Transport Workers' Union of Australia v Alpha Flight Services Pty Ltd T/A Dnata Catering Australia
[2023] FWC 2895
•6 NOVEMBER 2023
| [2023] FWC 2895 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Transport Workers’ Union of Australia
v
Alpha Flight Services Pty Ltd T/A Dnata Catering Australia
(C2023/1047)
| COMMISSIONER SCHNEIDER | PERTH, 6 NOVEMBER 2023 |
s.739—Dispute resolution
Background
On 28 February 2023, the Transport Workers’ Union of Australia (the Applicant) applied under section 739 of the Fair Work Act 2009 (Cth) (the Act) for the Fair Work Commission (the Commission) to deal with a dispute.
The dispute arises in accordance with the dispute settlement procedure under the DHL Express Perth Enterprise Agreement 2022 (the Agreement).[1]
The application has been lodged with specific reference to Mr James Thom (Mr Thom) concerning his employment with Alpha Flight Services Pty Ltd T/A Dnata Catering Australia (the Respondent).
The application was the subject of a conference before the Commission.
Shortly after, the matter was listed for Hearing, to arbitrate the dispute.
The parties were issues Directions to file materials. Both parties filed submissions accordingly.
The following witnesses provided evidence on behalf of the Applicant:
· Mr Thom
· Mr Mark Nixon, Catering Driver, (Mr Nixon)
· Mr Elwind Chand, Catering Driver, (Mr Chand)
The following witnesses provided evidence on behalf of the Respondent:
· Mr Craig Hetherington, Customer Delivery Manager, (Mr Hetherington)
· Mr Dhanraj Thacker, Operations Manager, (Mr Thacker)
The dispute concerns clauses 48.3 and 48.4 of the Agreement, which contain information regarding Catering Driver roles.
Specifically, the dispute concerns the requirements of the role of a Catering Driver, under the Agreement, and whether Chiller Duties (defined in full, further in this decision) are an inherent requirement of the employment.
The Respondent carries on business providing catering services to different airlines at various airports across Australia, including Perth Airport.
At Perth Airport, the Respondent employs Catering Drivers to undertake duties both airside and non-airside at the Respondent's catering centre.
All Catering Drivers employed by the Respondent at Perth Airport are covered by the Agreement and are employed in the classifications of either Driver (MR) or Driver (HR), representing medium rigid and heavy rigid vehicles respectively.
In total, the Respondent employs 26 Catering Drivers at Perth Airport under the Agreement, including Mr Thom.
A separate corporate entity of the Respondent also employees other Catering Drivers, employed under different Enterprise Agreements.
On or around May 2019, Mr Thom felt pain in both his hands and wrists. As a result, he eventually sought medical attention and then lodged a workers’ compensation claim.
On 4 October 2022, Mr Thom was issued with a Final Certificate of Capacity by his treating medical practitioner, Dr Sharon Chu, which concluded his workers’ compensation claim.
The Final Certificate stated that Mr Thom could not be in a cold room for long periods, as required for Chiller Duties.
As a result of Dr Chu's assessment in the Final Certificate of Capacity, the Respondent informed Mr Thom that he is unable to perform the inherent requirements of his position and is required to access any leave entitlements.
The wording of the question to be arbitrated was, to a degree, disagreed upon by the parties. I find it appropriate that the Commission seeks to answer the following question:
· Are Chiller Duties an inherent requirement of Mr Thom’s employment with the Respondent under the Agreement?
If the Commission finds that Chiller Duties are not an inherent requirement, the Applicant seeks an order that Mr Thom be returned to his employment.
Relevant Legislation and Instruments
In accordance with the dispute clause within the Agreement, the Applicant has brought this dispute to the Commission, noting section 738 of the Act which allows for an application under Part 6-2, Division 2 to be made in such circumstances:
“738 Application of this Division
This Division applies if: …
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); …”
The application has been brought under section 739 of the Act, which allows for the Commission to assist the parties to resolve a dispute:
“739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.
(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.
Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) The FWC may deal with a dispute only on application by a party to the dispute.”
