Transport Workers' Union of Australia v Carbridge Pty Ltd - [2022] FWC 2638

[2022] FWC 2638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Transport Workers’ Union of Australia
v

Carbridge Pty Ltd

(C2022/4153)

DEPUTY PRESIDENT BEAUMONT

PERTH, 7 NOVEMBER 2022

Alleged dispute about any matters arising under the modern award - classification of bus driver – agreed basis for arbitration of the dispute – recommendation issued

Dispute
Mr Arthur Anestoudis has been employed by Carbridge Pty Ltd (the Respondent) since 20 March 2019 and is currently classified as A.4 Grade 4 employee under the Passenger Vehicle Transportation Award 2020 (the Award), although he considers he should be classified as A.5 Grade 5.[1] On 18 July 2022 the Applicant, the Transport Workers’ Union of Australia (the TWU/Applicant), notified a dispute about Mr Anestoudis’ classification to the Fair Work Commission in accordance with clause 29 of the Award and s 739 of the Fair Work Act 2009 (Cth) (the Act).

Clause 29.7 of the Award provides that a party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 29. It is observed that whilst the Applicant was the TWU, essentially it appeared to be the case that the TWU had brought the application on behalf of Mr Anestoudis and was representing Mr Anestoudis.

Mr Anestoudis had raised the issue regarding his classification with the Respondent and had escalated it through the dispute resolution procedure in clause 29 of the Award. Further, the application itself disclosed the TWU as the ‘representative’ as well as being the Applicant. In the circumstances and in the absence of submission from the Respondent regarding the Applicant’s standing, I proceeded to hear the matter.

I granted permission for the Respondent to be represented by a lawyer under s 596(2)(a) of the Act. As noted, the dispute concerned whether Mr Anestoudis is properly classified as A.4 Grade 4 or A.5 Grade 5 under the Award. Resolution of the dispute necessitated the correct interpretation and application of descriptors in the relevant classifications of the Award, with reference to the position performed and skills held by Mr Anestoudis. In NTEIU v Navitas Bundoora Pty Ltd t/a La Trobe Melbourne,[2] Commissioner Bissett noted:

[T]he question of the approach to interpretation – whilst generally well settled – does not mean that the application of those principles to any particular agreement is easy. Appeals to the Full Bench of the Commission in relation to disputes over the application of agreement provisions attest to this difficulty.[3]

The complexity of the matter is a consideration which the Commission is required to take into account, although an absence of complexity is not determinative. In this regard, ‘[t]here will be circumstances where permission for legal representation may enable a matter to be dealt with more efficiently even though it not particularly complex…’.[4] That is, the complexity of the matter is a relevant consideration, but is not the only consideration and is not determinative of whether legal representation is likely to lead to the matter being dealt with ‘more efficiently’.[5] Regarding the application before me, and acknowledging my invocation of the words of Deputy President Sams, I considered it more likely that the case would be run efficiently and would be focused on the relevant issues to be determined, where competent legal representation was involved.[6]

Returning to the crux of the issue, the Respondent maintains Mr Anestoudis is properly classified as A.4 Grade 4. The Applicant contends Mr Anestoudis’ role throughout his employment is better classified as A.5 Grade 5. It is uncontroversial that the steps in clause 29.2 and clause 29.3 of the Dispute Resolution Procedure in the Award have been satisfied.[7] Further the parties are in agreement that what is sought from the Commission is the provision of a recommendation. As to the question posed, the Applicant framed the question in the following terms:

Whether the duties carried out by Mr Anestoudis fall into category of a Grade 5 under Schedule A – classifications in the Passenger Vehicle Transportation Award 2020.

The Respondent submits that the question for determination is as follows:

Whether Mr Anestoudis meets the requirements to be classified as Grade 5 under Schedule A – classifications in the Passenger Vehicle Transportation Award 2020.

While the questions are not identical in their terms, essentially what the parties seek is a recommendation from this Commission as to whether Mr Anestoudis, or the duties that he carries out, meet the requirements to be classified as A.5 Grade 5 under Schedule A – classifications in the Award.

Background

The background to this matter requires explanation inclusive of a detailed description of Mr Anestoudis’ duties. However, the starting point is to describe the business of the Respondent and the service it provides.

The Respondent is a corporation incorporated pursuant to the Corporations Act 2001 (Cth) and at all material times was and still is in the business of bus transportation.

Mr Evan Leeuwangh is the Manager of the Respondent and gave evidence on its behalf. He said that the Respondent has 171 bus drivers across four ports at which it operates who are all classified as A.4 Grade 4 under the Award, regardless of whether they drive Airside or Landside.[8] Mr Leeuwangh explained that there are 40 drivers at the A.4 Grade 4 classification at Perth Airport, including Mr Anestoudis, and eight of whom, drive Airside.[9]

The descriptors of Airside and Landside warrant explanation. The Respondent’s services at Perth Airport extend to the transportation of passengers between the car parks and the terminal, and transfers between terminals – referred to as Landside, and between the aircraft and the terminals – referred to as Airside.[10] Insofar as Mr Anestoudis’ bus driving duties are concerned, they are performed Airside and Landside.[11] It is uncontroversial that the buses driven by Mr Anestoudis, irrespective of whether they are driven on Landside or Airside, have a capacity of over 25 passengers.[12]

Mr Anestoudis gave evidence that throughout his employment with the Respondent, a major part of his duties involved transporting passengers at the Airside part of Perth Airport to and from the aircraft.[13] Mr Anestoudis noted that during the period of COVID-19 restrictions, from about March 2020 to January 2021, he was driving Airside four days a week.[14]

Mr Leeuwangh provided specifics about Mr Anestoudis’ employment, stating that Mr Anestoudis commenced employment in September 2019 as a casual employee[15] and by 4 October 2021, he was employed as a full-time employee.[16]

Having reviewed Mr Anestoudis’ employment records, Mr Leeuwangh stated that since commencing employment with the Respondent, Mr Anestoudis had driven Airside approximately 236 times out of 812 shifts worked.[17] Mr Leeuwangh further noted that the 236 Airside shifts included instances where Mr Anestoudis had driven a combination of Airside and Landside in the one shift.[18] As to the remainder of Mr Anestoudis’ shifts, Mr Leeuwangh reported that two shifts were working charter, and ten shifts were attendance at training, and seven shifts were performing administration or vehicle service work.[19]

Legislation governs access to the operation of vehicles at airports. The Airside area of the Airport specifically refers to areas restricted by the Airport Operator and can only be accessed by authorised persons. For the purpose of the work performed by the Respondent, such areas include roadways, perimeter boundary roads, and taxi lanes.[20] The Landside areas of the Airport refer to the remaining areas within the airport boundaries where there are passengers and cargo terminals, car parks, public roads and unlimited access for the general public as well as public roads around Perth Airport.[21]

Persons working Airside have an Aviation Security Identification Card (ASIC).[22] An ASIC is an identification card which is issued after background checks have been completed and provides the holder with unescorted access to the secure areas of security-controlled airports.[23]

Persons working Landside must have, as a minimum, a medium rigid class driver’s licence (MR Licence) and a Passenger Transport Authority (PTA) from the Department of Transport.[24] To obtain a PTA, a person must complete a national police clearance and medical check.[25]

To drive Airside, a bus driver must have an ‘Authority to Drive’ (ADA).[26] In order to obtain an ADA, a driver must complete an eLearning ADA course and pass an examination.[27] The driver is then provided with a logbook and undertakes eight hours of buddy driving (in the company of a current ADA holder).[28] Once those hours have been completed, they undertake a driving test conducted by an independent body contracted by Perth Airport.[29]

The parties are in agreement that Mr Anestoudis is the holder of a heavy rigid driver’s licence, ASIC, PTA and an ADA.[30] They also agree that he performs the following duties:

a)   driving a bus in the Landside area to transport passengers between the airport terminals and the car park when rostered to do so;[31]
b)   driving a bus to transport passengers between aircraft and the terminals within the Airside area of Perth Airport when rostered to do so;[32]
c)   when driving Airside Mr Anestoudis:
i.contacts agents of clients of the Respondent on an ad hoc basis to confirm the number of passengers to be collected and the collection and drop off location when there has been a variation to what was originally required. This is done by means of two-way radio and telephone. The Applicant communicates with agents of Cobham Aviation Services, Skippers Aviation Pty Ltd and Perth Flight Centre;[33]
ii.inspect the bus for lost property at conclusion of the task and on an ad hoc basis.[34]

d) when driving Landside the Applicant:
i.greets passengers when they board the bus;[35]
ii.uses a pre-programmed app on an iPad called ‘AutoPort’ to track his start time and the number of passengers on his bus. The Applicant logs into this app to confirm that he has started work and is not fatigued, what shift he is performing and also inputs into this app what fleet number of bus he is driving;[36]
iii.enters data into AutoPort on each occasion he attends a bus stop and collects passengers;[37]
iv.transports passengers between terminals for example, from the domestic to international terminal;[38]
v.is required to inspect the bus at least four times per shift for lost property throughout the shift and sanitise the bus with COVID-19 related disinfectant as part of a COVID-19 prevention regime.[39]

