The Civil Air Operations Officers' Association of Australia v Airservices Australia T/A Airservices Australia
[2023] FWC 2994
•16 NOVEMBER 2023
| [2023] FWC 2994 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
The Civil Air Operations Officers’ Association of Australia
v
Airservices Australia T/A Airservices Australia
(C2022/8102)
| COMMISSIONER SIMPSON | BRISBANE, 16 NOVEMBER 2023 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
On 8 December 2022, the Civil Air Operations Officers' Association of Australia (Civil Air / the Applicant) made an application to the Fair Work Commission (the Commission) on behalf of their member Ms Anita Currie (Ms Currie), under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute. Airservices Australia T/A Airservices Australia is the Respondent in the matter (Airservices / the Respondent).
The matter was listed for a private conference before Commissioner Spencer on 10 February 2023 and subsequent conferences on 18 August 2023 and 30 August 2023. The matter did not resolve at conference and the parties agreed for the Commission to move to the arbitration stage of the Dispute Resolution Procedure.
Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing before me on Thursday 9 November 2023 by Microsoft Teams Video.
At the Hearing permission was granted for the Applicant to be represented by Mr Eugene White of Counsel and for the Respondent to be represented by Mr Paul Brown, Solicitor of Baker & McKenzie.
The Applicant relied on its Outline of Submissions filed on 5 October 2023, its Outline of Submissions in Reply filed on 2 November 2023 and closing oral submissions.
The Respondent relied on its Outline of Submissions filed on 26 October 2023 and its closing oral submissions.
The Dispute and Background
The dispute relates to Ms Currie, an Air Traffic Controller (ATC) who was directed to attend a Fitness for Duty Examination with a psychiatrist (the Direction) via a referral from a Designated Aviation Medical Examiner (DAME) in November 2022. Ms Currie had previously raised a dispute with the Respondent for the failure to provide a safe working environment due to her working in the same location as her alleged bully. Ms Currie considered that the risk that she would encounter the alleged bully, with no in place agreement with the Respondent for guaranteed separation, was too great. This view was supported by a DAME (on Airservices referral), Ms Currie’s treating psychologist and her GP who suggested that Ms Currie would suffer a significant decomposition of her mental health should she be required to return to work with her alleged bully.
In February 2022, Ms Currie was referred to Dr O’Toole, a DAME, for a Fitness for Continued Duty (FFCD) assessment, from which a report dated 6 April 2022 was generated. A further two reports were requested by the Respondent and received on 13 May 2022 and 15 July 2022 respectively.
I issued a confidentiality order that the medical reports given in evidence not be published. In summary the reports found Ms Currie had the capacity to perform her role however there was significant risk if she returned to work with the alleged bully and there is no requirement for alternative duties for Ms Currie to safely perform her role, however there is a requirement for separation of her and the alleged bully. The second report did not change the recommendations in the first report. The third report declined to predict a safe distance as it would be subjective and suggested asking Ms Currie.
The Respondent then provided Ms Currie with the findings and proposed actions regarding her medical condition on 1 August 2022. The DAME assessment showed that Ms Currie is able to perform the ATC role, when not in contact with her alleged bully. On 14 November 2022, the Applicant received the Direction to attend an appointment with a psychiatrist, by referral of Dr O’Toole. The dispute was raised by the Applicant on 2 December 2022.
The Respondent has presented the Applicant and Ms Currie with a number of return-to-work scenarios, including alternative duties and location transfer for Ms Currie, of which some have been trialled and some rejected outright. The matter was held in abeyance for some time due to parties engaging in these discussions and trial arrangements for deconflicted rosters. The trial arrangements did not resolve the matter and parties have returned to the Direction.
Question for arbitration
On 14 September 2023, during a conference before me, the parties agreed to the following question for arbitration:
“In the circumstances of the Application, does clause 55.6 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023 permit the employer to direct Ms Currie to attend a nominated medical practitioner for further medical assessment for the purpose of the FFCD processes? Yes/No.”
