[2017] FWC 2635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Transport Workers' Union of Australia-South Australian/Northern Territory Branch
v
Qantas Airways Limited
(C2017/56)

QANTAS AIRWAYS LIMITED AND QCATERING LIMITED - TRANSPORT WORKERS AGREEMENT 2015

[AE412943]

Airline operations
COMMISSIONER HAMPTON	ADELAIDE, 30 JUNE 2017

Dispute about matters arising under an enterprise agreement – coverage and classification dispute about release and dispatch of certain aircraft at Adelaide airport – terms of enterprise agreement considered as a whole and in context – nature of receipt and dispatch duties considered in the context of the other work performed by ramp staff and other services provided to aircraft – work falls within scope of the agreement – classification issue determined.

1. The dispute

[1] This decision concerns the determination of a dispute about the proper application of the Qantas Airways Limited and QCatering Limited - Transport Workers Agreement 2015 (the 2015 Agreement). That instrument is an enterprise agreement approved by the Commission under the Fair Work Act 2009 (the FW Act). The matter is before the Commission as a result of an application by the Transport Workers’ Union of Australia (TWU) under s.739 of the FW Act and relies upon clause 12 Procedures for the Settlement of Industrial Disputes of the 2015 Agreement.

[2] Qantas Airways Limited (Qantas), along with the TWU, is covered by the 2015 Agreement and it is common ground that clause 12 has been followed by the parties in connection with this dispute and that the Commission is empowered to arbitrate the matter.

[3] The context for the dispute is that ground operations staff, otherwise known as “ramp” staff, employed by Qantas under the terms of the 2015 Agreement presently undertake certain receipt and dispatch (R&D) duties in connection with two types of aircraft at Adelaide airport. Those aircraft, being the Boeing 717-200 and Bombardier Dash 8 (Q300 Series), are operated by Cobham Aviation Services Australia which provides services to the QantasLink network. The ramp staff currently undertaking the work are all Level 7 Senior Airline Services Coordinators under the 2015 Agreement and they are paid as such when performing those functions. I note that some Level 8 Senior Airline Services Coordinators were also trained to undertake that work and did so initially for a number of reasons including mentoring and backup.

[4] I will later outline in more detail both the context for, and nature of, the R&D duties. In general terms, for the Boeing 717-200 aircraft these duties involve monitoring the relevant aircraft on arrival at the terminal (and assisting to guide the aircraft in if the guidance system fails), connecting by a headphone jack and communicating with the flight crew and, when given permission to do so, indicating to the rest of the ramp staff and other services that it is now safe to approach the aircraft and commence services. The R&D duties also involve receiving fuel requirements from the Pilot, which are communicated to the refuelers, doing a duty of care walk around inspection of the aircraft checking for unsecured panels and any other obvious safety issue, and then in effect acting as the “eyes” (behind and to the side of the aircraft) of the Pilot as it is pushed back from the terminal by a tug operated by another ramp staff member.

[5] In the case of the Dash 8 aircraft, the general description above applies, except that the Level 7 Senior Co-coordinator (or a Level 8) acts in that leadership role when not physically performing the R&D duties. Further, the tug that is used to push back the aircraft is smaller and is personally operated by the employee who is performing the R&D duties.

[6] The issues that arise from the dispute may be stated as follows:

1. Whether the R&D duties at Adelaide airport fall within the scope and coverage of the 2015 Agreement and as a result, whether the relevant members of the TWU covered by the Agreement can be required by Qantas to perform the R&D duties; and if so

2. What classification and/or higher duties arrangements apply to the R&D work at Adelaide airport under the terms of the Agreement?

[7] The TWU has, in effect, advanced the following two answers:

That the R&D duties at Adelaide airport are engineering functions beyond the scope of the 2015 Agreement and that the ramp staff cannot be assigned to undertake those duties; and in the alternative:

If Qantas is able to assign these tasks to the ramp staff, the performance of such duties should be recognised by way of a payment at a higher classification – Level 8.3.

[8] Qantas contends that the R&D duties at Adelaide airport fall within the scope of the 2015 Agreement and that the tasks undertaken in the R&D function are consistent with those set out in classifications Level 3 and Level 4. In that regard, Qantas also contends that although it presently uses Level 7 Senior Coordinators (or potentially a Level 8) to undertake that work, Level 4 employees can be trained to perform the R&D work under the terms of the 2015 Agreement.

[9] Accordingly, it is necessary for the Commission to consider and determine whether the R&D functions fall within the scope of work covered by the 2015 Agreement (the coverage issue), and if so, what classification level is appropriate for that work (the classification issue). There is of course some overlap between the issues given that the scope of the classifications is an important consideration in determining the intended scope of the 2015 Agreement.

[10] The parties have provided written outlines and witness evidence, which has been subject to consideration in a hearing conducted by the Commission. In addition, before the hearing I conducted an inspection of the R&D work being performed at Adelaide airport in relation to both the Dash 8 and Boeing 717-200 aircraft during which some of the ramp staff and the management representatives pointed out features of the work about which the evidence was to be given.

