Sam Dajee v Regional Express Holdings Limited T/A Regional Express Airlines
[2016] FWC 7388
•27 OCTOBER 2016
| [2016] FWC 7388 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Sam Dajee
v
Regional Express Holdings Limited T/A Regional Express Airlines
(C2016/4969)
REGIONAL EXPRESS AIRCRAFT ENGINEERS AGREEMENT
2011-2014
[AE896805]
COMMISSIONER HAMPTON | ADELAIDE, 27 OCTOBER 2016 |
Dispute about matters arising under the enterprise agreement – whether applicant is entitled to be classified as a Licenced Engineer without holding company authorisation to certify maintenance work – principles of interpretation considered – tension between provisions – terms of agreement are ambiguous – context relevant to meaning – objective intention determined – new enterprise agreement made in different terms but not yet approved – potential implications not relevant.
1. The background to the dispute
[1] Mr Sam Dajee has made an application under s.739 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission to deal with a dispute in accordance with a dispute resolution procedure.
[2] The application relies on the dispute resolution procedure set out in clause 42 of the Regional Express Aircraft Engineers Agreement 2011-2014 1 (the 2011 Enterprise Agreement). The 2011 Enterprise Agreement covers the respondent in this matter, Regional Express Holdings Limited T/A Regional Express Airlines (REX). This Enterprise Agreement also covers Mr Dajee who is an aircraft engineer based at REX’s Adelaide facility.
[3] The parties agree firstly, that the Commission should determine the dispute by arbitration in accordance with clause 42 of the 2011 Enterprise Agreement, and secondly, that the matter can be determined on the materials filed without the need for a hearing.
[4] The parties have followed the process required by clause 42 of the 2011 Enterprise Agreement and I am satisfied that the Commission is empowered 2 to determine this dispute as agreed by the parties in the Agreement. I also considered that it was reasonable to determine this matter based upon the written submissions and evidence.
[5] Since the lodgement of this application, REX has applied to the Commission for approval of the Regional Express Aircraft Engineers Agreement 2014-2018 (the 2014 Agreement) under s.185 of the FW Act. The 2014 Agreement is intended to be a “replacement” for the 2011 Enterprise Agreement and contains different provisions potentially bearing upon this dispute. For reasons that will become clear it has not been necessary, or appropriate, to deal with the issues potentially arising from the 2014 Agreement as part of my consideration of this matter.
2. What the dispute is about
[6] Mr Dajee joined REX as an Avionics Apprentice in February 2011 and became an Aircraft Maintenance Engineer (AME) upon the completion of his apprenticeship in January or February 2015.
[7] On 2 February 2015, Mr Dajee obtained a licence from the Civil Aviation Safety Authority (CASA); being a CASA B2 licence. At some point, Mr Dajee attended a course to enable him to work on SAAB 340 aircraft, which is the aircraft almost exclusively serviced at the REX base in Adelaide. This course was not paid for or required by REX, although it did provide details to enable Mr Dajee to attend the course. Mr Dajee has not however been given a company authorisation to certify engineering work on the SAAB 340 (or any other) aircraft.
[8] Mr Dajee contends that as he has the CASA B2 licence, he should be classified as a Licenced Aircraft Maintenance Engineer (LAME) Grade 1 under the 2011 Enterprise Agreement. REX contends that a LAME must, in effect, hold both the necessary licence and a company authorisation in order to be classified as a LAME.
[9] The relevant provisions of the 2011 Enterprise Agreement primarily relied upon by the parties are as follows:
“4 Definitions
… …
4.5 ‘Aircraft Maintenance Engineer (A.M.E.)’ means any tradesman as defined by the C.A.S.A. definition of an A.M.E. who is engaged in the maintenance, repair, overhaul modification, assembly and/or testing of aircraft, aircraft systems, aircraft components, aircraft engine and/or associated equipment.
… …
4.10 ‘Company Authorisations’ means an Employee who is approved by the Employer to certify for aircraft maintenance, specific aircraft tasks and/or component maintenance for and on behalf of Regional Express.
