Transport Workers' Union of Australia v Airport Fuel Services Pty Limited T/A AFS

[2017] FWC 2823

[2017] FWC 2823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Airport Fuel Services Pty Limited T/A AFS
(C2017/1379)

Road transport industry
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 23 JUNE 2017

Dispute regarding classification of Airport Operator duties.

[1] On 15 March 2017, the Transport Workers’ Union (TWU) lodged an application under s.739 of the Fair Work Act 2009 (Cth) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in the Airport Fuel Services Agreement 2014 (the 2014 agreement).

[2] The dispute concerns a direction by Airport Fuel Services Pty Ltd (AFS) to its employees working as Airport Operators to undertake what the TWU described in its application to the Commission as ‘extra duties’. These duties, according to the application, consist of:

(a) manually presetting the final fuel load into a digital panel; and

(b) completing additional paperwork including conversions to satisfy the relevant airline’s use of the imperial measurement system.

[3] Directions for written outlines of submissions and evidentiary material were issued, and a hearing was conducted on 22 May 2017. At the hearing, the TWU was represented by Gavin Webb (Legal Officer) and AFS by Daniel Murray (Principal Advisor – Workplace Relations, Ai Group).

[4] The TWU tendered written statements by:

● Michael Korfias (Grade 4 Refueller); 1
● Shane Braz (Aircraft Refueller); 2
● Darren Whiteman (Aircraft Refueller); 3 and

Rodney Pohlmann (Aircraft Refueller). 4

[5] AFS tendered written statements by:

● Susan McGregor (Operations Manager); 5 and

David Jackman (Logistics Solutions Manager). 6

[6] All the witnesses were cross-examined.

The relevant provisions of the 2014 agreement

[7] The 2014 agreement relevantly contains the following provisions:

‘2. Scope Application and Operation

2.1. This Agreement applies to the Union and the employees of Airport Fuel Services Pty Ltd (‘AFS’, ‘Employer’ or ‘Company’) classified by the Company as an Airport Operator working at Kingsford Smith Airport, Mascot, Sydney (‘Employee’s). The parties to this Agreement are AFS and the Employees.

2.2. This Agreement is to be read in conjunction with the Award. The Award shall apply where the Agreement is silent and where it is not inconsistent with the NES and the Act. The terms of the Agreement shall override the terms of the Award to the extent of any inconsistency.

…

3. Objectives of the Agreement

3.1. This Agreement represents a commitment between AFS and its Employees engaged in the operation of the Airport to operate to a high level of efficiency, in a viable and competitive manner, ensuring a high level of customer service and at the same time ensuring that all employees are provided with security of employment.

Consistent with those objectives, it is a requirement, by all parties bound by this Agreement to conduct themselves in a safe manner consistent with regulatory and Company standards.

3.2. The parties agree to continually review workplace practice in order to adopt a continuous improvement culture. This means all employees should continually ask “is there a better way of doing this job?” and to actively pursue such improvements.

…

4. Safety, Health and Environment

…

4.4. Employees will attend and participate in all company initiated training, including training/education sessions on company policies/procedures and training for the acquisition /utilisation of new skills /competencies, as may be required by the Company from time to time.

5. Flexibility

The parties acknowledged that a primary objective in establishing the structures and classifications contained in this Agreement is to enable work to be performed in the most flexible manner without artificial constraint and to encourage employees to work to the full extent of their skill and training. The only limitation on the performance of an employee's functions will be those based on skills, competency and safety.

6. Classifications and Pay rates

6.1 Employees will be paid in accordance with the following table with rates effective from the first full pay period commencing on or after the date specified. The rates will increase during the life of this agreement as shown in the table:

Rate per Week

Classification	10 September 2014	10 September 2015	10 September 2016	10 September 2017
Trainee	$902.28	$929.35	$957.23	$985.95
Airport Operator Grade 1	$1,011.53	$1,041.88	$1,073.14	$1,105.33
Airport Operator Grade 2	$1,112.84	$1,146.23	$1,180.62	$1,216.04
Airport Operator Grade 3	$1,183.47	$1,218.97	$1,255.54	$1,293.21
Airport Operator Grade 4	$1,232.53	$1,269.50	$1,307.59	$1,346.82

…

6.3 Trainee Airport Operator is an Employee engaged to be trained in the skills and competencies of an Airport Operator. Upon completion of 6 months training and achievement of competency to the satisfaction of the Employer the Employee will be appointed as an Airport Operator Grade 1. The employer may introduce a TAFE traineeship and employees undertaking such a course will be paid at the Trainee rate.