During the hearing, much time was spent examining Mr Anestoudis regarding the information he was required to acquire to successfully obtain his ADA. Mr Anestoudis had explained in his witness statement that to obtain his ADA he had to complete an online course arranged by Perth Airport.[40]

Before completing the online course, Mr Anestoudis was provided with two handbooks. The handbooks were the ‘Airside Vehicle Control Handbook’ and the ‘Airside Safety and Driving Handbook’ (the Handbooks).[41] Mr Anestoudis said that after studying the Handbooks he sat an exam for Airside driving.[42] After having passed the exam, he then drove passenger buses Airside for eight hours with an experienced driver.[43] Having completed the eight hours of driving, Mr Anestoudis had to do a practical assessment for Airside driving with a Perth Airport Safety Officer.[44] Having passed the practical assessment he was issued with the ADA from Perth Airport.[45] The ADA is a ‘Category 2 licence’, meaning that Mr Anestoudis is able to drive on laneways, aircraft parking bays, the Eastern Perimeter Road, Taxiway R and on Airport aprons.[46]

Mr Leeuwangh pointed out that Mr Anestoudis had not attached to his witness statement the road rules applicable to Landside, noting that they included the Road Traffic Code 2000 (WA) and the Drive Safe Handbook.[47]

Mr Leeuwangh provided further detail on the steps required to obtain an ADA. He said that a driver completes an eLearning ADA course which consists of an online module. The driver is required to read information in the Airside Vehicle Control Handbook in respect of Airside driving and answer a series of multiple-choice questions to confirm that the driver has understood the learning module.[48]

According to Mr Leeuwangh the eLearning ADA course can be completed in a couple of hours.[49] Carbridge arranges and pays for the course, and for the time the driver takes to undertake the relevant training and driving test.[50] Mr Leeuwangh confirmed that a driver is then provided with a logbook and undertakes eight hours of buddy driving in the company of a current ADA holder. Once those hours have been completed by the bus driver, the driver has a driving test conducted by an independent body contracted to Perth Airport.[51]

Mr Anestoudis distinguished Airside driving from Landside driving, by drawing upon several factors, including:

a)   awareness of laneways and roadways permitted to drive on, and in addition avoiding aircraft and other vehicles;
b)   the ADA having a demerit point system, whereby safety breaches result in the deduction of demerit points that could lead to suspension of the licence;[52]
c)   awareness of the procedures involved in picking up passengers from the terminal and then to the aircraft and vice versa;[53]
d)   awareness of updated procedures and changes to Airside safety procedures;[54]
e)   communicating with ‘Oscar’ (the call sign used by the Cobham person in charge of shift) to inform:
i.when passengers are being delivered;
ii.when aircraft schedules clash;
iii.confirmation of the day’s task; and
iv.when delayed. [55]

f)   the cleaning of buses for quarantine inspection and clearance in respect of any Barrow Island flights;[56]
g)   knowledge of the specific requirements of mining companies such as social distancing, numbers on buses and use of face masks;[57]
h)   ensuring the use of the safety beacon on the bus when driving Airside;[58]
i)   awareness of gate procedures which require the use of an electronic access control system;[59]
j)   awareness of procedures at random security screening vehicles at Airside gates by Perth Airport Aviation Protection Officer (switching off the bus engine and exiting the bus);[60] and
k)   ensuring no foreign object debris (FOD) drops from the bus onto Airside;[61]

Mr Leeuwangh clarified that whether driving Landside or Airside, Mr Anestoudis was required to inspect and monitor the condition of his bus by conducting a check of the bus before collecting passengers and through the course of his shift.[62] Further, he is required to sanitise his bus as part of the COVID-19 regime and inspect the bus for lost property.[63]

Mr Anestoudis spoke to circumstances where he exercises initiative. An example provided was scheduling conflicts, where two aircraft come in at the same time.[64] Mr Anestoudis said that he would discuss with another Airside driver the best way to resolve the problem.[65] Mr Anestoudis also provided an example where there were several routes to a location, and he would select the safest.[66]

Mr Leeuwangh said that on driving Landside, Mr Anestoudis drives a bus on routes and according to a schedule.[67] The routes and the schedule (for terminal transfer only) are determined by the Respondent’s customer, Perth Airport.[68] When driving Airside, Mr Anestoudis is again said to drive on routes and according to a schedule.[69] The routes and schedule are determined by the Respondent’s customers, Cobham Aviation Services Pty Ltd, Skippers Aviation Pty Ltd, Qantas HeavyLift Aviation, Network Aviation, Virgin Airlines, Menzies and dNata.[70]

On the point of whether Mr Anestoudis exercises any initiative or is required to do anything complex, Mr Leeuwangh stated in his witness statement that there was no scope or need for Mr Anestoudis to exercise initiative when applying established work procedures regarding how to drive the bus and the routes to be followed by the normal business of the Respondent.[71] Mr Leeuwangh said the Respondent does not direct drivers to exercise initiative in relation to established work procedures.[72] If a driver wishes to deviate from established work procedures, they must submit the request to a supervisor.

Another duty which differentiates Airside duties from those on Landside was the use of the Google Calendar to input data relating to the daily Airside charter schedules.[73] In his witness statement, Mr Anestoudis detailed that data submitted into the Calendar included: (a) tasks to be completed; (b) when the task was commenced and completed; (c) when the task was completed; (d) number of crew picked up and dropped off; (e) the number of passengers picked up and dropped off; (f) when the aircraft door was opened or closed; and (g) when the aircraft started to be pushed back.[74]

Mr Anestoudis stated that to update the Google Calendar he was required to communicate with clients of the Respondent, including Cobham Aviation Services, Perth Airport, Network Aviation, Skippers Transport Pty Ltd and Perth Flight Centre.[75] Mr Anestoudis continued that once a week, Cobham sent the Respondent information about its flight schedules, which the Respondent passed on to bus drivers. Mr Anestoudis said that the Airside bus drivers then identified which Cobham flights required a bus, as some services left from the Cobham Terminal and no bus was needed.[76]

When rostered to work on Airside, Mr Anestoudis said that at the start of a shift he checked the Google Calendar and contacted Cobham by telephone to check whether there were any changes to the aircraft scheduled for that day.[77] If there were changes, Mr Anestoudis said he would alter the task in the Google Calendar accordingly.[78]

Insofar as the use of technology was concerned, Mr Anestoudis said that Airside drivers were required to have an iPad and a portable 2-way radio with them on the bus – with the radio being used to contact the Respondent’s clients.[79]

Mr Leeuwangh stated that whether driving Landside or Airside, Mr Anestoudis collected information using an app on his company-issued iPad. When working Landside, Mr Anestoudis used an app called ‘Autoport’, and when working Airside, Google Calendar was used.[80] According to Mr Leeuwangh, Mr Anestoudis requires the same basic skills to use the AutoPort and Google Calendar apps.

Mr Anestoudis said that included in his duties was the ‘auditing’ of other drivers to provide reports to the Respondent on a driver’s quality of driving, driving appearance, signalling, parking, braking technique, use of Autoport program, speed, and bus cleanliness.[81]

Mr Leeuwangh acknowledged that Mr Anestoudis had occasionally been asked to ‘buddy’ other drivers.[82] He provided the example of where in May 2021, Mr Anestoudis had buddied a driver Airside to help that driver understand the procedures for Cobham.[83] Mr Leeuwangh clarified that as a buddy, Mr Anestoudis was not required to train or instruct the driver as the driver already had their MR Licence and ADA.[84] Mr Leeuwangh stated that since 2019, Mr Anestoudis had buddied with new drivers Landside on approximately three occasions.

Award provisions

Against that broader context, I turn to classification definitions themselves. The most immediately relevant are drawn from A.3 Grade 3 to A.5 Grade 5.

