Simon Lewis v Lloyd Helicopters Australia Pty Ltd t/a CHC Helicopters (Australia)
[2011] FWA 9021
•22 DECEMBER 2011
[2011] FWA 9021 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Simon Lewis
v
Lloyd Helicopters Australia Pty Ltd t/a CHC Helicopters (Australia)
(C2011/237)
Airline operations | |
COMMISSIONER GOOLEY | MELBOURNE, 22 DECEMBER 2011 |
Alleged dispute in relation to a re-classification request.
Introduction
[1] On 12 May 2011, Mr Simon Lewis notified the existence of a dispute pursuant to section 739 of the Fair Work Act 2009 (FW Act) with Lloyd Helicopters Australia Pty Ltd trading as CHC Helicopters (Australia) (CHC).
[2] The dispute was referred to conciliation on 27 June 2011 but it was not resolved. The dispute was then referred to arbitration on 17 and 18 October 2011.
[3] Mr David Stephens of the Australian Federation of Air Pilots appeared for Mr Lewis and Mr Shayne Bakewell was given permission to appear for CHC.
The matter in dispute
[4] Mr Lewis is in dispute with CHC over his classification. He seeks reclassification as a Senior First Officer. He is currently classified as a First Officer.
The industrial instrument
[5] Mr Lewis’s employment is regulated by the CHC Helicopters (Australia) Pilots Enterprise Agreement 2010-2013 (the Agreement) 1.
[6] The Agreement at clause 19 provides for the classification of employees as follows:
“19. Classification of Employees
An employee will be classified according to one of the following categories:
Categories | Description |
First Officer | A Pilot who is appointed to a position and performs the duties as second in command of an aircraft. This is the normal entry level for new Pilots. |
Senior First Officer | A First Officer who has completed three (3) consecutive Years of Service with the Company and who has passed an assessment flight to a P1 standard. OR On commencement of employment with the company a Pilot that receives a Command Endorsement who is appointed to a position and performs the duties as second in command of an aircraft. |
Single Engine Captain | A Pilot who is appointed to a position and performs the duties of a Pilot in command of a single engine aircraft UTBNI 9,000 lbs. |
Multi engine VFR Captain | A Pilot who is appointed to a position and performs the duties of a Pilot in command of a multi engine aircraft on VFR operations. |
Multi engine IFR Captain | A Pilot who is appointed to a position and performs the duties of a Pilot in command of a multi engine aircraft on IFR operations. |
[7] Clause 21 of the Agreement provides for category progression as follows:
“21. CATEGORY PROGRESSION
21.1. The Company has three (3) streams of operation:
• Search and Rescue (SAR)
• Emergency Medical Services (EMS)
• Offshore Oil and Gas
21.2. Because each operational stream has unique specialties, category progression will normally be channelled through one of the three primary streams of SAR, EMS or Offshore Oil and Gas. Successful application for a position in a different operational stream may require a reduction to lower paid Duties according to the relevant classification of the vacancy.
21.3. A First Officer position is the minimum Pilot level upon initial employment. The Parties are committed to the development of Pilots beyond that minimum level, in the interests of the Pilots’ careers and operational efficiency. The Company’s aim is to give Pilots the opportunity to increase their qualifications, with time and experience. Pilots are required to progress beyond First Officer level.
21.4. A Pilot initially employed as a First Officer will be assessed for reclassification as a Senior First Officer within three (3) Years Service with the Company.
21.5. The assessment in sub-clause 21.4 shall take into account the Pilot’s prior performance reports. The assessment shall be made against the criteria required for Pl standard. If the Pilot passes the assessment to Pl standard, he or she shall be promoted to Senior First Officer.
21.6. A Pilot who fails the PI assessment and deems the assessment unfair may submit the reasons to the Chief Pilot. The Chief Pilot shall assess the reasons and determine whether the Pilot shall be reassessed. If the Pilot is to be reassessed, he or she will be reassessed at the next scheduled Base Check (“Second Attempt”). If that Pilot does not pass to Pl standard after the Second Attempt, any future command assessment will be at the sole discretion of the Company.
21.7. The Company will provide Senior First Officers with a program of command and ICUS training. A Senior First Officer will receive a command endorsement and a command instrument rating within two (2) years after the initial appointment to the classification of Senior First Officer. ICUS training will be provided under suitably qualified Captains. The successful completion of this training will not entitle a Senior First Officer to a command position or command pay until he/she is appointed to a command position.
