Pilots (T.A.A.) Agreement 1975

[1977] FCA 13

U I

In the matter of -

"FE CONClLIATIOPU' AND ARBITRATION

ACT 1904

And in the matter af -

PILOTS (T.- \ .A.) AGXEF24,T:NT 1975

(Reference of a questior. cf law

by the Fllght Crew off lcers

Industrlal Trlbunal pursuant	to
Sectlon i07 of the Act)

J . B . SWEENEY J.

E\7ATT J.

6 April. 1977 KEELY J.

REASONS FOR JUDGME!?T

This is a reference by the Fllght Crew

Officers Industrial Tribunal of a question of law

arising in matter No. "29 of 1976 before the Trlbunal

for the opinion of the Australian Industrlal Court

pursuant to S.107 of the Concrllatlon and ArbltratJon

Act 1904 (hereinafter called "the Act"). That sectlon

provides that the Commission may refer a questlon of

law arislng In a matter before jt for the opinion of

that Court and S.88(V)(4) of the Act provldes that ch-

Tribunal 1s lncluded in the reference	io the Commission
in 5.107.

The reference was made In I<ovember, 1976

but lrhe hearing of the procwdlnqs In -_he Australlar?

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Industrial court had not commenced at the tlme the

Federal Court of Australla commenced to exerclse its

jurisdiction in accordance with s.2(2) of the Federal

Court of Australla Act 1976 and the comlng into

operatlon of the Conclllation and Arbltratlon

Amendment Act (No. 3 ) 1976. The proceedings have

therefore been transferred to the Federal court of

Australia in its Industrial 3ivlsion for hearing and

determination pursuant to S.118A of the Act.

On the hearing of the reference Mr. D.M.

Ryan appeared for the Australian National Airlines

Commission (T.A.A.) (hereinafter called "the

Commission" ) . Mr. J. Dynon, descrlbed as Legal

Officer of the Australian Federatlon of Airline

Pilots, was present in Court durlng the hearlng, but

in reply to a question from the Bench advised us

that the Federation did not propose to take any part

in the proceedings.

The question arises as to the meanlng of

clause 37E of the Air Pilots (T.A.A.) Agreement 1975

and certaln provislons incorporated In that award by

reference. Clause 37E at the time	of the maklng	of
the agreement read:

"Except as otherwlse provlded in thls Agreement,

flight and duty tlme llmitatlons for each pllot

shall be in accordance wlth A.N.O. ' S . "

At a later date the clause was varied by provldlng:

"For purpose of sub-section 48.1.1 of the Alr

Navigation orders the words '01- t3e ground'

shall mean from 'slgn oif tlme' to 'sign on

time l . ''

' C

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The reference to "A.N.o. ' S " is a reference

to Alr Navigatlon Orders issued by the Department of

Civil Aviation which lmpose limltations on flyinq time

and require, In a number of cases, intervals to occur

between the performance of duty by pllots. It 1s not

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necessary for the purpose of these reasons for ~udgment

to set out the orders in full hut examples	of the
provisions are:

Sub-sec. 46.1.1 " 2 . A tour of duty or period of reserve

time at home shall be preceded by a

rest perlod on the ground of at least:

(a)	nine consecutlve hours emSracing
the hours between 10 p.m. and

6 a.m. local tlme: or

(b) ten consecutive hours.

2.1 Notwlthstanding the provislons of

paragraph 2 of this snb-sectlon, when an alrcraft 1s scheduled to arrive at

such a time that the pilots would be

free of duty not later than 10 p.m.

local time and the aircraft 1s delayed beyond that tlme, the nine-hour rest period prescrlbed may be commenced up to 11 p.m. local tlme. provlded the succeedlng tour of duty does not exceed

six hours.

4. An operator shall not roster a pilot

to fly in excess of eight hours fllght

time In any one tour of duty.

9. Where a tour of duty already corrmenced

in accordance with paragraphs 3 and 4 of

thls sub-sectlon exceeds twelve h o u r s or

the flight time exceeds nlne hours the

pilot shall have, at the completlon of the

tour of duty, a rest perlod of at l e a s t

24 consecutive hours.

10.        A pilot may fly and an operator may

permlt h l m to fly more than one tour oi:

duty 111 any 2 4 consecutlve hours privlded

that he has a rest period between tile

first and second tours of duiy as pre-

scribed In paragraphs 2, 7 or H of thls

sub-sectlon as applicable."

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Turning to other Air Navigation Orders

"rest period" is defined:

Sub-sec. 48.0.3 "Rest period" means "the perlod of

tlmc durlng which a flight crew membel

is relleved of all dutles assoc-ated

wlth hls emgloyment. 'I

The agreement Itself contalns the following

definitlons:

"DUTY PERIOD" meaps, all time on duty in

accordance with Air Navigation Orders and

this Agreement.

