common assumption of the parties.
“Care must be taken … to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.”
[96] I have earlier made certain factual findings about the 10 August 2018 email. In light of those findings and the approach evident in the authorities, I accept that Ms Gentilcore was making a statement on behalf of NJS and not merely expressing a personal view. Further, NJS was clarifying how the DCA would be applied for an activation from a multi-day Reserve. The clarification also involved the expectation that the Pilots would accept a duty from Reserve, with any extenuating circumstances being dealt with on a case by case basis. However, for reasons also set out earlier, I accept that this clarification was provided on the basis of what might be described as industrial pragmatism, rather than a formal concession that the Agreement required that the DCA be paid in the circumstances set out in the email.
[97] I observe that the AFAP, 41 including in conjunction with the TWU,42 issued advice to members in relation to the payment of the DCA and the right to refuse duty off a Reserve shift, consistent with the position advanced by it in this matter. Whilst this confirms the genuine view of the Unions concerned, there is no evidence that this communication was endorsed by NJS.
[98] It is common ground that in or about November 2019, NJS changed its practice in relation to the payment of the DCA in connection with activation from Reserve. That is, to reflect the approach that is asserted by NJS in this matter. This became the subject of a dispute that ultimately led to the present application.
[99] As a result, the pre-agreement and post-agreement conduct is broadly relevant but is not decisive in ascertaining the objective intention of the Agreement when applied to the present dispute.
7.2 The objectively intended operation of the Agreement relevant to the agreed questions
[100] I have applied the approach to the proper construction of an enterprise agreement set out earlier in this decision starting with the terms of agreement itself. In relation to the relevance of the negotiations I have as set out above considered this context without regard to the subjective views of the negotiators. Without repeating the earlier discussion, evidence of prior negotiations is admissible to the extent that it establishes objective background facts known to all parties and the subject matter of the agreement; notorious facts of which knowledge is to be presumed; and evidence of matters constituting a common assumption. However, a cautious approach to reliance upon evidence of prior negotiations and post agreement conduct is warranted because of the diversity of interests involved in making an enterprise agreement.
[101] As set out in the authorities, regard may be had to this context in determining whether the provisions of the Agreement are ambiguous as well as for the purposes of resolving any such ambiguity. Also, consistent with the authorities outlined earlier, language considered in its context will often have a clear meaning and context will often not displace that meaning – “but not always”.43 Further, in seeking the common objective intention I have had regard to the Agreement as a whole, including its approach to rosters and duty, and the structure and the combined effect of the relevant provisions.
[102] As a result, it is appropriate to commence with the terms of the Agreement itself. Although the instrument must be considered as a whole, I begin with the notions associated with the hours of duty and the roster arrangements set out in clause 34 and 35 of the Agreement.
[103] The full terms of these clauses have been set out earlier in this decision. Clause 34 constrains the roster and its provision of flight time within the “most restrictive” of the roster protocols in schedule 4 (subject to certain caveats), 71 hours for a monthly roster period and 65 hours for a 28 day roster period.
[104] The agreed questions are all premised on the notion that the Pilots concerned have been rostered for consecutive periods of Reserve. Schedule 4 provides for this, subject to the “protocols” that:
• Reserve periods will be rostered in blocks no greater than three (3) consecutive days.
• A Pilot will not be rostered continuous Reserve period longer than 12 hours.
• A Reserve period which is completed without being activated must be followed by an Off Duty Period of at least 10 consecutive hours free of Duty. 44
[105] Importantly, clause 35 commits each Pilot to work in accordance with a Pilot roster than is to be prepared, published and issued by NJS not less than 7 days before it commences. This reinforces the importance of the roster in establishing the work and duty requirements. The provision (clause 35.3) also expressly restricts NJS’s capacity to change any RDO, SDO or GDO after the roster is published without prior agreement with the Pilot concerned. This is reinforced in terms of the RDO at clauses 35.12 and 35.15.
