Richard Tasevski Tomas Barkho George Fountoulakis Marijan Somen Jordi Hudson v Qantas Ground Services Pty Ltd
[2018] FWC 4879
•5 NOVEMBER 2018
| [2018] FWC 4879 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Richard Tasevski
Tomas Barkho
George Fountoulakis
Marijan Somen
Jordi Hudson
v
Qantas Ground Services Pty Ltd
(C2018/1579; C2018/1580; C2018/1582; C2018/1583; C2018/1584)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 5 NOVEMBER 2018 |
Application to deal with a dispute - proper classification of loading supervisors - interpretation - role and duties performed - substantial character – employees correctly graded at the GC3B level
[1] This decision concerns applications made by Mr Richard Tasevski, Mr Tomas Barkho, Mr George Fountoulakis, Mr Marijan Somen and Mr Jordi Hudson (Applicants) under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 8 of the Qantas Ground Services Pty Limited Ground Handling Agreement 2015 (Agreement). 1
[2] The Applicants are employed by Qantas Ground Services Pty Ltd (QGS) as loading supervisors in the ramp operations area at Melbourne international airport. The loading supervisor position is also variously known and referred to as ‘leading hand’ and ‘team leader.’ The Applicants’ employment is covered by the Agreement. They are members of the Transport Workers’ Union of Australia (TWU), which represents them in this matter.
[3] The dispute concerns the proper classification of the Applicants under the Agreement. QGS classifies them at the Ground Crew 3B level (GC3B). The Applicants contend that they should be classified at the immediately higher level, Ground Crew 4 (GC4), which is the highest level in the classification structure. They maintain that, as they have been incorrectly classified, they are entitled to back payment of wages and superannuation. I am not asked to address the consequences of any incorrect classification of the Applicants, but rather to determine whether their correct classification is GC3B or GC4.
[4] The circumstances of the five Applicants are not materially different from one another. The TWU ran the matters on the basis of a common set of submissions and oral argument. Although QGS employs many other loading supervisors at various airports around Australia, the dispute was confined to the application of the Agreement to the five Applicants.
[5] The applications were initially listed before me for conference. The matters remained unresolved, and the parties agreed that the applications should proceed to arbitration. I issued directions for the filing and service of submissions and any evidentiary material. The parties complied with these directions. The matter was then listed for hearing before me on Monday, 22 October 2018. Four of the five Applicants filed witness statements, however they were not required for cross-examination, and none gave oral evidence. Their statements were tendered in evidence. Mr Brett Hardy, Head of QGS, gave evidence for the company and was cross-examined.
[6] It was common ground and I am satisfied that the Commission is authorised by the dispute settlement provision in clause 8 of the Agreement to deal with the dispute by arbitration, and that the dispute can be resolved by my determining whether the Applicants are properly to be classified at level GC3B or GC4.
[7] Clause 13 of the Agreement is headed ‘classifications and duties’ and states:
‘(a) Employees will be classified as either:
(i) Trainee
(ii) Ground Crew 1 (GC1)
(iii) Ground Crew 2 (GC2)
(iv) Ground Crew 3 (GC3)
(v) Ground Crew 3A (GC3A)
(vi) Ground Crew 3B (GC3B)
(vii) Ground Crew 4 (GC4)’
[8] Clause 13(c) states that the ‘roles and duties for each classification’ are provided at Attachment B. The Attachment contains a heading for each of the above classifications, and a list of items. Under the heading ‘Ground Crew 3B (‘GC3B’)’ and Ground Crew 4 (‘GC4’), the following appears:
‘Ground Crew 3B (‘GC3B’)
All of GC1, GC2, GC3 & GC3A +
• Responsible for the safe loading and unloading of aircraft in accordance with operating procedures and all compliance regulations;
• Towing equipment and towing activities;
• Complete all aircraft documentation including and not limited to any weight and balance documents;
• Responsible for the safe work practices of staff in and around aircraft and the workplace;
• Assist with safety investigations and reporting as directed. Conduct incident reporting safety observations and critical task reviews;
• Carry out team leader and related duties for employees classified as Trainee, GC1, GC2 and/or GC3, including assisting with performance assessment and managing minor performance matters;
• Conduct on the job training and assist with assessment of ground crew operators;
• ‘Work down’ as required.
Ground Crew 4 (‘GC4’)
All of GC1, GC2, GC3, GC3A & GC3B +
• Employees at the level are responsible for a number of groups of staff in a work area including all Team Leader and related duties;
• Organise and co-ordinate work within their area of responsibility;
• Assume full responsibility for the loading and unloading of aircraft including for checking, writing and signing the appropriate documents, certifying that the aircraft has been loaded in accordance with the load instruction report;
• Be responsible for the control, supervision and training of designated staff;
• Perform various administrative and reporting duties using designated systems and equipment;
• Demonstrate leadership, decision making and organisation skills necessary to efficiently meet performance requirements in a changing work environment, including completing required reports and regular performance assessments;
• Make recommendations on all aspects of the operations, seeking to identify opportunities to improve performance and productivity;
• ‘Work down’ as required.’
[9] Clause 2.7 of the Agreement defines ‘Ground Crew’ to mean an employee in a classification listed at Clause 13 and detailed in Attachment B.
Submissions of the Applicants
[10] The Applicants contend that they undertake all of the roles and duties set out under the GC4 classification. 2 Their evidence and submissions addressed each of the eight items listed under this classification.
[11] Of particular relevance in the dispute is the third item under GC4. The Applicants say that they ‘assume full responsibility for the loading and unloading of aircraft including for checking, writing and signing the appropriate documents, certifying that the aircraft has been loaded in accordance with the load instruction report.’ They contend that this is an especially important role, and that no other GC4 employee performs it, including the supervisors to whom they report, and whom QGS classifies at the GC4 level. They say that, applying accepted principles of interpretation to the Agreement, loading supervisors are properly to be classified at the GC4 level.