2. The cases advanced by the parties

2.1 The TWU

[11] In relation to the coverage issue, the TWU contends the classifications and definitions of employees covered by the agreement are contained within clause 18.3 of the 2015 Agreement and that these do not address the tasks and/or functions required of R&D duties. Accordingly, the omission of any such reference was a deliberate and clear indication that it was never intended to have the ramp staff acquit the R&D duties. It further contends that:

● R&D is an engineering function that requires those who perform the task to have high level communications with pilots and other engineering staff. These communications require more than a rudimental understanding of aircraft in order to be performed safely and diligently, particularly given that pilots may adopt different terminology in their communications and may at times also assume that the ramp employees are Engineers;

● The engineering nature of the R&D work is illustrated by the fact that the function has its own comprehensive section in the relevant operations manual;

● The R&D work also includes assessments of aircraft, identification of defects, solutions to system errors/issues and fuel figures; and

● Employees performing the R&D duties are essential as they coordinate teams of personnel that include up to 15 employees and without the authorisation from the person responsible for R&D, teams cannot be deployed to attend aircraft.

[12] The TWU also contends that there should be no suggestion that the prior performance of the R&D duties by the ramp staff demonstrated that the 2015 Agreement was capable of covering the employees who perform that work.

[13] On that basis the TWU submits that those who perform the R&D task are undertaking significant responsibility and/or “manpower” control in excess of the “baggage handling” employees covered by the 2015 Agreement.

[14] In relation to the classification issue, the TWU contends that if the 2015 Agreement applies, the nature of the responsibilities involved are more than as contemplated by the Level 7 position. That is, the employees accept significant operational responsibilities and manpower control as set out for a Senior Airlines Service Co-ordinator in Level 8.

[15] I also note that the TWU indirectly raised concerns about the suitability and number of certain equipment used by the ramp staff in the R&D functions; principally the tow bars used in connection with the Boeing 717-200 aircraft. This aspect is not directly relevant to the determination of this dispute. Subject to that determination, this concern may be raised with management using the relevant dispute resolution procedure and should be treated on its merits.

[16] The TWU led evidence from the following ramp employees, each of whom presently undertake the R&D duties:

● Mr Jeffrey Tregilgas - Senior Airline Service Coordinator - Level 7 (Leading Hand); 1

● Mr Christopher Snook - Senior Airline Service Coordinator - Level 7 (Leading Hand); 2 and

● Mr Steven Hall - Senior Airline Service Coordinator - Level 7 (Leading Hand) and Relief Trainer. 3

2.2 Qantas

[17] Qantas contends that the 2015 Agreement can and does properly cover employees required to perform the R&D duties. This, it contends can readily be distilled from the descriptors given at Level 3 and Level 4 – Airline Services Operator found in clauses 18.3.4 and 18.3.5 of the agreement.

[18] Furthermore, Qantas contends that the employees who are part of its Ground Operations team, can properly and safely perform the R&D functions and that those functions are adequately described by, and fit within the Level 3 and Level 4 classifications of Airline Services Operator. This it says, is the plain meaning of the enterprise agreement and this should be applied.

[19] Qantas also submits that it is clear from the authorities that the Commission should not intervene to change the way an employer carries out its business, provided the employees are not required to perform their functions in an unsafe manner, both to themselves and fellow employees or impose a requirement which is unjust or unreasonable. It contends that it has for a number of years at Adelaide airport, safely and appropriately allocated R&D duties, with respect to the Boeing 717 and Dash 8 aircraft, to employees who are part of the Ground Operations, or Ramp Services, crew. Such employees have been, and continue to be, employed under the terms of an industrial instrument, made specifically to cover ground crew operations. The 2015 Agreement is the current iteration of those industrial instruments.

[20] It further contends that Ground Operations employees are commonly assigned to perform R&D duties around other airports in Australia which involve aircraft operated by Cobham Aviation for QantasLink and this was a notorious fact that was relevant to the extent that surrounding circumstances were considered in light of some ambiguity about the terms of the agreement. There is also no need or requirement for these duties to be performed by qualified engineers.

[21] In relation to the classification issue, Qantas also contends that the employees currently performing R&D duties are:

● Performing work which includes work which is directly associated with aircraft handling;

● With respect to the R&D of Dash 8 aircraft, employees operate equipment requiring similar operational skills as a tug motor;

● Operating basic communication aids;

● Operating ground handling equipment; and

● Working without direct supervision.

[22] It further contends that all of the above skill sets fit within classification Levels 3 and 4 of the 2015 Agreement and that none of the duties required of an employee performing R&D duties can be equated to descriptors of classification levels above Level 4 in the 2015 Agreement. In that regard, Qantas contends that the employees are not “Responsible for a group of staff in a work area” such as described in the 2015 Agreement for Level 5 employees.

[23] Further, under the 2015 Agreement, a Level 7 employee, designated as a “Senior Airlines Services Coordinator” (Level 7 Senior), carries the full responsibility on the Ramp for the loading and unloading of an aircraft and must certify that the aircraft has been loaded in accordance with the Load/Offload Instruction Report, which report is established by Load Control, to ensure the aircraft is loaded in a secure and balanced manner. The person performing R&D (when not acting as the Level 7 Senior) is not responsible for directing the work of other employees or responsible for certifying, in a formal sense or otherwise, the safe loading of an aircraft.

[24] Qantas led evidence from the following senior staff:

● Ms Amanda Chappell – Adelaide Airport Manager; and

● Mr Paul Nicholas – Manager of Australian Regional Airport Operations.

2.3 Observations on the evidence

[25] I consider that all of the evidence ultimately admitted during the hearing of this matter was relevant and of assistance in determining this dispute. I also consider that each of the witnesses gave their evidence openly and honestly. There are differences in that testimony, however, much of that concerned subjective views as to the relative importance or consequences of various elements of the R&D tasks. These matters are ultimately for the Commission itself to determine.

[26] Where there is relevant factual conflict, I have resolved this having regard to my impressions of the witnesses, the degree to which the witnesses have a first-hand understanding of the issues, and the degree of objectivity evident in their testimony.