Clause 55.6 of the Agreement reads as follows:
“55.6. Airservices will arrange for an employee to be examined by a DAME in circumstances where:
(a) An employee have been absent from duty on account of illness for a continuous period of 4 weeks and an employee could be substantially impaired, other than temporarily, in the ability to perform an employee’s duties;
(b) An employee have been absent on account of illness for 13 weeks continuously;
(c) An employee have been absent on account of illness for a total of 13 weeks in any 26 week period;
(d) An employee presents a report from a registered medical practitioner indicating that an employee is unfit for duty and the prognosis is unfavourable.”
Though not appearing directly relevant to the substance of the matters in dispute, the Respondent submitted that this question has been intentionally framed to resolve the ‘impasse’ the parties have reached after the Direction was issued for Ms Currie to attend a psychiatrist appointment. Ms Currie has not attended such an appointment to date.
Submissions and Evidence
DAMEs and other medical practitioners
The Applicant submitted that there is a significant difference between a Designated Aviation Medical Examiner (DAME) and other medical practitioners who are not qualified as such.
In summary, Regulations made under the Civil Aviation Safety Regulations 1998 (CASRs) provide for the appointment of “appropriately qualified persons as DAMEs or DAOs and for the cancellation of such appointments.” Medical practitioners may apply to CASA for appointment as a DAME, the qualifications for which appointment include either successful completion of a course in aviation medicine approved by CASA, or evidence of demonstrated competence in aviation medicine.
The Applicant noted that “Nominated medical practitioner” is not a term mentioned or defined in the Agreement, though it is in the question for arbitration, and submitted the only power to refer Ms Currie for an examination in subclause 55.6 is to a DAME as defined in the Agreement.
Purpose of the Direction
The Respondent submitted that the question is not whether ‘at the time of resolution by the Commission,’ the Respondent is permitted to direct Ms Currie to be examined, but instead whether in general the Respondent is permitted to direct Ms Currie to attend a specialist consultation arising out of a recommended course of action by a DAME. The Respondent submitted that the purpose of the direction is to provide guidance that would or could facilitate the implementation of strategies and/or adjustments that are both responsive to the concerns of Ms Currie and have the potential to allow her to return to her substantive position.
In the Respondent’s submission, the psychiatrist Ms Currie was directed to attend not being a DAME does not conflict with the requirements of clause 55.6. They submit that the act of directing Ms Currie to attend a specialist appointment must be viewed in the context of the DAME forming a view that the advice required additional inputs from a suitably qualified person and formed part of the FFCD process that was underway at the time. The Applicant strongly disagreed with this characterisation of the DAMEs agreement to and support of the referral.
The Applicant submitted that the fact that there is difficulty in making arrangements for Ms Currie to work as an ATC does not create an entitlement under the Agreement to refer Ms Currie for a psychiatric examination. In their submission, there is no health or medical condition which supports the proposition that Ms Currie is unfit to perform her work, or within the meaning of clause 55.6, that there is some substantial impairment.
Both parties made submissions on the issues of whether the FFCD assessment had ended in August 2022, or if it was ongoing, whether the Direction formed part of the FFCD process and if the Direction was still current. None of those submissions will be expounded upon in this decision as they are subsequent questions to be answered and not currently before me. These matters will only be referenced to the extent that they provide context or assistance in construing the meaning of the relevant Agreement clause.
Safe Working Environment or FFCD Assessment
As set out earlier, the DAME reports demonstrated that Ms Currie was fit to perform the ATC role, just not around her alleged bully. The Applicant argues that at this point, the FFCD assessment process concluded, but the prevailing legislative obligation to provide Ms Currie with a safe working environment remained.
