Owen Shaun Matthews v Jetstar Group Pty Ltd
[2023] FWC 312
•7 FEBRUARY 2023
| [2023] FWC 312 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Owen Shaun Matthews
v
Jetstar Group Pty Ltd
(C2022/6802)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 7 FEBRUARY 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; whether applicant was entitled to be paid an overnight allowance under the Team Jetstar Cabin Crew Agreement 2019 while isolating for COVID-19 by order of the Ministry of Health Singapore; proper construction of the Agreement; determined there was no entitlement; application dismissed
Owen Shaun Matthews is employed as a cabin crew member by Jetstar Group Pty Ltd (Jetstar). In that employment the Team Jetstar Cabin Crew Agreement 2019 (Agreement) applies. Mr Matthews and Jetstar are in dispute about whether Jetstar must pay Mr Matthews an overnight allowance pursuant to clause 5.4 of the Agreement for a period Mr Matthews was the subject of an isolation order issued by the Ministry of Health Singapore (MOH) under s 15(1) of the Infectious Diseases Act 1976 (Sin) (ID Act). The order required Mr Matthews to isolate from 2 January 2022 until 10 January 2022 consequent on Mr Matthews returning a positive result to COVID-19 to a polymerase chain reaction (PCR) test on 1 January 2022. Efforts to resolve the dispute in the workplace following the steps in clause 19 of the Agreement did not settle the dispute. On 9 October 2022, Mr Matthews applied under s 739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute pursuant to the dispute settlement term. That term deals with disputes that relate to a matter arising under the Agreement or the National Employment Standards.
The relevant factual background is not seriously in contest.
Mr Matthews was originally rostered for Sydney/Denpasar duty on the 29 December 2021. This was cancelled the day before the duty was to commence and, as an employee displaced from his original duty, Mr Matthews became ‘re-assignable’ under the Agreement, which means that he was an employee awaiting replacement duties having been displaced from duties in accordance with the Agreement. He was subsequently assigned a duty that commenced at sign on at 1155 AET on 29 December 2021 in Melbourne and was rostered to sign off at 1815 (local time) on 29 December 2021 in Singapore. His tour of duty was on Jetstar flight JQ007 (MEL-SIN). On arrival in Singapore Mr Matthews and the other crew members were transferred to Jetstar-provided accommodation for cabin crew team members at the Crowne Plaza Changi Hotel in Singapore.
On each of 29 and 31 December 2021, Mr Matthews and other cabin crew team members were required to take a rapid antigen test (RAT) for COVID-19. Mr Matthews returned a ‘negative’ test result to the first test, and a ‘positive’ test result to the second test. He subsequently called the Crewing Team and Medaire, Jetstar’s overseas medical provider, to advise them of his positive RAT result. Jetstar reported Mr Matthews’ positive test result to the MOH as it was required to do under the ID Act. Medaire organised a PCR test to be administered to Mr Matthews, and as already noted, Mr Matthews returned a positive result on or about 1 January 2022.
Subsequently, the MOH issued Mr Matthews the earlier mentioned isolation order directing him to isolate in a “place of isolation”; specifically, a Government-operated Community Isolation Facility at the Pasia Novena Hotel for an “isolation period” from 2 January 2022 until 10 January 2022. Mr Matthews was transferred from the Crowne Plaza Changi Hotel to the Pasia Novena Hotel in transport arranged by the MOH. Mr Matthews remained in isolation at the Pasia Novena Hotel until 9 January 2022 when he was discharged by the MOH a day earlier than originally stipulated. While at the Pasia Novena Hotel, Jetstar says that Mr Matthews was provided with three meals per day, private accommodation with bathroom facilities, daily refuse/waste collection, and replenished fresh towels, bath amenities and snacks when requested. Mr Mathews has complained that although meals were provided, when delivered most meals were cold and for the most part inedible. He says that for the “first 5 days it was Asian Food which was predominantly rice which [he] cannot eat” and that he “was finally granted western food however as [he] was not allowed to have a knife of any description, that also became rather futile”. Mr Matthews said that the door lock to his room had been disabled so the door could not be locked, and medical staff entered the room randomly without knocking to take his blood pressure, temperature and oxygen levels including in the middle of the night. He says that although the room had bathroom facilities, any waste/refuse had to be included in the meal waste for collection and there was no replenishment of towels or bedding for the duration of his stay despite requests. He also says there was no hot water to the room despite many calls to reception and he had to boil the kettle for hot water to wash his underwear. He also says there were no ‘bath amenities’ of any kind supplied nor were any snacks supplied on request.