3. The relevant terms of the Enterprise Agreement

[27] Without detracting from the terms of the 2015 Agreement more generally, the following elements are relied upon by the parties and/or are apposite for present purposes:

[28] Clause 5 of the 2015 Agreement defines the persons bound in the following terms:

“5. PERSONS BOUND

5.1 This Agreement covers and applies to:

● Employees of Qantas and QCatering employed in classifications specified in Clause 18 of this Agreement;

● Qantas and QCatering; and

● The Union (after the union gives notice in accordance with s183 of the Act).”

[29] Clause 6 of the 2015 Agreement provides as follows:

“6. RELATIONSHIP BETWEEN AGREEMENT AND INDUSTRIAL INSTRUMENTS AND THE NATIONAL EMPLOYMENT STANDARDS

6.1 This is a comprehensive Agreement that replaces all other awards that would otherwise apply.

6.2 This Agreement replaces the Qantas Airways Limited and QCatering Limited – Transport Workers Workplace Determination 2012.

6.3 Application of the National Employment Standards (NES)

The terms of this Agreement may apply in a manner that does not exclude the NES. That is, no provision of the NES is displaced by this Agreement but the NES provisions may be supplemented by the terms of this Agreement. Accordingly, the NES will continue to apply to the extent that any terms of this Agreement is detrimental to an employee in any respect when compared with the NES.”

[30] The capacity for the employer to direct an employee to perform duties is canvassed in clause 14 in the following terms:

“14. EMPLOYER AND EMPLOYEE DUTIES

14.1 Employees will be available for deployment in any work area or work centre provided the Company may only direct an employee to carry out such duties as are within the limits of the employee’s skill and competency and training, consistent with the classification structure of the Agreement (provided the duties are not designed to reduce skills) and will include cross-utilisation and/or working down as directed.

14.2 The Company may direct an employee to carry out duties and use tools and equipment as may be required provided that the employee has been properly trained in the use of the tools and equipment.

14.3 Any direction issued by the Company under this clause is to be consistent with the Company’s responsibilities to provide a safe and healthy working environment.”

[31] The classifications and pay rates are set out in clause 18.

[32] Sub-clause 18.2 provides as follows:

“18.2 Translation Arrangements

The Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 7 (EBA 7) provided for a new classification structure for employees engaged as Airline Service Operators on or before December 2008. See Appendix C – Arrangements for Employees Employed on or before 1 December 2008 for rules including promotion and higher duties that apply as a consequence of the classification structure under EBA 7.”

[33] Sub-clause 18.3 provides a series of classification definitions ranging from Level 1 to Level 8. Most relevant for present purposes are Levels 3 to 8 as follows:

“18.3.4 Level 3 – Airlines services operator

● Hands-on activities in all areas of work including that which is both directly and indirectly associated with aircraft handling, and/or AAF PUD drivers

● Operate equipment and vehicles including tow motors, small vans, tarmac buses, mobile steps, belts, non-tarmac fork-lift and equipment requiring similar operational skills associated with ramp, cargo freight, catering, aircraft servicing and general transport operations

● Carry out basic serviceability and maintenance checks f vehicles and/or equipment, including refuelling of vehicles

● Operate basic communication and computer aids

18.3.5 Level 4 – Airlines services operator

● Operate all in hold aircraft systems and all ground handling and commercial type airport equipment

● Ground handling equipment means all equipment associated with ramp, freight/cargo, catering, aircraft servicing and general transport operations

● Operate communication and computer aids

● Compile reports and documents

● Work without direct supervision

● Carry out basic serviceability and maintenance checks of vehicles and/or equipment, including refuelling of vehicles

18.3.6 Level 5 – Airline services co-ordinator

● Responsible for a group of staff in a work area

● Ensure that productivity and performance criteria are met in the designated area of responsibility, including completion of regular performance assessment reports

● Responsible for the control, supervision and training of designated staff

● Make recommendations on all aspects of the operation, identification of opportunities to improve performance and productivity

● Organise and co-ordinate work within their area of responsibility

● Carry out various administrative an reporting duties, including the operation of communication and computer aids

● Form part of the assessment panel for probationary employees

● Must demonstrate leadership, decision making and organisational skills necessary to efficiently meet performance requirements in a changing work environment

18.3.7 Level 6 – Senior airlines service co-ordinator

● Responsible for a number of groups of staff

● Otherwise as per Level 5

18.3.8 Level 7 – Senior airlines services co-ordinator

● Full responsibility for the loading and unloading of aircraft, including:
● Securing of all loaded items

● Checking all safety locks and/or other safety devices
● Locking aircraft cargo doors

Sign appropriate documentation certifying that the aircraft has been loaded in accordance with these requirements.

18.3.9 Level 8 – Senior airlines services co-ordinator

● Report to responsible Manager/Supervisor

● Accept significant operational responsibility and/or manpower control in excess of Level 7 employees; and/or

● Responsible for the development, implementation and co-ordination of State/Network Training Programmes”

[34] Sub-clause 18.4 is also relevant and provides as follows:

“18.4 Skill Descriptors

This classification structure is to be read in conjunction with the Report of the TW Classification Structure Review conducted in accordance with the terms contained within the Transport Workers (Qantas Airways Limited) Enterprise Agreement IV (1998-2001) that was signed by the parties on 30 April 1999.”