[12] The Applicants refer to the Operations Manual, Ramp Services, Chapter 5, Standard Operating Procedures, Ramp Operations, Aircraft Loading (SOPs) which applies to job roles that include the loading supervisor. It states that the loading supervisor is required to sign the Load Instruction Report (LIR) (5.2.2.3), ‘accepts full responsibility for the load once it is loaded on the aircraft’ (5.5.3.3), and confirms that he or she was in attendance during the entire loading of the aircraft and that the aircraft has been loaded in accordance with the LIR (5.5.3.5). The Applicants submit that these types of responsibilities are additional to those undertaken by employees properly classified at the GC3B level. They say that the GC3B classification does not extend to assuming full responsibility for loading and unloading aircraft or certifying that the aircraft has been loaded in accordance with the LIRs.
[13] The Applicants further contend that the nature of the duties and responsibilities they perform, particularly those falling under item 3 of GC4, is of a qualitatively higher level than the duties at the GC3B level. In this regard they submit that, in assessing which classification applies to an employee, the Commission should identify the ‘principal functions’ required of the employee by the employer, and the essential features of any particular classification level. The totality of the relevant characteristics must be read as a whole. Moreover, the Applicants contend that the items listed under each classification are a non-exhaustive list and that employees at any particular level may perform one duty or skill, or many of them, depending upon the particular work allocated. 3
Submissions of QGS
[14] QGS acknowledges that the Applicants assume full responsibility for the loading and unloading of aircraft, including certifying that the aircraft has been loaded in accordance with the LIR. However, it says that these duties are comprehended by items 1 and 3 of GC3B, that is, the Applicants are responsible for the safe loading and unloading of aircraft in accordance with operating procedures and regulations and are responsible for completing all aircraft documentation including weight and balance documents. The operating procedures in question are the SOPs referred to by the Applicants, which require loading supervisors to assume full responsibility for the load and sign off on the LIR.
[15] The company submits that the same duties are therefore comprehended by both level GC3B and level GC4. It says that the Commission should follow the approach of the Full Bench in Fonterra Brands 4and determine the ‘substantial character’ of the Applicants’ role by reference to the level of responsibilities and the duties of the position, and identify the most appropriate classification. Applying this approach, QGS contends that the most appropriate classification for loading supervisors is GC3B. It further says that the Commission should have regard to the entire classification structure, and should not readily reach a conclusion that would see certain classifications in the structure denuded of roles. In this regard, it says that most of the current roles classified at GC3B are ramp loading supervisors5 and that re-classifying them to GC4 would leave only 12 employees at the GC3B level, all at Perth airport. Further, QGS says that the Commission should not construe a classification structure so as to re-classify a group of employees to the same classification level as the person to whom they report.6 It says this would be antithetical to traditional concepts of internal classification relativities based on work value, skill and responsibilities.
[16] QGS further submits that, aside from item 3 of GC4 and the general ‘work down as required’ duty in item 8 of GC4, the Applicants perform only the second listed role or duty under GC4: ‘organise and co-ordinate work within their area of responsibility’. By contrast, the company says the Applicants perform all of the roles and duties listed under GC3B, with the exception only of the towing function (the second item), which is performed by persons in a different position at the GC3B level.
[17] Finally, the company relies on the history of the GC3B classification to support its position. It says that the current dispute is in essence the same as a dispute that arose between QGS and the TWU in 2010 about whether leading hands (loading supervisors) in QGS’s ramp operations for QantasLink in Sydney should be classified as GC3 or GC4. 7 In resolution of that dispute, QGS agreed to ‘administratively’ pay the loading supervisors at the midpoint between the GC3 and GC4 rates of pay.8 The terms of this arrangement are set out in a letter from the company to the TWU dated 26 July 2010 and are appended to the witness statement of Mr Hardy.9 That letter states that ground service staff servicing QantasLink aircraft at terminal 2 in Sydney will be responsible for the safe loading of aircraft in accordance with operating procedures and that they assume full responsibility for certifying compliance with the LIR.10 The company says that the subsequent deployment of ramp leading hands to other airports saw the same arrangement implemented for them elsewhere, and that in negotiations for the 2013 Agreement the arrangement was included in the classification structure as a new level GC3B.11 QGS says that these changes were explained to employees who voted on the 2013 Agreement, and that, at the commencement of the 2013 Agreement, all ramp loading supervisors were transferred to the GC3B classification.12
[18] The company submits that no relevant changes have occurred in the nature of the role, company operations, or the classification structure in the Agreement that warrant the reclassification of loading supervisors. The GC3B classification continues to carry a wage at the midpoint between the GC3 and GC4 rates of pay under the Agreement. QGS says that neither during the negotiations for the 2013 Agreement, nor for the current Agreement, did the TWU assert that ramp loading supervisors should be classified as GC4.
Applicants’ submissions in reply
[19] In reply, the Applicants agreed that the ‘substantial character’ test is the appropriate way to approach the question of their correct classification under the Agreement. They said however that this is only a principle of construction that must give way to the clear language of the relevant instrument. 13 They further submit that in determining the correct classification the Commission should not merely quantify the time spent on the various elements of work performed by the employees in question, and that the quality of the different types of work undertaken is also relevant.14 Here, they say, the quality of that work entails ultimate accountability and signing off of appropriate documents, certifying that the aircraft has been loaded in accordance with the LIR. They say that this is work of a high level of accountability which is specifically contemplated by the GC4 level.
[20] Although the Applicants maintain that they do perform all of the roles and duties listed under the GC4 classification, they submit that in any event an employee is not necessarily required to exercise all of the skills or perform all of the tasks specified in the relevant classification. They say that if loading supervisors are required to undertake duties within the GC4 classification then they are required to be paid the applicable rate whether or not those duties represent the majority of or a large part of their work, and even if they do not perform other GC4 level tasks.