… …
4.25 ‘Licenced Aircraft Maintenance Engineer’ (LAME) means an Employee who holds a current B1 or B2 licence. It is the Company's intention not to have stand alone A or C Category licensed Engineers. However, should this change during the period of this Agreement it will be subject to consideration and agreement by the WRC.
4.26 ‘Licenced Aircraft Maintenance Engineer Grade 1’ means a licensed aircraft maintenance Engineer holding any small aircraft license. This may be in the form of a foreign license. A LAME Grade 1 receives no Additional Rex Aircraft or Outside Aircraft payment.
4.27 ‘Licenced Aircraft Maintenance Engineer Grade 2’ means a licensed aircraft maintenance Engineer holding any large aircraft license other than Saab 340 or GE CT7 license. This may be in the form of a foreign license. A LAME Grade 2 receives no Additional Rex Aircraft or Outside payment.
4.28 ‘Licenced Aircraft Maintenance Engineer Grade 3’ means a licensed aircraft maintenance Engineer holding any Saab 340 or GE CT7 type rating license.
4.29 ‘Licenced Aircraft Maintenance Engineer Grade Payments’ requires a Company authorisation or approval from the General Manager engineering.
… …
9. Types of Employment
The Employer may engage Employees on a full-time, part-time and casual basis and the parties acknowledge that the Employer has complete discretion over the total numbers of its Employees, classes of Employees and types of employment…
… …
11 Grading and Wage Rates
11.1 Career Progression
Promotion will be based on individual skill and competence and will have regard to merit.
... …
11.4 AME
AME's will begin with the Company as year 1 and progress to the next yearly increment on the anniversary of starting with the Company to a maximum of 5 years.
An AME who becomes licenced will move to the appropriate Grade within the LAME pay structure at the year 1 level. Movement through the yearly incremental structure will then occur annually on the anniversary of obtaining the licence.
11.5 LAME
LAMEs will begin with the Company as year 1 and will move through the yearly incremental structure based on years of service with the Company to a maximum of 5 years.
A LAME who obtains ratings which warrants a move to a higher grade will move to the appropriate grade at the year 1 1evel. Movement through the yearly incremental structure will then occur annually on the anniversary of obtaining the licence.
A LAME who obtains additional license within the grade retains the yearly incremental level.
… …”
[10] Mr Dajee also referred to the salary table in clause 11.6 of the 2011 Enterprise Agreement and in particular to the reference to “unlicenced” in connection with the AME classifications and to the differential in the rates of pay between AME’s and LAME’s.
[11] I note for later reference that there have been some changes to the above provisions in the 2014 Agreement. In particular, clause 11.4 AME, now includes the following provision:
"An AME who becomes licenced and receives the appropriate Company Authorisation will move to the appropriate Grade within the LAME pay structure at the year 1 level. Movement through the yearly Incremental structure will then occur annually on the anniversary of obtaining the licence.”
[12] There are other changes in the 2014 Agreement that are consistent with the changes made to clause 11.4 including express reference in clause 11.5 and 11.7 to the requirement to hold both the relevant licence and company authorisations to progress through the LAME grades. These expressly state that under that instrument the transition to the LAME classification and progression through the LAME grades would require relevant company authorisations.
3. The positions of the parties
3.1 Mr Dajee
[13] Mr Dajee contends that he should have been classified as a LAME Grade 1 upon being given the CASA licence. That is, he is the holder of a relevant aircraft licence and under clause 4.26 of the 2011 Enterprise Agreement this meets the requirements for a LAME.
[14] Mr Dajee also contends that clause 4.29 envisages two alternative means of obtaining LAME Grade payments. That is, holding the licence or obtaining company approvals. On that basis, it is not necessary that he have the company approval (authorisation) in order to be classified and paid as a LAME.
[15] Further, Mr Dajee contends that other employees have been classified as LAME Grade 1 without holding any licences and/or company authorisations. Given that such employees could also not certify for any maintenance carried out, he was being treated unfairly and differently.