A.3 Grade 3
A.3.1 Grade 3 employees are:
(a) employees with skills in excess of Grade 2 and includes all employees engaged in driving a passenger vehicle with a carrying capacity of 25 or more school children to and/or from school;
(b) employees engaged in driving a passenger vehicle with a carrying capacity of less than 25 passengers on a specified route service which operates regularly between fixed terminals;

(c) a coach driver of a passenger vehicle which undertakes charter, single day tours or which operates regularly between fixed terminals with a return distance of less than 650 km; and
(d) a bus driver of a passenger vehicle who undertakes charter, single day tours which operates regularly between fixed terminals with a return distance of less than 650 km and who is not otherwise classified at the grade 4 by virtue of the specified route work normally performed or the carrying capacity of the bus.

A.4 Grade 4
A.4.1 Grade 4 employees are employees with skills in excess of Grade 3 who efficiently operate passenger vehicles and issue tickets; balance and account for tickets and revenue; practice basic customer relations when providing information to passengers and the general public; inspect and monitor general conditions of the passenger vehicle; perform basic mechanical support duties; report and record information and includes:
(a) employees engaged in driving a passenger vehicle with a carrying capacity of 25 or more passengers on a specified route which operates regularly between fixed terminals; and
(b) a coach driver driving a passenger vehicle with a carrying capacity of 25 or more passengers on extended trip/tour with a return distance of 650 km or more and who may be required to deliver descriptive commentary and/or be absent overnight from their place of residence.

A.5 Grade 5
A.5.1 Grade 5 employees are employees with skills in excess of Grade 4. An employee at this level:
(a) performs the duties of driver with a sound understanding of operational work practices and procedures;
(b) performs activities of increasing complexity with some scope to exercise initiative in the application of established work procedures;
(c) may instruct other employees including on-the-job training; operates special services with a sound knowledge of the routes of other depots;
(d) instructs new drivers in route and passenger vehicle operations;
(e) inducts new drivers to aspects of depot operations and information;
(f) communicates with all types of customers with an advanced degree of courtesy and accuracy of information; and
(g) carries out duties associated with passenger surveys and service monitoring.

Principles relating to award interpretation and classification disputes

In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Excelsior Pty Ltd (Exclesior),[85] Justice Katzmann outlined the principles relating to the construction of awards, which he observed were not in doubt:

Like any statute, the task of construing an award begins with the text: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 (“Wanneroo”) at [53] per French J. But the words of the award “must not be interpreted in a vacuum divorced from industrial realities” (Wanneroo at [57]). Regard must be had to the context and purpose of the clause (Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [14]) and the intention of the parties who made the agreement (Kucks v CSR (1999) 66 IR 182 (“Kucks”) at 184 per Madgwick J). The context includes the history (Short v F W Hercus Pty Limited (1993) 40 FCR 511 (“Short”) at 517–518 per Burchett J). It also includes the legislative background against which the award was made and in which it was to operate: cf. Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [30] per Gummow, Hayne and Heydon JJ.
An award is not a law but it has the force of a Commonwealth law. As it is neither a legislative instrument nor a rule of court but an instrument made by an authority, unless the contrary intention appears its interpretation is covered by the provisions of the Acts Interpretation Act 1901 (Cth): Wanneroo at 438 [51] – [52]; Acts Interpretation Act, s 46. That means that a construction that would promote the purpose or object underlying the award is to be preferred to one that would not: Acts Interpretation Act, s 15AA.
A narrow or pedantic approach is to be eschewed, but “[a] court is not free to give effect to some anteriorly derived notion of what is fair or just regardless of what has been written in the award” (Kucks at 184, approved in Ansett Australia Limited (subject to Deed of Company Arrangement) v Australian Licensed Aircraft Engineers’ Association [2003] FCAFC 209 at [8]). Cf. Wanneroo at [57] and Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) ALJR 1806; [2003] HCA 55 (“ACX Ltd v DCT”) per Hayne J at [115]. [86]

Once the construction of the disputed classifications has been arrived at, the dispute is thereafter resolved by accepted principles.

It is said that the principles relating to classification disputes are well-established. The Full Bench in Michael Watson v Safe Places Community Service Limited T/A Safe Places for Children (Safe Places),[87] endorsed Justice Jones’ summary in Davies v Carnachan Family Trust Pty Ltd,[88] where the following observation was made:

12. The courts and industrial tribunals have developed principles to be applied to ascertain whether an employee falls within a particular classification described in an award or agreement. Where the employee performs mixed functions, the approach has been to examine the “major and substantial employment” of the employee or the “principal purpose” or “primary function” of the employee.
13. For example, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, Moore J referred to and applied decision of Sheldon J in Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 where his Honour, applying the “major and substantial employment” test, relevantly observed: …it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
14. The task of the Court in examining the major, substantial or principal aspect of the work performed by the employee will include consideration of the amount of time spent performing particular tasks, but also the circumstances of the employment, and what the employee was employed to do. The question is one of fact, to be determined by reference to the duties actually attaching to the position, rather than its title: City of Wanneroo v Holmes [1989] FCA 553; (1989) 30 IR 362 at 379; Joyce v Christofferson (1990) 26 FCR 261 at 278.

The same Full Bench observed at paragraph [33], that principles applicable to the construction of industrial instruments apply when considering classification structures, including indicative tasks specified for various levels, for the purpose of determining the appropriate classification ‘level’ of an employee. It continued:

[E]ach level of a classification structure and its underpinning definitions must be read in the context of higher or lower levels having regard to the descriptions at higher and lower levels of similar tasks with ascending and descending degrees of complexity.[89]

The Commission and courts have applied what is known as the ‘principal purpose’ test to ascertain the principal purpose for which an employee is engaged when looking at award coverage and/or an employee’s classification. This requires an analysis of the duties performed and the circumstances under which they are performed.

In Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd, Justice Besanko stated:

Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee’s employment which is the principal or major or substantial aspect (Ware v O’Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18; Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 at [77]). [90]

Within the Commission, the Full Bench has described the ‘principal purpose’ test in the decision of Carpenter v Corona Manufacturing Pty Ltd (Carpenter), in the following terms:

[9] In our view, in determining whether or not a particular award applies to identified
employment, more is required than a mere quantitative assessment of the time spent in
carrying out various duties. An examination must be made of the nature of the work
and the circumstances in which the employee is employed to do the work with a view
to ascertaining the principal purpose for which the employee is employed. In this case,
such an examination demonstrates that the principal purpose for which the appellant
was employed was that of a manager. As such, he was not ‘employed in the process,
trade, business or occupation of ... soliciting orders, obtaining sales leads or
appointments or otherwise promoting sales for articles, wares, merchandise or
materials’ and was not, therefore, covered by the Award.[91]

In the Full Bench decision of Lingli Zheng v Poten & Partners (Australia) Pty Ltd (Poten),[92] it was observed that the ‘principal purpose’ test as described in the passage above extracted from Carpenter, had been applied in circumstances where what was to be determined was not whether the employee fell within a particular classification in the award but whether the employee fell within the incidence of the relevant award, which was described in terms of the specific work function of the employee. The Full Bench continued that it appeared that the ‘principal purpose’ test was singularly ill-suited to determine whether a person fell within one of the classifications in the Professional Employees Award 2020 (PE Award) [93] or the Information Technology Industry (Professional Employees) Award 2001,[94] because the classifications were expressed in highly generic terms and did not describe with any specificity the job functions required to be performed at each level.[95] The Full Bench observed that the classification descriptors in that particular award had been drafted primarily in order to determine, by reference to the degree of skill and responsibility being exercised, in which classification a person otherwise covered by the award would fall, rather than to identify whether a person is covered by the award at all.[96]

Poten addressed whether the applicant in that case was covered by the PE Award. Whilst the Full Bench identified shortcomings of the application of the ‘principal purpose’ test in the circumstances specific to that case, what was required by the application of the ‘principal purpose’ test was explained. Referring to Carpenter, the Full Bench stated that the test required an examination of the nature of the work of the employee in question and the circumstances in which the employee is employed to do the work. This allowed the ‘principal purpose’ to be identified and thereafter compared to the classification descriptor in order to determine whether it falls within the scope of the descriptor.

In summary, an employee’s classification is to be determined in accordance with an assessment of both the quality of the work performed and the quantity in which it is performed. The assessment of ‘quality’ is an assessment of, to what extent the relevant work performed by the employee is a ‘principal or major or substantial aspect’ of the role required to be performed by the employee in the discharge of their duties and responsibilities. The assessment of quantity is a determination of how often the employee is required to undertake the task when compared to other duties and responsibilities of the position.[97]

The Applicant’s submissions

In support of its position that Mr Anestoudis is undertaking the work of a A.5 Grade 5 driver under the Award, the Applicant relies on the range of duties Mr Anestoudis performs and the additional training he had to undergo to be able to do some of his duties.

