Royal Flying Doctor Service of Australia (South Eastern Section) v Australian Federation of Air Pilots

[2014] FWC 6839

[2014] FWC 6839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424—Industrial action

Royal Flying Doctor Service of Australia (South Eastern Section)
v
Australian Federation of Air Pilots
(B2014/1010)

COMMISSIONER JOHNS MELBOURNE, 30 SEPTEMBER 2014

Application by the Royal Flying Doctor Service of Australia (South Eastern Section) to terminate protected industrial action.

Introduction

[1] This decision arises out of an application made by the Royal Flying Doctor Service of Australia (South Eastern Section) (RFDS) on 25 July 2014 for an order pursuant to s.424 of the Fair Work Act 2009 (FW Act) to terminate protected industrial action that, at that time, was being taken by the Australian Federation of Air Pilots (AFAP/Respondent) and its members.

[2] Subsection 424(3) of the FW Act requires the Fair Work Commission (Commission), as far as practicable, to determine such an application within 5 days after it is made. On 25 July 2014 the Commission issued directions programming the matter for hearing in order that it could determine the matter before expiration of the 5 day requirement.

[3] The hearing of the application commenced on 30 July 2014. At that time the Commission was advised that AFAP was prepared to give undertakings to the Commission that, in the view of the RFDS necessitated it considering the impact of those undertakings on their evidence. The parties agreed to an adjournment and consent directions in relation to the further programming of the matter.

[4] Consequently, s.424(3) of the FW Act could not be complied with and it became necessary to issue an interim order as mandated by s.424(4) of the FW Act. The AFAP consented to the making of the interim order suspending the protected industrial action to which the RFDS’s application relates until the application is determined.

[5] The substantive hearing of the application ensued on Tuesday, 5 August 2014.

[6] During the proceedings the parties presented witness and other evidence in relation to the industrial action and its impact. By reason of the undertakings the Applicant filed additional material on 1 August 2014. At that time the Commission was advised that the Applicant no longer relied upon the previous material filed on 27 July 2014.

[7] At the hearing on 5 August 2014, the RFDS called evidence from:

● Rosemary Hegner, the Acting Executive Director of Health Emergency and Aeromedical Services for Ambulance Service NSW (ASNSW);

● Mark Prior, RFDS’s Mascot Base Manager; and

● David Charlton, RFDS’s General Manager of Operations.

[8] In respect of the Respondent’s earlier filed material the Commission was advised that the Respondent now only relied upon the evidence of Bligh Ridge, one of RFDS’s pilots based at Dubbo, and a further witness statement filed by him. Mr Ridge also gave oral evidence on 5 August 2014.

Industrial background

[9] The RFDS and the AFAP are parties to the Royal Flying Doctor Service of Australia (South Eastern Section) New South Wales Pilots Agreement 2010 (NSW Pilots Agreement) which passed its nominal expiry date on 31 December 2013.

[10] Negotiations for a replacement agreement have taken place since August 2013 without agreement being reached.

[11] The application by the RFDS sought an order to terminate protected industrial action which (at the time the application was made) was being engaged in by the AFAP and its members in support of claims being pursued by employees of the RFDS for a replacement agreement. The application was opposed by the AFAP.

[12] The background to the industrial action is not contested and can summarised as follows:

a) RFDS has been negotiating with its pilots employed in NSW at Dubbo, Broken Hill and Mascot since August 2013 for a proposed enterprise agreement to replace the NSW Pilots Agreement (Proposed Agreement);

b) Approximately 37 pilots are to be covered by the Proposed Agreement (24 at Mascot, 7 at Dubbo and 6 at Broken Hill);

c) The RFDS is the employer and is a bargaining representative for the Proposed Agreement;

d) The AFAP is the default bargaining representative for those pilots who are members of the AFAP and also for those pilots who are not members but have appointed the AFAP as their bargaining representative in relation to the bargaining;

e) Protected industrial action by Pilots was authorised by a protected action ballot;

f) On 16 July 2014, the AFAP provided the RFDS with a Notice of Intention to commence Employee Claim Action (Notice) stating that the Pilots intended to engage industrial action commencing at 0600 on Tuesday, 22 July 2014 and continuing thereafter for an indefinite period.

The industrial action

[13] The industrial action approved to be engaged in is as follows:

a) An unlimited ban on working on a day off (Ban 1);

b) An unlimited ban on accepting work related telephone calls or instructions outside formal duty or reserve periods (Ban 2);

c) An unlimited ban on wearing the specified pilot uniform (Ban 3);

d) An unlimited ban on processing paperwork (unless that paperwork is a mandatory requirement under civil aviation legislation) (Ban 4);

e) An unlimited ban on working more than 8 hours a day (with the exception of a medical 1 priority) (Ban 5);

f) An unlimited ban on aircraft cleaning (Ban 6);

g) An unlimited ban on replenishing on-board oxygen (Ban 7); and

h) The taking of 30 minute meal breaks (thus foregoing a meal allowance) (Ban 8).

Undertakings made by the AFAP

[14] During the proceedings on 30 July the AFAP made undertakings to the Commission about the conduct of the protected industrial action. The undertakings were that its members would cease engaging in and not reinstate the industrial action comprising:

5. An unlimited ban on working more than 8 hours a day (with the exception of a medical 1 priority);

8. The taking of 30 minute meal breaks (thus foregoing a meal allowance).

[15] The RFDS was not satisfied that the undertakings would mitigate what it says is the threat to personal safety or health or welfare.