The Applicant submitted that it appeared that the Respondent, rather than accepting its responsibility to provide Ms Currie with a safe working environment, appears to have taken steps to put the resolution of this difficult situation in her lap. They submit the Respondent has done so by characterising the dispute in terms of Ms Currie refusing to comply with the Direction, rather than the lack of ability to provide a working environment that Ms Currie feels safe returning to, deconflicted from her alleged bully.
Despite being advised on a number of occasions by Dr O’Toole, the DAME, that no further examination was required for the FFCD assessment, as there was no medical condition, the Respondent took steps to refer Ms Currie for the psychiatric examination. The Applicant argued that the Respondent has been informed multiple times by the DAME and Ms Currie’s doctors, of what is required in order for a safe system of work to be provided for her and has been unable or unwilling to provide such.
The Applicant noted that in the correspondence from the Respondent to the DAME seeking his views on referring the Applicant to a psychiatrist, no reference was made to clause 55.6 on which the Respondent now purports to rely. The correspondence seeks the DAME’s views on a referral to a psychiatrist, under the guise of ‘how best to support and assist’ Ms Currie in returning to work.
Even though the DAME subsequently said in a note that the referral might be appropriate, this should not be taken to be an indication from the DAME that the referral was appropriate for the purposes of clause 55.6. The Applicant noted this as a matter of importance because regardless of whether any psychiatric examination might be appropriate, any support for that is totally devoid and separate from the criteria of clause 55.6. The DAME support does not elevate the requirement for the Direction to be one conformable with clause 55.6.
Consideration
The principles of Enterprise Agreement clause construction are as follows:
· The starting point is the ordinary meaning of the words read as a whole and in context.[1]
· The aim of the interpretation is to divine and give effect to the meaning of the words that their authors intended them to convey.[2]
· The words of an enterprise agreement ought not to be interpreted divorced from its industrial realities[3] or from how a reasonable person in the position of the parties would have understood it.[4]
· Regard must be had to the manner of the enterprise agreement’s expression, the context in which it operates and the industrial purpose it serves.[5]
· Generous and purposive construction are to be preferred over literal or narrow constructions.[6]
The FFCD process contemplated by clause 55 as a whole and specifically clause 55.6 makes reference to being ‘examined by a DAME.’ This is a defined term in the Agreement and under the relevant Regulations. The Respondent submitted that the whole of clause 55 should be read for context in answering the question, which refers to the FFCD process and the other steps, requirements and obligations on parties. Clause 55 is reproduced in full below:
“55. FITNESS FOR CONTINUED DUTY
55.1. Early intervention is important if an employee is absent from work and an employee’s health may be impaired. Should an employee experience a health problem that may impair an employee’s capacity to perform an employee’s duties in the long term, Airservices’ objective will be to take positive and appropriate action.
55.2. Both medical and non-medical factors may contribute to absences from work for extended periods of time.
55.3. Should an employee be absent for health reasons, Airservices will explore with an employee possible non-medical outcomes. These may include, but are not limited to:
(a) The provision of appropriate training;
(b) Modification of an employee’s duties;
(c) Arranging for specialised counselling;
(d) An employee’s temporary transfer to different duties;
(e) An employee’s permanent transfer to another position at the same level; or
(f) The counselling of an employee’s supervisor.
55.4. Where an employee’s absence appears directly related to medical factors, any action Airservices takes will be based on the expert advice of a DAME.
55.5. Referral to a DAME
(a) Airservices may refer an employee to a DAME where there appear to be health issues which may substantially impair, other than temporarily, an employee’s ability to perform their duties. This power of reference is only to be made by a Service Delivery Line Manager, with the approval of the Executive General Manager, ATC.
(b) Where the manager has concerns about an employee’s attendance record which do not relate to the health issues referred to in clause 55.5(a) the manager will utilise the provisions of clause 37 of this Agreement relating to the management of Personal leave, or Airservices’ Attendance Management system, as appropriate.
