The Australian Federation of Air Pilots v Regional Express Holdings Ltd

[2017] FWC 2126

[2017] FWC 2126

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Federation of Air Pilots
v
Regional Express Holdings Ltd
(C2016/6218)

DEPUTY PRESIDENT CLANCY MELBOURNE, 13 APRIL 2017

Application to deal with a dispute – reimbursement of expenses as a result of a temporary transfer – payment of the Daily Travel Allowance to pilots undertaking a temporary transfer.

[1] On 18 October 2016, the Australian Federation of Air Pilots (AFAP) filed an application under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute.

[2] The AFAP purports to bring the application under clause 35 – Dispute Resolution Procedure of the Regional Express Pilots’ Enterprise Agreement 2014 (the 2014 Agreement). The 2014 Agreement was approved by the Commission on 11 August 2016 and commenced operation on 18 August 2016.

[3] The dispute concerned the interpretation of clauses 54.5 and 60.1 of the 2014 Agreement which respectively deal with:

● Reimbursement of a pilot’s actual reasonable personal expenses as a result of a temporary transfer away from Home Base (Clause 54.5); and

● The payment of the Daily Travel Allowance to pilots undertaking a temporary transfer (Clause 60.1).

[4] The dispute was the subject of several conferences convened by me and further discussions between the parties but these failed to resolve it. Accordingly, on 24 November 2016, I caused directions to be sent to the parties for the filing of material in relation to the dispute ahead of the hearing on 20 February 2017.

[5] At the hearing, Mr James Lauchland appeared for the AFAP while Mr Dan Trindade of Clayton Utz was granted permission to represent Regional Express Holdings Ltd (Regional Express). Captain Robin Darroch, a pilot for Regional Express gave evidence for the AFAP in addition to his witness statement and supplementary witness statement. The AFAP also tendered a witness statement of Captain David Kent and had filed an Outline of Submissions and Submissions in Reply prior to the hearing. Regional Express filed a written Outline of Submissions.

Consideration and Conclusion regarding Clause 54.5 of the 2014 Agreement

[6] Clause 54.5 of the 2014 Agreement provides as follows:

“54.5 In the case of a temporary transfer a Pilot will be reimbursed any actual reasonable personal expense as a result of such transfer away from Home Base.”

[7] I consider the meaning of the wording of Clause 54.5 is plain. Reimbursement of an expense will be due when:

● It is actual;

● It is reasonable;

● It is personal; and

● It is as a result of a pilot’s temporary transfer away from Home Base.

[8] I note that by the time the parties had completed their submissions at the hearing, there did not appear to be any dispute as to this interpretation. It is true that during the course of the dispute, the AFAP sought a determination as to the sort of things that might constitute an “actual reasonable personal expense” in the interests of avoiding repeated, future disputes before the Commission. However, the AFAP also acknowledged that it would not be possible for me to make a finding in determining this dispute that covered every conceivable expense that may be claimed in the future.

[9] Ultimately, it is accepted by both parties that notwithstanding the plain meaning of Clause 54.5 of the 2014 Agreement, there might be disputes in the future as to whether particular expenses of pilots on temporary transfers are reasonable and therefore reimbursable. If this proves to be the case, the parties have the opportunity to avail themselves of the 2014 Agreement’s Dispute Resolution Procedure if they can’t agree.

Clause 60.1 of the 2014 Agreement

[10] The main focus therefore became resolving the dispute in relation to the interpretation of Clause 60.1 of the 2014 Agreement, which deals with Daily Travel Allowance (DTA) and provides:

“60.1 Pilots will be paid a Daily Travel Allowance (“DTA”) of $6.28 per hour for each hour of duty directly associated with flying duties. For the purposes of calculating the DTA, duty time is defined as those hours encompassed from sign on at Home Base to sign off at Home Base.”