[16] During the hearing on 5 August 2014 the AFAP made further undertakings to the Commission that Ban 1 and Ban 2 would not be applied at Dubbo.

[17] Notwithstanding the undertakings the RFDS continues to complain about the remaining proposed protected industrial action, namely:

a) an unlimited ban at Mascot on working on a day off (i.e. Ban 1);

b) an unlimited ban at Mascot on accepting work related telephone calls or instructions outside formal duty or reserve periods (i.e Ban 2);

c) an unlimited ban on aircraft cleaning (i.e. Ban 6); and

d) an unlimited ban on replenishing on-board oxygen (i.e. Ban 7).

(“Remaining PIA”)

Section 424 of the FW Act

[18] The application by the RFDS is for an order to be made pursuant to s.424 of the FW Act terminating the protected industrial action that the AFAP and its members will resume taking if the current suspension of protected industrial action is lifted.

[19] Section 424 provides that the Commission must make an order suspending or terminating protected industrial action if it is satisfied that the action threatens to endanger the life, the personal safety or health or the welfare of the population or part of the population or to cause significant damage to the economy.

[20] Whether an order should be made under s.424 will be a matter to be determined upon a consideration of all the circumstances and having regard to the evidence and submissions before the Commission.

[21] In National Tertiary Education Union v University of South Australia 1 a Full Bench of Fair Work Australia found that:

Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:

“The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease — at least temporarily.
It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.” [PN 1708-1709] 2

[22] The Commission, as presently constituted, adopts the reasoning of the Full Bench. A termination of industrial action should not be granted merely because of some inconvenience the action may cause to the employer. Inconvenience may cause the employer to need to put in place alternative arrangements to ameliorate the effect of any action. The need to do so is no basis for terminating bargaining. Mere economic costs of the industrial action are not sufficient to grant an application to terminate industrial action. The only basis for termination arises when the action is a threat to the life, personal safety or health, or the welfare of the population or a part of it.

[23] In Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union 3 Kaufman SDP, after considering a decision in F & Others v National Crime Commission4 determined that the approach to such an application should be ‘on the basis of probabilities rather than possibilities’ and also that he ‘must be satisfied that the protected action would threaten to endanger, not endanger.’ That is, in determining if the protected action would threaten to endanger life etc it must be on the basis of the probability of the action doing so, not the mere possibility.

This approach was adopted by Spencer C in Tyco Australia Pty Ltd t/a Wormald v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. 5 It is this approach that the Commission, as presently constituted, adopts in this matter.

It is therefore necessary to consider if the Remaining PIA, if taken, will, in probability, threaten to endanger the life, the personal safety or health, or welfare of a part of the population.

The evidence

[24] It is necessary to consider the evidence in relation to each ban constituting the Remaining PIA. In doing so, the Commission does not seek in these reasons for decision to set out in detail all the evidence presented in the proceedings. In brief terms, the evidence was to the following effect.

Re - An unlimited ban at Mascot on working on a day off (Ban 1) and an unlimited ban at Mascot on accepting work related telephone calls or instructions outside formal duty or reserve periods (Ban 2)

[25] Rosemary Hegner gave evidence that:

a. The RFDS is engaged by ASNSW to provide all fixed wing emergency and non-emergency air ambulance services by pilots in NSW on behalf of ASNSW (NSW fixed wing air ambulance services).
b. ASNSW does not provide any of the NSW fixed wing air ambulance pilot services itself.
c. There are no other fixed wing emergency aeromedical providers in NSW, however ASNSW does utilise the services of a number of rotary wing (helicopter) providers in some parts of NSW where conditions allow (such as availability, weather conditions, distance etc).
d. The ASNSW fixed wing air ambulance services involve the RFDS providing resources (including aircraft and pilots) for:

i. emergency medical retrieval services;
ii. state-wide aeromedical transport; and
iii. clinical care of patients from out-of-hospital locations and between hospitals.

e. The RFDS fixed wing aircraft are specially configured for that work and operate from bases at Mascot (ASNSW) and Dubbo (RFDS).
f. Air ambulance services are commonly used where land-based services would not meet the required timeframes for medical care or are not available.
g. Patient life, safety, health and welfare are paramount to what ASNSW does. The RFDS is critical to ensuring the patient life, safety, health and welfare which is entrusted to ASNSW.
h. The provision of public health services (including hospital or medical services) and ambulance services are essential services under the Essential Services Act 1988 (NSW) (sections 4.1(d) and (e)), as is the RFDS’s supply of services to ASNSW which are necessary for providing the public health services and ambulance services (section 4.1(l)).
i. At Mascot, the pilots employed by the RFDS wear ASNSW uniforms and fly fixed wing aircraft with ASNSW livery. As such, any conduct by those pilots is, to the public, taken to be engaged in by ASNSW.
j. When a high acuity care patient presents to a local hospital, the treating physician will contact the State Medical Retrieval Consultant, within the Aeromedical Control Centre, to coordinate a transfer to a high acuity facility for further treatment. The consultation between physicians regarding the acuity of the patient will result in a priority being allocated to the patient transfer.
k. Priority 1 patients are required to be managed immediately and priority 2 within 3 hours.
l. Failure to deliver a timely response to priority 3 and 4 patients could lead to deterioration of the patient and a subsequent upgrade to their priority.
m. For the month of July 2014 the Mascot base has undertaken 209 missions (out of 270 total missions across NSW) which constitute approximately 77% of all aeromedical fixed wing work across the state.
n. ASNSW deals with a high demand and must be able to manage unexpected, emergency and non-emergency incidents. Flexibility, availability of resources and as much certainty as possible is integral to the ability of ASNSW to provide its services in a timely manner.
o. I also understand that the AFAP has withdrawn two of the bans that had previously been in place, namely the ban on working more than 8 hours a day (with the exception of a medical 1 priority) and the taking of 30 minute meal breaks.
p. Although the risk to health and safety is reduced because AFAP withdrew Ban 5 and Ban 8, the likely impact of two of the remaining bans still causes concern, namely:

i. the ban on working a day off (i.e. Ban 1) and;
ii. the ban on accepting work related telephone calls outside of formal duty or reserve periods (i.e. Ban 2).