Clause 9 of the Agreement contains the dispute resolution clause, detailing the procedure that must be followed in actioning a dispute and the scope of the Commission’s involvement in resolving such dispute:
“9. Procedures for Dispute Avoidance and Settlement
9.1 Any dispute or grievance that arises at the workplace between a Worker(s), TWU and the Company about the interpretation or application of this Agreement, the National Employment Standards (NES) or in relation to any matters pertaining to the relationship between the Company and Worker including but not limited to a dispute about any condition of employment or industrial matter, the matter:
a) Should first be discussed by the aggrieved Worker (s) directly with his or her Department Manager.
b) If the matter remains in dispute, it must be dealt with in the following manner. In all instances the TWU delegate for the worksite or relevant TWU State/National Secretary (or his/her nominee) has the right to attend and participate in the discussion as the representative of a Worker, provided that the TWU delegates, TWU State/National Secretary (or his/her nominee) is the representative of the Workers choice.
c) If the matter remains in dispute, it must next be discussed with the Business Manager, or another representative of the
Company appointed for the purpose of this procedure.
d) If the matter remains in dispute, it must next be discussed with the Chief Operating Officer, or another representative of the
Company appointed for the purpose of this procedure.
e) If the matter remains in dispute, it must next be submitted to Fair Work Commission (FWC) for conciliation. For this purpose, it is agreed that the action FWC may take includes:
I. arranging conferences of the parties or their representatives at which FWC is present; and
II. arranging for the parties or their representatives to confer among themselves as conferences at which FWC is not present.
f) If the matter is not resolved in conciliation conducted by FWC, the parties agree that FWC shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties to the dispute. In relation to such arbitration, the parties agree that:
I. FWC may give all such directions and do all such things as are necessary for the just resolution of the dispute.
II. Before making a determination FWC will give the parties an opportunity to be heard formally on the matter(s) in dispute.
III. In making its determination FWC will only have regard to the materials, including witness evidence, and submissions put before it at the hearing and will disregard any admissions, concessions, offers or claims made in conciliation.
g) The decision of FWC will be binding on the parties' subject to the following agreed matters:
I. There shall be a right of appeal to a Full Bench of FWC against the decision, which must be exercised within 21 days of the decision being issued or within such further time as the Full Bench may allow.
II. The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense.
III. The Full Bench shall have the power to stay the decision pending the hearing and determination of the appeal.
IV. The decision of the Full Bench in the appeal will be binding upon the parties.
9.2 Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo and work will continue without disruption. Status quo means the normal conditions and arrangements in existence immediately prior to the cause of the dispute arising. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.
9.3 The parties must co-operate to ensure that these procedures are carried out expeditiously. The parties undertake to resolve any disputes in a timely manner in accordance with the Disputes Procedure.”
Submissions and Evidence
Applicant
The Applicant submits that there are numerous qualifications and training Catering Drivers must possess and undertake to be able to perform the inherent requirements of the position and distinguishes those from the training and performance of Chiller Duties.
The Applicant notes the difference between Driving Duties, which it submits form the inherent requirements of the position, as opposed to Chiller Duties, which are not included in the core responsibilities.
The Applicant is of the position that, if the Chiller Duties were dispensed with, Mr Thom’s employment would remain the same. On the contrary, if Mr Thom were unable to perform Driving Duties, his employment would substantially change.
The Applicant highlights that preforming Chiller Duties detracts from the employee’s ability to undertake their Catering Driver duties.
The Applicant provides a copy of the Respondent’s “Dispatch Procedure” and notes that this document does not include any support for the position that Chiller Duties are inherent to the position.
There is significant discussion in the Applicant’s materials regarding the rostering, amount, structure, composition, and responsibilities of the various Catering Drivers under the Respondent’s management at Perth Airport.
The Applicant submits that not all Catering Drivers are required to undertake Chiller Duties and that there are enough Catering Drivers who complete these duties to accommodate for Mr Thom’s inability to do so. Notably, the Applicant draws reference to the evidence of Mr Chand, which suggests that some employees who have refused to undertake Chiller Duties have been allowed to remain in employment.
The Applicant notes that, despite the Respondent’s reliance on the downturn during the pandemic as cause for the low number of drivers trained, there remains a not insignificant amount of Catering Drivers who only preform Driving Duties. The Applicant maintains this supports the position that only a portion of Catering Drivers need to be competent in Chiller Duties for operations to function.