[21] The Applicants contend that the company conflates the role and duties of item 3 at GC4 with the lesser GC3B duties of an employee being ‘responsible for the safe loading and unloading of aircraft in accordance with operating procedures and all compliance regulations’ and ‘completing all aircraft documentation’. They say that completing documentation is not the same as ‘signing the appropriate documents, certifying that the aircraft has been loaded in accordance with the load instruction report’, and that the latter are separate, distinct tasks which they perform.
[22] The Applicants refute the QGS submission that the Commission should take care to avoid an approach that leaves a particular classification bereft of employees. They say an enterprise agreement may determine any classification structure desired by its framers. It is not then for the Commission to ensure that each classification level is sufficiently populated with positions. This would be to reverse the classification process. It is rather the duties and skills of the employee that determine what the correct classification of that employee is.
[23] Finally, the Applicants submit that the history of the GC3B classification merely shows that QGS wanted loading supervisors classified at the GC3B level, and that it does not affect the question of what classification properly applies to them.
Principles of interpretation
[24] I will first address some of the contentions advanced by the parties concerning the approach to interpretation.
[25] First, the Applicants submitted that the Commission’s task is to objectively determine the intention of the parties from the words of the instrument and the circumstances in which it was made. The company too relied on the concept of the parties’ intention in the context of its submission on the history of classification GC3B. However, under the present statutory framework, there are no formal ‘parties’ to enterprise agreements and some caution must be exercised in seeking to resolve interpretative controversies by reference to parties’ common intention. 15 It may be more relevant to consider the intention of the framers of the document, which could include employees who, after all, make the agreement when they vote to approve it (see s 182(1)). Even if it can be established exactly whose intention is relevant, ascertaining common intention is often a difficult task.
[26] Secondly, the Applicants contended that industrial awards and agreements are beneficial instruments and a generous construction should prevail, 16 such that, where ambiguity exists, it should be resolved in a way that affords ‘a more generous entitlement to employees, rather than depriving employees of a benefit that is reasonably open on the words used in the instrument’.17 Certainly, employees should not be deprived of a benefit that is afforded to them under an instrument, properly construed. And an overly technical approach to interpretation of industrial instruments is to be avoided. However, the meaning of an enterprise agreement is to be ascertained using accepted methods of interpretation. I do not consider that the authorities establish a presumption in favour of any type of outcome.
[27] Thirdly, I agree with the company’s contention that the determination of the most appropriate classification should take account of the whole of the classification structure. This is clearly part of the relevant context. However I agree with the Applicants that it is not for the Commission to ensure that its interpretation of the Agreement delivers an appropriate spread of employees across the classification structure. As the Applicants said, an enterprise agreement can specify whatever structure is desired, and if, properly considered, that results in some classifications being sparsely populated or even vacant, that is not a matter the Commission should seek to ‘correct’.
[28] As to the company’s contention that the TWU had not previously asserted that ramp loading supervisors should be classified at level GC4, the union is not somehow estopped from claiming that the terms of the Agreement are being incorrectly applied, nor is silence on this matter evidence of the union’s intent or that of its members.
[29] I will address the significance of the history of classification GC3B, and two other constructional points raised by the parties, after my consideration of the role and duties performed by the Applicants.
[30] The principles that apply to the interpretation of an enterprise agreement were summarised by a Full Bench of the Commission in AMWU v Berri Pty Ltd,18 drawing on the earlier Full Bench decision in AMIEU v Golden Cockerel Pty Ltd.19 The interpretation 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 dispute over the interpretation of an enterprise agreement will turn on the language of the agreement, having regard to its context and purpose.20 Context might appear from the text of the agreement as a whole, the disputed provision’s place and arrangement in the agreement, and the legislative framework under which the agreement was made.21 Further, the task of interpreting an enterprise agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome.
[31] The Full Bench in Fonterra Brands considered the circumstance of particular duties being comprehended by several classifications in an enterprise agreement. It stated:
“The task of determining the appropriate classification involves making findings of fact as to the requirements of the roles and applying those facts to the proper scope of the Agreement classifications. Often this is a difficult task, especially when the agreement operates on notions implied by practice and local understandings. Further, duties may be comprehended by more than one classification or be outside the scope of all classifications. In such circumstances it is necessary to determine the substantial character of the role by reference to the level of responsibilities and the duties of the position to determine the most appropriate classification from the range of classifications in the agreement.” 22
[32] In my view these observations are concordant with the principles set out in Berri. I approach them on this basis. Further, I agree with the Applicants that the observations in Fonterra Brands operate subject to the terms of the relevant instrument, which might require a different approach be used to ascertain the correct classification of an employee. I note that the ‘substantial character’ approach has been formulated in other similar ways, such as by reference to the ‘principal or major or substantial aspect’ of the employee’s employment. 23
Interpretation of the Agreement
[33] The starting point for analysis is the text of the relevant classifications in Attachment B, read in the context of the Agreement as a whole. It will be recalled that clause 13(a) lists seven classifications. Clause 13(b) confirms that the company will determine the size, composition and duties and other work practices in any place of work. And clause 13(c) states that the ‘roles and duties’ for each classification are provided at Attachment B. The Agreement does not assign indicative positions to classifications. There is no general instruction regarding how the various classifications are to be applied.
[34] I note that the higher duties provision in clause 14(e) states that an employee ‘will complete all duties at or below the employee’s classification level as required by the Company’. However I do not read this as requiring each and every duty listed in a classification to be performed by an employee in order for the employee to be covered by it. Clause 14(e) simply notes that employees will perform duties required of them by the employer at their classification level or below.