q. Any contact with RFDS pilots on their day off or outside of formal duty or reserve periods is made by the RFDS and not by ASNSW.
r. Accordingly, although the allocations by ASNSW are not directly affected by the pilots’ bans on working a day off and accepting work related telephone calls outside of formal duty or reserve periods (as any contact with pilots who are not rostered on shift is made by the RFDS not ASNSW), based on the information that has been provided to her, she believes these bans will impact emergency and non-emergency air ambulance coverage at Mascot where there are unexpected pilot absences that cannot be covered because a pilot is not available to be called in at short notice or on a day off.
s. In relation to the RFDS’ Mascot operations, she has been informed of the following by the RFDS and believe it to be true that as a result of bans 1 and 2, this will still give rise to a likelihood of shortfalls in pilot coverage at the Mascot base.

i. Any partial or full shift that is not covered in Mascot due to pilot absence will result in reduced service availability and will require ASNSW to divert resources to cover the gap.
ii. This reduces the flexibility in the system to respond to emergency and other air ambulance requirements.
iii. This will result in some delay to lower priority tasks and redirecting resources to try to ensure coverage for priority tasks. This ultimately directly impacts on health and welfare of patients.

t. Although the RFDS pilots are trying not to directly impact patient care in NSW any dropped shift which alters the availability of resources to be appropriately deployed will have a detrimental effect on the safety and welfare of patients across NSW.
u. If a gap in service coverage at Mascot occurs, this has an immediate threat to the life, health, safety and welfare of patients during this period as it reduces the options available to ASNSW to respond to an emergency or other patients needs arising in that period.
v. There are also knock-on effects due to reduced availability of hours and reduced flexibility and certainty.
w. she remains of the view that if Bans 1 and 2 recommence, when viewed overall this will:

i. still result in a real risk that the RFDS will be unable to respond to a medical emergency (or other patient air ambulance requirement) in a time-critical manner;
ii. threaten the continuity and availability of aeromedical emergency services of ASNSW to some extent;
iii. impact on the provision of less time-critical healthcare services by diverting resources to higher priority cases thereby endangering patient health and welfare; and
iv. because of the matters in w(i), w(ii) and w(iii), threaten to endanger patient lives, health, safety or welfare because the RFDS air ambulance services are usually used where there is an urgent need for medical care and/or where that care is not otherwise locally available.  6

[26] Under cross-examination Ms Hegner:

a) Accepted that in the period between 6am on 22 July 2014 and 4pm on 30 July 2014 (when the PIA was being taken) no life-threatening incidents arose; 7

b) She was not aware of the RFDS needing to call a pilot on their day off; 8

c) On a reading of clause 16.4 of the Agreement, she accepted it would be open to employees of the RFDS to refuse to work on a day off. 9 The risk of the effect of Ban 1 is therefore always present.10 That risk has “not been an issue for us to date to my knowledge”11

d) In relation to the ASNSW’s contingency plan in the event the RFDS could not provide a pilot she said “...we would just have to redeploy our resources. It makes it difficult for us to ensure that those in lower priority codes are delivered in a timely manner, but we would focus our attention on priority 1, 2 and 3 in the first instance. Notwithstanding that, I know there may well be a perception from some of our pilots that priorities 4s are just an appointment, but often they're an appointment for surgery and also have quite significant injuries.” 12 

e) “... there was significantly planning by our control centre, the aeromedical control centre, to ensure that we - whilst it was very difficult - abided by the protected industrial action. We ensured that the pilots weren't being deployed anywhere that would go beyond their eight-hour shift other than a priority 1 and we were ensuring that they were having their meal breaks. It made our job in terms of deployment of resources very difficult ... We had a cascading effect of patients in priority 2 and 3 who waited longer or actually were reclassified on the basis of their changed acuity levels ... We had significant congestion in the aeromedical control room. We have regular discussions between the clinicians to mitigate that risk and certainly from our perspective, it was a very difficult time with the eight-hour and the 30-minute meal break and it did impact the timeliness of - we didn't breach - for the most part, we did not breach, but it created significant congestion for us to deploy our resources. We did use helicopters.” 13

f) Ms Hegner accepted that if the PIA is resumed, the industrial action to be engaged in is less than the eight hour ban, and therefore the issue of congestion will not be as bad. 14

[27] David Charlton gave evidence that:

a. Pilots at the Mascot base provide air ambulance primary evacuation and patient transfer services on behalf of ASNSW. 15

b. Services are provided by RFDS from the Mascot base pursuant to a contract with ASNSW. 16

c. The aircraft are fitted out to ASNSW specifications. 17

d. All tasks from Mascot are co-ordinated and allocated by the ASNSW Air Operations Centre, which is responsible for allocating and despatching fixed-wing (provided by RFDS) and rotary-wing air ambulance services.