21.8. A Senior First Officer shall remain classified as such until successfully applying for a command position.
21.9. Progression to a command position shall be by appointment to a vacancy, managed in accordance with clause 22.
....”
Jurisdiction of Fair Work Australia
[8] Division 2 of Part 6-2 of the FW Act deals with the powers of Fair Work Australia to deal with disputes.
[9] Section 738 limits the application of the Division as follows:
“738 This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”
[10] Relevantly the Agreement, at clause 13, provides a procedure for dealing with disputes about employee specific, workplace specific or companywide issues.
[11] The parties agree that this dispute is within the scope of clause 13 of the Agreement.
[12] Section 739 limits the power of Fair Work Australia to deal with a dispute as follows:
“(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection(4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.”
[13] The parties agree that clause 13 of the Agreement empowers Fair Work Australia to arbitrate the dispute. The parties agree that the dispute resolution procedure has been complied with. Therefore Fair Work Australia has the jurisdiction to determine the dispute.
Factual matters not in dispute
[14] Mr Lewis commenced employment with CHC on 7 September 2008. At that time the industrial agreement that regulated his employment was the CHC Helicopters (Australia) Pilots Certified Agreement 2005-2008 (the 2005 Agreement). 2 He had been offered employment as a full time pilot classified as a Captain.3 At the time of his appointment Mr Lewis had a Multi-Engine Command Instrument Rating (ME CIR). Upon joining the company Mr Lewis received a command endorsement for a B412 type helicopter which was finalised on 28 September 2008.4 However he did not receive the required instrument rating and therefore could not fulfil the terms of his contract.5
[15] On 30 October 2008 Mr Lewis passed his Co-Pilot Instrument Rating Test and on 9 December 2008 was offered an amendment to his contract of employment which provided that he would be employed as a First Officer. 6
[16] At that time the 2005 Agreement, at clause 18, had the following classification descriptors:
Category | Description |
First Officer | A pilot who is appointed to a position and performs the duties as second in command of an aircraft. This is the normal entry level for new pilots. |
Senior First Officer | A First Officer who has completed three consecutive years of service with the company and who has passed an assessment flight to a P1 standard. |
Single Engine Captain | A Pilot who is appointed to a position and performs the duties of a Pilot in command of a single engine aircraft UTBNI 9,000 lbs. |
Multi engine VFR Captain | A Pilot who is appointed to a position and performs the duties of a Pilot in command of a multi engine aircraft on VFR operations. |
Multi engine IFR Captain | A Pilot who is appointed to a position and performs the duties of a Pilot in command of a multi engine aircraft on IFR operations. |
[17] The CHC Helicopters (Australia) Pilots Certified Agreement 2008-2010 (the 2008 Agreement) 7 contained an identical provision to that found in the 2005 Agreement. As Mr Lewis had not served three consecutive years with the company he did not satisfy one of the necessary prerequisites during the life of the 2008 Agreement to be promoted to Senior First Officer.
Submissions and evidence of the Applicant
[18] Mr Lewis gave evidence and was cross examined. 8
[19] Mr Derek O’Neill gave evidence for Mr Lewis and was cross examined. 9
[20] Mr O’Neill was a Captain employed by CHC. As a pilot representative, he was part of the negotiating team who represented the pilot group in the negotiations for the Agreement. It was his evidence that the change to the classification descriptor of Senior First Officer was intended to introduce an alternative method by which a pilot could be classified as a Senior First Officer. It was intended “to enable the Company to attract and retain experienced pilots.” 10 He understood that the provision would apply to “both existing pilots who meet the criteria... as well as future pilots employed by the company.”11
[21] Mr Lewis submitted that, because on the commencement of his employment, he received a command endorsement and because he now holds a position as second in charge, he should be reclassified as a Senior First Officer.
[22] Mr Lewis’s command endorsement was for a B412 helicopter. However when he was offered the position as First Officer it was on an AS332 helicopter. Mr Lewis submitted under the Agreement it does not matter that he held a command endorsement for the B412. He submitted that the Agreement only requires him to have a command endorsement on appointment and he did, and therefore he should, from the operative date of the Agreement have been reclassified as a Senior First Officer.