[16] Finally, Mr Dajee relies upon the differential in wage rates between an AME and a LAME (about $20,000 per annum at the Grade 1 level) to reinforce the position that he has a licence to work on the aircraft and is, in effect, working at a higher level than the AME.
[17] Mr Dajee also provided submissions on the potential import of the 2014 Agreement and I will touch upon this in due course.
3.2 REX
[18] REX contends that Mr Dajee does not qualify as a LAME under the 2011 Enterprise Agreement. It does so on the following grounds:
● There is no automatic move from an AME to a LAME and movement through the pay scale requires company approval (authorisation) as outlined in clause 4.29;
● Mr Dajee is not approved to certify aircraft maintenance under clause 4.10, and as a result, no LAME payments apply;
● There are no additional LAME positions required in Adelaide and Mr Dajee is employed as an AME and not working in the capacity of a LAME;
● REX did not require or fund Mr Dajee undertaking the course relied upon by him and there was an acknowledgement at the time that he would not automatically become a LAME as a result of completing that course; and
● Any apparent conflict between clause 11.4 and clause 4.29 should lead to the conclusion that both the licence and company authorisation were required, which is consistent with the notion that the employer must have the right to decide the number and types of skills and categories of employees within its workplace.
[19] REX also provided submissions on the import of the 2014 Agreement which I will touch upon in due course.
4. Consideration
4.1 The approach to the interpretation of enterprise agreements
[20] A Full Bench of the Commission has outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. In The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited3 the Full Bench summarised the position in the following terms:
“[41] From the foregoing, the following principles may be distilled:
1. The AI Act4 does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:
(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:
(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”
[21] I have applied this approach in determining this dispute.
[22] In Geo A Bond & Co Ltd (In Liq) v McKenzie,5 Street J said:
"...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."
[23] In Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005 Lacy SDP observed that:
“It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted.”6
[24] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd7 in the following terms:
“6. No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.
… …
8. That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position.”
[25] These observations are consistent with the approach taken in Golden Cockerel. In the end result, my present task is to ascertain the common objective intention based upon the language and terms of the 2011 Enterprise Agreement, when read as a whole, and considered having regard to its context and purpose.
4.2 The context
[26] For reasons outlined above, it is important to consider the context in which an enterprise agreement was made and is to operate. That context is potentially relevant to the assessment of whether there is any ambiguity about a provision as well as to how any ambiguity should be resolved.
[27] Context in this present matter includes the operations of the business, the history of the provision, and the regulatory environment in which both have operated.
4.2.1 The operations of REX
[28] REX conducts a comprehensive regional airline network and has a series of bases around Australia. The civil aviation industry is extensively regulated by the Civil Aviation Act 1988 (Cth) (the CAA Act), the Civil Aviation Safety Regulations 1998 (CASR 98) and the Civil Aviation Regulations 1988 (CAR 1988), and administered through CASA and other mechanisms.
[29] Part of the regulatory environment is that various employees who work within the civil aviation industry require CASA approval (licensing) to undertake their roles. This includes certain aircraft maintenance engineers. In general terms, the various regulatory mechanisms have required that aircraft maintenance is signed-off (certified) by engineers that hold the relevant licence. 8 Those regulations also contemplate that aspects of the maintenance work can be undertaken by other employees who are not necessarily the holders of a licence, provided that that work in question is done under the supervision of, and certified by, a licence holder.
[30] In more recent years, the regulatory environment has contemplated that company authorisations now also play a part in the certification of maintenance. 9 This change was progressively introduced during the life of the 2011 Enterprise Agreement. For reasons that will become clear, the provisions of the 2011 Enterprise Agreement did not reflect this introduction as clearly as they might and this has led to some ambiguity.