[106] Clause 35.4 also confirms that the Pilot will agree to accept roster changes where at least 7 days (168 hours) of notice is given and is not obliged to accept a roster change where less than 7 days notice is given. This provision must be read in conjunction with the entirety of clause 35, including clause 35.6, and the other provisions of the Agreement.
[107] Clause 35 provides certain parameters for the operation of Reserve periods including the minimum notice to be provided by NJS (2 hours – clause 35.6) and the capacity for the Pilot to refuse duty that commences within that notice period. Further, clause 35.5 provides that where “a rostered Duty” is changed within 7 days and the Pilot is placed on Displaced Reserve, the Pilot may refuse duty if the subsequent assignment results in a Duty outside of the Displaced Reserve Period. I will return to the implications of clause 35.6 shortly.
[108] As the relationship between any Reserve Period and activated Flight Duty, clauses 35.7 and 35.8 confirm that they are different concepts – the Reserve Period ends when the Flight Duty period begins at sign-on – but that these 2 periods are cumulative for certain purposes – the combined periods must not extend beyond 18 hours. I observe that this type of treatment is consistent with the approach required by the CASA provisions canvassed in the evidence.
[109] The definitions in clause 1.4 of the Agreement give specific meaning to these and the other provisions bearing upon this dispute. It is evident from these definitions that the Agreement generally utilises particular terms and associated definitions that are intended where used with the document. I observe that this tends to reflect the highly regulated environment in which NJS and the Pilots operate. However, as acknowledged by the parties, certain aspects of the drafting make the interpretative process more difficult. Further, terms and phrases are not always used consistently in related provisions and this leads to ambiguity in the instrument.
[110] Clause 1.4(14) defines “Duty” as a very broad concept that includes any task that a Pilot is required to carry out associated with the business of NJS. I observe that this is consistent with the notion of all duties may have some potential consequence for the fatigue management regime in place. However, there are different forms of Duty that are recognised for different purposes of the Agreement. For example:
(15) "Duty Time" means all duty time in accordance with CAO 48 and so far as the law otherwise permits.
(16) "Duty Travel" means any travel, other than as a crew member of an aircraft, which a Pilot undertakes at the Company's direction and includes Dead Head Travel, travel for the purpose of taking up a new base, either permanent or temporary, and any other travel for any purpose required by the Company. Duty Travel shall count as Duty Time.
… …
(19) "Flight Duty Period" (FDP) means a period of time that:
a) starts when a Pilot is required to report for a duty period in which they undertake one or more flights as part of an operating crew, and
b) ends at the later of:
i. the Pilot's completion of all duties associated with the flight, or the last of the flights; or
ii. 15 minutes after the end of the Pilot's flight, or the last of the flights.
[111] The different notions of duty, and their connection for certain purposes, is reinforced by clause 1.4(28) and (29) as follows:
(28) "Non-Flying Duties" means all rostered Duty Time not directly associated with operating a flight, including administration duties, Ground Training Duties, Dead Head Travel, and Duty Travel, but excludes waiting time as defined in clause 31.23.
(29) "Off Duty Period" means a period of time during which a Pilot is free of all duties and Reserve associated with their employment.
[112] This dispute focuses upon clause 31.11 and it must be considered in the above context as well as the other provisions of clause 31 and the Agreement more generally. It provides:
“31.11. A Pilot shall be paid a Duty Change Allowance, the amount of which is detailed in Schedule 2, clause (8), where the Pilot agrees to change a rostered shift within seven (7) days and one of the following conditions apply:
• a Duty worked varies from the originally rostered shift through a sign-on time more than 15 minutes earlier than originally rostered; or
• the Duty worked results in a sign-off time which is four (4) hours or more later than originally rostered; or
• there are changes to the sign-on or Sign-off Port; or
• a Pilot agrees to extend a Duty to perform additional sector(s) to those originally rostered; or
• a Pilot agrees to start a Duty within the minimum notice required for a Reserve Period as specified in clause 35.6.
This clause does not affect a Pilot's right to refuse a Duty Change in accordance with clause 35.3.