Submissions and evidence of the Respondent
[23] Ms Jenni Hatfield an employee relations advisor gave evidence for CHC 12 and was cross examined. She was not involved in the negotiations for the Agreement. It was her evidence that the key managers involved in the negotiations for the Agreement no longer work for CHC.13
[24] It was her evidence that a document was issued by CHC in September 2010 which advised employees that clause 19 provided for “Senior first officer description to allow for years of service or recognition of skills on commencement. Benefit - Ability to recognise skills and abilities on commencement.” 14 This document was circulated to employees “close to the time of the agreement of the document and prior to a vote.”15
[25] Mr Roger Shugrue who is a Chief Pilot gave evidence for CHC 16 and was cross examined. He is responsible for the training and standards of pilots.17
[26] It was his evidence that command endorsements are given for specific helicopters and if a pilot changes aircraft further training must be undertaken before a new command endorsement can be given. 18
[27] It was his evidence that a Senior First Officer is a CHC pilot with a ‘Captain in waiting’ status. 19 It was his evidence that Mr Lewis “has not yet demonstrated that he meets the required standards of a SFO on the AS332 aircraft.”20
[28] Mr Ronald Maurer, the Head of Check and Training with CHC gave evidence for CHC 21 and was cross examined. He gave evidence about the training undertaken by Mr Lewis. He also gave evidence about command endorsements and the training provided to senior first officers. It was his evidence that once a command endorsement is issued it remains valid whilst the pilot’s licence is valid.22
[29] Mr Peter Howe the Senior Check and Training Captain gave evidence for CHC 23 and was cross examined. It was his evidence that captains and co-pilots are usually employed in one of three streams, Search and Rescue (SAR), Emergency Medical Services (EMS) and off-shore, supporting oil and gas exploration contracts. His evidence explained the training program in place for pilots and provided details of training undertaken by Mr Lewis. It was his submission that the command endorsement for the B412 helicopter received by Mr Lewis was “of no use or relevance to his role as an AS332 helicopter co-pilot in the off-shore role.”24
[30] A significant amount of evidence was given by CHC that the purpose of the classification structure was to provide a career path for pilots and set out the associated training obligations of CHC. I have not referred to that evidence in this decision in detail though I have had regard to that evidence where it was relevant.
[31] CHC submitted that on the plain and ordinary meaning of the words of clause 19 of the Agreement, Mr Lewis’ claim must fail because he did not, on commencement of his employment, perform the duties of second in command because on commencement of his employment he was a captain. 25 It was further submitted that the command endorsement must be on the type of helicopter the pilot flies.26
Principles of construction
[32] Vice President Lawler set out detail in Watson v ACT Department of Disability Housing and Community Services the legal principles to be adopted when construing awards and agreements. 27 A Full Bench in The Australian Workers’ Union - West Australia Branch v Co-operative Bulk Handling Limited28 cited Vice President Lawler with approval and made reference to the decision of Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited.29 Logan J said:
“The starting point must always be the language employed by the parties to an industrial agreement but industrial context and purpose are always relevant when construing that language.”
[33] The Full Bench concluded that “the extract from Watson and the approach of Logan J, inform the manner in which we approach the test of construing the agreement and leads to the conclusion that regard must be had to extrinsic material in order that the meaning of the clause in question may be properly understood.”
[34] I adopt the approach endorsed by the Full Bench.
Conclusion
[35] I have considered all the evidence and submissions put before the Tribunal.
[36] The Agreement provides for the appointment of pilots as First Officers, Senior First Officers and Captains.
[37] Pilots are endorsed by the Civil Aviation Safety Authority to fly certain helicopters or classes of helicopters as either a pilot in command or a co-pilot. In addition pilots have instrument rating endorsements.
[38] Both First Officers and Senior First Officers perform the duties as second in charge. Upon appointment to the position of Senior First Officer certain obligations are imposed on CHC to provide training opportunities to enable a Senior First Officer to gain the qualifications necessary to be promoted to Captain. However it is clear that there is no obligation on CHC to promote a Senior First Officer to Captain and neither is there any consequence for a Senior First Officer who does not obtain the qualifications required of a Captain.
[39] I accept Mr Lewis’s submissions that the Agreement changed the definition of Senior First Officer and provided an additional pathway for pilots to progress to the position of Senior First Officer. I also accept that the new provision applied to existing employees and future employees.
[40] It was submitted by Mr Lewis that the clause reads as follows:
(1) On commencement of employment with the company a Pilot receives a command endorsement.