[35] It is important to consider whether any particular duties are mandatory requirements of the relevant classification. The various roles and duties listed under the seven classifications in Attachment B are for the most part ‘dot points’ formulated as phrases rather than complete sentences. One of the few exceptions is item 1 of GC4. 24 It states: ‘Employees at the level are responsible for a number of groups of staff in a work area including all Team Leader and related duties.’ In my view, a plain reading of this sentence conveys that an employee at level GC4 will carry this responsibility. That is, performance of item 1 of GC4 is a necessary condition of being classified at GC4. A contrary argument might be that the word ‘employees’ can mean ‘some employees’ but not necessarily all. However, this meaning could have been achieved by a dot point, without the words ‘Employees at this level are’. Item 1 of GC4 is to be contrasted with items 1 and 4 of GC3B, which simply say ‘Responsible for …’, and with item 4 of GC4, which says ‘Be responsible for…’ The introductory words of item 1 carry significance. They connote a norm that employees at the level are to have the relevant responsibility. In my view, item 1 mandates that ‘employees at the level are responsible’ for multiple groups of staff in a work area. Those who are not so responsible are not employees at the GC4 level.
[36] I will now consider the work undertaken by the Applicants, with a view to making findings as to which of the roles and duties in the classification structure they perform.
Duties performed by the Applicants
[37] In considering the Applicants’ contention that they should be classified at level GC4, each of the items under that classification needs to be considered. This may involve questions of interpretation of these items and consideration of the evidence about the Applicants’ duties. Whether an employee performs some, many or all of the ‘roles and duties’ of a particular classification will be relevant to the question of how the employee is properly to be classified, as will be the quality and significance of each of those duties.
[38] Naturally enough, the parties framed their submissions and evidence by reference to which of the roles and duties listed under classification GC4 are performed by the Applicants.
[39] The Applicants contend that they undertake all of the GC4 roles and duties. Witness statements were tendered from four of the five Applicants. They are in very similar and in some respects identical terms. I do not imply any criticism. As I noted during the hearing, the Applicants perform the same role and it is to be expected that their statements would be closely aligned. I will refer below principally to the statement of Mr Tasevski. The references in the witness statements to the duties undertaken by the Applicants relevantly mirror the wording of the GC4 classification to a significant degree. There is nothing wrong with this. However the level of detail provided by a particular witness on a given matter can be relevant to how persuasive that evidence is and the findings of fact that the Commission makes.
[40] In his witness statement, Mr Tasevski states that his ‘day to day responsibilities’ as a loading supervisor include but are not limited to the following:
“• Employees are responsible for a number of groups of staff in a work area including all team leader and related duties;
• Loading supervisors supervise and delegate tasks to various groups of staff on a daily basis. These groups can be four to six in number per flight, the groups can change daily from two to five times which equates to supervising and delegating tasks to four to thirty staff daily.
• Organise and coordinate work within their area of responsibility.
• Loading supervisors perform this role on a daily basis through organizing, allocating and delegating tasks to staff;
• Liaising and coordinating with various stakeholders to ensure a smooth operation which include …
• Assume full responsibility for the loading and unloading of aircraft including for checking, writing and signing the appropriate documents, certifying that the aircraft has been loaded in accordance with the load instruction report.” 25
[41] The other three applicant witness statements also contain this text. 26
Item 1 of GC4
[42] The first item under the GC4 classification reads as follows: ‘Employees at the level are responsible for a number of groups of staff in a work area including all Team Leader and related duties’. It will be seen that the first dot point listed in Mr Tasevski’s statement above is the same as the first item under GC4 in the Agreement. Mr Tasevski’s second point then elaborates upon his first.
[43] QGS contends that loading supervisors do not undertake the role and duties of item 1, because they do not have responsibility for a number of groups of staff. Mr Hardy gave evidence that the Applicants only have responsibility for one team at any one time, comprising between four to six people. He said that the particular group will change from time to time, from engagement to engagement, and that the composition of the team is determined principally by the company’s allocators.
[44] The evidence of the witnesses is not conflicting. It is the parties’ interpretation of the word ‘groups’ that differs. The plain meaning of ‘group’ is a number of people (or things) that are gathered or classed together. On the Applicants’ argument, item 1 of GC4 contemplates groups in the sense of gatherings, and the evidence shows that there are successive groups of people for which loading supervisors are responsible. The reason there are a number of groups is because each time the composition of the group changes, which it does regularly, there is a new group. However, for QGS, item 1 contemplates a number of groups of different classes, not just one group, the composition of which changes from time to time.
[45] The words ‘groups of staff’ must be understood in the context of a person being responsible for them, and this responsibility lying at the top of the classification hierarchy. In isolation, or in different context, it might be natural to understand ‘groups of staff’ to mean groups only in the sense of gatherings. For example, a provision might require all groups of staff to work cooperatively. In such a setting, the characteristics of the groups are not of any apparent importance. But item 1 of GC4 requires responsibility for a number of groups of staff. It is difficult to see what special responsibility arises simply from a change in the composition of a group. The evidence did not point to any significant matter. In terms of responsibility, there is little to distinguish the ‘multiple groups’ referred to by the Applicants from a single group servicing a number of different aircraft on a particular day. By contrast, the existence of different kinds of groups is more likely to entail particular responsibility.
[46] I note that under the GC3B classification, at item six, an employee ‘carries out team leader and related duties’. It will be recalled that loading supervisors are also referred to as team leaders. Team leaders logically carry some responsibility for the team they lead. The composition of a team leader’s team can change from time. And if one accepts that a new group can be formed by a change in composition of the group, the team leader / loading supervisor can therefore have responsibility for a ‘number of groups’ (in the meaning advanced by the Applicants) already at the GC3B level. However, at the next level up, GC4, item 1 states that employees are ‘responsible for a number of groups of staff in a work area, including all Team Leader and related duties’ (emphasis added). Responsibility for a ‘number of groups of staff’ at the GC4 level clearly goes beyond those of team leader and contemplates groups in addition to a team leader’s team.