Duty swaps made in agreement with another Pilot in accordance with clause 35.20 will not attract a Duty Change Allowance. “
[113] Having regard to its terms and context, the apparat purpose of the DCA arising from clause 31.11 is to compensate Pilots for certain changes to their roster which may disrupt their plans or personal lives. For example, the DCA will be payable to compensate a Pilot who agrees to a roster change at short notice which means they will be working in a significantly different manner, location or time from how they were originally rostered to work. Those changes may interrupt their plans or personal lives beyond that contemplated within the roster and accordingly the DCA is payable as compensation for agreeing to that change. The nature and purpose of the payment is also reinforced by the relative value of the DCA. It is a significant payment directed at something more than inconvenience. The payment of the DCA is, however, directed to certain defined circumstances set out in the Agreement and it is the terms of that instrument that are to be applied.
[114] Clause 31.1 also provides that where a Pilot resides at a location other than their Home Base due to rostering or unserviceability of aircraft reasons, NJS will provide appropriate accommodation, meal allowances and transport. This may include an activation off Reserve and applies even where the DCA is not payable.
[115] Recognising those circumstances where the parties agree that the DCA is payable, the following operative elements of this provision appear to be relevant to the disputed construction:
• The DCA is payable where a Pilot “agrees to a change in rostered shift within 7 days” – the first requirement; and
• One of the other nominated conditions apply – the second condition.
[116] Given the construction of clause 31.11, it is evident that both the first requirement and the second condition must be met for the DCA to be payable under this provision.
[117] In the context of this dispute the Commission must consider the proper meaning of the first requirement and whether this extends to activation from a Reserve period. Further, the existence of the various forms of the second condition may become relevant and this requires an assessment of the notion that there is a change in sign-on and Sign-off Port when there is an activation from Reserve as contended by the AFAP. Further, regard might be taken of the implications of the condition that the DCA is payable where (the first requirement is met and) a Pilot agrees to start a Duty within the minimum notice required for a Reserve period as specified in clause 35.6 – that is, a Pilot may refuse a Duty that commences within the first 2 hours of the Reserve period when the Pilot is activated within (the) 7 days (notice period). I will return to this element noting that both parties downplay the significance of this provision for present purposes, albeit for different reasons.
[118] In terms of the first requirement, an understanding of the concept and operation of Reserve duty becomes important.
[119] There is a difference between Reserve Duty (part of the original roster and set aside for the Pilot to be available to be assigned a duty - clause 1.4(34)) and Displaced Reserve (allocated in lieu of an originally rostered duty – clause 1.4(13)). There is no dispute about the DCA and other consequences of being activated from the Displaced Reserve.
[120] Reserve Duty is a duty within the meaning of clause 1.4(14) and does not fall within the scope of an “Off Duty Period” as contemplated by clause 1.4(29). The Reserve Duty is a rostered period (Schedule 4 – clause 6) but it ends when the Flight Duty Period commences at sign-on (clause 35.8).
[121] The activation from Reserve will ordinarily (but not always) involve advice that flight duties (or other associated duty) are required within the 7 day notice period contemplated by clauses 35.4 and 31.11.
[122] The question then becomes whether an activation from a Reserve period in these circumstances involves a Pilot “agreeing” to a “change in rostered shift” within 7 days as contemplated in clause 31.11? Alternatively, as put in submissions, whether the Pilots have a right of refusal for such activation?
[123] The AFAP contends that the rights of a Pilot to “refuse roster changes” remains governed by clause 35.4, whereas clauses 31.10 and 31.12 are express parameters around the payment of the DCA either within or outside of the 7-day notice.
[124] The AFAP further contends, in effect, that the requirement that the Pilots agree to a change in rostered shift in clause 31.11 should be read in light of the operation of the Agreement more generally. 45 NJS contends that the Pilots are not agreeing (unless it involves the first 2 hours) as they are obliged to work the activated period and the activation is not a change in rostered shift because the Reserve period is specifically rostered for that purpose. That is, an activation off Reserve is not a change to the roster and that clause 35.4 does not operate to override other provisions as posited by the AFAP.