Turning first to Mr Anestoudis’ skills and duties, the Applicant has highlighted the following duties and skills of Mr Anestoudis:

a)   driving duties include transporting passengers between the airport terminals and the car park (Landside), and also driving in the restricted area of the Airport (Airside), driving passengers between aircraft and the terminals (Airside);
b)   Mr Anestoudis can be rostered to either transport passengers on the Landside area or be tasked with transporting passengers within Airside;
c)   has on occasion performed special charters for the Respondent’s client requiring the transportation of client’s employees to a training session or picking up passengers and dropping them off to a hotel in Perth;
d)   aligned with the Respondent’s requirements for setting up tasks in Google Calendar, inputs information into the Respondent’s Google Calendar regarding what charters/tasks are to be undertaken Airside and whether the task is for an arriving aircraft, departing aircraft or special charter;
e)   communication with the Respondent’s clients on a daily basis when performing duties as an Airside Driver to confirm charter information and with regard to communicating to the Senior Operations Operatives and Ramp staff when entering a terminal or parking near an aircraft to pick up or drop off passengers;
f)   auditing some drivers working Landside which covers quality of driving, signalling, parking, braking technique, speed and bus cleanliness and providing feedback to the driver and a report to management on the same; and
g)   instruction of new drivers on Airside and Landside passenger and vehicle operations – for example where employees returned back to work after the cessation of the Jobkeeper program.

The Applicant submitted that driving Airside is a specialised area of bus driving as the area is a potentially dangerous environment with taxying aircraft, aircraft being pushed back, and various service vehicles moving to and from aircraft. In the Applicant’s view, driving buses in this environment requires a greater level of skill than driving buses on public roads.

Mr Anestoudis is eligible to drive Airside because he has obtained an ADA and an ASIC. The Applicant described the attainment of the Category 2 ADA licence and ASIC as requiring a thorough training process that involved the study of extensive safety procedures related to Airside including:

a)   where Mr Anestoudis was authorised to drive in the Airside area, in accordance with his Category 2 ADA licence;
b)   the speed Mr Anestoudis was allowed to drive in these areas;
c)   that aircraft has right of way;
d)   standard operating procedures when picking up passengers, approaching terminals and aircraft, when operating vehicles and when a reportable incident such as a fuel and oil spill occurs;
e)   the markings and signs around the Airside area;
f)   licencing and permit examination procedures;
g)   random inspection procedures at security gates;
h)   vehicle requirements, for example buses must have anti-collision beacons;
i)   vehicle inspection policies; and
j)   the need to keep the Airside area clean of any rubbish and debris.

The Applicant submitted that once a driver completed the course prescribed by Perth Airport for Airside driving and fully understood the safety rules and procedures, the driver had to pass a practical test regarding her or his knowledge of the applicable routes/procedures for driving in the secure areas of Perth Airport.

The Applicant observed that it was not in dispute that Mr Anestoudis can perform the roles within a A.4 Grade 4 classification of the Award.

In respect of addressing the criteria in Schedule A.5.1 of the Award, the Applicant noted the following regarding Mr Anestoudis’ duties and Schedule A.5.1 (a):

a)   was required to obtain an ADA and ASIC in order to drive Airside;
b)   was required to study and have ongoing familiarity with the rules and procedures relating to Airside (including the Handbooks);
c)   evidently holds a sound understanding of the operations relating to Airside that includes the scheduling of charters upon flight arrival and departures, the areas of Airside that are restricted, the strict rule relating to FOD and the manner in which a bus must approach an aircraft of terminal in order to pick up passengers; and
d)   has to have ongoing familiarity with the changing practices as amended by the Respondent and customers.

In addressing Schedule A.5.1(b) of the Award, the Applicant submitted:

a)   Airside driving itself is an activity that would be considered of ‘increasing complexity’ as it is a role that requires drivers to be properly trained and qualified, and only a minority of the Respondent’s drivers can perform;
b)   there are circumstances where Mr Anestoudis exercises some initiative in the application of established work procedures. An example of this is, when Mr Anestoudis finds that there is a conflicting flight schedule, and he is required to immediately find solutions to these problems without having to refer to his supervisor;
c)   Mr Anestoudis testified that there were places where there were a number of routes that he could take to get there, and he used his own initiative to choose the best route to get to his destination.

In addressing Schedule A.5.1(c) of the Award, the Applicant pressed that Mr Anestoudis:

a)   audited his fellow colleagues upon the request of Mr Leeuwangh;
b)   provided refresher training to his colleagues upon their return to work after the COVID-19 period; and
c)   had been required to perform special charters for customers upon request. There being no specified routes for the special charters.

In respect of addressing Schedule A.5.1(d) and (e) of the Award, the Applicant stated:

a) Mr Anestoudis instructed new drivers on Landside providing buddy driving when requested by the Respondent; and
b) Mr Leeuwangh admitted that he would consider Mr Anestoudis being a buddy again when the Respondent requires.

Regarding Schedule A.5.1(f) of the Award, the Applicant submitted that Mr Anestoudis:

a)   goes beyond providing basic customer relations as he provides information to passengers and the general public;
b)   has communicated with ‘advance degree of courtesy’ to employees and officers of the Respondent’s clients such as Cobham, Skippers and Network Aviation;
c)   communicates with an ‘Oscar’ and at times ‘ground staff’ relating to when his vehicle is allowed to approach an aircraft or terminal to pick up passengers; and
d)   has communicated with employees and officers of the Respondent’s clients to confirm charters.

The Applicant submitted that Mr Anestoudis worked with minimal supervision.

The Respondent’s submissions

The Respondent submits that on applying the principles of construction, within the historical context described in its schedule to the submissions, the A.5 Grade 5 classification should be construed as follows:

a)   the reference in the first line of the Grade 5 classification description to ‘in excess of’ means that a Grade 5 employee must possess and may be required to implement all of the skills of a Grade 4 employee and more than those skills;
b)   the ‘skills’ referred to in the first line of the Grade 5 classification description are those skills described in the classifications for the Grade 4, Grade 3, Grade 2 and Grade 1 classifications in Schedule A to the PVT Award (as each Grade requires the employee to have the skills of the preceding Grade);
c)   the reference to ‘performs activities of increasing complexity’ in integer A.5.1(b) is a reference to the increased complexity inherent in the responsibilities described by the other integers. Merely driving Airside is not a ‘complex’ activity (see the treatment of (and payment for) tarmac driving in the Airline Operations – Ground Staff Award 2020);
d)   the reference to ‘scope to exercise initiative’ in clause A.5.1(b) is a reference to exercising driver initiative, specifically, in the ability to determine routes;
e)   the reference to ‘communicates with all types of customers’ in clause A.5.1(d) is not a reference to passengers, given the reference to ‘liaising and communicating with passengers’ in the Grade 2 classification description, but a reference to the principal contracting with the bus company to provide bus services; and

f) the use of the conjunctive ‘and’ in relation to the integers dictates that they are to be read cumulatively.[98]

The Respondent argues that Mr Anestoudis’ classification is A.4 Grade 4 for the following reasons.

First, integer A.5.1(a) requires the performance of the ‘duties of driver with a sound understanding of operational work practices and procedures’. The Applicant points to what it calls Mr Anestoudis’ ‘extensive knowledge of Airside rules and procedures’.[99] The Respondent submits Mr Anestoudis’ knowledge of the applicable road rules has been learnt in a short period.[100] Further, if the Applicant’s logic were adopted, then all drivers must be A.5 Grade 5. The Respondent submitted that such a proposition cannot be correct because it would render each of the Grades 2, 3 and 5 redundant.

Second, the Respondent observes that integer A.5.1(b) requires the performance of ‘activities of increasing complexity with some scope to exercise initiative in the application of established work procedures’. The Applicant mentions this integer in paragraph [36] of its submissions. In the next paragraph it negates that argument by confirming that Mr Anestoudis’ role is limited to following – strictly – the instructions issued by the Respondent’s customer airlines and the Airport. The Respondent says that the realistic position is that Mr Anestoudis, whether working Landside or Airside, drives fixed routes in a highly regulated environment where the exercise of initiative is not permitted.