The Applicant notes the job advertisement for the role, which is absent of any mention regarding Chiller Duties. The Applicant submits that the failure to include such duties, if they are indeed an inherent requirement, would amount to a substantial deviation from the role as described to prospective employees.
Conversely, the Applicant submits that the inclusion of Chiller Duties, or wording that suggests such tasks, within the Agreement does not automatically lead to the conclusion that such duties are inherent to the role.
Evidence of Mr Thom
Mr Thom explained, at length, the duties he performs in his role. He details the specific tasks and steps that he and his coworkers undertake to ensure aircrafts are adequately stocked.
Mr Thom made specific reference to the Respondent’s Dispatch Procedure, detailing the process of checking food temperature.
Mr Thom also detailed the license and training requirements necessary to undertake the role. Due to environment in which the role is preformed, employees are required to obtain the necessary clearances in order to perform the required work.
Mr Thom gave evidence about the commencement of Chiller Duties and the associated training, in 2015. The training was a gradual process which occurred over time.
Mr Thom explained the makeup of the team and the number of Catering Drivers required to complete each task. The number of Catering Drivers required is dependent on the size and type of flight. Mr Thom gave evidence on specific examples of flights, noting how many Catering Drivers are required and what number of those drivers would complete Chiller Duties.
Mr Thom gave evidence on his injury and workers’ compensation claim. Mr Thom began experiencing pain in his hands in May 2019. He attempted to work through his pain and, ultimately, underwent several surgeries and returned to work on reduced capacity/light duties for a period of time.
Over time, Mr Thom’s capacity increased, in line with medical advice.
Mr Thom gave evidence that his treating doctor had recommended he could return to his full duties with the exclusion of Chiller Duties. Mr Thom highlights that his doctor stated he was able to undertake brief work within the chiller but could not undertake any prolonged Chiller Checking, in fear of the temperature exacerbating his condition.
Following this turn of events, Mr Thom was not able to return to work and was required to take leave.
Mr Thom also gave evidence regarding what he believes are inconsistencies in what the Respondent has asserted concerning the requirement to undertake Chiller Duties and the practical reality of how such duties are performed. Mr Thom highlighted that some employees are disproportionately allocated Chiller Duties, alongside other factors regarding rostering, some new starters not being trained in such duties, and how a job advertisement for the role did not mention such duties.
Evidence of Mr Nixon
Similarly, Mr Nixon gave detailed evidence regarding the duties and tasks he undertakes as a Catering Driver in Perth.
Mr Nixon echoes the evidence of the Applicant as it relates to the duties preformed and licences required for the role.
Mr Nixon is engaged under a different Enterprise Agreement, although he is managed by the Respondent.
Mr Nixon detailed the effect on operations in the industry surrounding COVID-19. He noted details regarding the changing number of flights and the timeline over which flight numbers have increased.
Evidence of Mr Chand
Mr Chand provided evidence highlighting his tasks and duties while employed by the Respondent both in Sydney and Perth, noting differences in the way staff were allocated driving and Chiller Checking duties.
Mr Chand detailed the gradual implementation of Chiller Duties training, shortly after his arrival in Perth.
Mr Elwin echoed many of Mr Thom’s concerns regarding disproportionate allocation of Chiller Duties between employees.
Following COVID-19 and the move back to work, Mr Chand asserts that he noted many new hires did not appear to have Chiller Duties training or would refuse to complete such duties.
Respondent
The Respondent summarised its submissions in the below points:
· Mr Thom has undertaken Chiller Duties since 2015, including part of the time while he was unfit for work as a result of a work-related injury where he was exclusively performing those duties.
· The requirement to perform Chiller Duties is specifically referenced in the Agreement as a responsibility of Catering Drivers, and Mr Thom is employed as a Catering Driver under the Agreement.
· The Respondents highlights that Mr Thom is not subject to the other Enterprise Agreements discussed by the Applicant and therefore the application of such instruments is not relevant.
· The Respondent consulted with the Applicant in 2015 about the requirement for all Catering Drivers to be able to undertake Chiller Duties and, within 9 months of that consultation occurring, all Catering Drivers of the Respondent were trained and performed Chiller Duties.