[125] The resolution of this aspect involves, amongst other issues, the import of both clauses 35.4 and 35.6 of the Agreement when read in the full context of these provisions.
[126] Despite the manner in which the components of clause 31.11 have been broken up in the agreed questions, I consider that the first requirement should be considered as a whole. That is, consideration of the alleged right to refuse is relevant but might also inform what is contemplated by a change in rostered shift in clause 31.11.
[127] The Agreement tends to be very specific about the circumstances in which agreement is required from the Pilots (the right of refusal) in the context of a general obligation to work in accordance with the roster – clause 35.1 and the acceptance of roster changes that are subsequently made where at least 7 days notice is provided – clause 35.4. For example:
• Prior agreement from the Pilot is required for any change to a (rostered) RDO, SDO or GDO – clauses 31.9, 35.3, 35.12 and 35.15.
• A pilot may refuse a Duty that commences within the first 2 hours of the Reserve period when the Pilot is activated within the 7 days notice period – clause 35.6.
• If a Duty is assigned that results in a Duty outside of the scope of the Displaced Reserve, the Pilot is entitled to refuse the Duty – clause 35.5.
[128] Of these, I consider that the reference to clause 35.6 is significant in the present context as this clearly contemplates changes being made to the nature of the duty with less than 7 days notice in the context of a Reserve period.
[129] Clause 35.6 is as follows:
“35.6. The minimum notice required to sign-on during a Reserve Period at home, or in suitable accommodation provided, is two hours. Where a Pilot's Reserve period is activated within 7 days, a Pilot may refuse a Duty that commences within the first two hours of the Reserve period.”
[130] I observe that the Reserve period referenced here includes both the nature of the (normal) Reserve contemplated here and a Displaced Reserve, 46 the latter being beyond the scope of this arbitration. However, I further observe that the placement and terms of clause 35.5 tend to inform the meaning of a “change in rostered” duty as contemplated by clause 35 more generally.
[131] Clause 35.6 clearly contemplates notice being given for an “activation” from the Reserve period and a right to refuse a duty when that duty commences within the first two hours of the Reserve period. Clause 35.6 would not be necessary if there was a general right to refuse an activation from Reserve with less than 7 days notice.
[132] Further, and despite some of the views of the parties on this aspect, I consider that the fact that clause 31.11 specifically includes reference to the circumstances contemplated by clause 35.6 also informs the intended scope of clause 31.11. That is, an activation off Reserve can be considered to be a roster change in that context. Unless this is so, there would be no point to the last item in clause 31.11. Further, clause 31.11 includes, but is not limited to, changes in the roster not involving the Reserve period. This approach also gives meaning and potential application to each of the conditions contemplated in that provision. In that regard, I consider that whilst the AFAP’s differentiation between a roster change and a change in duty may be correct for certain purposes, it is not directly relevant here. This would, for reasons set out above, involve ignoring the terms of the clause itself and the broad scope of Duty in clause 1.4(14). I also observe that if an activation off Reserve is not a roster change at least for that purpose, clause 31.11 will not operate at all to provide the DCA as contemplated by the AFAP.
[133] Accordingly, the Reserve period is part of the roster and is specifically set aside for that purpose. However, in general terms, when understood in its full context, I do not consider that clause 31.11 of the Agreement is directed to activations from the Reserve other than when specific agreement from the Pilot is required. That is, although for reasons set out above an activation may be a roster change for the immediate purposes of clause 31.11, the form of roster change that requires agreement from the Pilot is not a change to activate the Pilot off a Reserve in the normal course as otherwise contemplated by the Agreement. This operates subject to the extent of notice provided for the activation as per clause 35.6. This approach is also consistent with a consideration of clause 35 when read as a whole and gives a coherent meaning to all elements of the Agreement touching upon this aspect.