Third, the Respondent submits integer A.5.1(c) requires the ‘instruct[ion of] other employees including on-the-job training; [and] operat[ing] special services with a sound knowledge of the routes of other depots’. At paragraph [43] of his submissions, the Applicant suggests that Mr Anestoudis has a ‘duty’ to ‘audit’ other employees. This is an apparent reference to evidence in paragraph [46] of his witness statement. The Respondent observes that Mr Leeuwangh’s evidence contradicts these assertions. The Respondent notes that Mr Anestoudis was asked to conduct induction training once, which included a review process to ensure that the driver has understood the requirements of their role. This was done in order to determine whether Mr Anestoudis was suitable for a training role. The Respondent presses that Mr Anestoudis has not performed any ‘audit’ of any employee. Despite saying in his evidence that the ‘audits’ were documented, the Respondent observed that Mr Anestoudis has provided no evidence audits and the Respondent is unable to locate such evidence.

Fourth, the Respondent submits that integers A.5.1(d) and (e) may be dealt with together. According to the Respondent, they require, respectively, the ‘instruct[ion of] new drivers in route and passenger vehicle operations’ and the ‘induct[ion of] new drivers to aspects of depot operations and information’. The Applicant suggests, at paragraph [44] of its submissions, that Mr Anestoudis’ involvement in ‘refresher training’ satisfies these integers. The Respondent contends that such argument is faulty because, among other things:

a)the refresher training was a one-off in light of special circumstances (an unprecedented global pandemic and the attendant shutdown of the industry), meaning it cannot be said to be a principal or major or substantial aspect of Mr Anestoudis’ role;
b)refresher training (by its very nature) is not carried out in relation to ‘new’ drivers (as required by integers A.5.1(d) and (e)); and
c)in any event, the training was limited to three of the 14 casual bus drivers employed by the Respondent, on one occasion. This aspect of Mr Anestoudis’ role is so minor that it cannot be said to be a principal or major or substantial aspect of it.[101]

Fifth, Mr Leeuwangh’s evidence is that he, and not Mr Anestoudis, instructs and inducts new drivers, submitted the Respondent.[102] The Respondent continued that the ‘buddy driving’ that Mr Anestoudis says he has performed does not amount to instruction or induction. In any event, this is another very minor aspect of Mr Anestoudis’ role.[103]

Sixth, the Respondent submits integer A.5.1(f) requires the ‘communicat[ion] with all types of customers with an advanced degree of courtesy and accuracy of information’. At paragraphs [38]–[42] of its submissions, the Applicant argues that Mr Anestoudis’ interactions with ‘Oscar’ take the requirements of his role beyond A.4 Grade 4 (which includes ‘basic customer relations’). The Respondent argues that the contention should be rejected because:

a)   Mr Leeuwangh’s evidence is that Mr Anestoudis was neither directed nor required to communicate with ‘Oscar’ in the manner he says he does (and, as such, any such communications are outside the scope of his role);[104]
b)   the communications with ‘Oscar’ are with an operational employee within one client, and are purely administrative;[105]
c)   the communications with ‘Oscar’, being one person within one customer’s business, cannot be taken to amount to communications with ‘all types of customers’ (as is required by integer A.5.1(f)); and
d)   in any event, any such communications are not a principal or major or substantial aspect of Mr Anestoudis’ role.

The Respondent acknowledges the Applicant’s concession that Mr Anestoudis is not required, by integer A.5.1(g), to ‘carr[y] out duties associated with passenger surveys and service monitoring’.[106]

In response to the Applicant’s reliance on CPSU, the Community and Public Sector Union v Telstra T/A Telstra Corporation Limited,[107] the Respondent presses that it is misconceived. Whilst the Applicant claims that the case is analogous to the present case and the result in this case should follow suit, the Respondent argues that the facts are entirely different (including that the classification definition included integers expressed ‘distributively’ rather than conjunctively); and the decision was quashed on appeal.[108]

6.1History of the Award

The Award commenced operation on 1 January 2020. Its classifications have remained substantially identical since being included in the first Exposure Draft in May 2009.[109]

The provenance of the classifications was described by the Full Bench as follows:

[185] The exposure draft contains a six grade structure. The classifications and definitions are a combination of the parties’ drafts and a consideration of the structure and definitions found in the relevant industrial instruments contained in the comparative schedules.[110]

The Respondent submits that the classification structure in the Award draws heavily from the draft classification structures proposed by the Bus Industry Confederation (BIC)[111] and the Rail, Tram and Bus Union (RTBU).[112]

The BIC’s proposed classification structure drew from the Transport Workers (Passenger Vehicles) Award 2002 (Passenger Vehicles Pre-Reform Award).[113] The RTBU, on the other hand, drew from the descriptions, relativities and definitions across a number of NAPSAs, including the Brisbane City Council Bus Transport Award, Metro Tasmania Award and the STA Bus Traffic Employees Award.[114]

According to the Respondent, the RTBU distinguished between:

(a) Level 4 (“Bus/Tram/Light Rail Operators”),[115] which it described as the “benchmark for the proposed stream”, based on “a Bus/Tram Operator of several years’ experience who performs all functions and routes”;[116] and
(b) Level 5, consistent with its descriptor (“Bus/Tram Supervisors, Trainers”),[117] the RTBU described an employee within the classification as being “supervisors and trainers”. That is, it differed from Level 4 in the sense that employees within the classification are responsible for tasks that include inducting and instructing new drivers.[118]

The Respondent submitted that in making the Award, the Full Bench:

a) incorporated the skills identified in the classification structure from the Passenger Vehicles Pre-Reform Award (relied upon by BIC) and combined those skills with the descriptors of the duties and responsibilities to be performed at each level of the classification structure proposed by the RTBU; and
b) drafted Grade 5 with the intention to capture supervisors and trainers (in the sense proposed by the RTBU (with higher grading reflective of the learning and skills possessed by such employees viz other experienced bus drivers).

The Applicant submitted that Schedule A.5 of the Award should not be read conjunctively and rather it should be read on the basis of whether the duties meet the ‘context and purpose’ of Grade 5. The Applicant observed that when the RTBU provided its Draft Award during the Award Modernisation process, that Draft Award included a level 4 criteria that eventually became Grade 5 under the Award. The suggested clause read as ‘this role would typically include the use of skills in such areas’.[119]

The Applicant submitted that it appeared the Award drew heavily upon the draft classification structures proposed by the RTBU, and that it appeared to the Applicant that the Full Bench of the then Australian Industrial Relations Commission (AIRC) had not intended that the criteria set out in Schedule A.5 of the Award were to be read conjunctively.

The Applicant however submitted that if the Commission was to conclude that the criteria in Schedule A.5 of the Award were to be read conjunctively, then:

a)   the evidence before the Commission shows that the Respondent rarely requires passenger surveys and service monitoring to be carried out – noting that Mr Leeuwangh’s evidence was that this has only be done once in the past five years;
b)   if the Respondent did require passenger surveys and service monitoring to be carried out, then, it would most likely instruct one of the eight drivers, who can perform a wide range of roles, including Mr Anestoudis, to undertake those duties – noting that the Respondent has called upon the eight drivers to perform special services when the need arose for this; and
c)   it is not unreasonable to conclude that if the Respondent needed passenger surveys and service monitoring, it would allocate these services to the drivers who drive buses both Landside and Airside.

The Applicant agreed that the classifications in the Award were based on draft structures proposed by the BIC and the RTBU. However, it differed as to the intention of A.5 Grade 5, disagreeing that the classification sought to cover supervisors and trainers.

The Applicant pressed that despite drawing assistance from the BIC and the RTBU, it appeared that neither draft awards provided by the BIC and by the RTBU, included a proposed classification provision for a Grade 6 operator.

The Applicant submitted that it appeared that when constructing the 2010 Award, the Full Bench of the AIRC incorporated elements of the RTBU’s draft Grade 4 classification in the Grade 5 classification of the 2010 Award. Regarding the Grade 3 classification under the Award, the Applicant submitted that the AIRC had incorporated the BIC’s draft Grade 3 classification into the Grade 3 classification under the 2010 Award and thereafter the current Award, whilst also incorporating elements of the RTBU’s draft Grade 3 into the Grade 4 classification in the 2010 Award. According to the Applicant, the AIRC had sought to differentiate between drivers engaged in driving vehicles with a carrying capacity of 25 or more school children, and drivers engaged in driving vehicles with a carrying capacity of 25 or more passengers between fixed terminals.