(2) A pilot is appointed to a position.
(3) A pilot performs the duties as a second in command of an aircraft.
[41] Mr Lewis, it was submitted, received a command endorsement on appointment, was appointed to a position albeit a captain and he now performs the duties as a second in command of an aircraft. Therefore, he meets all three criteria and he should be classified as a Senior First Officer.
[42] It was submitted by CHC that the clause reads as follows:
On commencement of employment a pilot
(1) receives a command endorsement; and
(2) is appointed to a position and performs the duties as second in command.
[43] CHC submitted that because on commencement of employment, the position Mr Lewis was appointed to, was a captain, he did not satisfy criteria (2) as he did not perform the duties as second in command. CHC submitted that his subsequent performance of the duties as second in command was irrelevant.
[44] I do not accept Mr Lewis’s submissions. I do not consider that a pilot appointed a position of captain who fails the licence requirements, in this case the Flight Instrument Rating, who is then offered another position, must be appointed as a Senior First Officer.
[45] On a plain and ordinary reading of clause 19, the relevant time to determine if a pilot should be classified as a Senior First Officer is at the commencement of employment. At that time the pilot must be both given a command endorsement and be appointed to a position and perform the duties as second in command of an aircraft.
[46] It may have been that prior to the making of the Agreement there were pilots employed by CHC who at the commencement of their employment had been given a command endorsement and who were appointed to a position and performed the duties as second in command. Those pilots, upon the approval of the Agreement, if not already Senior First Officers or Captains, would have been entitled to be appointed as a Senior First Officer.
[47] However I accept CHC’s submissions that at the commencement of his employment Mr Lewis did not perform the duties of a second in command and therefore is not entitled to be appointed a Senior First Officer. It is therefore not necessary to determine whether Mr Lewis needed to have a command endorsement on the type of helicopter he was flying.
[48] Had this needed to be determined I would have determined that it was understood by the parties that the command endorsement referred to in the classification structure was the command endorsement given to a pilot on the type of helicopter the pilot was engaged to fly.
[49] There was no evidence that Mr Lewis’s circumstances were considered by the parties when the Agreement was made. No provision was made in the Agreement for his circumstance.
[50] I do note that the Agreement contemplates employees moving from one stream to another or regressing from a higher classification to a lower classification.
[51] The Agreement expressly provides that in the first instance the movement from one stream to another “may require a reduction to lower paid duties according to the relevant classification of the vacancy.” In the circumstances of regression the pilot who accepts a lower classification is paid at the rate for that new classification. An example given in the Agreement contemplates a Captain regressing to First Officer.
[52] It is clear that it was agreed between the parties that if a pilot accepts a lower classified position their pay is determined by the position that they fill. In this case while Mr Lewis did not apply for a lower paid position he accepted such a position. Had he not done so presumably his employment would have been terminated because he could not fulfil the inherent requirements of the position to which he was appointed.
[53] In the context of the Agreement as a whole, I have reached the conclusion that had the parties turned their mind to this circumstance, they would have provided for the captain who did not meet the accreditation standards on appointment, to be transferred with their consent to a lower ranking position including that of First Officer.
[54] As I have found that Mr Lewis did not satisfy the criteria set out in the Agreement for a Senior First Officer, the application for reclassification is dismissed.
COMMISSIONER
Appearances:
D Stephens of the Australian Federation of Air Pilots for the Applicant.
S Bakewell for the Respondent.
Hearing details:
2011.
Perth:
October 17 and 18.
1 [2010] FWAA 7501, PR502102
2 AG848362, PR971389
3 Exhibit A2 at [4]
4 Ibid at [6]
5 Exhibit R5 at [41]
6 Ibid at [5]
7 AC321397
8 Exhibit A2
9 Exhibit A1
10 Ibid at [6]
11 Ibid
12 Exhibit R1
13 Ibid at [5]
14 Ibid at [7]
15 Transcript PN 282
16 Exhibit R2
17 Ibid at [3]
18 Ibid at [17]
19 Ibid at [26]
20 Ibid at [33]
21 Exhibit R3
22 Transcript PN 482
23 Exhibit R4
24 Ibid at [29]
25 Transcript PN 1163
26 Ibid
27 [2008] AIRC 29 at [7]-[15] and
28 [2010] FWAFB 4801
29 [2010] FCA 591 at [39]
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