· As of 1 January 2020, all Catering Drivers employed by the Respondent were trained and performed Chiller Duties.
· Due to the volatile nature of the airline industry and the high turnover of employees during the COVID-19 pandemic, the training of Catering Drivers was impacted. However, the Respondent has resumed training of new Catering Drivers.
· Despite the fact that the Applicant's case relies on an isolated point in time following the COVID-19 pandemic, 50 per cent of Catering Drivers are trained to perform Chiller Duties.
· Further, approximately 25 per cent of all Catering Drivers per flight are required to undertake Chiller Duties, which takes between 30 minutes to 3 hours per occurrence.
· On average, a Catering Driver assigned Chiller Duties will spend 50 per cent of their shift performing those duties.
· The requirement for Catering Drivers to perform Chiller Duties is important to manage the risks associated with food safety in the airline industry and ensure that the Respondent is able to meet its commercial obligations to its airline partners.
· There are no other employees of the Respondent who are able to routinely perform Chiller Duties as part of their ordinary duties. The Respondent submits that there is no distinction between “Checkers” and Catering Drivers.
· Chiller Duties must be performed and only Catering Drivers, including Mr Thom, are able to routinely perform them without significant restructuring of the Respondent's workforce.
· The Respondent submits that the job advertisement noted in the Applicant’s materials is simply that, an advertisement, and should not be relied upon to determine the inherent requirements of the role as opposed to the Agreement.
Evidence of Mr Hetherington
Mr Hetherington is responsible for the operations and logistics of the customer delivery area of Q Catering and the Respondent at Perth Airport. This includes rostering Catering Drivers of the Respondent, Q Catering, and labour hire workers.
Mr Hetherington provides the numbers and relevant employers of each Catering Driver at Perth. Notably, there are 26 Catering Drivers employed by the Respondent under the Agreement and 13 of these drivers are currently trained in Chiller Duties.
Mr Hetherington cites high staff turnover as a major reason for the stunted progress in new hires receiving the relevant training.
Mr Hetherington provides evidence regarding the number of Catering Drivers required for each flight and the allocation of duties amongst those drivers.
Mr Hetherington asserts that the implication of Chiller Duties not being an inherent requirement could pose, in the event of staff shortages or illness, catastrophic repercussions for the Respondent in meeting its client obligations.
Evidence of Mr Thacker
Mr Thacker, who currently holds the position of Operations Manager, and used to undertake the role of “Manager, People & Culture, Operations”, currently oversees human resources for the Respondent at Perth airport.
Mr Thacker notes the differences between the Respondent and Q Catering and, accordingly, the effect on the allocation of Chiller Duties between the staff of each.
Mr Thacker details the history of the Respondent’s Enterprise Agreements and the evolution of the requirement to complete Chiller Duties.
His evidence also details the change in operations over the COVID-19 pandemic and the negative effect this period had on the numbers and availability of drivers trained in Chiller Duties.
From May 2022, Mr Thacker was notified that Mr Thom was unable to complete Chiller Duties, after he had been completing these duties throughout his employment.
Mr Thacker echoed the sentiment of Mr Hetherington as it related to the repercussions of Chiller Duties not being an inherent requirement.
Consideration
I note that there is significant discourse between the parties regarding the number of Catering Drivers employed and/or managed by the Respondent. In this regard, I am inclined to rely upon the evidence of the Respondent, noting the position that such details would be more correctly ascertained by the Respondent’s management.
I have found that the duties, commonly known as Chiller Checking Duties or Chiller Duties, are an inherent requirement of the employment under the Agreement. My reasons are detailed as follows.
Chiller Checking Duties
The parties are in dispute over the significance of the Chiller Duties, which forms part of the dispute are the Chiller Duties an inherent requirement of the employment.
The Chiller Duties, primarily involve the below:
· Conducting temperature testing on chilled and perishable foods to ensure the food is store at less than 5 degrees.
· Recording the temperature on the Dispatch Temperature Form.
· Depending on airline requirements sealing the catering carts prior to dispatch.
The duration of completing Chiller Duties varies from as short as 30 minutes to as long as 4 hours depending on the size of the flight in question.