4.2.2 The history of the provision and the impact of company authorisations
[31] As outlined earlier, the concept of company authorisations for regulatory purposes was progressively introduced during the life of the 2011 Enterprise Agreement. It appears that at least by June 2013, REX was operating under the system of company authorisations as a Part 145 Maintenance Organisation. 10 In order for a LAME to use a CASR Part 66 licence in a CASR Part 145 Approved Maintenance Organisation, the engineer must be authorised by the CASR Approved Maintenance Organisation to perform the maintenance certification and issue the Certificate of Release to Service that the organisation requires. There are also requirements for recent qualifications or experience.
[32] There is a conflict as to whether the LAME Grade 1 classification has been applied by REX to aircraft engineers who did not have company authorisations. Mr Dajee has identified two such examples from the Adelaide base and contends that historically there have been others. Based upon the evidence before the Commission, these examples are not directly relevant to this matter. In one case, the classification was applied to circumstances under an earlier enterprise agreement, which operated on a different basis. In the other case, REX did use the LAME Grade 1 classification for an engineer that did not have company authorisations and was not certifying aircraft maintenance. However, in that case, it apparently employed the engineer to work as a LAME, but as he was awaiting recognition of his military qualifications through CASA licensing, it elected to pay him as a LAME Grade 1 despite the fact that he was not technically a LAME at all. I note that REX relied upon clause 11.9 of the 2011 Enterprise Agreement in that regard, which expressly contemplates as follows:
“11.9 Attraction and retention of Suitable Employees
In order for the Company to attract and retain suitably qualified and experienced personnel, it is agreed that in some circumstances the Company may recognise previous experience and training on aircraft. In this regard, however, it is agreed that the Company will not determine rates of pay in excess of that which would be payable to an existing employee with similar or equivalent qualifications.” 11
[33] There is also some conflict as to the contention by REX that there was an agreement with Mr Dajee, in the lead up to him undertaking the SAAB training, that he would not be reclassified as a result. Mr Dajee also contends that REX organised the training. Both parties sought to rely upon email exchanges in that regard.
[34] Having regard to the limited evidence that is before the Commission, it is tolerably clear that REX did not approve or arrange for Mr Dajee to undertake the training. Rather, given his interest, REX acted as an intermediary so that Mr Dajee could make the arrangements to attend. However, whilst there is no indication that Mr Dajee would be reclassified after undertaking the training, there was no agreement one way or the other as to whether that would occur. It simply did not arise, at least as part of the written communications.
[35] I do however acknowledge that in subsequent correspondence, 12 REX did refer Mr Dajee to its “belief” that the absence of any automatic (subsequent) issuing of company approvals, and hence the licence payment, had been raised with him earlier. This was not apparently contested by Mr Dajee at the time; however, this also falls short of an enforceable agreement to that end.
4.3 Should Mr Dajee be paid as a LAME Grade 1 under the 2011 Enterprise Agreement?
[36] From the outset it is evident that there is some tension between the terms of the 2011 Enterprise Agreement bearing upon the present dispute. The terms of clause 11.4, which set out provisions applicable to AME’s, provides that an AME who becomes licenced will move to an appropriate grade within the LAME pay structure. There is no reference to the need for company approvals in that provision. Further, there is no reference in clause 4.25, the definition of a LAME, or in clause 4.26, the definition of a LAME Grade 1, to the requirement for a LAME to hold a company authorisation.
[37] Mr Dajee was an AME and was granted a CASA licence. He holds a current B1 or B2 licence, as required by the definition of a LAME in clause 4.25, and a small aircraft licence, as required by clause 4.26.
[38] On the other hand, clause 4.29 provides that LAME “Grade payments” require company authorisation or approval by the General Manager of Engineering. I note that there is no suggestion that approval for Mr Dajee to receive a “grade payment” has been given by the General Manager of Engineering. Accordingly, clause 4.29 requires company authorisation in the case of Mr Dajee. Read in context, the reference to LAME Grade payments in clause 4.29 must be understood to include each of the LAME grades, including the move to the LAME Grade 1 classification. In that regard, I note that the classification table in clause 11.6 provides the various grades of LAME and years of service increments for those grades. That is, the LAME grades are distinct from the service increments and the specific licence allowances, and from the “Additional Rex Aircraft or Outside Aircraft payments” referred to in some of the LAME grades.