[35] The document referred to in clause 18.4 is a written understanding about the application of the classification structure reached between the parties in 1999. 4 It is written in the form of general descriptions of the work (or more accurately the skills) contemplated under the various levels and is known as the “Brocchi” document in recognition of its author.5

[36] Without setting out all of the detail, I note that clause 19 provides for the promotion of employees to vacancies in higher levels and for the operation of yearly increments within those levels. Clause 21 also provides for higher duty arrangements in the following terms:

“21. HIGHER DUTIES

21.1 If an employee is required to perform two or more classes of work in any day or shift, the employee must be paid for the whole day or shift at the rate of pay applicable for the higher class of work. If an employee is required to perform a lower class of work in any day or shift, the employee must be paid for the whole day or shift at the employee’s regular rate of pay.

21.2 Rate of pay on higher duties

21.2.1 An employee employed as an Airline Services Operator who undertakes higher duties will receive the next highest salary in the higher duties Level.

Example:

An Airline Services Operator Level 2.3 required to act in Level 3 will be paid at Level 3.3. If the employee acts in that position and passes their anniversary date for the substantive position the employee would advance to Level 3.4.

21.2.2 Notwithstanding clause 21.2.1 and employee:

(a) In Level 2.1 acting in Level 3 will act at Level 3.2.

(b) In Level 2.4 acting in Level 3 will act at Level 3.1.

21.2.3 Vacant Positions

21.2.3.1 If:

(a) A position is vacant and no other employee has a claim to that position; and

(b) The position had been filled on Higher Duties Allowance (HDA) for 12 months or more; and

(c) The position is expected to continue to be required, then the position will be filled using the normal recruitment and selection process.

21.2.3.2 The Company will not rotate an employee through a vacant position to higher duties as a means of avoiding the intent of this clause.

21.2.3.3 Secondments will not be used to avoid permanently filling positions. The Company will not use this clause to avoid filling vacancies that exist.

21.2.4 Salary Progression

Where an employee is confirmed in a position in which he or she has just been acting and for which he or she has been paid higher duties allowance in accordance with Clause 21.1, or where the employee returns to his or her substantive lower position following a period of higher duties, the immediately preceding period that the employee has so acted in such position will be counted as service for the purposes of salary increments in the higher role, or the substantive role, as applicable.”

4. The proper application of the Enterprise Agreement to the dispute

4.1 The approach to be applied

[37] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited 6 (AMWU v Berri) in the following terms:

“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(i) the text of the agreement viewed as a whole;

(ii) the disputed provision’s place and arrangement in the agreement;

(iii) the legislative context under which the agreement was made and in which it operates.

2. 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.

3. The common intention of the parties is sought to be 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, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

(i) 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;

(ii) notorious facts of which knowledge is to be presumed; and

(iii) evidence of matters in common contemplation and constituting a common assumption.

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.

In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”

[38] This is a non-exhaustive statement of the principles to be adopted 7 and I have applied this approach in determining this dispute.

[39] In Geo A Bond & Co Ltd (In Liq) v McKenzie,⁸ (Geo A Bond) 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."

[40] 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.”⁹

[41] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd¹⁰ 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.”

[42] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia 11 in the following terms:

“[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’”

[43] All of the above observations are consistent with the approach taken in AMWU v Berri. In the end, my present task is to ascertain the objective intention based upon the language and terms of the 2015 Agreement, when read as a whole, and considered having regard to its context and purpose.

4.2 The context and factual findings

4.2.1 The history of the terms of the 2015 Agreement

[44] All of the relevant terms of the 2015 Agreement, other than the actual rates of pay, reflect the terms of the previous instrument 12 and have been in place for as long as the relevant R&D work has been undertaken by the ramp staff at Adelaide airport.

[45] It is also the case that within the Qantas group network, Qantas ground staff have regularly performed the R&D work on the Boeing 717-200 and the Dash 8 aircraft. This has involved over 120 Qantas employees who are covered by the 2015 Agreement being trained in these functions. This properly forms part of the context to be considered. However, Qantas does not argue that there is evidence that there was a “meeting of the minds” as contemplated in AMWU v Berri by virtue of the post-agreement conduct of the ramp staff employees or the TWU at Adelaide airport. I agree. Further, although there is little before the Commission about the context in which the R&D work on other larger aircraft that are operated directly by Qantas is undertaken by licenced engineers, this is also a contextual fact.

4.2.2 The nature of the relevant R&D work and its relationship with the (other) work of the ramp staff

[46] As indicated, there are two aircraft types presently involved with the relevant R&D tasks at Adelaide airport. The Dash 8 is the smallest aircraft in the “Qantas fleet”, with the 300 series seating just 50 passengers. The Boeing 717-200 accommodates up to 110 passengers. Both are multi-engine aircraft with a flight crew of two. The Dash 8 is a turbo-prop aircraft. The ramp staff have been performing the R&D work at Adelaide airport since approximately 2011 and 2014 for the Dash 8 and Boeing 717 aircraft respectively.

[47] Larger aircraft, which are operated directly by Qantas, accommodate anywhere from 174 (Boeing 737-800) to 484 (Airbus 380) passengers. At Adelaide airport, the R&D function for these aircraft is carried out by engineering personnel, under the terms of another enterprise agreement.