e. When allocating and dispatching aircraft, the Air Operations Centre will determine whether to allocate the task to a fixed-wing asset (which is an RFDS aircraft) or a rotary-wing asset (which is a helicopter provided by another service provider). This decision will be determined by factors such as the type of task, weather, aircraft availability by type and other tasking priorities.

f. Often, rotary-wing assets will be unsuitable or unable to respond to a particular event. For example, the helicopters currently in use in NSW are unable to fly in icing conditions, so where an event arises in a location where icing is known to occur, the only air response capable of attending will be an RFDS fixed-wing aircraft.

g. Additionally, rotary-wing aircraft are the State’s primary search and rescue assets, so they will often be unavailable or, if available, it will often be undesirable to allocate and tie-up these assets and resources to tasks that could otherwise be performed by RFDS aircraft.

h. In addition to allocating the type of asset, the Air Operations Centre will also assign a priority to a task as a function of the clinical status of the patient/s.

i. Priority 1 means a potential life threatening event in a location without adequate facilities available to treat a patient/s. This is a time critical condition and requires an RFDS response time of 30 minutes (from receiving the call to ‘wheels up’).

j. The Air Operations Centre will then allocate the task and, if it is a Priority 1, will inform the RFDS Pilot of that.

k. The RFDS aircraft will then fly to the airport or airfield nearest to the incident or medical facility and meet the road ambulance where the patient will be transferred to the aircraft and flown to the nearest airfield closest to the most suitable hospital.

l. Inter-hospital transfers are also performed by Mascot pilots for ASNSW and are also allocated by the Air Operations Centre.

m. These flights involve transferring patients to/from and between hospitals in circumstances where, for example, a particular hospital may not have the facilities required to treat the patient, or the patient may require specialist treatment. These tasks are not usually as urgent as responding to 000 emergency calls, but are still time critical.

n. prior to 4.00pm on 30 July 2014, Pilots at Mascot had been engaging in the Industrial Action, including:

i. refusing to accept missions that arise during their 8 hour shift, but will result in them working beyond 8 hours to complete, and only working 8 hours on a stand-by shift (i.e. Ban 1);

ii. refusing to wear the correct uniform (i.e. Ban 3); and

iii. refusing to complete documentation (i.e Ban 4).

o. RFDS have not yet attempted to call a Pilot outside of duty hours or seek to have a Pilot work on a day off; however, as the AFAP has refused to withdraw these Bans, they remain available to be engaged in by Pilots if the industrial action is allowed to recommence. 18

p. Ban 1 at Mascot “will give rise to a likelihood of shortfalls or gaps in pilot coverage at the Mascot [base]. These bans reduce flexibility to respond to unexpected circumstances and therefore materially increase risk and uncertainty.” 19

q. Examples of unexpected events include, unanticipated pilot absences (e.g. sick leave and compassionate leave); or other unexpected additional demands on pilots (e.g. repositioning of aircraft within the network due to un-serviceability). 20

r. A reduction in coverage could … occur in Mascot as a result of Bans 1 and 2 where:

i. Mascot pilots on standby shifts refuse to take work related calls outside of their shift times; or
ii. Where there is no standby rostered on a particular day and [RFDS needs] to cover an unexpected absence due to sick leave and [RFDS] cannot contact employees to change shift start time or call someone in on a day off. 21

s. The most serious danger posed by Bans 1 and 2 is a situation where RFDS cannot respond to, or delays response to, a Priority 1 or Priority 2 call and no other asset is capable or available to respond.

t. If the location of the emergency is one where there is icing (called ‘flight into known icing’, which is likely in many locations during the early hours of a winter morning), then no other air response will be available, as these conditions normally preclude rotary wing options.

u. Even where rotary wing options are available, there use will mean they are tied-up and unavailable for tasks that require rotary wing aircraft assistance, such as search and rescue.

v. It may also result in rotary wing aircraft being allocated to tasks to which they are not best suited in situations where it would be safer (to crew and/or patient) and quicker to use a fixed wing aircraft.

w. A reduction in Pilot availability, flexibility and contactability, means that the other Pilots and aircraft will have to re-prioritise the work that is performed to ensure emergency Priority 1 calls can be attended.

x. This may mean that lower priority, but still important, jobs are not attended to, such as patients requiring transfer from one hospital to another to receive specialist treatment. Even though the situation for these patients is not life threatening, delays to their treatments are still likely to adversely affect their welfare. Delays such as this will have a cumulative effect, creating a back-log of lower-priority patients who will not be receiving the healthcare services they need.

y. It will also have a flow-on effect to the rest of the State’s health system, as patients who were due to be moved out of hospital beds in one location will need to remain there, with the potential to create a shortage of hospital beds in that location and increase waiting times for other patients. Increased waiting times are likely to adversely affect the welfare of those patients.

z. Any reduced availability of Pilots, even when jobs are re-prioritised, increases the risk that there will not be adequate resources to respond to a life threatening Priority 1 situation. In the event that more than one Pilot is unexpectedly unavailable on a single day, the risk that RFDS will be unable to respond to a life threatening emergency becomes even more profound.

aa. Crew and aircraft availability is a variable across the network. Removing the flexibility to move aircraft and crews (facilitated by out of hours calls and calling Pilots in on a day off) limits our capacity to respond to unforeseen events. This leads to cumulative diminished capacity and increases the likelihood of an adverse outcome for a patient.