[39] Further, clause 9 is more consistent with the notion that REX has a “complete” discretion as to which classes of employees it engages and it has not engaged Mr Dajee as a LAME.
[40] The resolution of the present dispute is not without difficulty. I am obliged to resolve the disputed construction of this agreement by reference to the language of the 2011 Enterprise Agreement which is to be understood having by regard to its context and purpose. The subjective intentions of the parties are not relevant and the common intention is identified objectively, that is, by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
[41] Given the overall drafting of the instrument and the regulatory changes that were implemented during the life of the 2011 Enterprise Agreement, including moving to the broader application of company authorisations to underpin maintenance certification, it is important to avoid a too literal adherence to the strict technical meaning of words. That is, it is necessary to consider the terms broadly, and after giving consideration and weight to every part of the agreement, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole document. 13
[42] There are two provisions that deal more directly with the issue at hand. Firstly, the AME provision in clause 11.4 which refers only to holding a licence as a prerequisite to becoming a LAME. Secondly, clause 4.29 which dictates that LAME Grade payments require company authorisations (or approval of the General Manager of Engineering). For reasons outlined earlier, there would not appear to be any warrant to read down clause 4.29 so that it only applied to LAME payments beyond Grade 1. That is, the “Grade payments” are the LAME Grades (classifications) themselves.
[43] I also note that the role of company authorisations was contemplated by the parties when making the 2011 Enterprise Agreement. It is expressly referenced in clause 4.29. In that regard, the fact that there is no further reference to such authorisations in the definitions of AME or LAME is potentially significant. However, clause 4.29 applies to each of the definitions of the LAME Grades and reinforces that company authorisations are required for all of the LAME Grades. Read this way, there is no relevant LAME Grade for an AME, with a licence but without company authorisations, to move into. Further, it is apparent that the implications for company authorisations were not dealt with in clause 11 at all, despite the evident intent in clause 4.29 for the authorisations to have an impact upon the entitlement to be paid under the LAME grades.
[44] The intended implementation of the company authorisations and the requirement for both CASA licences and authorisations to be held by LAMEs under the terms of the 2011 Enterprise Agreement is also reinforced by the fact that express provisions were made within that agreement to “guarantee” that existing LAMEs at that time would be given such authorisation. This was done in the following terms:
“11.6.8.1 All B1 and B2 Licensed Engineers employed by Regional Express that are exercising the privileges of their Part 66 Engineer's licence, subject to approval by Rex QA will be granted 'Company Authorisation' when the Company reverts to a Part 145 Maintenance Organisation. The Company Authorisation will remain in force until termination of employment of the Employee from Regional Express in accordance with Clause 32 of this Agreement unless there is a performance/compliance reason for Rex QA to remove this authorisation, or a change in the CPSA Regulations which mandate a change,”
[45] There is no indication that REX is relying upon Mr Dajee’s licence in the performance of his duties and this is significant because the purpose of the licence is to enable the licence holder to certify aircraft maintenance. However, in the present context, certification is taking place based upon company authorisations and CASA licences. It would also be reasonably apparent that an employer must be able to employ a person with qualifications that are not required or utilised in a particular position, without having to recognise those qualifications. This is consistent with clause 9 of the 2011 Enterprise Agreement. Whilst this particular provision is not a basis to classify employees in a manner inconsistent with the terms of the instrument, the general concept it embodies is more consistent with the view that the tension between the two provisions concerned should be resolved recognising the role now played by company authorisations.
[46] I also note that under Mr Dajee’s approach, an employee could not be appointed to an AME position if he or she had a CASA licence, even where that licence was not relevant to REX and there was no requirement to act upon that licence as part of its operational requirements. In the context of the 2011 Enterprise Agreement, and its reliance upon both licences and company authorisation, that is not an outcome that would have been objectively intended.