[47] Further, item 1 says that employees at the GC4 level have responsibility for a number of groups of staff in a work area. ‘Work area’ can mean a geographic area or an operational area. The work that the Applicants perform concerns the loading and unloading of aircraft and the responsibilities they carry in this connection. Mr Tasevski’s evidence was that loading supervisors supervise and delegate tasks to various groups of staff on a daily basis, that these groups comprise four to six employees per flight, with the groups potentially changing daily from two to five times. The Applicants might say that aircraft and the vicinity of aircraft constitute a work area, and that loading supervisors are responsible for a number of ‘groups of staff’ in the course of a day in this area. However, the evidence makes clear that the loading requirements differ from aircraft to aircraft. The Applicants are required to work on a variety of aircraft types. Their cargo and handling requirements vary, as does the position of the aircraft on the ramp. In my view, the arrival of a different aircraft constitutes a new ‘work area’. Even if loading supervisors were considered to be responsible for a number of groups, they would not be a number of groups in the same work area, but in different work areas.
[48] In my view, item 1 of GC4 plainly contemplates an employee being responsible for more than one team on one aircraft at any one time.
[49] I would note for completeness that there was no suggestion in the evidence that, although loading supervisors might be ‘actively’ responsible for one particular group at any given time, they maintain ongoing responsibility for any other groups. As for the successive ‘loading’ groups for which the Applicants say they are responsible, each group (understood in the sense of a gathering of particular individuals on a particular day, as the Applicants contend) ceases to be that group when the composition changes. There is no other sense in which the Applicants contended that they are responsible for a number of groups of staff in a work area.
[50] I find that the Applicants are not ‘responsible for a number of groups of staff in a work area including all Team Leader and related duties’. As I have explained above, I consider that satisfaction of item 1 of GC4 is a necessary condition for an employee to fall within the classification. Accordingly, I conclude that the Applicants do not fall within the GC4 classification in the Agreement.
[51] However, as I will explain below, even if meeting item 1 of GC4 were not a necessary condition for an employee falling within the classification, I consider that the Applicants would nevertheless be correctly classified at the GC3B level. I will proceed to set out my consideration of the extent to which the Applicants perform the duties in GC4 and the substantial character of their role.
Item 2 of GC4
[52] As to the second item at the GC4 level, Mr Tasevski and the other three Applicants stated that they organise and coordinate work within their area of responsibility. QGS acknowledges that they do so. I accept that this is the case.
Item 3 of GC4
[53] Recapping the debate in relation to item 3 of GC4, Mr Tasevski and his colleagues attest that they ‘assume full responsibility for the loading and unloading of aircraft including for checking, writing and signing the appropriate documents, and certifying that the aircraft has been loaded in accordance with the load instruction report.’ 27 QGS recognises that loading supervisors perform these tasks28 but submits that they are covered by items 1 and 3 under GC3B, which state that employees are: ‘responsible for the safe loading and unloading of aircraft in accordance with the operating procedures and all compliance regulations’; and they ‘complete all aircraft documentation including but not limited to any weight and balance documents’. The company says that the relevant ‘operating procedures’ referred to in item 1 of GC3B are found in Chapter 5 of the SOPs appended to Mr Hardy’s statement,29 and that these make clear that loading supervisors are required to assume full responsibility for the load and that they must sign off on the LIRs.30 The company says that, because these functions are required by the operating procedures, the function is caught by item 1 of GC3B.
[54] Both sides therefore rely on the SOPs. The Applicants say the SOPs confirm that they do the work of item 3 of GC4. QGS says that they confirm that this work is also covered by GC3B. The Applicants say that they have faced disciplinary action in cases where the requirements of item 3 of GC4 have not been followed. 31 The company acknowledges that there may be disciplinary consequences for loading supervisors who sign off on a non-compliant LIR, but says that this arises at the GC3B level in connection with the Applicants not fulfilling the duties of items 1 and 3.
[55] The plain language of items 1 and 3 of GC3B and item GC4 conveys different meaning, even if it covers common ground. At GC4, an employee assumes ‘full responsibility’ for loading and unloading an aircraft; at GC3B, one is ‘responsible for the safe loading and unloading of the aircraft’. ‘Assuming full responsibility’ for something is of a higher order than simply being responsible for it. ‘Assuming responsibility’ clearly connotes accountability, whereas being ‘responsible’ for a task could connote either accountability for or the actual performance of the task. I note that other items in the classification structure that are common to more than one classification have simply been repeated, such as the requirement to work down as required. 32 The use of different words in the same document suggests different meaning. In particular, as the Applicants point out, items 1 and 3 of GC3B say nothing about certifying that the aircraft has been loaded in accordance with the LIR.
[56] However, although the language of the relevant items is self-evidently different, that does not mean that they cannot amount to the same thing in particular circumstances. The reference to the operating procedures in item 1 of GC3B carries with it a certain level of flexibility and the content of the SOPs is clearly relevant. The operating procedures state that loading supervisors accept full responsibility for the load and sign off on the LIRs. They say essentially the same thing as item 3 of GC4. Importantly, there was no suggestion that QGS had changed the operating procedures (the SOPs) to make loading supervisors responsible for GC4 level tasks which they had not previously undertaken. The copy of the ramp operations manual attached to Mr Hardy’s statement bears a copyright date of 2014. The company maintains, and the Applicants do not contest, that nothing has changed in the duties of loading supervisors since the introduction of the GC3B classification in the 2013 Agreement. In short, there is nothing to indicate that QGS has sought to circumvent the agreement approved by employees and avoid applying the GC4 classification to loading supervisors by changing the operating procedures.
[57] Mr Hardy describes the role and duties of loading supervisors at some length in his witness statement. 33 In my view, it is clear that the Applicants do perform the duties at item 3 of level GC4. It is also clear that they perform the tasks contemplated by items 1 and 3 at GC3B. I note that there is nothing in the Agreement to suggest that particular duties can only fall under one classification.