The Respondent outlined that, if an employee was rostered to complete Chiller Duties on a shift, the employee could be required to work around 50% of the shift on Chiller Duties.
The agreement at clause 48.3 and 48.4 outlines the requirements for both a MR (48.3) and HR (48.4) driver, which is, in effect, a Catering Driver.
Both classifications include the following wording:
· Preparation and packing of catering equipment.
· Perform administrative duties (reporting) and compile reports and documents.
· Assemble, pack, and check off completed flight at kitchen production unit and on board the aircraft.
· Perform such tasks in accordance with Company specifications, to comply with hygiene, quality, safety, performance, and customer service standards.
· Ensure adherence to Galley Loading Plan (GLP), Cart Packing Plan, Equipment Loading Plan as applicable to the role.
· Adhere to the Company’s policy in relation to HALAL, HAACP, QSAI / Food Safety, Workplace Health and Safety, Quarantine and Customs as applicable to the role.
· Work in other areas of the unit for part or whole shift basis to meet operational demands.
Having considered the above clauses of the Agreement, whilst not specifically mentioned as Chiller Duties, I have come to the conclusion that the above-mentioned items in the classifications are consistent with the Chiller Duties.
Mr Thom’s Employment
Mr Thom commenced employment with the Respondent on 18 June 2013, Mr Thom was employed as a Catering Driver.
As a part of Mr Thom’s employment there are several pre-requisite requirements that he was required to meet including:
· Authority to Drive Airside (ADA).
· Aviation Security Identification Card (ASIC).
It was the evidence of Mr Thom that, prior to 2015, he was not required to complete Chiller Duties.
Mr Thom confirmed that, in 2015, he was provided with the required training to complete Chiller Duties and completed these duties as directed until medical direction to cease such duties.
The Applicant submits that, in around May 2019, Mr Thom started to experience pain in his hands and wrists whilst being required to push the catering carts. The Applicant submits that Mr Thom continued to work until such a time as he could no longer tolerate the pain and he sought medical attention.
Between 2019 and 2022, Mr Thom was on workers’ compensation and was required to undergo surgery on both wrists, both hands, and carpal tunnel.
Following the surgeries, Mr Thom would have around ten days off work and following this would have on restricted/light duties.
These duties included driving errand duties, which involve Mr Thom completing driving errands to pick up food pallets, furniture, or equipment for the Respondent.
Mr Thom notes that his treating medical practitioner had consistently advised in various Certificates of Capacity that he is not fit to undertake prolonged Chiller Duties.
The Applicant submitted into evidence the Final Certificate of Capacity, dated 4 October 2022, which confirmed Mr Thom could complete all duties expect for Chiller Duties.
The Applicant submits that Mr Thom can enter the chiller to push carts, however, prolonged exposure would exacerbate his arthritis.
The Applicant submitted that the Chiller Duties are not an inherent requirement of the position and that there would be meaningful work for Mr Thom to complete for the Respondent if he was allowed to return to work.
I do not disagree that there is other meaningful work for Mr Thom outside of the Chiller Duties.
I have considered that Mr Thom had been trained to complete this work and had been completing this work for approximately four years prior to his injury.
History of Chiller Duties
The parties are in agreement that, prior to 2015, Catering Drivers employed by the Respondent at Perth Airport were not required to perform Chiller Duties.
From the submissions and evidence provided, it is evident that, over a period of enterprise bargaining, the Chiller Duties have become a more central duty for Catering Drivers to complete.
However, an important distinction is that a newly employed Catering Driver is not required to complete this work immediately because they are not capable of preforming such duties until the completion of training.
From the evidence presented, in 2015, the Respondent made a decision that all Catering Drivers who are engaged under the Agreement would be trained to safely complete Chiller Duties.
It was confirmed that, between 2015 and the commencement of the COVID-19 pandemic, all 42 Catering Drivers of the Respondent employed under the Agreement at Perth Airport were trained in and required to complete Chiller Duties.
This did not mean that an employee would be required to complete Chiller Duties during every shift. Rather, the competency of all drivers gave the Respondent the operational flexibility and coverage to ensure that there would always be suitably trained and experienced staff available to complete these duties.