Referring to the Award Modernisation hearing, the Applicant noted that the solicitor for the RTBU had explained to the Full Bench, that a Level 5 classification covered ‘supervisors and trainers’ and further that levels 3 to 5 were the ‘various stages of operators in terms of learning skilled and being supervisory training levels’.[120] In addition, said the Applicant, the RTBU provided a Level 6 ‘inspector’ within their ‘Operations Stream’, however did not provide for a Level 6 in their draft award.[121] In their submissions dated April 2009, the RTBU continued to not provide for a Level 6 classification within the ‘Operations Stream’ of their draft award.[122]

The Applicant argued that it appeared the RTBU envisioned a Level 5 and Level 6 employee within the ‘operations stream’ being within the Level 5 classification within their draft award. Further, that the RTBU envisioned a Level 4, which was described as an operator of ‘several years’ experience, who performs all functions and routes,[123] being within the Grade 4 classification.

The Applicant observed that instead, the Full Bench of the Commission had decided to expand the classification structure in the Award and make an additional Grade 6 which incorporated elements of Grade 5 from the draft award. The Applicant submitted that what the RTBU envisioned as a Grade 4 driver effectively became a Grade 5 driver under the 2010 Award and the current Award.

The Applicant therefore challenged the Respondent’s submissions relating to distinguishing the RTBU’s proposed Levels 4 and 5 in its draft award, noting that such submissions should be viewed in the context that the RTBU sought to fit their proposed six level structure within a five level classification structure. On this basis, argued the Applicant, it should not be accepted that the AIRC had drafted Grade 5 with the intention to capture supervisors and trainers, but instead the RTBU’s proposed Level 4 ended up being a Grade 5 under the 2010 Award and the current Award.

The Applicant submitted that the Commission should conclude that the Full Bench of the AIRC intended that Grade 5 under the Award was to cover an employee who the RTBU had considered to be a ‘benchmark for the proposed stream’ based on a ‘bus/tram operator of several years’ experience, who performs all functions and routes’.

Consideration

The Award applies ‘throughout Australia in the passenger vehicle transportation industry’, which is defined to include ‘the transport of passengers by… bus or coach’.[124] It is uncontroversial that Mr Anestoudis is covered by the Award or phrased differently, falls within the ‘incidence of the relevant award’.[125]

Turning first to the construction of the Award. The Respondent and Applicant are at odds as to whether the use of the conjunctive ‘and’ in relation to the integers in the A.5.1. Grade 5 classification dictates that they are to be read cumulatively.

Expanding on my commentary regarding the principles of construction of awards, I note such principles were also summarised by Justice Rangiah in Swissport Australia Pty Ltd v Australian Municipal Administrative Clerical and Services Union (No 3).[126] In short summary, the task of construction begins with the natural and ordinary meaning of the words used. However, an award is to be interpreted in light of its industrial context and purpose and its commercial and legislative context. The context includes the immediate textual context and the historical context of the origin of the provision in question.[127]

In respect of the first three classifications in Schedule A of the Award I make the following observations. The A.1.1 Grade 1 classification reads as follows:

A.1.1 Grade 1 employees are:
(a) employees engaged in various activities not involving the driving of passenger vehicles, whilst carrying passengers, and includes yard and vehicle cleaning/washing, oil and greasing, refuelling, changing tyres, assisting in tyre repairs and supervision of school children on passenger vehicles; and
(b) coach attendants employed to travel on a passenger vehicle undertaking long tours and performing other duties incidental and associated with such work.

It is evident from the natural and ordinary meaning of the words used that whilst the word ‘and’ has been used, the coordinating conjunction serves the purpose of joining the first clause A.1.1(a) to the second clause A.1.1(b) but does not require the Grade 1 employee to be both a coach attendant and engaged in the activities described in clause A.1.1(b). This is because the activities of a coach attendant do not appear to be synonymous with those of an employee undertaking the activities in A.1.1(a). Therefore, were an employee a coach attendant (see A.1.1(b)) or an employee as described in A.1.1(a), that employee would fall under the A.1.1 Grade 1 classification.

Similarly, when the A.2.1 Grade 2 classification is considered, the same conclusion can be drawn. The A.2.1 Grade 2 classification reads:

A.2 Grade 2
A.2.1 Grade 2 employees are employees with skills in excess of Grade 1 and includes:
(a) employees engaged in duties associated with effective ticketing, conducting and customer relations service in all contact with passengers and the general public. Duties include operating and issuing tickets; ensuring correct revenue is collected; balancing and accounting for all tickets to ensure correct money has been received; pre-departure checks of passenger vehicles; driver monitoring and reporting vehicle defects; liaising and communicating with passengers and the general public to provide information and directions and performing various administrative procedures associated with Grade 2 duties;
(b) a driver of a passenger vehicle with a carrying capacity of less than 25 school children to and/or from school; and
(c) a driver of a motor vehicle, limousine or hire car capable of carrying less than 8 persons and used for hire or reward but excluding motor vehicles used for private purposes.

When the natural and ordinary meaning of the words for the A.2.1 Grade 2 classification are considered, it is evident that an employee, who, whilst possessing skills in excess of the Grade 1 employee, can be an employee so described in either A.2.1 (a), or A.2.1 (b), or a driver of a motor vehicle, limousine, or hire car (see A.2.1(c)).

The use of the word ‘includes’ in A.2.1 Grade 2 does not suggest that to be classified as Grade 2 an employee must perform or undertake, all activities described in clauses A.2.1 (a), (b) and (c). In support of this construction the observation can be made that whilst an employee may engage in operating and issuing tickets and the other tasks described in A.2.1 (a) within their workplace, they may not necessarily drive a passenger vehicle in addition to a limousine, for example.

Similarly, the same could be said for A.3.1 Grade 3. A.3.1 Grade 3 informs:

A.3.1 Grade 3 employees are:
(a) employees with skills in excess of Grade 2 and includes all employees engaged in driving a passenger vehicle with a carrying capacity of 25 or more school children to and/or from school;
(b) employees engaged in driving a passenger vehicle with a carrying capacity of less than 25 passengers on a specified route service which operates regularly between fixed terminals;
(c) a coach driver of a passenger vehicle which undertakes charter, single day tours or which operates regularly between fixed terminals with a return distance of less than 650 km; and
(d) a bus driver of a passenger vehicle who undertakes charter, single day tours which operates regularly between fixed terminals with a return distance of less than 650 km and who is not otherwise classified at the grade 4 by virtue of the specified route work normally performed or the carrying capacity of the bus.

As will be plain by now, the A.1.3 Grade 3 classification refers to a bus driver, coach driver, the driver of a passenger vehicle with less than 25 passengers, and the driver of a passenger vehicle with a carrying capacity of less than 25 passengers. It is noted that in each clause, A.3.1 (a) through to (d), there is some form of qualification such that carrying capacities are defined, or reference is made regarding distance travelled, or type of journey. However, it is plain, that to fall within the Grade 3 classification, an employee’s skills or duties may extend to only the duties or activities outlined in one of the clauses from A.3.1 (a) to (d).

It remains necessary to consider the construction of Grade 4 and Grade 5.

The A.4.1 Grade 4 classification differs from the preceding classifications. It is apparent that the language of the first clause sets out the skills and duties that all A.4.1 Grade 4 employees are required to exhibit or perform, as the case may be. Whilst I do not intend to repeat the clause, it having been set out at paragraph [38] of this decision, the classification refers to including:

(a) employees engaged in driving a passenger vehicle with a carrying capacity of 25 or more passengers on a specified route which operates regularly between fixed terminals; and
(b) a coach driver driving a passenger vehicle with a carrying capacity of 25 or more passengers on extended trip/tour with a return distance of 650 km or more and who may be required to deliver descriptive commentary and/or be absent overnight from their place of residence.

Again, while the conjunction ‘and’ is used to join A.4.1(a) and (b), its use in such context does not suggest that an employee must undertake both driving a passenger vehicle with a carrying capacity of 25 or more, as referred to in A.4.1(a), or being a coach driver driving a passenger vehicle, as referred to in A.4.1(b). It is understandable that a business may not be positioned to offer both duties, yet the employee may fall within the scope of the descriptor in A.4.1(a) or (b), whilst also satisfying the skills so described that precede the descriptors of A.4.1(a) and (b).

Turning to the construction of the A.5.1 Grade 5 classification. The A.5.1 Grade 5 classification again requires an employee to possess skills in excess of those listed in the A.4.1 Grade 4 classification. In this respect I do not consider the Respondent’s submission misplaced. The Respondent presses that the reference in the first line of A.5.1 Grade 5 to ‘in excess of’ means that a A.5.1 Grade 5 employee must possess and may be required to implement all of the skills of a Grade 4 employee and more than those skills. It is apparent from classification descriptions that the classifications are intended to embrace a progressive accumulation of training skills and experience.