[58] I have considered whether it could be said that the Applicants perform item 3 of GC4 and not items 1 and 3 of GC3B, given the apparently ‘cumulative’ nature of classification levels in the structure (see the reference at the start of each classification above level GC1 to the earlier classifications, together with the ‘+’ symbol). The argument might be that, if an employee is performing the lower level duties plus additional duties of the higher classification, the lower duties are subsumed by the higher level and employees should be considered to be performing the work of the higher level only. However, I do not find this persuasive. The work that the Applicants undertake by performing the item 3 GC4 duties is not additional, in the circumstances, to the work of items 1 and 3 of GCB3. It is the same work, because of the content of the SOPs. Further, in my view the introductory words simply reflect the requirement of each classification level above grade 1 that all employees ‘work down as required’, and indicate that employees must be able to undertake all the duties of the preceding levels.
[59] The evidence establishes that the Applicants perform the role and duties at item 3 of level GC4, and those of items 1 and 3 of level GC3B.
Item 4 of GC4
[60] As to the fourth item of GC4, Mr Tasevski attested that loading supervisors must ‘be responsible for the control, supervision and training of designated staff.’ 34 This wording replicates the text of item 4 of GC4. Mr Tasevski also said that loading supervisors perform this role on a daily basis, that they delegate tasks to staff, ensure the staff adhere to tasks by arriving on time and follow standard operating procedures to allow for the safe loading and unloading of the aircraft.35 Mr Barkho, Mr Fountoulakis and Mr Hudson say the same in their statements.36
[61] Mr Tasevski also said that loading supervisors have participated in training new loading supervisors. 37 He attached to his statement a copy of a document entitled Qantas Ramp Training Information Notice: Co-signing of the LIR When Training (Training Information Notice). This states that ‘during on the job training’, the ‘trainee loading supervisor’ must input the certified loading supervisor’s name in a particular field, and the certified loading supervisor must co-sign the signature field. The document suggests that the ‘certified loading supervisor’ is training the ‘trainee loading supervisor’.
[62] Mr Hardy disagreed with Mr Tasevski’s statement that loading supervisors are responsible for control, supervision and training of designated staff. He said rather that loading supervisors supervise a team of employees only while they are loading and unloading a particular aircraft. He said that they are not responsible for the broader supervision of those employees, such as in relation to performance management or discipline. As to training, he said that loading supervisors were responsible for conducting ‘on the job familiarisation’ for ground operations team members. In Melbourne, trainee loading supervisors complete a one day course conducted by a trainer in the classroom. They are then paired with and shadow a loading supervisor. After two weeks, the trainer assesses the trainee to ensure he or she is competent to perform the job. 38 Mr Hardy said that loading supervisors’ role in relation to trainees is one of mentoring rather than training.39
[63] Item 4 of GC4 contemplates responsibility for control, supervision and training, not simply any one of these. In my view, it is supervisors and shift supervisors who control designated staff, not loading supervisors. Mr Hardy explained that supervisors are responsible for the performance management of groups of QGS employees under their supervision, including loading supervisors. 40 In Melbourne, certain supervisors are responsible for particular employees on an ongoing basis.41 By contrast, loading supervisors supervise the employees who happen to be in their load team from time to time. I note that ‘control’ and ‘supervision’ are used side by side in item 4 of GC4; they do not mean the same thing. I accept that loading supervisors are responsible for supervision of employees in their team at any given time, but I do not find them to be responsible for the control of designated staff.
[64] As to training, I accept that mentoring and sharing knowledge and experience could be described as training however in my view it is the trainer who is ‘responsiblefor training’. It is this person, who is classified at level GC4, who conducts the formal training and assesses competency. In my view, loading supervisors’ mentoring activities for trainee loading supervisors are better described as ‘on the job training’, words that appear in the Training Information Notice. Significantly, these words are also found in item 4 of level GC3A and item 7 of level GC3B. I note that there was no evidence of the loading supervisors training other ‘designated staff’, such as team members.
[65] I find that the Applicants do not undertake what is contemplated by item 4 of GC4. They are not responsible for the control, supervision and training of designated staff. They are not responsible for control. They are responsible for supervising employees in a team at a particular time. They perform training but are not responsible for training.
Item 5 of GC4
[66] In respect of item 5 of GC4, Mr Tasevski said in his statement that loading supervisors ‘perform various administrative and reporting duties using designated systems and equipment,’ reflecting the wording of the item. He said further that loading supervisors use systems and equipment on a daily basis such as two way radios for communication and iPads for accepting and starting tasks and finalising load instruction reports for aircraft departure. 42 The other Applicants’ witness statements were to the same effect.43
[67] Mr Hardy said that loading supervisors perform only some administrative and reporting duties within the scope of their role and use certain equipment. By contrast however, he said that administrative reporting duties were a key function of GC4 level role, and that employees at that level are also required to use Excel, PMA (an electronic management system), IRoster (an automated rostering system) and other systems on a regular basis. 44
[68] The tasks contemplated by item 5 are rather generic. They could capture work performed by many different employees across most levels in the classification structure. It is appropriate to bear in mind that the GC4 level is the top of the classification hierarchy; this is part of the context in which the wording of the relevant item must be interpreted. There must be some doubt as to whether routine and general functions, such as using two way radios and iPads, are contemplated by this item in level GC4, and that instead some substantial administrative and reporting duties using designated equipment is required, in keeping with the seniority of the level 4 classifications. I note that item 5 of GC4 is not so different from item 5 of GC3, several grades below. Mr Hardy’s evidence of the duties performed in this regard by current employees classified at level 4 (but not the Applicants) meets the descriptor in item 5. Nevertheless, the item is cast as it is; it does not on its terms require substantial administrative and reporting duties. I find that the Applicants do perform the role and duties set out in the fifth item of the GC4 classification.
Item 6 of GC4
[69] Mr Tasevski and his colleagues stated that they perform what is described in item 6 of GC4, that is, they ‘demonstrate leadership, decision making and organisation skills necessary to efficiently meet performance requirements in a changing work environment, including completing required reports and regular performance assessments.’ 45 Mr Tasevski said that loading supervisors ‘demonstrate leadership on a daily basis’ and that it is usually the loading supervisor who makes the last call when issues arise during loading or unloading.46 He said that loading supervisors also ‘demonstrate organisational skills on a daily basis’ and that this is a fundamental part of their role.47 And he stated that loading supervisors have completed performance assessments on staff to identify opportunities to improve performance and productivity.48 However, no details or examples are provided.