[48] It is appropriate to consider the broader role of the ramp staff. Leaving aside the R&D functions and the potential application of the classification structure to that work, the evidence indicates that the responsibilities of the ramp staff and others covered by the 2015 Agreement includes the following:

● Employees in the “bag room” load and unload bags and freight to and from conveyer belts and trailers – generally classification Level 3;

● Employees who work on the ramp undertake various hands on activities in all areas of work directly or indirectly associated with the handling of aircraft including using a range of equipment, communication aids and vehicles. The duties include the loading and unloading of baggage, freight, waste and water from the aircraft and may include the positioning of rear stairs for the aircraft where used – generally classification Level 3;

● In addition to the general ramp functions, Level 4 employees undertake the push-back of aircraft using the pushback tug and, unlike the Level 3 employees, may work without direct supervision. The pushback drivers at Adelaide must hold a Category 2 - Authority to Drive Airside - licence;

● Leading Hands are present in the Baggage room and Fleet presentation areas. The Leading Hands coordinate and supervise the relevant teams and deal with disruptions such as oversize or other special items of baggage – generally classification Level 5;

● The Senior Airline Service Coordinators have the responsibility for the loading and unloading of the aircraft and must certify that the aircraft has been loaded in accordance with the Load/Offload Instruction Report, which report is established by Load Control, to ensure the aircraft is loaded in a secure and balanced manner. These employees must also physically supervise the loading, ensure that the cargo doors are properly locked and that all staff have exited the aircraft before doing so – classification Level 7; and

● Management staff involving the management of multiple teams and the development, implementation and coordination of training – classification Level 8.

[49] All staff may “act down” and perform duties in the lower classification levels. When doing so they, in effect, retain their classification and remuneration.

[50] As with all staff operating in the airport environment, it is part of the responsibility of ramp staff to keep an eye out for safety issues including so as to be aware of objects on the tarmac and any damage to aircraft that would be evident by a general inspection.

[51] There are presently some 49 full-time and 13 part-time Qantas staff engaged under the 2015 Agreement at the Adelaide airport and all ramp staff are currently classified between levels 3 and 7 inclusive.

[52] Accordingly, although the TWU described the ramp staff as being essentially “baggage handlers”, the role is both more significant and broader than that description would indicate and the potential coverage of the 2015 Agreement is also more extensive.

[53] There are a number of other services, beyond the work undertaken by the ramp staff, in “servicing” aircraft when on the ground at the terminal between flights. These include:

● Aerobridge – to enable passengers and crew to board and disembark the aircraft;

● Fuel – to refuel the aircraft according to the instructions provided by the Pilots;

● Catering – to supply meals and other catering supplies and to remove left overs and related equipment;

● Cleaning – to remove rubbish from the aircraft and clean toilets and other areas; and when required

● Engineering – to deal with minor issues of maintenance or to check mechanical, radio or electrical issues raised by the Pilots.

[54] I note also that a member of the flight crew will generally undertake a visual inspection of the aircraft at some stage prior to being loaded with passengers and being pushed back.

[55] Having earlier set out a general description, I turn now to the detail of the relevant R&D functions performed at the Adelaide airport.

[56] The major R&D tasks associated with the Boeing 717-200 aircraft involve the following:

● checking the arrival times and aircraft type and collecting and setting up the appropriate tug motor and other equipment including where relevant tow bars, nose farings, chocks and wingtip cones;

● doing a foreign object debris (FOD) search of the lead-in area where the aircraft will come towards the terminal;

● monitoring the relevant aircraft on arrival at the terminal bay, visually checking that the automatic guidance system (Nose in Guidance System - NGS) is operating and if not, assisting to guide the aircraft in using hand-held paddles;

● when the aircraft has stopped, the engines have spooled down and the flight crew have turned off the under carriage beacon, the employee undertaking the R&D function signals to other staff that the rear wheel chocks and other cones can be applied and will apply the front wheel chock and nose cone. Safety cones are also applied to the outer main wheels;

● connecting by a headphone jack and communicating with the flight crew that the chocks have been applied. This communication may also involve receiving advice that the ramp staff and other service may now approach the aircraft, and being given an update on the amount of fuel to be loaded;

● when given the permission to do so by the flight crew, and subject to a visual inspection of the area, indicating to the other ramp staff and other services that it is now safe to approach the aircraft and commence services;

● communicating the amount of fuel required to the refuelers;

● connecting the draw bar to the front landing gear of the aircraft including by inserting a locking pin which effectively means that the steering of the aircraft is removed from the pilots and left to the tug motor which is at the other end of the draw bar;

● undertaking a walk around of the aircraft and doing a basic visual check for any obvious safety issue. If any concerns arise, these are reported to the flight crew (or others) and these are then investigated by engineers;

● filling the aircraft water storage;

● after refuelling has been completed, collecting the docket from the refueller and providing the same to the aircrew;

● undertaking a duty of care walk around of the aircraft checking for unsecured panels, confirming that the flags, bung and pins applied whilst the aircraft is being stored or serviced on the ground have been removed, and looking for any other obvious safety issue. If any concerns arise, or if a flag, pin or bung is to be removed and the staff have not been trained in that respect, these are reported to the flight crew (or others) and may then investigated or handled by engineers;

● communicating to the aircrew that the Level 7 has locked the doors and request the application of the aircraft brakes so that the chocks can be removed – which is then done;

● subject to advice from the aircrew, indicating to the aerobridge operator that the aerobridge is to be removed from the side of the aircraft and doing a visual inspection of the door when shut;
● when the aircrew indicates that the aircraft is ready to be pushed back, communicating this to the driver of the tug motor and then, walking with the aircraft and, in effect, acting as the “eyes” (behind and to the side of the aircraft) of the Pilot looking for other aircraft, vehicles or other obstructions as it is pushed back from the terminal by a tug operated by another ramp staff member;
● before, during and/or after the push back as required, observing the engines as they are started by the air crew and confirming the same to the Pilot; and
● when the aircraft is ready to be disconnected from the tug motor, removing the pin (and associated flag) from the front landing gear, removing the head phone connection to the aircraft and closing the small hatch on the aircraft where they are plugged in, and signalling to the aircrew that the pin and flag has been removed and that aircraft is freed from the connections and is now within the flight crew’s manual control.