bb. With Bans 5 and 8 having been removed, the likelihood of an adverse event (i.e. we do not have a pilot and aircraft in the right place at the right time to save a life or assure patient welfare) has been reduced but not removed and can only be partially mitigated.

cc. Bans 1 and 2 still cause a likelihood of an adverse event while those bans are in place. The impact of such an event is the same regardless of whether pilot unavailability is due to all bans that were previously in place or only Bans 1 and 2. Hence this still presents an unacceptable risk to life, safety, health and/or welfare of patients. 22

[28] Under cross-examination David Charlton stated:

a) It takes 3 to 6 months to introduce a pilot to the RFDS; 23

b) Conceded that until the time the RFDS received the Notice of Intention to Commence the PIA, it had made no plans to deal with the potential PIA; 24

c) He was not aware of any tasking priority definitions being breached because of the PIA; 25

d) The RFDS did not try to call pilots on their days off or outside of formal duty or reserve periods because the need did not come up; 26

e) “From time to time we use charter to create additional services in our non-emergency work that relates to clinic flying. It is sometimes available, it is sometimes not. It's not a panacea to this issue of pilot availability... We have a panel of charter operators that we use from time to time that we support through our safety and quality system. Their availability ebbs and flows as a function of their other work ... generally they can provide, you know, somewhere between 50 and 75 per cent of our requests. Unfortunately they just can't do it all for us because - by nature of their business” 27

f) “The net effect or the cumulative effect to the patient I can't see, because that's behind the curtain with the ambulance operations centre.” 28

[29] Mark Prior gave evidence that:

a) Currently the RFDS has 24 pilots employed at the Mascot base and generally 4 of the 5 aircraft are available. RFDS is recruiting for 1 additional pilot to fill a recent vacancy.

b) All work performed by pilots at Mascot is pursuant to the ASNSW contract.

c) Broadly speaking, the services the RFDS supplies to ASNSW are primary emergency evacuation and non-emergency patient transfers.

d) ASNSW receives all calls and notifies RFDS pilots of tasks as and when they are required. If a fixed wing response is required to a patient health situation, the RFDS is the only option in NSW. There are no alternatives.

e) In Mascot, there are 10 shifts on base per day as follows:

i. 8 x 8 hour day shifts with the earliest shift commencing at 6am. Pilots on 8 hour shifts can be extended up to 12 hours per shift to complete a flight duty;

ii. 2 x 10 hour night shifts.

f) Usually the on-base shifts provide 24/7 coverage with some buffers.

g) In addition, throughout the roster period there are off-base standby shifts of 8 or 11 hours which can be extended to 16 hours to complete a flight duty. During these shifts, pilots are required to be on call but are not required to attend the base unless a duty is allocated to them. Duty hours do not commence until the pilot is called in for a duty. Standby pilots are used to cover unplanned absences (such as sick leave or other pilot unavailability) where there would otherwise be a reduced coverage on base.

h) Ordinarily the RFDS would be able to arrange pilots to cover any unanticipated pilot absences (due to sick leave, carer’s leave and compassionate leave) or other unexpected additional demands on pilots (eg. repositioning of aircraft within the network due to un-serviceability) in Mascot by:

i. calling someone on standby before the start of their standby shift;

ii. calling a Pilot to change shift start times;

iii. calling someone in on a day off.

i) With the ban on working on a day off and the ban on accepting work-related telephone calls outside of formal duty hours in place, these options are not available.

j) The rostering and coverage has been designed in conjunction with ASNSW to ensure maximum flexibility and useability of pilots to provide coverage of emergency and other aeromedical services.

k) Due to the number of Pilots available at Mascot, stand-by shifts are not rostered every day. Depending on Pilot availability, there may be one, two, three or zero stand-by shifts rostered on any given day.

l) For example, the roster applying from 6 August 2014 through to 20 August 2014 had 6 days (24 hour periods) with no stand-by coverage.

m) If a shift is required to be covered on a day or at a time when there is no stand-by shift rostered on, then usually, a Pilot on a day off would be called in to cover the shift.

n) However, if Pilots engage in a ban on working on days off, then the Mascot base will have limited ability, and in some cases be unable to cover shifts when unplanned absences occur and no stand-by Pilot is rostered.

o) This will result in reduced coverage and reduced capability to respond to emergency situations.

p) Before the industrial action was suspended, RFDS had the Chief Pilot on stand-by to attend the base at Mascot Airport in case additional coverage was needed when no stand-by shift was rostered. However, this is a short term, ad hoc risk mitigation strategy as the Chief Pilot is not always available for Mascot operations and has a limit on duty hours due to CASA regulation and fatigue management. In addition, the Chief Pilot has a range of other regulatory and day-to-day management duties he is required to perform that are essential to the RFDS’s operations such as checks on pilots.

q) The ability to call in Pilots on their days off also gives us greater flexibility to deal with unforeseen circumstances that may arise. An example of why RFDS needs flexibility to deal with unexpected issues occurred recently on 24 June 2014. On that day an aircraft became unserviceable when it landed in Coffs Harbour and it could not return to Mascot base. This meant that the pilot was held in Coffs Harbour overnight.

r) These unanticipated events are also usually covered by calling in Pilots from stand-by or, if no stand-by is rostered, a Pilot on a day off; however with Pilots refusing to work on days off, if things go wrong we have reduced options for responding.

s) Even with Pilots on stand-by, if RFDS has more pilots go sick than they have stand-by availability, or another aircraft issue occurs in another location, and no one to call in on a day off, then RFDS will quickly have a reduction in coverage.