[70] Mr Hardy stated that loading supervisors are not required to complete reports, other than the LIRs. He said that they are not required to complete ‘regular performance assessments’, as contemplated by item 6. While loading supervisors may be asked for feedback in relation to the performance of ramp workers whom they have supervised, it is the GC4 supervisors who are responsible for conducting performance assessments and for reporting on the performance of employees; loading supervisors do not have responsibility for the performance assessment process. Mr Hardy said that to the extent that loading supervisors demonstrate leadership, decision-making and organisation skills, he considers these to fall within their responsibilities to ‘carry out team leader and related duties’ as described in item 6 of the GC3B classification.
[71] In my view, loading supervisors exhibit some leadership. The loading supervisor position is interchangeably referred to as ‘team leader’ which clearly involves some level of leadership. However, I accept Mr Hardy’s evidence that loading supervisors do not regularly complete performance assessments. Further, nothing was said by the Applicants specifically in relation to how they demonstrate decision-making and organisation skills that are ‘necessary to efficiently meet performance requirements in a changing work environment’. The Applicants did not challenge Mr Hardy’s evidence that it is the GC4 supervisors who are responsible for performance assessments. I note that item 6 of GC4 refers to ‘regular performance assessments’, whereas the Applicants’ own evidence is only that they ‘have completed performance assessments on staff’; they do not claim to regularly conduct such assessments.
[72] I consider that the relevant roles and duties referred to in the witness statement of Mr Tasevski and his colleagues fall within item 6 of the GC3B classification. I find that the Applicants do not perform what is contemplated by the sixth item of the GC4 classification.
Item 7 of GC4
[73] The last substantive item listed under the GC4 classification is: ‘Make recommendations on all aspects of the operations, seeking to identify opportunities to improve performance and productivity.’ Mr Tasevski and the other Applicant witnesses said in their statements that they ‘have been asked in an informal manner on ways to improve performance and productivity’. 49 However, Mr Hardy said that loading supervisors are required to operate strictly in compliance with the Ramp Operations Manual and have very limited scope in which to explore productivity improvements. He said that from time to time they will be asked for feedback on operational processes.
[74] In my view the evidence does not establish that the Applicants make ‘recommendations on all aspects of the operations’. The Applicants’ evidence that they have been asked in an informal manner on ways to improve performance and productivity falls short of meeting what is contemplated by item 7. The formality or otherwise of the recommendations is of no great moment. But there must be recommendations, not just comments or expression of a point of view. These recommendations are to concern all aspects of the operations. There was no detail provided by the Applicants as to what they said in response to being asked about ways to improve performance and productivity. No examples of recommendations were provided. Although Mr Tasevski stated that the role of loading supervisor ‘allows’ for self-initiative in finding ways to improve productivity, 50 it was not established that this initiative is actually used and that loading supervisors make recommendations of the relevant kind.
[75] In my view, the Applicants’ evidence is consistent with Mr Hardy’s description of their having provided ‘feedback’, not recommendations. Indeed they do not claim to have provided ‘recommendations’. I find that the Applicants do not undertake the duties in item 7 of the GC4 classification.
[76] Finally, it was not contentious that the Applicants ‘work down as required’, the eighth and final item under GC4, which is common to each classification above the GC1 level.
Conclusion
[77] Of the eight roles and duties set out under classification GC4, the Applicants perform the second, third, fifth and eighth. The latter two are not matters of great significance. The fifth is rather generic, and could relate to activities of many levels. The eighth item, ‘working down as required’, is common to all classifications above grade 1. Of more substance are the second and third items. The second - organising and co-ordinating work - is also of a somewhat general nature however it bespeaks a level of seniority and responsibility. And the third is of particular significance, requiring employees to assume ‘full responsibility’ for loading and unloading the aircraft, including certifying that the aircraft has been loaded in accordance with the LIR.
[78] The Applicants consider that their performance of the third item at GC4 is the essence of their role and that, because it is covered by level GC4, so too should be their positions. I accept that performance of the role and duties at item 3 of GC4 is a matter of importance. But it is not enough to bring an employee within level GC4.
[79] As I have explained above, item 1 of GC4 states that employees at the level of GC4 ‘are responsible for a number of groups of staff in a work area including all Team Leader and related duties.’ Having this responsibility is a necessary condition for an employee falling within level GC4. The Applicants do not satisfy it. But even leaving this to one side, I consider that the appropriate classification of the Applicants, having regard to the substantial character of their duties, is GC3B.
[80] The Applicants perform all of the roles and duties of GC3B, with the exception of towing, which is a discrete function undertaken by other employees. 51 Although the Applicants perform item 3 of GC4, the same duties see them perform items 1 and 3 of GC3B; given the content of the SOPs and in all the circumstances, the work the Applicants perform in this connection falls under both classifications. Mr Hardy’s evidence was that employees in the loading supervisor role are responsible for supervising a single team of employees at any given time to load or unload one aircraft at a time throughout the shift.52 This evidence does more than address the fact that the Applicants do not perform item 1 of CG4. In my view, it speaks to the level of overall responsibility associated with the Applicants’ position, and its substantial character. The Applicants are loading supervisors, not supervisors at large. They assume full responsibility for the load and signing off on the LIR. But unlike supervisors, loading supervisors are not responsible for the management of multiple groups of employees; unlike shift supervisors, they are not responsible for supervising operations for a whole shift across various areas.53 They do not perform broader supervisory and managerial functions, such as controlling staff and making wide-ranging recommendations on all aspects of operations. These matters are not simply items that are entered into the denominator, but not the numerator, of the fraction of GC4 level tasks the Applicants perform. They are roles and duties concerned with subject matter that reflects a higher level of seniority and responsibility than that required of the loading supervisor role.