6.4 Airport Operator Grade 1 is an employee who performs an Airport Operator's duties. Such duties will include but not be limited to:

• Receipt of product by all means;

• Use of equipment for storage, pumping and reticulation;

• Full range of quality control tests and procedures;

• Vehicle responsibilities relating to testing procedure, pressure systems and equipment maintenance;

• All data transfer systems including the completion of sales, invoice and release notes;

• Fuelling and refuelling (where applicable) of all aircraft types;

• Performance of inspections and maintenance tasks on vehicles to the extent of the employee's competence;

• Skills including quality control;

• Training in the operation of wing panel switching on all aircraft types under supervision;

• Completion of documentation associated with the nitre - aircraft fuelling and receipt of product in storage. This would include all data processing systems product release notes, DQA stamps and other associated quality control requirements;

• All tasks ancillary to receipt, storage, distribution and delivery of aviation products;

• Where the employer operates a Joint User Hydrant Installation, the duties associated with such an installation;

• Conducting familiarisation and training as required for Trainee Operators

• Product bridging duties where transfer of product between storage facilities by road is required;

• Carry out stock balances including meter reconciliation;

• All other duties as required from time to time including participation in safety and maintenance tasks;

• Training for all skills and competencies or higher grades as required by the employer;

6.5 Airport Operator Grade 2 is an Employee employed by AFS as an Airport Operator Grade 2 under the AFS Agreement 2010, who will be classified as Airport Operator Grade 2 under this Agreement, and perform the duties required, including those described above for an Airport Operator Grade 1. Further, a new Employee employed under this Agreement will be classified as an Airport Operator Grade 2 after he/she has completed 24 months employment with AFS as an Airport Operator Grade 1.

6.6 Airport Operator - Grades 3 and 4 Is an Employee appointed by the Employer to perform work in addition to that of an Airport Operator Grade 1 as described above.’

The evidence

[8] Ms McGregor gave evidence that AFS directly employs 33 Airport Operators who are engaged in providing refuelling services to commercial airlines in accordance with standards set by the International Air Transport Association (IATA). There are four levels of service under the IATA fuel guidelines, but the classifications in the 2014 agreement are not related to the different levels of service contained in IATA’s fuel guidelines. 7 Most of the Airport Operators are Grade 2; there are six at Grade 3 and four at Grade 4.8

[9] Ms McGregor gave evidence that AFS had a contract with United Airlines to provide service consistent with Level 1 of the IATA fuel guidelines. However, the contract was being put to tender and AFS was told that if it wanted to bid, it would need to get the Airport Operators, in addition to the services they already performed, to:

• manually preset the final fuel load into a digital panel; and



• complete additional paperwork, which was referred to as a routine fuel service form. 9

[10] According to Ms McGregor:

‘This service would be consistent with some parts of Level 3 in the IATA Fuel Guidelines. It would not represent a complete Level 3 service as we don’t ask the operators to do the measurement of fuel density using a hydrometer nor interpret Fuel Manual Distribution charts nor use manual fuel loading settings. They manually preset but use automatic refuelling. This means the fuel load balancing as between tanks in the belly and wings of the aircraft is automatic and requires no input from the operator.

The employees had already been doing these tasks for other airlines. Manual switching of the gauges is nothing new. It was introduced years ago, after previously being done by engineering. It first started being performed by QANTAS in 2000. The only new activity is the filling in of a different form and calculation of the conversion between metric and US units. Even those weren’t entirely new, with similar calculations and density conversions already being performed, first with Hawaiian Airlines, using Hawaiian’s form, from 2015, and later with Delta. The employees have being doing the calculation for Delta, and using their form, since about February 2016. The conversion is required because American airlines’ aircraft fuel loads are denominated in US units (pounds and US gallons). The operators had also been using Air New Zealand’s form, and doing fuel uplift calculations, starting in 2015, though there’s no conversion from pounds for Air New Zealand, only from kilograms to litres.