[57] It is also the case that when occurrences take place outside of the normal procedure, the R&D tasks might also involve additional communication with other services or in the rare event of a significant issue arising before departure, liaising with airport management and the operator of the tug motor to tow the aircraft back to the terminal.

[58] I note that the full R&D function may take up to 60 minutes to complete and that the above description is not intended to detail all of the individual tasks. In particular, some of the minor individual tasks undertaken during the R&D function may be signalled by the staff members performing that function or may be done themselves, depending upon staff resources.

[59] In the case of the Dash 8 aircraft, the following R&D duties are performed:

● checking the arrival times and aircraft type and collecting and setting up the appropriate tug motor (in this case a Lektro tug without a tow bar) and other equipment including where relevant nose farings, chocks and wingtip cones;

● monitoring the relevant aircraft on arrival at the stand-off bay and assisting to guide the aircraft in using hand-held paddles if the NGS fails;

● connecting by a headphone jack and communicating with the flight crew (the Pilot or Co-pilot). This will involve confirming that the chocks have been applied and receiving advice that the ramp staff and other services may now approach the aircraft, and being given an update on the amount of fuel to be loaded;

● when given the permission to do so by the flight crew, indicating to the other ramp staff and other services relevant to the aircraft that it is now safe to approach the aircraft and commence services;

● communicating the amount of fuel required to the refuelers and providing the relevant paperwork to the aircrew when completed;

● connecting the tug motor to the front landing gear of the aircraft – noting that this in effect, means that the steering of the aircraft is removed from the pilots and left to the tug motor;

● undertaking an initial walk around of the aircraft and inspection of the aircraft checking for unsecured panels and any other obvious safety issue. If any concerns arise, these are reported to the flight crew (or others) and these are then investigated by engineers. A duty of care walk around inspection is also conducted (as set out for the Boeing 717-200 aircraft) after the loading and unloading has been completed and the Level 7, acting in that capacity, has locked the cargo doors;

● when the flight crew indicates that the aircraft is ready to be pushed back, pushing the aircraft back from the parking bay using the tug;

● before, during and/or after the push back as required, observing the engines as they are started by the air crew and confirming the same to the flight crew; and

● when the aircraft is ready to be disconnected from the tug, removing the tug connection from the front landing gear, removing the head phone connection to the aircraft and signalling to the flight crew that the aircraft is freed from the connections and within the flight crew’s manual control.

[60] In addition, when dealing with the Dash 8 aircraft, the Level 7 Senior acts in that leadership role when not physically performing the R&D duties. This includes supervising the loading of the aircraft and certifying that it has been loaded in accordance with the instructions of Load Control.

[61] As with the R&D duties canvassed earlier, I have not sought to cover all of the detailed R&D duties associated with the Dash 8 aircraft or to deal with the contingencies that may arise from time to time.

[62] The training for the R&D on the Dash 8 aircraft involves 30 minutes of theory training and four hours of practical training, covering a minimum of three R&D exercises. The training for the Boeing 717 aircraft involves two hours of theory training and two hours of practical training, also covering at least three R&D exercises. In each case, more practical training may be provided, depending upon the aptitude of the staff member, and no licensing or external qualifications is required for the relevant R&D duties at Adelaide airport.

[63] Having regard to the evidence before the Commission, I do not consider that the ramp staff, when undertaking the R&D duties, are supervising or taking responsibility for the other employees within the ramp group or those providing other services to the aircraft. I also do not consider that they are responsible for the decisions to push-back the aircraft or to permit the ramp and other services to approach the aircraft upon arrival. These decisions are in effect taken by the flight crew by actions that they implement and the supervision of the staff is undertaken by the relevant Leading Hands or Level 7 employees (noting on the Dash 8 that this may be the same employee who is undertaking the R&D).

[64] The R&D functions do not involve providing answers to any questions from the flight crew that require an engineer or undertaking the diagnosis or servicing of any aircraft or associated equipment, except for the basic serviceability and maintenance checks of the (non-aircraft) vehicles directly used by the Ramp staff and expressly contemplated within classifications Levels 3 and 4. In terms of the inspection of the aircraft, the ramp staff are not certifying or attesting to the airworthiness of the aircraft or making any engineering assessment. Indeed, in that respect the role in performing the R&D function is less than the Level 7 employees who are certifying the load and the proper closure of the cargo doors.

[65] However, the R&D work is very important and the ramp staff are responsible for the proper and safe performance of the actual functions within the scope of work for the R&D set out above. This includes making observations and undertaking the various steps and communications required as part of the process.

4.3 Observations about the scope and classification terms of the 2015 Agreement when read in context

[66] The scope, or coverage, of the 2015 Agreement is established by reference to the employees employed in the classifications specified in clause 18 of the Agreement. This arises from clause 5 as set out earlier in this decision. The relevant parts of clause 18 have also been set out earlier in this decision. The classification definitions are also to be considered in light of the Brocchi document.

[67] The TWU rightly point to the absence of a specific reference to the R&D functions within the classification structure of the 2015 Agreement.

[68] However, the classifications are broadly defined and do not, at least in general terms, describe the detailed duties that are contemplated. As an example, Level 3 refers to “Hands-on activities in all areas of work including that which is both directly and indirectly associated with aircraft handling, and/or AAF PUD drivers” and “Operate equipment and vehicles including tow motors, small vans, tarmac buses, mobile steps, belts, non-tarmac fork-lift and equipment requiring similar operational skills associated with ramp, cargo freight, catering, aircraft servicing and general transport operations”. It does not mention the handling of bags or freight at any point, although these are uncontroversial central elements of the function.