It must be said that some of Mr Matthews’ complaints do not sit comfortably with his communications with Jetstar about the accommodation at the time.
Just as an example, Mr Matthews’ complaint about the lack of any ‘bath amenities’ of any kind appears at odds with that which is visible in the photograph of the bathroom above, with “amenities” clearly visible on the basin and in the shower. Nonetheless, Jetstar did not seek to cross-examine Mr Matthews and as in any event, the level or quality of amenities and the quality of the accommodation and meals provided by the Pasia Novena Hotel does not inform the proper construction of the Agreement, I am prepared to accept that during his period of isolation at the Pasia Novena Hotel, Mr Matthews had less than a comfortable experience. I accept that satisfaction of the state of the accommodation and meals expressed on the first day of isolation is not evidence of satisfaction for the whole period.
At the end of the isolation, an invoice to Mr Matthews was sent to [email protected] for the expense of accommodating Mr Matthews during his isolation in the sum of $1515.12 SGD which Jetstar paid. On 9 January 2022, Mr Matthews returned to Melbourne on Jetstar flight JQ008 as a passenger and resumed his normal roster on 12 January 2022.
Mr Matthews was required by the MOH to isolate at the Pasia Novena Hotel while other cabin crew members were required by the MOH to isolate in the crew hotel, the Crowne Plaza Changi Hotel. These crew members were subsequently paid by Jetstar an overnight allowance equivalent to the daily ATO allowance as specified in clause 5.4 of the Agreement, although Jetstar maintains that these cabin crew members, like Mr Matthews, were, not entitled to the overnight allowance referred to in clause 5.4.
According to Jetstar the Crowne Plaza Changi Hotel was operating as a regular guest accommodation service with meals available to be ordered and charged to the crew[1] members’ room, whereas the Pasia Novena Hotel delivered pre-prepared meals to Mr Matthews’ room as part of its operations. Crew members staying at the Crowne Plaza Changi Hotel had to arrange for their own meals to be delivered, including by ordering room service. Jetstar says that it would have reimbursed the crew members for the expenses incurred but it was administratively more straightforward to pay a single daily allowance to these crew members rather than to process and approve each individual receipt for each crew member for the relevant isolation periods.
Mr Matthews claims he has an entitlement to the allowance specified in clause 5.4 of the Agreement. He also says that given his complaints about the quality of the meals and accommodation provided at the Pasia Novena Hotel during his isolation period, it is unfair that crew members isolating at the Crowne Plaza Changi Hotel were paid the allowance and he was not.
The resolution of the dispute turns on the proper construction of the Agreement and its application to the circumstances described above. The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include other provisions of the industrial instrument, read as a whole, and the disputed provision’s place and arrangement in the instrument. The statutory framework under which the industrial instrument is made, or in which it operates, may also provide relevant context, as might an antecedent instrument or instruments from which a particular provision has been derived. Regard may be had to relevant context and surrounding circumstances in order to determine whether there is any ambiguity in a provision of an industrial instrument. The language of an industrial instrument is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end, and a consideration of the language contained in the text of the relevant parts of the instrument remains the starting point and the end point in the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[2]
Clause 5.4 of the Agreement provides:
Overnight Allowance and Accommodation
Team Jetstar will provide overnight allowances and accommodation for overnights where an employee is required to overnight at the direction of Team Jetstar. Allowances will be based on Division 3 of the ATO overnight allowances (i.e. meal allowances). The Mercer or equivalent allowance schedule will only apply where no ATO allowance applies to a location. Accommodation will be provided to an appropriate standard to ensure adequate rest for employees. While away from home base transport will be provided to employees to and from the airport and the accommodation provided by Team Jetstar. The overnight allowances will be adjusted in accordance with the ATO rates with effect from the first pay period on or after 1 July 2017, 1 July 2018, 1 July 2019, 1 July 2020 and 1 July 2021.