Also, by having all drivers competently trained to complete the Chiller Duties it provides the Respondent with the ability to roster and allocate Driver Duties and Chiller Duties on a more even basis.
I wish to note that I do not disbelieve the Applicant’s evidence, stating some employees, disproportionally, received an uneven allocation of duties.
However, such uneven allocation, in my assessment, does not detract from my findings regarding inherent requirement. Rather, such issue highlights poor planning in rostering which could be attributed to countless causes, not readily identifiable to the Commission, as opposed being caused by Chiller Duties not being an inherent requirement.
As I will discuss further below, the current situation is very different following the COVID-19 pandemic and the impact it had on the aviation sector.
However, it is reasonable that the Respondent would be working towards the status it previously held, over time, in which all Catering Drivers employed under the Agreement are trained in Chiller Duties. It is also reasonable, due to the nature of the training, that such status could take considerable time to reach.
Having considered the evolution of the Chiller Duties being performed by all Catering Drivers under the Agreement, it stands to reason that a Catering Driver’s inability to perform this work would have an adverse effect on the Respondent’s operation. This much is clear from the substantial delay caused in implementing the training to new hires.
It is also understandable that the Respondent would be concerned about the appearance and impact of having one employee excluded from completing such duties, in the circumstances that all others were expected to complete Chiller Duties.
Impact of COVID-19 & Current Status
The significant impact of the COVID-19 pandemic on the aviation sector in Australia is a well-versed topic that requires little discussion in this decision.
The Applicant highlighted that, at present, not all Catering Drivers are required to complete Chiller Duties and, therefore, it would be reasonable for the Respondent to accommodate Mr Thom’s inability to complete such duties as well.
The Respondent maintains that these duties are an inherent requirement of the employment, and that Mr Thom needs to be able to complete these duties.
There was some dispute between the parties about the total number of drivers and the current number of those drivers who are trained in Chiller Duties. However, at the hearing, the Respondent confirmed that there are 26 Catering Drivers currently employed under the agreement.
Out of the 26 drivers employed, 13 have completed the required training to complete Chiller Duties.
The Applicant made assertions that, at present, there is one driver who refused to complete Chiller Duties.
The Respondent disagreed with this assertion and confirmed that any driver who has been trained to complete Chiller Duties could face disciplinary action for failing to follow a lawful and reasonable direction.
The Respondent outlined its intention to continue training the Catering Drivers who have not yet been trained in Chiller Duties. The Respondent noted that, due to the roster and schedules of flights, this process can take some time.
New employees will have to be trained across several types of aircraft and airlines and assessed as competent in each, prior to being fully trained in Chiller Duties. Further, an employee who is fully competent in Chiller Duties must be rostered alongside each new employee to supervise such training.
The Respondent confirmed that it is an operational requirement of the business that all drivers be fully competent in Chiller Duties and it is now an expectation of all Catering Drivers moving forward, such as it had been from 2015 up to the COVID-19 pandemic.
It is clear that the Respondent had increased turnover of staff during this period. As a result, not all Catering Drivers employed under the Agreement are currently trained to complete Chiller Duties.
I accept the Respondent’s evidence regarding the intention to train new hires and the factors which have caused significant delays in implementing the training.
I agree with the submissions that the completion of, or training for, all duties, of which some may be inherent, could not be expected of new employees upon commencement of their employment.
It reasonable to conclude that a new Catering Driver will need additional training prior to taking on all duties. Therefore, it stands to reason that an experienced employee, such as Mr Thom, not being able to complete these duties only adds to a resourcing issue for the Respondent.
However, I accept the Applicant’s submissions that there have obviously been significant delays in the implementation of Chiller Duties training for new hires.
I also accept the Respondent’s reasons for such delay but, in such circumstances where not all employees under the Agreement are currently competent, I do not disagree with the sentiment that the exclusion of Mr Thom from completing restricted duties appears unkind.
Importantly though, such sentiment has not detracted from my conclusion regarding the inherent requirement.
QCatering Agreement
The submissions by the Applicant also focused on the wider operations of the Respondent at the Perth airport.
Whilst I understand the point that the Applicant is trying to make, the terms and conditions of the similar employees, engaged under any other Enterprise Agreements, have limited relevance to these proceedings.