[11] More specifically, the crux of the dispute in relation to the payment of DTA is the AFAP contention that pilots undertaking a temporary transfer are entitled to payment of the DTA for the entire period from sign on at Home Base until sign off at Home Base whereas Regional Express contends a pilot’s base of temporary transfer operates in effect as their Home Base while carrying out flying duties and the DTA is only payable to pilots for each hour of duty directly associated with flying duties from sign on at the base of temporary transfer to sign off at their base of temporary transfer or, in the alternative, in accordance with Clause 60.4 of the 2014 Agreement.

Submissions of the AFAP – Clause 60.1

[12] In the presentation of its case, the AFAP took me to a number of additional clauses in the 2014 Agreement. These included:

a) Clause 3.32: “ ‘Home Base’ means the base at which a Pilot from time to time is permanently domiciled”;

b) Clause 8.7: “If the employment of a Pilot is terminated by either the Pilot or the Employer whilst the Pilot is away from Home Base on a Layover or temporary transfer, the Pilot will be returned to the Home Base at Employer expense. The notice period will be deemed not to have commenced until the Pilot is returned to the Home Base or point of recruitment as may be mutually agreed. Where the Pilot is transferred at the direction of the Employer to a new Home Base and is subsequently terminated by the Employer within 12 months, the Pilot, together with spouse and dependent children under 21 and their possessions will be returned to the previous Home Base at Employer expense”;

c) Clause 53.1: “Subject to clause 53.2, a ‘permanent transfer’ means the transfer of a Pilot from one Home base to another where the period of transfer is expressed prior to the transfer to be in excess of 180 calendar days”;

d) Clause 53.5.3: “Where a Pilot is transferred to a new Home Base the Employer will provide appropriate accommodation (as provided for in clause 59) until the Pilot is able to obtain suitable permanent accommodation. The provision of such accommodation will be limited to a period of up to two weeks”;

e) Clause 54.2: “A Pilot who is to be temporarily transferred will be notified as soon as possible in advance, but unless the Pilot consents to less notice, this will in no case be later than 48 hours prior to the scheduled departure from Home Base to commence such transfer provided that a Pilot whose child is due to be born will not be required by the Employer to operate away from Home Base during the four week period immediately preceding the anticipated confinement of the spouse and during the four week period immediately following the birth of the child”;

f) Clause 54.5: “In the case of a temporary transfer a Pilot will be reimbursed any actual reasonable personal expense as a result of such transfer away from Home Base”;

g) Clause 60.2: “Where Pilots are required to attend ground courses, conferences and other activities not defined as flying duties at the Employer’s direction, and at their Home Base, said Pilots will be reimbursed all applicable meals expenses incurred as a direct result of attendance. No reimbursement will apply if a meal of an agreed standard is supplied by the Employer…”;

h) Clause 60.3: “At a base other than their Home Base, Pilots will be reimbursed any reasonable expenses including meals (as defined in clause 60.2), incurred as a direct result of their attendance, and be provided accommodation in accordance with clause 59 of this Agreement”; and

i) Clause 60.4: “At a base or place other than their Home Base, Pilots will be paid DTA in accordance with clause 60.1 above, on those days where deadhead travel has been undertaken or flying duties have been conducted, immediately prior to or immediately after attendance inclusive of that time spent in attendance”.

[13] In its Outline of Submissions, the AFAP submitted the text of Clause 60.1 has a plain meaning when read in conjunction with the definitions section of the 2014 Agreement, particularly Clause 3.32 (“ ‘Home Base’ means the base at which a pilot from time to time is permanently domiciled”), a pilot is entitled to DTA for the entire period between departure from Home Base to arrival back at Home Base and that a base of temporary transfer cannot be considered a pilot’s Home Base because:

● A temporary transfer is for a limited time, after which the pilot returns home;

● On a transfer of less than 28 days, the pilot has no entitlement to see their family; and

● On temporary transfer, pilots are required to stay in temporary accommodation such as hotels and apartments.

[14] The AFAP further submitted the purpose of DTA is to provide an allowance to cover a pilot’s meals and incidentals when they are away from home and when looking at the entire 2014 Agreement for context, DTA is treated consistently with the analogous “Out-of-base layover”, where a pilot performs duties out of another base, stays there for one or more nights and receives the DTA for the entire period between sign on at Home Base and sign off at Home Base for these layovers.