[134] In that light, it is appropriate to consider the import of clause 31.12 and 31.13, which are as follows:
“31.12. A Pilot shall be paid a Duty Change Allowance, the amount of which is detailed in Schedule 2, clause (8), where:
• the Duty worked results in a sign-off time which is four (4) hours or more later than the planned Duty; or
• there are changes to the Sign-off Port.
31.13. A Pilot will only be paid one (1) Duty Change Allowance per Duty Period.”
[135] This is potentially relevant for 2 reasons. Firstly, whether the provision has direct application to the questions. Secondly, even if this is not the case, the whole of the Agreement must apply coherently and the consistent application of the concepts underpinning each of the parties’ approach is a consideration. It is common ground between the parties that clause 31.12 does not have a direct application. However, the parties have different views as to why and whether there are implications for the dispute arising from this provision.
[136] NJS contends that clause 31.12 should properly be interpreted as applicable only to relevant changes to a Pilot's sign-off time or Sign-off Port which occur after the Pilot's Duty has already commenced and not to an activation off Reserve. That is, only where the issue of choice does not arise as a matter of practicality. This, it posits, would include circumstances where there is a disruption to a service, such as bad weather, either causing significant delays to an aircraft's arrival time or a requirement to divert to a different port, which occurs while the Pilot is operating the service. In these circumstances, as the Pilot is already on Duty, they cannot refuse to continue to undertake the Duty. However, in recognition of the inconvenience caused to the Pilot in those circumstances, clause 31.12 provides that the Pilot is to be compensated by way of payment of the DCA.
[137] NJS does acknowledge that the language of clause 31.12 is unclear, as it does not expressly state that it applies only to changes arising during Duty. As a result of the lack of clarity in the language of clause 31.12, NJS has in practice paid the DCA in the manner set out in the evidence of Mr Irving. 47 That is, it has paid the DCA in all circumstances when a Pilot's roster is changed in a manner which they cannot refuse, and which results in a change to their Sign-off Port, or a delay of four or more hours to their sign-off time. This includes in situations where a Pilot's roster is changed with more than 7 days' notice. It has adopted that approach notwithstanding its view, set out earlier, that a Pilot on Reserve will not have any sign-off time or Sign-off Port which could be subject to change in the ways contemplated by clause 31.12.
[138] The AFAP agrees that clause 31.12 provides clarity around changes to rostered shifts outside the seven day parameters covered by clause 31.11. The AFAP position is that this was purposefully designed to maintain some elements of roster rigidity outside 7 days.
[139] The AFAP further contends that if a Pilot is on a rostered Reserve and, with greater than 7 days notice, is assigned an overnight away from the home base (which as agreed by the parties is the default base) then automatically a change to the Sign-off Port has occurred and a DCA payment is due. In addition, it contends that the payment of the single DCA in accordance with clause 31.12 is further evidence that both the default base is the Pilots home base and that activation from Reserve to an overnight away from home base is a change to the Sign-off Port. In addition, the AFAP contends that clause 31.12 becomes helpful, especially in relation to confirming the objective intent of both parties, in that the current operation and payment of DCA in these cases is made in accordance with this clause. That is, where a pilot on Reserve is then activated with greater than 7 days which includes an overnight, they will receive the DCA payment as there has been a change to the Sign-off Port.
[140] Whilst I accept that clause 31.12 may not directly apply to the agreed questions as contended by the parties, the full context of the Agreement and the coherent application of its terms are important considerations.
[141] The current practice of NJS to pay the DCA under clause 31.12 in the circumstances described is more consistent with the approach to the construction of the Agreement urged by the AFAP. However, the unchallenged evidence of Mr Irving is that this practice is adopted by NJS due to the uncertainty of the provision, rather than an objective understanding that the payment is due. Given the caution provided by the authorities in relation to post-agreement conduct. I do not consider that the practice of NJS is this regard is decisive.
[142] However, for reasons that will become clear, I do not consider that NJS’s approach to the claimed absence of a change in Sign-off Port when activated off Reserve is sound as a matter of legal construction. Accordingly, I turn now to the nature and import of the provisions concerning Sign-on and Sign-off Ports more generally.