The forms and calculations are necessary because in Australia, fuel is provided in litres, however, aircraft record fuel by weight. The form prompts employees to do the necessary calculations to ensure that the correct amount of fuel is uplifted into the aircraft.’ 10

[11] Ms McGregor also stated that:

‘After the operator refuels the aircraft and completes the form, the form is handed over to the flight crew, so they can perform their final check on the fuel load. The operator is never responsible for clearing the aircraft to take off. This responsibility is in the hands of the dispatchers and the aircraft captain, who sign off that they have confirmed, among other things, that the aircraft is properly fuelled by the use of their own instruments…

We have indemnity from our clients including Delta and United, clearly indemnifying the operators from any liability arising out of the refuelling and the completion of the paperwork. …’ 11

[12] Ms McGregor said that she had herself undertaken the training, which covers the whole of the refuelling process and the paperwork, including the calculations. She said that the calculations are only a small part of the training, which functions largely as a refresher. The majority of the course is a generic refuelling module. About 30 minutes is devoted to aircraft-specific requirements including tank configurations and ullages, with 15 minutes dedicated specifically to the completion of the fuel form. 12

[13] During her cross-examination, Ms McGregor said that if an employee made a mistake, there would only be disciplinary ramifications if it was wilful. 13

[14] Mr Jackman said in his statement that panel operation had been done by operators previously for various airlines, such as Hawaiian, Qantas on 747s, Air New Zealand, Air Fiji and a few others, including domestic carriers for which panel operations had been done for many years. 14

[15] Mr Jackman agreed during cross-examination that in the 20 years from when he had started as a refueller in 1995 to when he returned to AFS as Operations Manager in 2015, the core job of a refueller had not changed significantly. 15 He agreed that the change in duties occasioned by the Delta contract was ‘out of the norm’ and ‘something new’.16

[16] Mr Jackman gave evidence about a meeting he had attended with the employees in February 2016 concerning the additional level of service that would be involved with the new Delta contract.

‘I did say that by the guys agreeing to do this “it would be a feather in your cap and at least get you on the negotiating table at the next EBA”’. 17

[17] Mr Jackman said:

‘At that stage I did say that “this is a one off”, because that was my understanding at the time.’ 18

[18] Mr Jackman concluded his statement thus:

‘I did not agree that the extra duties were outside the Enterprise Agreement. I considered then, and consider now, that the duties are within IATA level 2 and within the duties of Operator level 1 or 2. They are not Operator level 3 duties. An Operator level 3 is a tarmac supervisor, not just an operator. A tarmac supervisor is responsible for 3-4 other operators on the tarmac. There is no linkage between the IATA service levels and operator levels under the Enterprise Agreement.’ 19

[19] Mr Korfias gave evidence that there was no discussion during the bargaining process for the 2014 agreement about the classification of grades or the relevant duties of each grade 20 or indeed, during either of the previous two rounds of enterprise bargaining.21 He had always understood that the documentation the employees were required to complete as set out in dot point 10 of clause 6.4 of the 2014 agreement related only to documentation issued and provided by AFS, relating to AFS’s own refuelling procedures and requirements.22

[20] According to Mr Korfias, David Jackman informed the employees present at a toolbox meeting in around February 2016 that:

‘…marketing had “stuffed up” by promising Delta Airlines that AFS ‘would provide level 3 IATA service in order to obtain that contract. He said that we would be required to perform extra duties in order for the Respondent [AFS] to provide the services under the Delta Airlines contract.

Dave told us it would be a one-off.

The employees who were present were not happy about this, as these extra duties had always been performed by licensed engineers from British Airways prior to the Respondent taking over the contract…

Although the refuellers present at the meeting did not want to take on the extra duties, we agreed to do so as we were aware that the Delta Airlines contract was a big one and we were worried about any repercussions that may have resulted if we refused to perform the duties. We voted and agreed that we would perform the extra duties as a one-off for the Delta Airlines contract only.