[15] The AFAP also submitted there was evidence of surrounding circumstances in support of its plain meaning. This comprised evidence that over at least four Regional Express enterprise agreements, the relevant wording of the DTA clause has not substantially changed, which suggested there was no intention to depart from the plain meaning and common understanding of the words. This was together with evidence from Captain Darroch regarding the negotiations on clauses relating to Out-of-base layovers during bargaining for the 2014 Agreement, during which Regional Express raised no concerns with the prevailing practice of paying DTA for the entire period of Out-of-base layovers 1.

[16] In its written Submissions in Reply, the AFAP submitted the clauses I have referred to in sub-paragraphs (b)-(f) at paragraph [12] above establish that a pilot who is permanently transferred operates out of a new Home Base while a pilot who is temporarily transferred maintains their existing Home Base. The AFAP also referred to Clauses 3.20, 3.34, 3.53 and 31.1.1 of the 2014 Agreement, which it submitted indicates the term “base of temporary transfer” is intended to be read interchangeably with “Home Base” and that if the latter term, as used in Clause 60.1, was intended to include the former, Clause 60.1 could have been drafted to include them both.

[17] The AFAP again submitted the payment of DTA for the entire period away from Home Base on an Out-of-base layover provides guidance because it is paid for periods even when a pilot is off duty/signed off during an Out-of-base layover. It also dismissed the submission of Regional Express that DTA on temporary transfer is payable in accordance with Clause 60.4, submitting instead that Clause 60.4 had to be read in conjunction with Clauses 60.2 and 60.3 of the 2014 Agreement and only applies where pilots “are required to attend ground courses, conferences and other activities not defined as flying duties”. It has relied on the proposition that Clause 60 was derived from Clause 57 of the Hazelton Airlines Pilots Enterprise Agreement 2000 and Clause 7 of the Hazelton Airlines Pilots Enterprise Agreement 1996 in asserting this interpretation.

[18] Captain Darroch’s understanding was that after Regional Express was formed out of Kendell Airlines and Hazelton Airlines in 2001, the Regional Express Pilots’ Certified Agreement 2002 (the 2002 Agreement) was developed in a way that incorporated parts of the Kendell Airlines and Hazelton Airlines agreements 2. He also said Clauses 54 and 60.1 have not been actively discussed during the last three rounds of agreement negotiations and their terms have remained substantially the same across each of the Regional Express enterprise agreements that have operated since the making of the 2002 Agreement and inclusive of the current 2014 Agreement3.

[19] At the hearing, the AFAP submissions included:

● Notwithstanding a pilot will perform multiple tours of duty while on a temporary transfer, for the purposes of Clause 60.1, the only two relevant tours of duty are the deadhead travel out of Home Base and the deadhead travel back to Home Base because that is where the sign on and sign off occur, with all the signing-on and signing-off occurring in between being relevant for other reasons, such as flight and duty times;

● The practice of paying pilots DTA for the entirety of an Out-of-base layover, which was not disputed by Regional Express during the negotiations for the 2014 Agreement, counters the submissions of Regional Express that DTA is only to be paid for hours of duty directly associated with flying;

● Where the 2014 Agreement says “Home Base” and does not include the accompanying phrase, “or base of temporary transfer”, it means Home Base;

● Clauses 60.2, 60.3 and 60.4 deal with pilots performing ground duties which are non-flying duties and a separate concept to the “duty directly associated with flying duties” referred to in Clause 60.1;

● A pilot on a temporary transfer is doing something directly associated with flying duties in that they are on the transfer so they can perform flying duties;

● There is no problem with the literal reading of Clause 60.1, with the second sentence defining the terms used in the first, effectively filling out the first sentence and giving it meaning;

● Before Regional Express was formed, there were two enterprise agreements. One was the comprehensive Kendell agreement and the other was the Hazelton agreement read with the Pilots’ Supplementary Airlines Award 1998 4. Both agreements therefore had temporary transfer provisions and while they also had DTA provisions, the Hazelton agreement’s resembled Clause 60.1 in the 2014 Agreement whereas the Kendell agreement’s was of a different nature;