The A.5.1 Grade 5 descriptor proceeds to specify the particular duties or activities undertaken by a driver at this classification. The clause warrants repeating:

A.5 Grade 5
A.5.1 Grade 5 employees are employees with skills in excess of Grade 4. An employee at this level:
(a) performs the duties of driver with a sound understanding of operational work practices and procedures;
(b) performs activities of increasing complexity with some scope to exercise initiative in the application of established work procedures;
(c) may instruct other employees including on-the-job training; operates special services with a sound knowledge of the routes of other depots;
(d) instructs new drivers in route and passenger vehicle operations;
(e) inducts new drivers to aspects of depot operations and information;
(f) communicates with all types of customers with an advanced degree of courtesy and accuracy of information; and
(g) carries out duties associated with passenger surveys and service monitoring.

Unlike classification levels A.1.1 Grade 1 to A.3.1 Grade 3, it is not apparent that only one of the clauses from A.1.5.1 (a) to (g) need apply for an employee to fall within the descriptor. It can be seen from the natural and ordinary meaning of the words used, that to fall within the A.5.1 Grade 5 classification an employee demonstrates the activities or duties listed in the clauses. Although it appears A.5.1(c) contemplates that an employee ‘may’ instruct other employees including on-the-job training’. It is not apparent that the word ‘may’ extends to the latter part of A.5.1(c) – that is ‘operates special services with a sound knowledge of the routes of other depots’.

When one considers the activities that fall within the descriptor of A.5.1 Grade 5 and compares them to those outlined in A.4.1 Grade 4, it is evident that the activities described in A.5.1 Grade 5 are of increasing complexity. The reference to ‘performs activities of increasing complexity’ in A.5.1(b), is, in my view, to be interpreted as referring to the increased complexity inherent in the responsibilities described in the other A.5.1(a) to (g). That complexity also manifests itself in the employee’s scope to exercise initiative in the application of established work procedures.

A.5.1(d) refers to ‘communicates with all types of customers’. The word ‘customer’ is used sparingly in the Award and on all occasions can be found in Schedule A. There are references to ‘customer relations service’ in A.2.1(a), ‘basic customer relations’ in A.4.1, and ‘to have a customer service focus’ in A.6.2 (c)(i). However, what distinguishes A.5.1.(d) is that the clause specifically refers to ‘all types of customers’ and is not limited to ‘passengers’. To this extent, I consider that the nature of the communication extends past communicating to passengers and the general public – as is described in A.4.1 Grade 4.

The Respondent submitted that the use of the conjunctive ‘and’ in relation to A.5.1(a) to (g) is to read cumulatively. The Applicant pressed that A.5.1 should not be read conjunctively, but instead should be read on the basis of whether the duties meet the ‘context and purpose’ of Grade 5. Drawing upon the RTBU’s Draft Award submitted in the Award Modernisation process, the Applicant observed that the Draft Award included a Level 4 criteria which became Grade 5 under the 2010 Award – with the suggested clause reading, ‘this role would typically include the use of skills in such areas’.[128]

Consideration of extrinsic evidence in this context does not, in my view, illustrate what the framers of the Award intended. However, the context of the Award itself illuminates the meaning to be attributed to the use of the word ‘and’.

It is uncontroversial that ‘and’ is a coordinating conjunction – as is the case with the other Grades in Schedule A. However, A.5 Grade 5 is drafted in a manner different to the preceding Grades. It is not the case in A.5 Grade 5 that only one descriptor may apply – such that the employee may, for example, either drive a coach or a bus, as detailed in A.4.1.

The correct approach to interpreting A.5. Grade 5 is for regard to be had to all the descriptors enumerated in A.5.1(a) to (g). The use of the word ‘and’ is to simply join the descriptors for the purpose of consideration. The word ‘and’ does not require that an employee perform, engage in, or otherwise be required to undertake all duties and activities so described from A.5.1(a) to (g). However, to reiterate, regard must be had to all of those descriptors which are enumerated, when determining whether the employee does or does not, fall within the scope of that classification.

Further and to the extent it is necessary to do so, the descriptors enumerated in A.5.1 are not expressed to be ‘indicative’.

The question next requiring consideration is whether Mr Anestoudis falls with the A.5 Grade 5 classification. The principal purpose test directs a decision-maker’s line of enquiry towards the nature of the role in question and the nature of the work covered by the relevant award. For the purpose of ascertaining the principal purpose for which Mr Anestoudis is employed, an examination is required of the nature of the work he performs and the circumstances in which he is employed to do the work required.

It is uncontroversial that Mr Anestoudis is a full-time bus driver with the Respondent.[129] Further, it is not in dispute that during his employment with the Respondent he has worked driving buses Airside and Landside. In giving his evidence, Mr Anestoudis unswervingly focused on the duties and responsibilities he held whilst driving Airside, rather than those he held whilst working Landside. Such emphasis appeared to have been placed on his Airside duties for the purpose of satisfying the descriptors in A.5 Grade 5. However, the Applicant appeared not to dispute Mr Leeuwangh’s evidence that since commencing employment with the Respondent, Mr Anestoudis had driven Airside approximately 236 time out of 812 shifts worked, and of the 236 shifts worked, those shifts included instances where Mr Anestoudis drove both Airside and Landside.[130]

Mr Anestoudis’ employment contract sheds little light on the principal purpose of his employment. However, the agreed facts provide a useful basis for the determination of this point. Further, Mr Anestoudis and Mr Leeuwangh provided comprehensive accounts of Mr Anestoudis’ work, and the environment in which that work was performed.

Turning to the agreed facts which are outlined at paragraph [20] of this decision. It is accepted that Mr Anestoudis drives a bus Landside and Airside for the purposes of transporting passengers between the Airport terminals and the carpark, and between the terminals and aircraft. Further, it is undisputed that when driving Airside Mr Anestoudis contacts agents of clients of the Respondent on an ad hoc basis to confirm the number of passengers to be collected and the collection and drop off location when there has been a variation to what was originally required. This is done by means of two-way radio and telephone. The Applicant communicates with agents of Cobham Aviation Services, Skippers Aviation Pty Ltd and Perth Flight Centre.[131] It is also Mr Anestoudis’ responsibility to inspect the bus for lost property at the conclusion of the task and on an ad hoc basis.

Mr Anestoudis does an appreciable amount of driving on Landside. This of course involves driving the bus, greeting passengers, utilising a pre-programmed app on Autoport, and inspecting the bus at least four times per shift for lost property and to sanitise the bus with COVID-19 disinfectant.

Irrespective of whether Mr Anestoudis works on Airside or Landside, he is to transport passengers on a bus in the confines of Perth Airport, and to that extent it is an indubitable fact that the principal purpose of Mr Anestoudis’ employment is to drive a bus. Consequently, clearly most, if not all, of Mr Anestoudis’ working day is occupied with driving or being in control of a passenger vehicle (bus) and addressing the activities that arise with such occupation at Perth Airport. Those activities include passenger communication, communication with agents of the Respondent’s clients, checking the vehicle whether for FOD, lost property, or obvious mechanical issues, recording transit – including passenger numbers, and sanitising or otherwise cleaning the bus (including for quarantine requirements where required). The evidence shows that the Respondent directs Mr Anestoudis to drive buses both Airside and Landside, and at times requires him to buddy drivers to assist them to do the same. That is the principal purpose for which Mr Anestoudis is employed.

The circumstances in which Mr Anestoudis works are different to those of a bus driver working on roads governed by the Road Traffic Act 1974 (WA), Road Traffic Code 2000 (WA) and the Drive Safe Handbook, or for that matter of a driver who works only on Landside. One may recall that only eight of the Respondent’s drivers are able to work both Landside and Airside, and the evidence given is that Mr Anestoudis has worked both and will continue to work in both areas dependent on operational demands.

Mr Anestoudis works in an environment where the rules or regulations differ dependent on the driving location, whether that be Airside or Landside. Further, the operational demands between the two locations vary. Let me explain further.

The parties are in agreement that whilst working on Airside, Mr Anestoudis’ communication is not limited to talking to passengers whether greeting the passenger or responding to some other enquiry. From the evidence provided it was clear that Mr Anestoudis is required to talk to agents of Cobham Aviation Services, Skippers Aviation Pty Ltd and Perth Flight Centre, and to the marshaller.[132] His communication is not limited to passengers but arguably extends to a different type of customer.

The Respondent, claims that the evidence shows Mr Anestoudis was neither directed nor required to communicate with ‘Oscar’ in the manner he says he does (and, as such, any such communications are outside the scope of his role).[133] Mr Leeuwangh did however note that Mr Anestoudis was required to communicate with Oscar if there was an issue.[134] Mr Leeuwangh was asked to explain how his evidence at hearing sat with an email sent to bus drivers on 29 March 2021 timestamped 2.24pm, which read:

Due to this shortage of radios available at this time, all drivers are to work closely and by use of our bus radios ensure that Oscar is kept informed of all movements.