Clause 5.5 deals with a meal allowance and relevantly provides:
5.5.2 International Flying
When on international flying duty, Team Jetstar will provide employees with all meals. The employer may pay an allowance in accordance with clause 5.4 where a meal is unable to be provided.
Mr Matthews accepts that there can be no entitlement under clause 5.5.2 because “as [he] was in detention [he] was no longer on flying duty so the overnight allowance [in clause 5.4] which is also considered ‘out of base’ payment should apply”. Clause 5.4 of the Agreement is one of a suite of provisions in clause 5 which make provision for additional payments, usually in the form of an allowance. Clause 5 makes provision for flying allowances, allowances when cabin crew members perform manager duties, operational extension pay for extended flying duties, meal and accommodation allowances, language payments, passport and visa costs reimbursements and lost effects compensation. The entitlement to each of the various payments is circumstantial – that is, the payment is dependent on the happening of an event; or upon the doing of a thing; or upon being required by Jetstar to do a thing.
Although clause 5.4 is titled “Overnight Allowance and Accommodation”, it also deals with the provision of transport. The first sentence sets out the condition that is to be met to trigger the requirement that Jetstar provide “overnight allowances and accommodation for overnights”. The condition is that “an employee is required to overnight at the direction of Team Jetstar”. “Team Jetstar” is how the employer - Jetstar Group Pty Ltd – is described throughout the Agreement.[3]
The second and third sentences set out how the quantum of the allowance is to be determined. The fourth sentence sets out the requisite accommodation standard to be provided and the purpose for setting the standard. The fifth sentence sets out a requirement that transport be provided to and from the airport and the accommodation while the employee is away. The final sentence explains how and when overnight allowances will be adjusted.
Mr Matthews’ claim must fail at the threshold. The allowance claimed is payable only if he was required to overnight at the direction of Team Jetstar. The text of clause 5.4 setting forth the condition which must be satisfied before an obligation to pay the allowance could not be clearer. As the background facts disclose, Mr Matthews was not required to overnight because of any Jetstar direction. Jetstar had no say in the matter and did not give Mr Matthews any direction to overnight during the relevant isolation period. Mr Matthews was required to overnight because of an MOH isolation order issued to Mr Matthews under s 15(1) of the ID Act requiring him to isolate from 2 January 2022 until 10 January 2022. The order also set out the venue at which Mr Matthews must isolate. Jetstar had no say in the selection of the venue.
That other Jetstar team members who were required by the MOH to isolate at the Crowne Plaza Changi Hotel were paid an allowance akin to the allowance payable when an employee is required to overnight pursuant to clause 5.4 of the Agreement, is beside the point. The condition precedent which must be satisfied to engage an entitlement under clause 5.4 is clear, and in respect of Mr Matthews, it has not been met. Like Mr Matthews, those employees had no entitlement under clause 5.4. They were isolating, or required to overnight, at the Crowne Plaza Changi Hotel by order of MOH not by any direction of Jetstar. Jetstar’s reasons for making the payments as set out earlier are rational and, in my view, reasonable. It was appropriate to reimburse the employees for the expense of meals they incurred, and it was administratively more convenient to make a uniform allowance payment rather than multiple meal and multiple employee reimbursements. Mr Matthews was not in the same position. He did not incur any meal expense. Meals were provided – albeit at a standard Mr Matthews criticises.
Similarly, that the meals provided to Mr Matthews at the Pasia Novena Hotel during his isolation period were not to his liking and perhaps even substandard has no bearing on his entitlement under clause 5.4 of the Agreement. The allowance is payable only when the condition is satisfied. The condition was not satisfied in the instant case.
For the foregoing reasons Mr Matthews was not entitled to be paid an allowance under clause 5.4 of the Agreement for any period during which he was required to isolate at the Pasia Novena Hotel by order of the MOH.
The dispute is resolved accordingly, and the application must be dismissed.
Order
The application in C2022/6802 is dismissed
DEPUTY PRESIDENT
Appearances:
Mr O Matthews appearing for himself
Ms E Vautin, solicitor, with Ms C Keddad a representative for the respondent
Hearing details:
2023
Melbourne
6 February
[1]
[2] See for example Australian Workers’ Union v Orica Australia Pty Ltd[2022] FWCFB 90 at [18] and the cases cited therein
[3] See clause 1.1(a) of the Team Jetstar Cabin Crew Agreement 2019
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