● To the extent Regional Express seeks to rely on Independent Commission Against Corruption v Cunneen 5 (Cunneen) for the proposition that where there are two competing constructions, the more harmonious overall is to be preferred6, DTA should be applied on a temporary transfer in a manner consistent with its application to an Out-of-base layover;

● Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation 7 (Cooper Brookes) is not relevant because there is no problem with a literal reading of Clause 60.1; and

● As to Project Blue Sky v Australian Broadcasting Authority 8 (Project Blue Sky), there is no evidence of the original intent of the parties except for the older agreements the parties have referred to, there is no conflict between the first and second half of Clause 60.1 and even if there was, the second half is the “leading provision”9 and if there is to be any reconciling of provisions found to be in conflict, a reading leading to a more internally consistent outcome is preferable, with this being matching DTA on temporary transfers with DTA on Out-of-base layovers.

Submissions of Regional Express – Clause 60.1

[20] Regional Express also took me to a number of additional clauses in the 2014 Agreement. These included:

a) Clause 3.50: “ ‘Sign On Time’ means the actual sign on time for duty by a Pilot where flight duty or deadhead travel is involved which will not be less than 45 minutes prior to the scheduled departure of the flight…”;

b) Clause 3.23: “ ‘Duty’ means a task or series of tasks that Pilots are required to perform under the terms of their employment with the Company. These tasks include but are not limited to pilotage, flight-planning, pre-flight inspections, training, Deadhead Travel, and other duties as prescribed in this Agreement”;

c) Clause 3.20: “ ‘Deadhead Travel’ means all travel performed at the direction of the Employer not associated with the actual operation of the aircraft but required for the purpose of the positioning for a Tour of Duty or returning to Home Base or base of temporary transfer after a Tour of Duty. For the purposes of this Agreement, Deadhead Travel time will be regarded as duty time”;

d) Clause 3.53: “ ‘Tour of Duty’ is defined as the complete time a Pilot is away from Home Base or base of temporary transfer. A Tour of Duty may include a number of Duty Periods when operating from a base other than Home base or base of temporary transfer, as well as Deadhead Travel”; and

e) Clause 3.49: “ ‘Sign Off Time’ means the time an operating Pilot completes all duties associated with a Tour of Duty, which unless otherwise agreed between the parties will be the 15 minutes after chock time where flight duty is involved. Where the final leg of travel prior to sign off is Deadhead Travel, the sign off time will be at chock time…”.

[21] In its Outline of Submissions, Regional Express said in circumstances where a pilot has temporarily transferred to another base under Clause 54, the proper construction of Clause 60.1 is that the base of temporary transfer operates in effect as their Home Base while carrying out flying duties. It further submitted Clause 60.1 does not provide for a situation where an employee has temporarily transferred so it must be interpreted in the context of the 2014 Agreement as a whole, including surrounding provisions. This was said to include “sign on” at the “actual sign on time for duty by a Pilot where flight duty or deadhead travel is involved…” and “sign off” at “the time an operating Pilot completes all duties associated with a Tour of Duty”, having regard to the definitions in the 2014 Agreement for “Tour of Duty” and “Deadhead Travel”, both of which refer to Home Base or base of temporary transfer. It was submitted that “sign on” and “sign off” for the purposes of DTA are intended, at least in so far as Tours of Duty are concerned, to operate such that a Home Base and base of temporary transfer are interchangeable.

[22] Regional Express submitted that the interpretation urged by the AFAP would mean that pilots would be paid DTA on a temporary transfer for hours that do not constitute duty directly associated with flying duties, such as non-working days, leave days and sick days, and Clause 60.1 should be read as a whole. It argued the AFAP’s submission ignores the requirement that DTA is paid for duty directly associated with flying.

[23] Regional Express also submitted Clause 60.4 of the 2014 Agreement was relevant and the AFAP’s interpretation was inconsistent with this clause, leaving it with “no work to do”.