t) Where a Pilot calls in sick and there is no stand-by Pilot rostered on, and no other options are available to cover the shift, RFDS will have to advise ASNSW that it can only provide a partial service for that shift - this will result in a delay to lower priority tasks, redirecting resources to try to ensure coverage for priority tasks but ultimately directly impacting on welfare of patients and increasing the likelihood that an emergency cannot be covered within the required timeframe.

u) In FY13/14 we had 252 unexpected absences at Mascot due to sick leave (including URTI), carer’s leave and compassionate leave.

v) Since the start of July 2013, RFDS has called-in Pilots to work extra shifts at Mascot on approximately 60 occasions. The calling in of Pilots on a day off is therefore not an occasional occurrence; it is an essential capability that is frequently utilised to ensure we are able to meet the necessary ASNSW coverage requirements and respond to emergency situations within required timeframes. Clause 15.3 of the EBA provides for an additional payment to Pilots in these circumstances of $669 per additional day worked.

w) If the industrial action recommences, this will result in unfilled shifts when Pilots are unexpectedly absent and means that our ability to provide emergency medical services and inter-hospital patient transfers will be reduced. 29

[30] Under cross-examination Mark Prior:

a) Accepted that under the current enterprise agreement:

a. pilots are entitled to refuse to work on a day off; 30

b. there is nothing that obliges them to answer a telephone call outside of formal duty or reserve periods; and 31

c. there is nothing that obligates a pilot to start their stand by hours before their rostered stand by shift; 32

b) In the last 18 months the RFDS has not been able to fill a vacant shift about 2 or 3 times. In those circumstances “(w)e advise the Ambulance Service that we are unable to fulfil a shift. They have to re-schedule their tasking for the day, or... we look to see what other resources are available. If we've got, the senior base pilot might be on an admin shift, he would try and fill it. If we had the chief pilot available, he may try and fill it. We have, in the past, spoken to the Dubbo base, about the Dubbo base supplying an aircraft to Mascot, where they would supply a pilot, an aircraft, and a flight nurse, and they would fly to Mascot to help plug that gap for the day. That would normally come about 8 o'clock in the morning, and then try and fill that day shift. But if there's - if none of those options are available to us, then we just can't fill that shift.” 33

[31] For the AFAP Bligh Ridge did not give evidence about the operation of Bans 1 and 2 at Mascot. His evidence was confined to the experience at Dubbo. As such, once the AFAP gave the further undertakings, much of his evidence in relation to Bans 1 and 2 became redundant.

[32] The AFAP chose not to lead any other evidence in respect of the probable consequences of the operation of Bans 1 and 2 at Mascot. In this regard the Commission is confined to the evidence of the witnesses called for the RFDS.

Re - An unlimited ban on aircraft cleaning (Ban 6) and an unlimited ban on replenishing on-board oxygen (Ban 7)

[33] Ms Rosemary Hegner did not give evidence about Bans 6 and 7.

[34] David Charlton gave evidence that the ban on aircraft cleaning is only occurring at Dubbo. His evidence was that:

a) “RFDS only employs one engineer at the Dubbo base and no ground handling staff. As such it is necessary for Pilots to assist with general duties, such as cleaning interiors of aircraft, cleaning aircraft windscreens and replenishing oxygen on the aircraft.” 34

b) The refusal of Pilots to clean windscreens and replenish oxygen tanks in Dubbo creates an unacceptable risk to safety. 35

c) RFDS aircraft fly to rural and remote airfields with no air traffic control assistance. The Pilot’s situational awareness depends on vision from the cockpit. A dirty windscreen therefore presents a real risk to the lives and safety of the Pilot, the medical staff on-board and the patient.

d) In certain emergency medical situations, the provision of oxygen to a patient is vital. If aircraft take off from Dubbo, where on-ground assistance is limited, and with the Pilot refusing to replenish oxygen, then there is a real risk that there will be no, or not enough, oxygen to meet the requirements of the patient. This poses a significant threat to the lives, safety and welfare of RFDS patients being attended to by Dubbo based Pilots. Although we are currently trying to provide engineering coverage in Dubbo, there is no way to guarantee continuous oxygen replenishing as and when it is required.

e) Dubbo based aircraft do not fly into Mascot often enough to ensure that they will never have to respond to an emergency situation without enough oxygen on-board, and to fly them to Mascot often enough would impact on their availability to respond to emergency situations around Dubbo. 36

[35] Under cross-examination David Charlton:

a) The duties subject of Bans 6 and 7 can be performed by engineers; 37

b) At Broken Hill the RFDS has seven engineers. Recently one of those engineers was periodically sent to Dubbo. 38

c) “The engineering that we do in Broken Hill is not only line maintenance, which is similar to what is done at Dubbo, but it's where the majority of our heavy engineering is done on 14 of our 19 aircraft. To remove one of those seven engineers removes our capacity for heavy engineering and checks and therefore will lead to a resultant lowering of available aircraft within the system... The Broken Hill engineers do the heavy checks on the planes. If the planes don't get checked, the planes stop flying, okay? We are endeavouring to provide coverage in Dubbo as a function of flying engineers from other ports, including Victoria, including Sydney and including Broken Hill. We seek to also find coverage support for us that exists, Commissioner, at Dubbo Airport, but it is not consistent. The nature of what we need in an engineer in terms of their licence coverage is not something that you can just hire tomorrow. It takes much longer to find the right engineer than it does actually to find the right pilot” 39

d) He confirmed that Broken Hill Engineers would be able to perform the engineer function at Dubbo. There is a senior base pilot at Dubbo who can also undertake aircraft cleaning and replenish oxygen tanks. Also, as far as possible, when aircraft go through Mascot they get cleaned. 40

e) Currently they have an engineer in Dubbo two to three days a week. 41

[36] Mark Prior gave evidence that this ban is not applicable to Mascot because ground handling staff do these tasks. 42