The Agreement is the instrument that has given rise to this dispute and is the instrument Mr Thom’s employment is subject to.
The Respondent has outlined in their submissions that Q Catering is a separate legal entity with its own industrial agreement.
The Respondent highlights that the duties between the two Enterprise Agreements do vary, due to the industrial history of each.
Mr Thom is not subject to the terms and conditions of any other Enterprise Agreements, other than that from which this dispute arises.
Therefore, to compare the duties of Mr Thom, under the Agreement, to that of another driver, under a different Enterprise Agreement, is not, in my opinion, a notably relevant exercise.
Many individuals who hold the same role or job title, within the same or workplace, potentially even under the same management as each other, may, depending on the circumstances of their particular employment and any governing instrument, have differing duties that make up the inherent requirements of their position.
Job Advertisement
The Applicant submitted into evidence a copy of a job advertisement for “Airside Team Member (Customer Delivery Driver)” with the Respondent.
The Applicant submits that there is no reference to Chiller Duties in the job advertisement, so, as a result, this weighs in favour of the position that Chiller Duties are not an inherent requirement.
I do not accept that the absence of the reference to Chiller Duties from the job advert means that these duties are not an inherent requirement.
The advertisement is just that, an advertisement. It is not a reflection of all inherent requirements of the position or all tasks an employee may be required to undertake.
I do not disagree that the absence of a major task within a job advertisement could lead to some form of misrepresentation.
I note that Mr Thacker stated all duties are further discussed and explained during the recruitment process. One would hope such discussions would negate any misunderstanding caused by the advertisement.
Regardless, I do not agree with the submission that the absence of the duties in the advertisement supports the position that such duties are not inherent.
In the same regard, I do not accept that the inclusion of Chiller Duties in the Agreement would mean such duties are an inherent requirement. This much is clear from the relevant authorities.
However, I do concede that the inclusion of certain duties within the Agreement is a relevant consideration and has, in these circumstances, weighed in favour of the finding that Chiller Duties are inherent.
I also agree that the content of the Agreement, being an enforceable industrial instrument, leads to it holding greater weight than the content of the advertisement.
Inherent Requirement
In their submissions, both parties noted the relevant authorities containing guidance on the determination of the inherent requirements of a role.
Notably, the Commission highlights two leading High Court authorities which address the relevant factors, being Qantas Airways Ltd v Christie and X v Commonwealth.[2]
A summary of the considerations gleaned from those decisions can be found in Lonie v LiveBetter Services Limited,[3] as follows:
"To determine whether every single requirements in the Job Description and the Job Task Dictionary was an “inherent requirement”, the following matters are to be considered:
(a) It is the inherent requirements of the particular employment and not some other type or different employment;[4]
(b) “Inherent requirements” and “particular employment” should not be interpreted narrowly;[5]
(c) It is always permissible to consider the employment context when determining ‘inherent requirements’;[6]
(d) Whether a requirement is an inherent requirement should be determined based on objective facts and common sense and not mere speculation or impression;[7]
(e) Inherent requirements are indispensable requirements, permanent attributes or essential elements as opposed to those that are peripheral;[8]
(f) Inherent requirements are not confined to the tasks and skills or to the terms of the contract;[9]
(g) A requirement may not be an inherent requirement even if is included in contract of employment;[10]
(h) Carrying out the employment without endangering the reasonable safety of other employees is an inherent requirement of any employment;[11]
(i) Implied terms in a contract of employment such as fidelity, good faith and not endangering safety of others may be inherent requirements;[12]
(j) Circumstances in which the employment will be carried on such as where, when, what circumstances and with whom the tasks and skills were to be used or performed can be inherent requirements.” [13]
(References omitted; see footnotes.)
There is no doubt that, as it has been re-building the workforce employed under the Agreement, the Respondent, at this point in time, has not been able to have all Catering Drivers trained to competency in Chiller Duties.
I am satisfied that the operational impacts and lack of staff with competency in such duties has contributed to the circumstances in which not all Catering Drivers are currently able to undertake Chiller Duties.
However, I am not satisfied that the training status of all Catering Drivers leads to the conclusion that Chiller Duties are not an inherent requirement of the position.