[81] I have taken note of the provenance of classification GC3B. I accept the evidence of Mr Hardy that there was an earlier dispute that was very similar to the present one, and that the terms of the resolution of that dispute were reflected in the introduction of the new classification GC3B into the 2013 Agreement. However, there is no evidence about what if anything was said about this classification to employees who voted on the 2015 Agreement.
[82] The historical material was submitted as context in aid of interpretation. In my view, context is primarily textual, whereas surrounding circumstances are primarily factual. I consider matters going to the history of the Agreement to be part of the surrounding circumstances, which can be put to use in resolving ambiguity. But none of the parties contended that the Agreement was ambiguous. True it is that the Agreement provides relatively little express assistance as to the approach that should be taken to the application of the classification structure. There is some overlap between classifications, as is often the case. However, I do not consider the Agreement to be ambiguous. I therefore base my interpretative conclusions on the terra firma of the text and context of the relevant provisions without venturing into the turbid waters of the surrounding circumstances.
[83] Two last submissions on construction should be mentioned. First, the Applicants contended that the company’s position should not be accepted, because if loading supervisors are not properly classified at the GC4 level, it would mean that there is no one at the GC4 level undertaking the role and duties of item 3 of GC4. Mr Hardy’s evidence was that GC4 shift supervisors in the QantasLink operations in Sydney do undertake these tasks. In any event, as item 3 of GC4 is not a mandatory task for an employee at this level, there would be nothing necessarily surprising about this activity not being undertaken by any employee at the GC4 level. Item 3 of GC4 is a task that a GC4 level employee can perform. But it is not a necessary condition of classification at this level, nor is it a sufficient condition.
[84] Secondly, the company contended that the Applicants’ position leads to a perverse outcome in which loading supervisors would be classified at the same level as the supervisors to whom they report. In my view there is no reason why a classification could not embrace both a particular position and its direct report. But that is not the case here.
[85] For the reasons set out above, I consider that each of the Applicants is properly classified at level GC3B under the Agreement. The dispute is determined accordingly.
DEPUTY PRESIDENT
Appearances:
M Follett of counsel for Qantas Ground Services Pty Ltd
J Cooney of the Transport Workers’ Union of Australia for the Applicants
Hearing details:
2018
Melbourne
22 October
Printed by authority of the Commonwealth Government Printer
<PR610296>
1 AE423304
2 Witness statement of Richard Tasevski, [3] – [27]; PN123 - PN140
3 Applicants’ submissions, [11]
4 Fonterra Brands (Australia) Pty Ltd v AMWU[2015] FWCFB 3912 at [16]
5 That is, 77 of 89: see witness statement of Brett Hardy, [39] – [40]
6 Witness statement of Brett Hardy, [43] and [56]
7 Ibid, [19] – [21]. Note: the enterprise agreement in operation at the time of the dispute was the Qantas Ground Services Pty Ltd Ground Handling Agreement 2009, which did not include classifications GC3A and GC3B. It was limited to Trainees and Ground Crew 1-4. See attachment BH-1 to the witness statement of Brett Hardy
8 Witness statement of Brett Hardy, [21]
9 Ibid, attachment BH-3
10 Note the wording is similar both to the first item of GC3B and the third item of GC4
11 AE405131
12 Witness statement of Brett Hardy, [30] and [32]
13 Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [67]
14 Ibid, [65]
15 Applicants’ submissions, [13] – [15 ]
16 George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-50; City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 at [57]
17 Applicants’ submissions, [16]
18 [2017] FWCFB 3005
19 [2014] FWCFB 7447
20 See also WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197]
21 See point 1 in [114] of Berri; and point 8 of [41] of Golden Cockerel
22 [2015] FWCFB 3912 at [16]
23 Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 at [27]. See also the authorities referred to in Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325 at [64] – [67]
24 Item 1 of GC4 is one of only five indictors among fifty in the classification structure that are drafted as full sentences
25 Witness statement of Richard Tasevski, [13]
26 Witness statements of Tomas Barkho, [9]; George Fountoulakis, [9]; Jordi Hudson, [8]
27 Witness statement of Richard Tasevski, [13]
28 Witness statement of Brett Hardy, [68] at d.; PN105 - PN107
29 Witness statement of Brett Hardy, attachment BH-9
30 Ibid, attachment BH-9 at 5.5.3.3 and 5.5.3.5
31 Witness statement of Richard Tasevski, [14] – [17]; attachment RT-5
32 See also item 3 of GC3A and item 5 of GC3B
33 Witness statement of Brett Hardy, [43] – [54]
34 Witness statement of Richard Tasevski, [18]
35 Ibid, [19]
36 Witness statements of Tomas Barkho, [14] – [15]; George Fountoulakis, [14] – [15]; Jordi Hudson, [13] – [14]
37 Witness statement of Richard Tasevski, [20]
38 In Melbourne, this trainer is an employee of Qantas, rather than QGS
39 Witness statement of Brett Hardy, [70]
40 Ibid, [56]
41 Ibid, [59]
42 Witness statement of Richard Tasevski, [21] - [22]
43 Witness statements of Tomas Barkho, [17] – [18]; George Fountoulakis, [17] – [18]; Jordi Hudson, [16] – [17]
44 Witness statement of Brett Hardy, [72]
45 Witness statement of Richard Tasevski, [23]
46 Ibid, [24]
47 Ibid, [25]
48 Ibid, [26]
49 Witness statements of Richard Tasevski, [27]; Tomas Barkho, [23]; George Fountoulakis, [23]; Jordi Hudson, [22]
50 Witness statement of Richard Tasevski, [27]
51 Witness statement of Brett Hardy, [52], [54]; PN163
52 Ibid, [43]
53 Ibid, [38] at (m) and (n) and [61]
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