For AFAP

[37] For the AFAP Bligh Ridge gave evidence that:

a) “in relation to the ban on refilling on-board oxygen, this is in normal circumstances performed by either the pilot or an engineer. The current situation at the Dubbo base is that the usual engineer is absent due to an injury. He has been absent since approximately May 2014. I understand that the RFDS has been flying an engineer to Dubbo for 2 days each week since the normal engineer has been absent from work.” 43

b) … Brett Croker (the Senior Base Pilot at the Dubbo base) is not participating in the protected industrial action. The Senior Base Pilot is available to refill on-board oxygen. I am not aware of any Dubbo pilot requiring the Senior Base Pilot to replenish the on-board oxygen. 44

[38] Under cross-examination Mr Ridge:

a) Accepted that it was a matter for the ASNSW to determine whether to use Mascot pilots to cover an absence in Dubbo and that the ability to do so would depend on there being an aircraft and pilot available in Mascot; 45

b) Pilots based in Dubbo would regularly fly to Bourke or Cobar. Mr Ridge accepted that if a Mascot based pilot was to fly over Dubbo to retrieve a patient it would add at least an extra 45 to 60 minutes to the flight. 46

Submissions

[39] The RFDS submitted that the Remaining PIA would, if engaged in, endanger or threaten to endanger the life, personal safety, health and/or welfare of part of the population.

[40] The part of the population identified is patients, and potential patients utilising, or who would utilise, the services of the RFDS and the towns and communities in regional and rural areas of Australia serviced by RFDS.

[41] The AFAP submitted that the protected industrial action was not causing any endangerment nor is it threatening to do so. It was said that the industrial action being taken is being done so as to ensure that there is no endangerment in the relevant sense to anyone.

Consideration

[42] The main issue for consideration in this matter concerns the probable impact of the Remaining PIA on patients, and potential patients utilising, or who would utilise, the services of the RFDS and the towns and communities in regional and rural areas of Australia serviced by RFDS.

[43] Subsection 424(1) requires that Commission must make an order suspending or terminating the protected industrial action that is being engaged in, or is threatened, impending or probable if it is satisfied that it has threatened, is threatening or would threaten to endanger the personal safety or health, or the welfare, of part of the population.

[44] It is clear that there must be an appropriate evidential basis to found such a satisfaction. As the High Court said in Coal and Allied Operations Pty Ltd v AIRC 47 in considering somewhat similar provisions in the Workplace Relations FW Act 1996:

“... the nature of the threat as to which a decision-maker must be satisfied under s 170MW(3) of the FW Act involves a measure of subjectivity or value judgment... [A] decision under s 170MW(3)(b) that industrial action is ‘threatening... to cause significant damage to the Australian economy or an important part of it’... is not simply a matter of impression or value judgment... the decision-maker must have some basis for his or her satisfaction over and above generalised predictions as to the likely consequences of the industrial action in question”. 48

[45] The Commission has therefore given careful consideration to all the evidence and submissions presented in the proceedings in reaching its conclusions.

[46] The evidence is that when the industrial action was being engaged in by the AFAP and its members there was no impact on the safety, health and welfare of anyone. The industrial action had only been underway for a short time before the RFDS commenced the present proceeding, but nonetheless the Commission finds that the industrial action had no impact on the safety, health and welfare of anyone. Further, based on the evidence of Ms Hegner in particular, the Commission finds that pilots, who pride themselves in the important work that they do, did what they could to ensure that their actions did not directly impact upon patient care in NSW.

[47] It is not contested and the Commission, as presently constituted, finds that the Remaining PIA is threatened. Each of Bans 1 (at Mascot), 2 (at Mascot), 6 and 7 are included in the list of industrial action approved by AFAP members. None of Bans 1 (at Mascot), 2 (at Mascot), 6 and 7 are the subject of the undertakings given by the AFAP during the course of the proceedings.

[48] The primary evidence therefore goes to what the RFDS says will be the likely effect that the Remaining PIA will have on patient safety, health and welfare if the industrial action is to continue into the future. The AFAP lead no evidence in respect of the likely effect of Bans 1 and 2 at Mascot.

[49] The consequences of any of the Remaining PIA will be intended. If it is allowed to recommence the Remaining PIA will be undertaken for the purposes of imposing pressure on the RFDS to yield to the industrial demands of the AFAP and its members in the course of enterprise bargaining. In this respect the Remaining PIA would be keeping with the scheme of the FW Act. Consequently the Commission should be reluctant to interfere with the capacity of one party to lawfully pursue its industrial demands.

[50] In the present matter if the RFDS’s application is acceded to then what would otherwise be protected industrial action will lose its protection and immunity under law. That would strengthen the RFDS’s position in the bargaining process and weaken the position of the AFAP. Only in exceptional circumstances should the Commission recalibrate the bargaining position of the parties in this way. In the ordinary course of events it is preferable for the Commission to allow the parties directly involved to resolve their differences as between themselves, even if it involves a war of attrition.