"DUTY TRAVEL" lncludes deadhead travel and

travel for the purpose of taking up a new

base, either permanent or temporary including

travel to or from Papua New Gumea, and any

other travel for any purpose required	by an
employer.

"REST PERIOD" means, the period commcnclnq at

the time of completlon of reserve ciuty where

no duty has been commenced, or the completlon

of a duty period.

"SIGN OFF TIME'' means, the time of com~letlon

of all duties associated wlth a tour of dzty

and shall be not less than 15 mlnutes after

the actual alrcraft arrlval tune after i'light

duty, or deadheading after duty.

"SIGN ON TIME" neans, the actual sign on tlme

for duty by an operatlng pilot where flight:

duty is involved v,hich shall be nct less than'

one hour prlor to departure of fllght unless

otherwise agreed between an employer and the

Federatlon, and not less than 30 mlnutes

prior to scheduled deadhead departure time.

It will be seen then that the relevant phrases

are "rest perlod" and "rest perlod on the ground". The

purpose of the orders is to requlre periods of rest to

be taken by pilots In between fllghts and/or other duties

for the safety of aircraft, passengers and crew.

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The question referred to the Court as set

out by the Tribunal on page 5 of thc reference IS

"What is the proper construction of Clause 37E of the

Agreement as it stood before varlation?" We wcre

referred to the varlatlon set out above but ip the light

of the questlon asked have not regarded the varlatlon

as relevant to our task.

It appears that a pllot after the aircraft

has come to rest at the end of a fllght has some dutles,

including duties concerned with documentatlon, still to perform. The Agreement provides in the deflnitlon of

"sign off tlme" that a period of ,at least 15 mlnutes

after the actual alrcraft arrlval tlme 1 s to be allowed

for the carrying out of these duties. 'rhen, if the

pilot is away from his home base, Cl-ause 18 of the

Agreement provides that accommodation (or an allowance

in lieu) and transport will be provlded by the Commission.

Again, if he is at accommodation away from his home and

requires transport provlded by the commission to convey

hlm to an airport to carry out hls dutles prlor to a

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flight he is as a matter of practlcc ready at the placa

of accommodation at a tlme so that such traEsport 1s

able to arrive at the airport not less than one hour

prior to the departure of the flight.

He may stay on at the airport for his own

purposes if he so desires and he is not rerplred to

travel direct from the airport to hls place of accom-

modation. In other words, the pllot may, at his

1

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discretion, delay his journey to the place of accom-

modatlon and he may interrupt that journey to make

other calls before arrivlng at his place of accommoda-

tion. From the time when he has "slgned off" until

the time when he next "signs on" for duty, he is

relieved of all duties associated wlth his employment.

For its part the Commission argues that the

term "rest period" means a period during which the

pilot is not required to perform any of the duties of

or associated with his employment.

The Federation argued before the Trlbunal

that the meaning of "rest period" was a period during

which the pilot was not only so relieved of duties but

(when the pilot was at a place other than his home base)

was limited to the time that he was at the place of

accommodation which was either provlded for hlm by the

commission or which he occupled as a matter of hls own

choice. This argument apparently meant chat the time

travelling from a particular alrport to such accommoda

tion and from such accommodation to the said airport

did not form part of such "rest period".

The argument of the Federatlon before the

Tribunal referred to above that the only tlme whlch

should be included In a rest perlod at a place other

than home base was that from the tlme of the pilot's

arrival at hls place of accommodatlon to the time of

his departure from it appears to have been a statement

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of a view that that would be a deslrable practlce

rather than a reasoned argument that It was the

meaning of the term "rest period" or "rest perlod on

the ground". The court was not referred to any

provisions in the Agreement or in the Air Navigation

Orders which limited in any way the clear meaning of

"rest perlod" in the Orders. In particular It was not

referred to any such provision from which it could be

inferred that the travelling time between an airport

and the pilot's accommodation at a place away from

his home base	is not to be included in such rest
period.

There seems to us no reason to assign to

the term "rest perlod" as used In sub-sec. 43.1.1 of

the Alr Navigation Orders any dlfferent meanlng from

that in sub-sec. 48.0.3. Adoption of the deflned

meaning would be consistent with the general lndustrial

use of the term "rest period" as meaning a period

during which an employee is entltled to take rest by

cessatlon of labour or exertlon of any	kind for the
employer.

A period during whlch a pilot 1 s under no

obligation to perform any duties of or associated

wlth his occupation is in our view a rest period.

AS to the more detailed elaboration of the - .

question set out at pp.6-7 of the Reference, the

phrases "a rest perlod on the ground" and "rest perlod"

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as used In relatlon to a tour of duty and fllght time

under A n Navlgation Order 48.1.1 are to be construed

as meaning:

(i) a period during whlch a pilot is relieved of

all duties assoclated with hls employment commencing when he signs off duty followlng

a tour of duty or fllght tlme

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! and not as meaning:

(ii) a period commenclng when the pilot reaches

the place where he is to be accommodated

after a tour of duty or fllght time.

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