[69] Level 4 is also expressed in broad terms and appears to build upon the Level 2 and 3 definitions by referencing the nature of the equipment operated and the absence of direct supervision, rather than attempting to describe the actual tasks involved.

[70] The Brocchi document was apparently designed to provide some clarification around the then new classification structure, given the removal of reference to individual airport requirements from that structure and an expanded range of Level 8 positions. This first aspect includes the different licence requirements for the push and tow operators. All classifications up to Level 8 are required to “work down” as directed. This also tends to support the notion that the classification levels are designed to be read in conjunction with one another.

[71] Although the Brocchi document references some functions such as baggage room, load and unload ULD’s and barrows, pushback, and cabin cleaning, it also tends to specify these matters as requiring the achievement of relevant performance standards or skills in these functions rather than attempting to detail all of the work contemplated. The document also relies upon the coverage of “TWU activities” and more general concepts such as “tarmac operations” and “passenger assist functions”.

[72] I note also that parts of the Brocchi document were expressed to be in a draft format and it does not reference the requirement relevant to Level 7 that those employees take “Full responsibility for the loading and unloading of aircraft” that is set out in the 2015 Agreement for such employees. Rather, the document records the responsibility as being that employees at this level “are responsible for the development, implementation and Co-ordination of State/Network Training Programmes.” This document also pre-dates the performance of the R&D functions by the TWU staff engaged by Qantas.

[73] Accordingly, the absence of a specific reference to the R&D functions within both the classification structure and the Brocchi document must be considered in that light.

4.4 The application of the XPT principle

[74] Qantas has contended that the Commission should be guided by the approach evident in authorities adopting the principle originally set out in Australian Federated Union of Locomotive Enginemen v State Rail Authority 13(the XPT Case).

[75] The principle stated in the XPT Case was as follows:

“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable.”14

[76] I observe that this is a general principle that should be taken into account and given significant weight in the exercise of an arbitral discretion concerning whether the Commission should intervene in relation to a lawful business management decision by an employer; but is not an immutable rule and the particular circumstances of each case must be considered.¹⁵

[77] In this matter, the principle does not directly inform the coverage issue or the classification issue, which must be determined based upon the proper construction of the 2015 Agreement. The principle may be relevant, but only to any discretion that may exist as a result of the determination of those issues.

5. Findings and conclusions

5.1 Does the relevant R&D work fall within the scope of the 2015 Agreement and can the ramp staff be required to perform the relevant R&D work at Adelaide airport?

[78] Earlier in this decision I have outlined the nature of the R&D work and the context in which it operates. I have also outlined the approach to be adopted to applying the 2015 Agreement and the considerations that arise in that context.

[79] When read as a whole and in the context of the agreement more generally, and subject to the specific requirements of each of the classification levels that are designed to differentiate between those levels, I consider that the intended coverage of the 2015 Agreement includes those employees who are employed by Qantas in or in connection with hands on and supervisory activities directly or indirectly associated with airport ground aircraft handling operations including the operation of the relevant equipment and vehicles. The nature of those activities is informed by, but not limited to, the specific functions referenced in the various classification levels. Those activities would not extend to functions where specific qualifications, beyond the reasonable scope of the ramp staff training, are required.

[80] The operation of clause 14 Employer and Employee Duties and clause 21 Higher Duties of the 2015 Agreement is also consistent with the broad application of the classification structure and the coverage of the agreement itself.

[81] I would accept that the R&D function could be performed by persons qualified as engineers. However, at least as undertaken on the Boeing 717 and Dash 8 aircraft at Adelaide airport, that work does not in my view require that this be so. It is not fundamentally an engineering function and there is no operational or work qualification reason that would require such. Rather, given the way that it is performed here, the R&D function is largely integrated within those functions that are clearly ramp staff responsibilities. This includes the fact that there is a strong connection with the loading and unloading functions and other service operations otherwise undertaken by the ramp staff and a direct connection with the pushback function. This is particularly so in relation to the Dash 8 aircraft but also applies more generally.

[82] The R&D work is clearly associated with the ground handling of aircraft and most of the functions are in the nature of work that is otherwise undertaken by the ramp staff. There are some different aspects to the communications involved; however, I do not consider that this detracts from this broad coverage. Further, the duty of care walk around inspection of the aircraft is also an extension to the nature of the work generally undertaken by the ramp staff; however this is a matter of degree considering the duties and responsibilities of a Level 7 employee.

[83] These findings are further reinforced by a consideration of the extent of training required for the R&D work. and the nature of the tasks involved in that work when assessed as part of the work and detailed procedures and responsibilities set out in the QantasLink Airport Ground Handling Manual applicable to the Dash 8 aircraft. 16 Although some of the detailed steps in the process are different for the Boeing 717-200 aircraft, the evidence confirms that the fundamental nature of the R&D work on that aircraft is also the same.

[84] Accordingly, I consider that the R&D work at Adelaide airport as canvassed in this decision falls within the scope of the 2015 Agreement and that Qantas can require the ramp staff to perform that work.

5.2 What classification level is appropriate for the relevant R&D work?

[85] The classification definitions are outlined earlier in this decision. These should be considered subject to the contextual and other matters discussed in Part 4 of this decision.