55.6. Airservices will arrange for an employee to be examined by a DAME in circumstances where:
(a) An employee have been absent from duty on account of illness for a continuous period of 4 weeks and an employee could be substantially impaired, other than temporarily, in the ability to perform an employee’s duties;
(b) An employee have been absent on account of illness for 13 weeks continuously;
(c) An employee have been absent on account of illness for a total of 13 weeks in any 26 week period;
(d) An employee presents a report from a registered medical practitioner indicating that an employee is unfit for duty and the prognosis is unfavourable.
55.7. Should an employee be required to consult a DAME, at a reasonable time before the appointment, Airservices will inform an employee in writing of:
(a) The time and place of the examination;
(b) The purpose of the examination, and the reason Airservices arranged it;
(c) An employee’s right to be provided on request with the information to be furnished to the DAME;
(d) An employee’s right to submit supporting material for consideration by the DAME; and
(e) If an employee has been a superannuation contributor for less than 20 years – the need to bring to the medical examination any Benefit Classification Certificate issued to an employee.
55.8. Where an employee has been referred to and attends a DAME, Airservices will provide an employee with written details of the findings of the medical examination, any recommendations provided by the DAME, and advice of any action Airservices
propose as a result.
55.9. An employee will be given the opportunity to respond to any action proposed to be taken and may provide a written response to Airservices within 14 days.
55.10. Airservices may take action that includes, in descending order, but is not limited to the following:
(a) Return an employee to an employee’s current position and duties;
(b) Redeploy an employee at the same level in a different position;
(c) Redeploy an employee to a lower level position with an employee’s consent;
(d) Redeploy an employee to a lower level position without an employee’s consent; or
(e) Terminate an employee’s employment with Airservices.”
In considering the entire clause as context, the Respondent submitted that the intention of the clause was for them to be able to gather information relevant to assisting employees return to work. Language such as “positive and appropriate action” and “any action Airservices takes will be based on the expert advice of a DAME” was referenced to support the Direction being within the meaning of the clause.
I accept the Applicant’s submission that a plain reading of the clause lead inexorably to the conclusion that specific reference to DAMEs and the power of the Respondent to refer an ATC for an examination by a DAME should be given its natural and ordinary meaning. Further, it should be limited to those who have been appointed by CASA as such, and not broaden to include ‘nominated’ medical practitioners. ‘Nominated’ medical practitioner bears the question of who the nominator is, what their power to nominate is derived from and what the purpose of nomination is. This is especially so where there is already a group of DAMEs who have been independently verified for this industry.
There is no ambiguity of language or room to read in a generous construction of the clause to include a non-DAME medical practitioner or an external referral in the context of clause 55.6. The clause is clear that a DAME must do the examination and there is no power of further external referral conferred.
Conclusion
The question before me does not take into account the background of the matter, nor appear to assist in the furtherance of the goal to return Ms Currie to work, which is the substance of the matter in dispute. Nevertheless, based on the above reasoning, the answer to the question for arbitration is no.
COMMISSIONER
Appearances:
Mr Eugene White of Counsel for the Applicant.
Mr Paul Brown, Solicitor of Baker & McKenzie, for the Respondent.
Hearing details:
9 November 2023
By Microsoft Teams Video
[1] James Cook University v Ridd (2020) 278 FCR 566, [56(i)]; Treasury Wine Estates Vintners Ltd v Pearson [2019]
FCAFC 21, [73].
[2] BioGiene Pty Ltd v Mullan [2022] FCAFC 73, [26] (BioGiene); One Key Workforce Pty Ltd v Construction, Forestry,
Mining and Energy Union (2018) 262 FCR 527, [190].
[3] City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426, [57] cited in
BioGiene, [36].
[4] Treasury Wine Estates Vintners Ltd v Pearson [2019] FCAFC 21, [75].
[5] Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, [2], [96].
[6] James Cook University v Ridd (2020) 278 FCR 566, [56(ii) and (iv)].
Printed by authority of the Commonwealth Government Printer
<PR768315>
0
6
0