[143] In essence, NJS contends that the Pilot has no Sign-off Port while on Reserve and, in effect, that there will be no change of Sign-on or Sign-off Port where an activation occurs in these circumstances. That is, the Pilot would not have had any allocated Sign-on or Sign-off Port for their Reserve days and as a result, there is no change because of the activation.
[144] The AFAP contends, in effect, that the Reserve period is a period of duty and that the absence of a physical sign-off and sign-on is not significant. Further, where a Pilot is assigned consecutive Reserves and is assigned a duty necessitating an overnight stay away from the home base, a change in Sign-on and Sign-off Port arises. The home base will be the default Sign-on and Sign-off Port in all instances. According to the AFAP, although a Pilot will not physically sign-on for a Reserve (“but for every practical and industrial sense they have”), any form of subsequent assignment works on the premise or default position that it would be from their home base. That is, for the purposes of this dispute, as soon as the Pilot then faces a night away from their home base the DCA clause is enlivened as the Sign-off Port will not be the pilots home base, nor will be the subsequent sign on.
[145] The Agreement does not define “Sign-on” or “Sign-off” Port. It does however clearly contemplate that the roster arrangements will include those ports as a point of reference for various purposes. Further, the notion of signing on and off is utilised in association with the differentiation between the flight duty period and a period of Reserve – such as in clause 35.8.
[146] Having regard to the context in which the Agreement operates and to its terms, I consider that the sign-on and Sign-off Port is the port where the Pilot commences and completes flying duties, flight related or ground duty. These ports will be allocated (assigned) as part of the roster.
[147] Consistent with the terms of the Agreement, if a Pilot's Duty involves positioning, the Pilot's Sign-on Port will be the location from which the positioning flight departs. A Sign-off Port is the allocated location at which the Pilot's Duty ends.
[148] The Sign-off Port will be the same as the Sign-on Port if the Pilot's Flight Duty consists of a return journey on the same day. However, the Sign-off Port can be different from the Sign-on Port in some instances. This includes where a Pilot is required to overnight as part of their Flight Duty.
[149] The Pilot is generally expected by NJS to be at their Home Base when first activated off Reserve because the Pilot will be required to sign-on for Duty at the Pilot's Home Base. If the Pilot is activated off Reserve, the Pilot's Home Base will become the Pilot's Sign-on Port.
[150] A Pilot is not required to physically sign-on or sign-off from Reserve.
[151] A Pilot may be placed on Reserve while the Pilot is in an "away port" (that is, where the Pilot is staying in company-provided accommodation away from the Pilot's Home Base). In that case, again, the Pilot is not required to physically sign-on or sign-off from Reserve and is only required to be contactable by phone and available to be assigned Duty for the Reserve period. The Pilot does however physically sign on to the activated duty.
[152] Does a Pilot, when activated from consecutive days of Reserve have a change in Sign-on or Sign-off Port?
[153] I consider that the proper approach to the question must include an understanding of the apparent reason why there is a reference is various provisions to the Sign-on and Sign-off Port. When linked to the notion of a payment, such as in cluse 31.12, it is the fact that the Pilot ends up in a different port than he/she expected to be. In that light, I do not consider that the notion that the absence of a physical sign-on or off from Reserve duty is significant. On Reserve, there is in reality a Sign-on Port (the Home Port or where the Pilot is located for the Reserve period) and the Sign-off Port is where the flight duty ends for the day.
[154] As a result, I consider that there will be a change in Sign-on and/or Sign-off Port when a Pilot is activated off Reserve and either commences or concludes that activation for the day, as the case may be, at a port other than where they were located for the Reserve period.
[155] Despite the focus of the questions upon the sign-in and Sign-off Port in the first 3 questions, it would be evident from my earlier findings that the last condition contemplated by clause 31.11 is also relevant here. That condition being that the Pilot agrees to start a Duty within the minimum notice (2 hours) required for activation off a Reserve Period as specified in clause 35.6. I consider that this informs the scope of clause 31.11 itself and reinforces the scope of activations off the Reserve where the Pilot must agree. Further, the provision also provides a basis upon which the DCA may be payable in the prescribed circumstances.