[24] At the hearing, the Regional Express relied on the following authorities to illustrate when, consistent with Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited 10 (Golden Cockerel), it is appropriate to look beyond the literal words to the intent, meaning and circumstances:

● Project Blue Sky:

“Conflicting statutory provisions should be reconciled so far as is possible

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme…

…

[78] However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning” [references omitted];

● Cooper Brookes:

“[24] The rules, as D. C. Pearce says in Statutory Interpretation, p. 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature. (at p230)

[25] On the other hand, when the judge labels the operation of the statute as "absurd", "extraordinary", "capricious", "irrational" or "obscure" he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions. (at p320) ”; and

● Cunneen:

“[35] In a case like this, however, it is not logically open to apply that kind of syllogistic reasoning. It is impossible to identify the purpose of the ICAC Act (and, therefore, impossible to establish a major premise against which to compare the relative consistencies of the competing constructions of ss8 and 9) without reference to the scope of operation of the Act as defined by ss 8 and 9. For the same reason, it is not open to express a conclusion as to the meaning of "adversely affect" in s 8(2) in terms of absolute validity. The best that can be done is to reason in terms of relative consistency – internal logical consistency and overall consistency in accordance with the principles of statutory interpretation adumbrated in Project Blue Sky – to determine which of the two competing constructions of "adversely affect" is more harmonious overall”.

[25] The submissions of Regional Express at hearing included:

● The suggestion it is trying to rewrite the agreement is misconceived;

● DTA in Clause 60.1 has not previously been used in the context of a temporary transfer so it is not surprising that no-one has turned their mind to clarifying it and its intent. The clause has been rolled over from agreement to agreement and has not been discussed in agreement negotiations;

● In order to discern some intent, it is necessary to go back to where it originated from and the indicators of intent are to be found in the temporary transfer provision of the Kendell Airlines Pilots’ Enterprise Agreement 1998 and the DTA provisions in the various Hazelton Airlines pilots’ enterprise agreements;

● Only the Kendell Airlines Pilots’ Enterprise Agreement 1998 addressed the payment of DTA on a temporary transfer;

● Relying on Cunneen, from a “more harmonious overall” perspective, the DTA is intended, as stated in the first half of Clause 60.1, for duties directly associated with flying duties and these encompass the Tour of Duty;

● There will be multiple sign-ons and sign-offs during a temporary transfer and it is not a sensible argument to suggest that someone on temporary transfer is engaged in duty directly associated with flying duties at all times;

● There is no sign-on at Home Base or sign-off at Home Base on a temporary transfer;

● There are sign-ons and sign-offs in respect of each tour of duty throughout a temporary transfer, as reflected in Clause 3.53, and further meaning is derived from Clauses 3.49 and 3.50; and

● An interpretation that focusses on flying duty, the tour of duty and sign-on and sign off is the better one.

Relevant Legal Principles

[26] The principles relating to the interpretation of enterprise agreements are set out inthe passage below from Golden Cockerel:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act 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.”

Consideration of Clause 60.1 of the 2014 Agreement

[27] The proposition Regional Express advanced in its Outline of Submissions that DTA is only payable to pilots in accordance with Clause 60.4 of the 2014 Agreement was not pressed at the hearing. Regardless, I am not persuaded by it. I prefer the AFAP submission that Clause 60.4 has to be read in conjunction with Clauses 60.2 and 60.3 of the 2014 Agreement and applies where pilots “are required to attend ground courses, conferences and other activities not defined as flying duties”.

[28] It is perhaps useful to again outline Clause 60.1:

“60.1 Pilots will be paid a Daily Travel Allowance (“DTA”) of $6.28 per hour for each hour of duty directly associated with flying duties. For the purposes of calculating the DTA, duty time is defined as those hours encompassed from sign on at Home Base to sign off at Home Base.”

[29] I have approached the task of resolving the dispute in relation to the interpretation of Clause 60.1 of the 2014 Agreement mindful that it was not suggested the DTA has previously been paid to pilots undertaking a temporary transfer. The Regional Express submission that Clause 60.1 has not previously been used in the context of a temporary transfer was not challenged.