Dave told us that there would be no more level 3 duties asked of us and that he would supply us with written confirmation to take to the next enterprise agreement negotiations which would give us a “feather in our cap” with regards to a wage rise at that time.’ 23

[21] Mr Korfias said in his statement that many of the employees felt a lot of pressure to get the ‘extra duties’ right and felt it was a much greater responsibility. 24

[22] Mr Korfias said he had been given an hour and a half of training in the new duties. Employees were also given a template to keep in their vehicle in case they had forgotten how to perform the duties. 25

[23] Mr Korfias agreed that the ‘extra duties’ being performed consisted of converting between metric and US units – that is, from litres to gallons. The employees are provided with a calculator to perform what he agreed was a ‘simple division’. 26

[24] Mr Korfias agreed that Mr Jackman never told the employees at the meeting in February 2016 about a wage rise. 27

[25] Mr Korfias said that the work had not changed for 20 years but that all of a sudden ‘everything is changing’. 28 In re-examination, he said that all the changes had occurred since the making of the 2014 agreement.29

[26] Mr Korfias agreed that while he had referred to IATA service levels in his statement, he had never seen those levels. 30

[27] In his statement, Mr Braz gave similar evidence to Mr Korfias about the meeting with Mr Jackman in February 2016.

[28] Mr Braz described the extra duties that were performed for Delta Airlines:

‘My standard work involves setting up the refuelling truck and hooking it up to the aircraft.

In performing the extra duties, I am now also required to read and write down how much fuel is on board the aircraft and how much is in each tank.

To do this, I get a fuel sheet from a Delta Airlines representative and dial up the amount required for the flight as the fuel is being pumped and as I monitor the fuel panel as well as the truck pressures to ensure safe delivery.

When delivery is finished, I am then required to check the fuel amount by doing a conversion and calculation to determine if the amount in the aircraft is what was actually put on.

If the fuel amounts are within the limit expected by Delta Airlines, I then complete the fuel paperwork and hand it over to the Delta Airlines representative.

The representative then takes the paperwork to the captain. Sometimes we are called back to the aircraft if the captain wants more information or is not happy with how much fuel is on board.’ 31

[29] Mr Braz said in his statement that his understanding through his dealings as a delegate and representing TWU members on a broad range of industrial matters was that there had been no significant changes to the duties or responsibilities of refuellers for decades. The only change due to technological advances was the introduction of printed fuel receipts around fifteen years ago, though this did not alter the duties to be performed by refuellers, or their responsibilities. 32

[30] During cross-examination, Mr Murray took Mr Braz through the Delta fuel service record form. 33 He agreed that a subtraction would need to be completed to calculate the ‘fuel uplift’ (the difference between the fuel on arrival and the required fuel). He agreed that this gave you the fuel for Delta in pounds.

‘And you then need to divide by 6.70 to get the fuel in gallons --- That’s correct, yes.

Then you need to divide again by roughly 3.78 to get litres?---That’s correct.

And those are the two sums, those are the two conversion calculations that you’re called upon to do? --- Yes.

Yes. So simple arithmetic. ---Yes.

And you fill those numbers in, following the form. It tells you exactly what you do. You follow each step, divide by the actual fuel density, use 6.70, equals calculated gallons out of it – you just fill in the form? --- That’s correct.

And that’s not a very complicated thing to do at all, is it? --- No, it’s not.’ 34

[31] Mr Braz agreed the calculation might take a minute and a half, and would be done perhaps once a day. 35

[32] While Mr Braz said this involved an additional responsibility, he agreed that following the completion of the form, he was not the one to clear the aircraft for push back, as it was checked by an engineer, as well as the aircraft captain. 36

[33] Mr Whiteman’s statement was in similar terms to that of Messrs. Braz and Korfias. He said that his main concern was the extra responsibility that the Operators had been given.

‘Making a mistake could be a very costly mistake to us. I am – I am also concerned, making a mistake could cost me my job.’ 37

[34] Mr Whiteman said the key difference in the work for Delta and that which the Operators had previously performed for Air New Zealand was that they were now required to write down the difference between the fuel on arrival and the final fuel on a document, and they had to divide by 6.7 to convert from pounds to gallons and then convert to litres. 38

[35] Mr Whiteman said that the training on how to do the calculation was for about 15 minutes. While he did not disagree that it was a simple piece of arithmetic he said:

‘You don’t want to get it wrong.’ 39

[36] Mr Pohlmann’s evidence was that the calculations the Operators were now being asked to perform had previously been done by licenced engineers. 40 While he emphasised the potential risks of incorrect fuelling, he agreed that the pilot and engineer normally check the fuel load.41

Consideration

[37] The issue before me is whether the extra duties the employees are now being asked to perform are within the scope of the duties that can properly be required of an employee classed as an Aircraft Operator Grade 1 or 2 under the 2014 agreement.