[86] The TWU contends that classification Level 8.3 is appropriate. This is fundamentally based upon the proposition that the employees, when performing the R&D functions, are accepting “significant operational responsibility and/or manpower control in excess of the Level 7 employees”. This is one of the alternate criteria established for the Level 8 classification. The other; being “responsible for the development, implementation and co-ordination of Sate/Network Training Programmes” is not applicable; however, it may inform the general nature of the classification level given the approach evident within the classifications more generally.

[87] The Level 7 employees take on a significant individual responsibility. This involves taking full responsibility for the loading and unloading of cargo, securing and checking all safety locks and cargo doors, and certifying the load has been placed in accordance with the load specifications. In my view, this involves a level of responsibility beyond that placed upon the ramp staff undertaking the R&D duties. For reasons outlined earlier, whilst the R&D employee is responsible for their own role and the associated tasks, they do not hold the overall responsibility for the functions and largely act as an important link in the line of communications and work functions, where ultimate responsibility rests elsewhere.

[88] In that regard, I also do not consider that they have operational responsibility for the R&D function or manpower control in the sense contemplated in Level 8.

[89] The ramp staff undertaking the R&D work are presently Level 7 employees (and earlier Level 8). This is an operational decision, largely based upon the requirements associated with the Dash 8 aircraft and the relatively limited staffing required to service it, and the decision taken by Qantas that senior employees should be trained and initially undertake the role in connection with the Boeing 717-200. For reasons outlined above, the R&D work could comfortably be undertaken within the classification structure of the 2015 Agreement by employees paid at the Level 7 classification level. In my view, there is no basis for the Level 8 classification to be applied, other than where an employee does so as part of acting down.

[90] However, it is also appropriate to consider what classification level is appropriate for the R&D work where that work is not combined with the Level 7 role. This arises from the dispute and the classification issue more generally. When undertaking the R&D role, the employees are operating without direct supervision. The level of responsibility and the nature of the communication equipment and processes are well beyond that contemplated in Level 3. This means that as a minimum, Level 4 is appropriate.

[91] For reasons outlined earlier, when operating in the R&D role, the ramp employees are not responsible for a group of staff or a number of groups of staff, or responsible for the nature of activities otherwise set out in the 2015 Agreement and Brocchi document, in relation to the Levels 5 and 6 classifications respectively.

[92] This means that the R&D role, when not performed in connection with higher duties, is in my view capable of fitting within classification Level 4 of the 2015 Agreement. In making that finding I have considered whether the duty of care walk around inspection of the aircraft and related tasks are beyond the reasonable scope of a Level 4 employee. This determination is not arbitration at large 17 and the Commission must apply the terms of the 2015 Agreement as made by the parties. As outlined earlier, the ramp staff are not certifying or attesting to the airworthiness of the aircraft and are not responsible for making any form of engineering assessment in that context. Any potential issues are to be raised with others. On balance, I do not consider that this aspect, in the context of my other findings, is sufficient to make relevant the Levels 5 or 6 classifications (or the Level 7 classification except where the other responsibilities of that level are also involved) given the existing terms of the classification criteria.

[93] To the extent that the XPT principles are relevant here, the evidence supports the notion that the R&D work is safely and reasonably being undertaken by the ramp staff. It is also operationally and industrially sensible to continue with that arrangement at Adelaide airport for the relevant aircraft.

6. Determination

[94] For reasons outlined above, I consider that the relevant R&D work at Adelaide airport as canvassed in this decision falls within the scope of the 2015 Agreement and that Qantas can require the ramp staff to perform that work. Further, where that work is undertaken by Level 7 Senior Airline Coordinators, the Level 7 rate should be applied. In the absence of the performance of higher duties or an employee working down, the R&D work would fit within the scope of duties contemplated for a properly trained Level 4 employee.

[95] I should not be taken to have expressed any view as to whether Qantas should allocate Level 4 employees to the R&D function at Adelaide airport, and if this is proposed, that intention should be subject to consultation as contemplated in clause 10 Consultation of the 2015 Agreement.

[96] I determine that the proper application of the 2105 Agreement, and the resolution of this dispute, is as set out above.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Appearances:

E Lawrie for the Transport Workers’ Union of Australia.

R S Warren (of counsel) with K Srdanovic from Ashurst Lawyers, both with permission, for Qantas Airways Limited.

Hearing details:

2017:

Adelaide

11 and 12 May.

Final written submissions:

26 and 27 June 2017.

1 Statement of Mr Tregilgas – Exhibit TWU1.

2 Statement of Mr Snook – Exhibit TWU2.

3 Statement of Mr Hall – Exhibit TWU3.

4 Attachment AC-3 to the witness statement of Ms Chappell.

5 Mr Brocchi, then General Manager Airport Support and Development.

6 [2017] FWCFB 3005. This decision was handed down after the hearing of this matter and both parties were given an opportunity to make supplementary submissions.

7 See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers’ Union [2017] FECFB 1621 at [21].

8 [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].

9 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.

10 (1993) 40 FCR 511.

11 [2013] FWCFB 8557.

12 Qantas Airways Limited and QCatering Limited – Transport Workers Workplace Determination 2012.

13 (1984) 295 CAR 188.

14 Ibid at 191.

15 See Lend Lease Project Management and Construction (Australia) Pty Limited v Construction, Forestry, Mining and Energy Union[2015] FWCFB 1889 at [27].

16 Exhibit Q2.

17 DP World Brisbane Pty Ltd v The Maritime Union of Australia.

Transport Workers' Union of Australia-South Australian/Northern Territory Branch v Qantas Airways Limited

[2017] FWC 2635

30 JUNE 2017

DECISION