[47] On balance, I consider that the objective intention of the 2011 Enterprise Agreement is that in the absence of relevant company authorisations, or approval of the General Manager of Engineering, Mr Dajee is not entitled to LAME Grade payments, including LAME Grade 1. To the extent that Mr Dajee contends that REX should, as a matter of discretion, recognise his circumstances and treat him as if he were a LAME Grade 1, in the absence of an obligation under the 2011 Enterprise Agreement to do so, that is a matter for REX.
[48] I note further, that should Mr Dajee subsequently be required and approved by REX to certify aircraft maintenance, including small aircraft at other bases, or be given relevant company authorisation more generally, the LAME grades will become relevant.
4.4 The potential impact of the 2014 Agreement
[49] Prior to final submissions, I sought responses to the following issues from the parties:
a. What are the implications for this dispute, if any, of the fact that the 2014 Agreement has changed the definitions of AME (clause 11.4) and LAME (clause 11.5) and the role of Company Authorisation (clause 11.7)?
b. If the 2014 Agreement is approved by the Commission, would it have the effect that an Engineer in Mr Dajee’s circumstances would not be entitled to be classified as a LAME?
c. If the answer to b. is yes, what is the impact upon an employee who, at the time of the 2014 Agreement was classified as a LAME under the current EA without having a Company Authorisation?
d. What are the implications, if any, of the capacity of the Commission to determine the dispute under the current Enterprise Agreement if the 2014 Agreement is approved by the Commission?
[50] I raised these matters because there was a potential for the 2014 Agreement to be approved under the FW Act whilst this matter was under consideration by the Commission. As at the time of this decision, that agreement has not been approved and as result it is not in operation and does not cover, or apply to, the parties. 14 Further, the agreement might not be approved, or could be approved with undertakings15 that might impact upon the relevant provisions. Accordingly, it is not necessary, or appropriate, to deal with the issues outlined above.
[51] I would, however, observe that the fact that the parties in making the 2014 Agreement included revised provisions touching upon the issues arising in this matter is not directly relevant to the determination of the proper application of the 2011 Enterprise Agreement. That is, the fact that changes were made to the new instrument is consistent with the notion that some clarification of the already intended operation was appropriate to remove any uncertainty. It is also potentially consistent with the notion that some changes to the operation of the provision were intended and required. In that light, the Commission should be very reticent to imply intent or draw inferences. Further, the changes reflected in the 2014 Agreement were also part of amendments relating to the potential removal of existing individual company authorisations, which is not directly relevant to the issues here.
5. Conclusions
[52] For reasons outlined above, I have found on balance, that the objective intention of the 2011 Enterprise Agreement is that in the absence of relevant company authorisations (or approval of the General Manager of Engineering), Mr Dajee is not presently entitled to LAME Grade payments, including LAME Grade 1.
[53] I do not propose to make any orders in this matter however liberty to apply in that regard is granted.
COMMISSIONER
Conference details (by telephone):
2016
Adelaide
5 September, 4 October.
Written submissions:
Mr Dajee:
7, 29 September and 18 October 2016.
Regional Express Holdings Limited T/A Regional Express Airlines:
26 September and 14, 18 October 2016.
1 [2012] FWAA 7842.
2 See s.739 of the FW Act.
3 [2014] FWCFB 7447.
4 Reference to the AI Act is to the Acts Interpretation Act 1901 (Cth).
5 [1929] AR (NSW) 498 at 503. See also City of Wanneroo v Holmes (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [2].
6 Re Aurora Energy Enterprise Partnership Agreement 2002 – 2005, [2008] AIRC 1074, at para 17. See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.
7 (1993) 40 FCR 511.
8 In the case of REX, it has historically operated under the Civil Aviation Regulations 1988 (CAR 1988) – regulation 31.
9 CASR 1988 Part 66.
10 Amendments to CAR 1988 - Part 4A commenced in June 2011.
11 2011 Enterprise Agreement at par 11.9.
12 Email dated 25 November 2015.
13 Geo A Bond & Co Ltd (In Liq) v McKenzie (supra).
14 ss.52, 53 and 54 of the FW Act.
15 s.190 of the FW Act.
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