[156] That is, the DCA will be payable under clause 31.11 where the first requirement is met and where one of the circumstances in the second condition applies. This relevantly includes the clause 35.6 agreement by a Pilot to commence the activation off Reserve within the 2 hours notice period.
[157] I consider that the above represents the proper construction of the Agreement relevant to this dispute. I turn now to apply that construction to the agreed questions.
7.3 The sign-in and sign-out questions
[158] I have largely addressed this aspect above. I consider that, at least for the purposes of the scenario contemplated by the agreed questions, there is a Sign-on and Sign-off Port and there will be a change in sign-on and/or Sign-off Port when a Pilot is activated off Reserve and either commences or concludes that activation for the day, as the case may be, at a port other than where they were located for the Reserve period.
[159] I observe that this approach is consistent with NJS’s present application of clause 31.12. For reasons set out earlier, this is a consequence of the proper application of the Agreement rather than because of that practice.
[160] Further, the right to refuse duty in the present context (the requirement that the Pilot agree to the changes in the present context) is limited to an activation off Reserve for the period where the notice provided by NJS is less than 2 hours. That is, this is the circumstance where, relevant to the agreed questions, the Pilot has agreed to a change in rostered shift as is necessary to meet the first requirement of clause 31.11 of the Agreement.
[161] For reasons set out above associated with the need to satisfy both the first requirement and second condition of clause 31.11, the Sign-on and Sign-off Port is not the relevant focus for the payment of the DCA in the specific circumstances contemplated by the agreed questions.
7.4 The overnight duty question
[162] Clause 31.11 requires that both the first requirement (agreement to the roster change) and the second condition must be met for the DCA to be payable. Given my views about the operation of the first requirement and the relevant conditions in clause 31.11, the overnight duty away from the home base itself does not directly impact upon the answers to this particular question. However, this should be understood in the context of the significant caveat set out at [164].
8. Conclusions and determination
[163] The agreed question and the determination of the Commission in each case is set out below:
“Having regard to clauses 4.1, 31 (including 31.11) and 35 of the Agreement, in circumstances where a pilot that is rostered for consecutive days of Reserve is activated for flight, flight related or ground duty during that Reserve period:
1. Does the pilot, for the purposes of the Agreement, have a “Sign-on Port” or "Sign-off Port" whilst on Reserve, before being activated for flight, flight related or ground duty?
Yes in the sense that an activation from Reserve is capable of involving a change in port for the purposes of the Agreement.
2. If the answer to question 1 is “yes”, and if the duty requires the pilot to change the pilot’s Sign-on or Sign-off Port:
a) Does that pilot have a right to refuse such activation?
b) Is the pilot entitled to a duty change allowance in those circumstances?
a) The only right of refusal in the context of the agreed scenario is to refuse duty for that part of an activation where less than 2 hours of notice is given.
b) If the Pilot agrees to accept the change in duty which involves commencing with less than 2 hours notice, the DCA will be payable including in circumstances where there is a change in Sign-on or Sign-off Port.
3. If the answer to question 1 is "no", does the activation for duty nevertheless involve a change to the pilot's Sign-on or Sign-off Port?
If so:
a) Does that pilot have a right to refuse such activation?
b) Is the pilot entitled to a duty change allowance in those circumstances?
Answered above.
4. If the duty requires the pilot to overnight away from their home base:
a) Does the pilot have a right to refuse such activation?
b) Is the pilot entitled to a duty change allowance in those circumstances?”
a) No – there is no right to refuse duty unless it involves that period of the activation where notice of less than 2 hours is given.
b) No the DCA is not payable unless the Pilot agrees to accept the change in duty which involves commencing with less than 2 hours notice.