[38] I note that, being post-agreement conduct, whatever Mr Jackman may or may not have said at the meeting in February 2016 cannot affect the answer to this question (though it may understandably have influenced expectations on the part of the employees).

[39] I find, based on the evidence before me, that the new duties involve carrying out some simple arithmetical calculations and filling out some associated paperwork. I am satisfied that the employees have been properly trained to perform these duties.

[40] I observe that while these new duties are quite minor in nature, they are occurring in an environment where, until recently, there has been very little change in the duties performed by Airport Operators for the last 20 years. However, that of itself does not mean that the classification definition of an Airport Operator in the 2014 agreement does not allow for the introduction of new or changed duties.

[41] The relevant duties of each grade contained in the 2014 agreement are almost identical to the duties contained in clause 10 of the Transport Workers’ (Oil Companies) Award 1998. As a result they contain some apparently redundant expressions such as the reference to ‘DQA stamps’ and ‘nitre’.

[42] However, it is important to observe that while some of the duties contained in the dot points in clause 6.4 are quite specific, they are also introduced with the phrase: ‘Such duties will include but not be limited to…’. This indicates that the duties listed in the dot points are illustrative rather than exhaustive. This is reinforced by the penultimate dot point, which includes the phrase ‘All other duties as required from time to time…’.

[43] I also observe that other provisions of the 2014 agreement, such as clauses 3.2 and 5, imply that the duties of Operators might change from time to time.

[44] The tenth dot point in clause 6.4 specifically refers to completion of documentation associated with aircraft refuelling. It does not indicate that this only refers to documentation produced by AFS – as opposed, for example, to documentation produced by the airline which operates the aircraft in question. I am satisfied that the completion of the documentation involved in the ‘extra duties’ is encompassed by the tenth dot point.

[45] I also note that the next dot point refers to ‘All tasks ancillary to receipt, storage, distribution and delivery of aviation products.’ I am satisfied that the ‘extra duties’ the subject of this dispute are indeed tasks ancillary to the delivery of aviation products (meaning, in this context, aviation fuel).

[46] In conclusion, I find that the extra duties referred to in the application are well within the scope of the duties required to be performed by Airport Operators at a Grade 1 or a Grade 2 level (as set out in the 2014 agreement).

SENIOR DEPUTY PRESIDENT

Appearances:

G Webb for the Transport Workers’ Union of Australia.

D Murray for Airport Fuel Services Pty Limited.

Hearing details:

Sydney.

2017.

May 22.

 1   Exhibit TWU1.

 2   Exhibit TWU2.

 3   Exhibit TWU3.

 4   Exhibit TWU4.

 5   Exhibit AFS1.

 6   Exhibit AFS2.

 7   Exhibit AFS1 [6]-[10].

 8 Ibid [11].

 9   Ibid [13]-[14].

 10   Ibid [15]-[17].

 11   Ibid [21]-[22].

 12 Ibid [30].

 13   PN697.

 14 Exhibit AFS2 [7].

 15   PN859.

 16   PN860, PN862.

 17 Exhibit AFS2 [13].

 18 Ibid [15].

 19 Ibid [53].

 20 Exhibit TWU1 [7].

 21   PN26.

 22   Exhibit TWU1 [9]

 23   Ibid [11]-[15].

 24 Ibid [19].

 25   PN40.

 26   PN99-PN103.

 27   PN116.

 28   PN188.

 29   PN207-PN209.

 30   PN192-PN195.

 31   Exhibit TWU2 [21]-[26].

 32   Ibid [44]-[45].

 33   Exhibit AFS1 annexure SM2.

 34   PN284-PN290,

 35   PN293-PN294.

 36   PN296-PN299.

 37   PN386.

 38   PN432-PN435.

 39   PN496.

 40   PN545.

 41   PN608, PN612.

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