In coming to the conclusion of whether the Chiller Duties are an inherent requirement of a Catering Drivers’ position, I wish to highlight the following which are central to my conclusion:
· The status of the Respondent’s operations, noting the effect of the COVID-19 pandemic on staff turnover.
· The fact that high staff turnover appears to be the primary cause for not all Catering Drivers under the Agreement currently being competent in Chiller Duties.
· The Respondent’s operations prior to the COVID-19 pandemic, noting that all drivers under the Agreement were trained and expected to complete such duties.
· The evolution of the Agreement, noting that Chiller Duties have become more central to the role since 2015.
· The nature of the work and role itself, noting the tasks undertaken by employees in dispensing their duties.
· The overall varied nature of the work, noting that the Catering Drivers, impressively, undertake a range of complex tasks and checks in dispensing their duties.
· The substantial amount of time required for Chiller Duties to be completed, reflected in the, sometimes, high proportion of such duties in any particular shift.
· The absence of any other employees under the Respondent’s management at Perth specifically retained to perform such duties.
· The central nature of food safety to the role, noting the importance of Chiller Duties in such task.
· The importance of Chiller Duties holds in ensuring obligations to clients are met.
“Whether a requirement is an inherent requirement should be determined based on objective facts and common sense and not mere speculation or impression”[14] noting this consideration, I have determined, in reliance on objective facts and common sense, that Chiller Duties are an essential element of the employment.
On such assessment of the materials before the Commission, I cannot conclude that Chiller Duties are merely peripheral to the employment.
Mr Thom, prior to his injury, complete Chiller Duties, alongside his fellow employees, for more than four years. Mr Thom is an experienced member of the Respondent operations and performed these duties as directed for that time.
“It is always permissible to consider the employment context when determining “inherent requirements”[15] the context of Mr Thom’s employment is that he had completed the duties, for over four years, and, due to unfortunate circumstances, is not medically advised to withstand low temperatures for an extended period of time.
Accordingly, Mr Thom is unable, on the advice of his doctor, to complete the full extent of Chiller Duties.
I am satisfied that these Chiller Duties, to their full extent, are an inherent requirement of the employment and cannot be dispensed with.
Having considered the development as to how Catering Drivers came to perform the Chiller Duties, the history of Mr Thom’s employment with the Respondent, and the nature of the Respondent’s operations into the future, I have concluded that Chiller Duties form part of the inherent requirements of Mr Thom’s employment.
As I have alluded to, throughout this decision, my conclusion that Chiller Duties are an inherent requirement does not diminish the upsetting nature of the circumstances Mr Thom currently finds himself in. The Applicant has submitted that there are enough Catering Drivers currently competent in Chiller Duties that Mr Thom could return to work. Such submission, although it did not satisfy me in the conclusion regarding inherent requirements, is a logical statement in the circumstances. It is clear that Mr Thom is a highly valuable and experienced employee. The exclusion of such a valuable employee, even though restricted in the ability to perform the totality of the inherent requirements of their position, is disappointing.
Conclusion
Accordingly, in response to the question “Are Chiller Duties an inherent requirement of Mr Thom’s employment with the Respondent under the Agreement?” I conclude Yes.
No orders sought have been issued.
COMMISSIONER
[1] [AE516455]; [PR743137].
[2] X v Commonwealth [1999] HCA 63 ((1999) 200 CLR 177) and Qantas v Christie [1998] HCA 18 ((1998) 193 CLR 280).
[3] Lonie v LiveBetter Services Limited [2023] NSWCATAD 60, [147].
[4] X v Commonwealth, [102].
[5] X v Commonwealth, [106].
[6] X v Commonwealth, [33].
[7] Qantas v Christie, [82].
[8] Qantas v Christie, [34] - [36], [74], [104], [163].
[9] X v Commonwealth, [100].
[10] Qantas v Christie, [37], [86].
[11] X v Commonwealth, [32], [109].
[12] X v Commonwealth, [31]-[32]; Qantas v Christie, [107].
[13] X v Commonwealth, [105]-[106].
[14] Qantas v Christie, [82].
[15] X v Commonwealth, [33].
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