[164] I confirm that the above approach, and the determination of the Commission, does not deal with the common position of the parties in this matter where it is presently agreed that the DCA is payable and/or a right to refuse duty exists, such as concerning activation off the Displaced Reserve. The determination also does not canvass the circumstances where NJS accepts that the DCA will also be payable if the Pilot is on a single day of Reserve and agrees (with less than seven days' notice) to be activated to an overnight Duty which involves a change to the Pilot's rostered Duty the next day, as that will involve a change to the Pilot's allocated Sign-on Port for the second day. These aspects are consistent with the approach I have adopted, and I expect that these arrangements will continue for the practical life of the Agreement.
[165] I accept that the outcome I have determined is not entirely consistent with that sought by either party and does not necessarily involve an obligation to payment of the DCA in circumstances (the overnight activation away from the home base) where, as a matter of industrial merit, a case could be made out for its payment. However, it is not appropriate for me, in effect, to rewrite the Agreement in an attempt to produce an outcome that might be fairer where the terms of that instrument do not support that approach. I am interpreting the Agreement made by the parties.
[166] Noting that there may well be a better and clearer approach adopted to the payment of the DCA, and that the Agreement nominally expired on 28 February 2021, I observe that the parties are readily able to review the relevant aspects of the Agreement when it is being renegotiated. I Recommend that they do so.
[167] The Commission determines this dispute accordingly.
COMMISSIONER
Appearances:
V Bulut, of counsel, with permission on behalf of National Jet Systems Pty Ltd.
C Aitken of the Australian Federation of Air Pilots.
Hearing details:
2021
September 16.
October 1.
Video Hearing.
Final written submissions:
14, 15 October 2021.
Printed by authority of the Commonwealth Government Printer
<PR735207>
1 AE428517.
2 [2018] FWCA 2998.
3 Clause 20 of the Agreement.
4 NJS initial written outline of submissions.
5 Exhibit NJS1.
6 Exhibit NJS3.
7 AFAP outline of submissions 23 August 2021.
8 AFAP submissions in response, 15 October 2021.
9 Exhibit AFAP 1.
10 Exhibit AFAP 2.
11 Exhibit AFAP 3.
12 Exhibit AFAP 4.
13 Exhibit AFAP 5.
14 [2017] FWCFB 3005.
15 See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FWCFB 1621 at [21].
16 [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].
17 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.
18 Toyota Motor Corporation Australia Ltd v Marmara and Others (2014) 222 FCR 152, 173.
19 (1993) 40 FCR 511, 517-8.
20 This decision must be applied having regard to the fact that the instrument in that matter was an award of the Commission rather than an enterprise agreement made between the employer and a majority of the employees at the time of approval. See also AWU v Pasminco Australia Ltd and ors (2003) 131 IR 1 for the caution required in this regard.
21 [2013] FWCFB 8557.
22 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v Skilled Engineering Ltd [2003] FCA 260, [18].
23 BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 cited by the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 at paragraphs 12 -13.
24 [2018] FCAFC 131.
25 Ibid at [197].
26 AB v Tabcorp Holdings Limited[2015] FWCFB 523 at [11].
27 See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.
28 Summarised in AMWU v Berri at [114] – paras 12 to 14.
29 DC1.
30 Exhibit AFAP 1.
31 Exhibit NJS 3. The views expressed by Ms Gentilcore at paragraphs 7 and 8 of her Statement were consistent with the approach taken by NJS in this matter and inconsistent with the apparent import of the alleged statements made by Mr Dyer.
32 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114] 13.
33 Exbibit NJS 3
34 Exhibit AFAP 1
35 Browne v Dunn (1893) 6 R 67.
36 Irving Statement at [32].
37 Summarised in AMWU v Berri at [114] 5, 11 and 13.
38 DS1.
39 Summarised in AMWU v Berri at [114] 11 and 12.
40 AMWU v Berri at [114] 15.
41 DS9.
42 DS2.
43 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 384 per McHugh, Gummow, Kirby and Hayne JJ.
44 Schedule 4 – clause 6.
45 Transcript PN234 – PN240.
46 See the definitions in clause 4.1 of the Agreement.
47 At paragraphs [68]-[70] of the First Irving Statement – exhibit NJS1.
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