[30] Having regard to the second principle in Golden Cockerel, I must firstly determine “whether an agreement has a plain meaning or contains an ambiguity”. My reading of Clause 60.1 tends me to the view that the words have a plain meaning and there is no ambiguity. DTA is payable for each hour of duty directly associated with flying duties that is performed within the span of time between sign on at Home Base and sign off at Home Base.

[31] The two sentences in Clause 60.1 work together. The first sentence of the clause provides that an entitlement to DTA will be triggered where duties directly associated with flying duties are performed. The second sentence stipulates the span of hours within which such performance must occur.

[32] It seems to me an entitlement to DTA can be triggered when a pilot undertakes a temporary transfer. What is required for this to occur is that there be duties “directly associated with flying duties” performed during the period between sign on at Home Base and sign off at Home Base. The AFAP submitted that the only two relevant tours of duty for the purposes of Clause 60.1 are the deadhead travel out of Home Base and the deadhead travel to Home Base because these are when the sign on and sign off at Home Base occur, with the result that DTA is payable for the entire period in between. I agree with this submission only to the extent that those two tours of duty will delineate the period within which the DTA can be claimed.

[33] Under the 2014 Agreement, a “Tour of Duty” includes “Deadhead Travel.” 11 This is regarded as duty time and includes both travel required for the purpose of the positioning for a Tour of Duty and returning to Home Base after a Tour of Duty12. A Tour of Duty may include a number of other Duty Periods when operating from a base of temporary transfer13 and these will involve signing on and off. The AFAP acknowledged such sign-ons and sign-offs occur during a temporary transfer14 but said these denote flight and duty times15. This is somewhat illusory. The qualifying factor for DTA is that duties “directly associated with flying duties” must be performed and I do not regard non-working days or time spent resting and sleeping between sign-ons and sign-offs during a temporary transfer as duties falling within the meaning of “duty directly associated with flying duties”. I reject the AFAP proposition that simply being on a temporary transfer means a pilot is doing something directly associated with flying duties.

[34] Clause 3.23 of the 2014 Agreement defines “Duty” as a task or series of tasks that pilots are required to perform under the terms of their employment. A non-exhaustive list of tasks is outlined. The key characteristic is that a duty requires performance. For DTA to become payable, duties must be performed, they must be directly associated with flying duties and they must be performed within the span of time between sign on at Home Base and sign off at Home Base.

[35] As I have found Clause 60.1 has a plain meaning and there is no ambiguity, there is no basis for me to draw on evidence of surrounding circumstances to contradict the plain language of the 2014 Agreement.

Conclusion – Clause 60.1 of the 2014 Agreement

[36] I find that clause 60.1 of the 2014 has a plain meaning and requires the payment of DTA to a pilot on a temporary transfer for each hour of duty he or she performs directly associated with flying duties within the period from his or her sign on at Home Base to his or her sign off at Home Base.

DEPUTY PRESIDENT

Appearances:

Mr J Lauchland for the Australian Federation of Air Pilots

Mr D Trindade for Regional Express Holdings Ltd.

Hearing details:

2017.

Melbourne:

February 20.

 1   Exhibit A1 – Paragraphs 14(c) and 19-20.

 2   Exhibit A2 – Paragraph 10 and Transcript PN 93.

 3   Exhibit A1 – Paragraphs 4-6 and Transcript PN 109-110.

 4   Exhibit A4.

 5 [2015] HCA 14.

 6 Ibid at [35].

 7 (1981) 147 CLR 297.

 8 [1998] HCA 28.

 9 Ibid at [70].

 10   [2014] FWCFB 7447.

 11   Regional Express Pilots’ Enterprise Agreement 2014, cl 3.53.

 12   Regional Express Pilots’ Enterprise Agreement 2014, cl 3.20.

 13   Regional Express Pilots’ Enterprise Agreement 2014, cl 3.53.

 14   Transcript PN 295.

 15   Transcript PN 298 and 481.

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