[51] However, the basis for the RFDS’s application was that the Remaining PIA will do more than what necessarily flows when industrial action is afforded legislative protection under the FW Act. The RFDS says exceptional circumstances exist. In the present matter the RFDS says the Remaining PIA will endanger the personal safety or health or the welfare of the population of or part of it, namely patients and potential patients. The RFDS says the Commission should be satisfied that the bans constitute industrial action, that the bans will occur, that the bans will affect those members of the population in need of emergency flight services as well as in many cases the towns and communities in regional and rural areas of Australia serviced by RFDS.

[52] In opposing the application the AFAP submitted that there is no risk to personal safety or health or welfare. Further, the AFAP says that causation is not to be established by speculation and that there must be a significant logical path to reach the conclusion which the RFDS invites the Commission to draw.

[53] The AFAP also say that the Commission is entitled to have regard to what measures the RFDS could have put in place by way of mitigation and that the RFDS has not done all that it could to mitigate against or work around the possible adverse impact of the protected industrial action if it is resumed. The Commission accepts this is a relevant consideration.

[54] However, in all the circumstances of the present matter, the Commission is satisfied that by reason principally of Bans 1 and 2 at Mascot the protected industrial action complained of by the RFDS would threaten to endanger the personal safety or health or the welfare of a part of the population. If Bans 1 and 2 were engaged in at Mascot there is more than a possibility that there would be an endangerment to personal safety. The evidence of Mr Prior in particular made the probability of endangerment to personal safety compelling. It is not a small risk. It is not one that can be mitigated by the RFDS through having the Chief Pilot always on stand-by or by other means.

[55] If Bans 1 and 2 were engaged in at Mascot it would, in all probability, result in a loss of flexibility and an inability to cover all unanticipated pilot absences. It would increase the potential for delays in attending to patient care. Down the line (or scale of priorities) it would exacerbate difficulties in respect of the need to deal with them in a timely manner. Low prioritised matters would likely become higher prioritised matters. The evidence before the Commission is that, in such circumstances, the increased likelihood of such occurrences will have the effect of putting the welfare and safety of patients at risk and jeopardising their health.

[56] Overall, the Commission, as presently constituted, considers that the impact of Bans 1 and 2 at Mascot (if engaged in) would adversely affect the quality and timeliness of the treatment that can be provided to patients, especially those in emergency situations.

[57] In the Commission’s view, the impact would be of such a nature as to cause more than just inconvenience to these people but to endanger their safety or health or their welfare.

[58] In reaching these conclusions, the Commission notes the considerable efforts made by pilots not to directly impact patient care in NSW when the protected industrial action was engaged in. The Commission recognises the professionalism of RFDS pilots and their care for patient treatment and care.

[59] However, given the probable impact of Bans 1 and 2 at Mascot and the likely cumulative effect of the industrial action in reducing, over time, the flexibility and capacity of operations of the RFDS the good intentions of the RFDS pilots do not provide enough comfort that patient care will not be compromised.

[60] In all the circumstances, the Commission, as presently constituted, is satisfied on the basis of the evidence that if Bans 1 and 2 were engaged in at Mascot there is a probability that it would threaten to endanger the personal safety or health, or the welfare, of people in need of the services of the RFDS.

[61] Given this conclusion, in relation to Bans 1 and 2 the Commission does not need to deal with the submissions of the parties relating to Bans 6 and 7. However, it seems more probably that each of those bans would not have endangered the personal safety or health, or the welfare, of people in need of the services of the RFDS. Bans 6 and 7 would have caused inconvenience to RFDS, but, it seems, little more.

[62] Consequently, an order terminating protected industrial action should be made under s.424 of the FW Act.

COMMISSIONER

Appearances:

Ms R Bernasconi for the Applicant.

Mr A Molnar for the Respondent.

Hearing details:

2014.

Melbourne and Sydney

30 July.

5 August.

<Price code C, PR556028>

 1   [2010] FWAFB 1014 (14 April 2010).

 2   [2010] FWAFB 1014, [8].

 3   [2009] FWA 44.

 4 [1998] FCA 393.

 5   [2010] FWA 8050.

 6   Exhibit “A4”

 7   PN145

 8   PN146

 9   PN155-156

 10   PN169

 11   Ibid.

 12   PN171

 13   PN234-239

 14   PN248-249

 15   Exhibit “A2”, para 13.

 16   Exhibit “A2”, para 13.

 17   Exhibit “A2”, para 13.

 18   Exhibit “A2” para 14-24

 19   Exhibit “A2”, para 35.

 20   Exhibit “A2”, para 36.

 21   Exhibit “A2”, para 49.

 22   Exhibit “A2” para 51-59

 23   PN403

 24   PN457

 25   PN461-464

 26   PN465-469

 27   PN484-487

 28   PN499

 29   Exhibit “A3”

 30   PN271

 31   PN273

 32   PN274

 33   PN278

 34   Exhibit “A2”, paragraphs 32 – 33.

 35   Exhibit “A2”, paragraphs 60.

 36   Exhibit “A2”, para 61-63

 37   PN415

 38   PN416-417

 39   PN420-422

 40   PN426-429

 41   PN432

 42   Exhibit “A3”, paragraph 15.5.

 43   Exhibit “R2”, paragraph 6.

 44   Exhibit “R2”, paragraph 7.

 45   PN553-554

 46   PN558

 47 (2000) 203 CLR 194

 48   Ibid at 208 per Gleeson CJ, Gaudron and Hayne JJ.

Printed by authority of the Commonwealth Government Printer