Mr Leeuwangh responded:

Could you just explain to me how this email sits with your evidence that effectively there's no communication by drivers to Oscar unless there is an issue?‑‑‑So with those radios, those radios would be carried by two people on shift, normally it would be your supervisor and one other driver. If there was a need to communicate with Cobham's Oscar, our drivers could communicate between each other with our own radio system and that person could then pass that message on. So if they would say to Oscar, 'Bus for Murrin is about to be parked bay 1', or something.
All right. So what you're saying is someone is delegated the responsibility, one person, either the supervisor or another driver, to communicate with Oscar on behalf of all of the drivers on that shift?‑‑‑That's correct.[135]

While the communications with Oscar were characterised by the Respondent as being administrative in nature and limited to one employee of one client, evidently it was important to keep Oscar informed of all movements. This necessitated at least one bus driver working on Airside being delegated responsibility for that task in the absence of a supervisor. Insofar as it is relevant, an activity that the Respondent casts as an administrative exercise, appears to me to be communication that was not merely administrative but was essentially grounded in a safety requirement – hence ‘informing Oscar of all movements’. It is however unclear on the evidence whether Mr Anestoudis had in the past been delegated that particular responsibility. However, I accept that where an issue arose Mr Anestoudis was required to inform Oscar of the same. I further accept that within Mr Anestoudis’ role, were he to receive an instruction to communicate with Oscar as the ‘delegated’ employee, such instruction would be lawful and reasonable.

It is incorrect to find that Mr Anestoudis’ communications were limited to exchanges with one operational employee of the Respondent’s client (in circumstances where there were issues). The Respondent appeared to have accepted Mr Anestoudis’ evidence that he was required to communicate with the marshaller or ‘guy in charge’ prior to approaching, presumedly the aircraft. Whilst Respondent’s Counsel appeared fixed on questions as to the procedure regarding such signalling (the use of the thumbs) and whether or not it had changed, it remained that Mr Anestoudis’ evidence that thumb signals were used between him and the marshaller, was not challenged. These interactions appeared to have occurred on every occasion Mr Anestoudis was required to collect passengers Airside – and again they at least, in part, appear premised on a safety requirement.

In effect, the Respondent contended that even if there was a finding that Mr Anestoudis communicated with Oscar, this could not amount to communications with ‘all types of customers’ for the purpose of A.5.1(f). Furthermore, the Respondent added that in any event such communications were not a principal or major or substantial aspect of Mr Anestoudis’ role.

It is the latter submission that firstly warrants attention. As was stated in Carpenter, only to be later emphasised in Poten, the principal purpose test is a question of fact. Once that finding is made, the principal purpose as identified must be compared to the classification descriptor in order to determine whether it falls within the scope of that descriptor. The test is not necessarily whether communications were a, or the, principal or major or substantial aspect of Mr Anestoudis’ role.

I accept that Mr Anestoudis is required in his work to communicate with all types of customers with an advanced degree of courtesy and accuracy of information. This includes, whilst working Airside, communications with Oscar, the marshaller and passengers. Given that two of the examples of communication provided appear grounded in safety requirements, the inference is easily open that accurate information is essential.

As expressed, the operational differences between Airside and Landside in respect of the applicable rules to follow are perhaps best demonstrated by reference to the Perth Airport Airside Vehicle Control Handbook[136] the Airport Operating Standard and the requirement to hold an ADA and ASIC [137]

It was uncontroversial that when driving Landside, Mr Anestoudis was required to have as a minimum, a MR Licence and a PTA from the Department of Transport.[138] Mr Leeuwangh gave evidence that bus drivers driving Landside did not require further skills or additional training.[139]

However, the incontrovertible evidence before me was that when driving Airside the road rules differed to Landside, additional training was required to work in the area, the bus driver is obliged to sit and successfully pass an examination for the ADA, and also undertakes eight hours of buddying in the company of an ADA holder. Once the buddying hours have been completed, the bus driver undertakes a driving test conducted by an independent body contracted by Perth Airport.[140]

Counsel for the Respondent opted to take Mr Anestoudis through the Perth Airport Airside Vehicle Control Handbook[141] and the Airport Operating Standard for the apparent purpose of demonstrating that some aspects of those documents were not relevant to the Mr Anestoudis’ work. Yet the evidence in cross examination did not detract from the point that to work Airside, Mr Anestoudis required a sound understanding of operational work practices and procedures that differed to those on Landside.

As to whether Mr Anestoudis performs activities of increasing complexity, I do consider that operating in a work environment where one’s principal purpose is to drive a passenger vehicle in circumstances where the work environment differs such that road rules applicable in one environment and the procedures that follow, vary, brings, in my view, the requisite complexity contemplated by A.5.1(b).

However, A.5.1(b) speaks also of there being some scope to exercise initiative in the application of established work procedures. The circumstances where Mr Anestoudis spoke of demonstrating initiative were somewhat limited and revolved predominately around scheduling conflicts. To clarify, a scheduling conflict is understood to arise when two aircraft come in at the same time. Mr Anestoudis gave evidence that when a scheduling conflict arose, he would discuss this with other Airside drivers to work out the best way to resolve the problem. Mr Leeuwangh gave evidence that a supervisor would respond to scheduling conflicts. However, when asked what would occur when a supervisor was not available – a circumstance which was not uncommon given the working hours of bus drivers and the supervisor, Mr Leeuwangh stated:

MR DZIECOL: If there is - Mr Leeuwangh, in a situation where a supervisor is not
available or not on duty and, say, a scheduling problem arises, what are the drivers supposed to do?‑‑‑So can I ask, what do you mean by 'scheduling'?
So there's a delay in aircraft, or a couple of aircraft coming in at the same time?‑‑‑Then they would speak to myself, because I've been on call for 24 hours a day for four years.

Have you ever directed the drivers to resolve the matters, as best they can, themselves?‑‑‑The drivers would normally speak to each other and if it can't be resolved then they would refer it to me.
Thank you. So in that case, so it is possible that in order to resolve that problem the drivers may need to use some initiative?‑‑‑Is that a question, sorry?
That is a question, yes?‑‑‑No, I don't believe so.

Regarding Mr Leeuwangh’s evidence, I have no reason to doubt that Mr Leeuwangh provided candid evidence. However, it is alarming that Mr Leeuwangh concedes to having been on call for 24 hours a day for some four years. It is a statement that is difficult to digest, and I consider that what actually occurs aligns with Mr Leeuwangh’s account that the bus drivers would normally speak to each other and, if the issue cannot be resolved, then the problem would be escalated to Mr Leeuwangh. That in my view, requires bus drivers, such as Mr Anestoudis to exercise initiative whilst working Airside. Further, in light of the evidence given regarding the usual working hours of the supervisor and also the arrangements of the supervisor during the pandemic, it appears that occurrences where Mr Anestoudis might exercise such initiative would not be uncommon.

Whilst Mr Anestoudis spoke of using his initiative when required to go to a location that had a number of ways of getting there and in such circumstances taking the safest route, the evidence did not support a finding that such circumstances arose (with perhaps the exception of a charter). As it is, the evidence was insufficient to arrive at a finding that such activity manifested an exercise of discretion as described in A.5.1 (b).

I do however accept that Mr Anestoudis instructs new drivers in route and passenger vehicle operations via ‘buddying’.[142] While there was clearly dispute about the number of times that Mr Anestoudis had engaged in buddying and whether such buddying had occurred Landside or Airside, it remained that the Respondent relied upon Mr Anestoudis to undertake this activity. Evidence was such that Mr Anestoudis had last buddied a bus driver in August 2022 and because the Respondent had not had a large influx of drivers and a number of drivers could be used in that role, Mr Anestoudis had not been utilised. However, when asked whether Mr Anestoudis would be asked to buddy again, Mr Leeuwangh advised that it would be a matter of when it comes up for rotation.[143] Having considered Mr Anestoudis role, and whilst acknowledging that ‘buddying’ may not occur with a high level of frequency, it is nevertheless the case that I consider there exists a meaningful relationship between the principal purpose of Mr Anestoudis’ role and that of the classification descriptor in A.5.1(d).

Whilst the Respondent utilised Mr Anestoudis to buddy other drivers, it appears uncontroversial that Mr Anestoudis was also engaged by the Respondent to provide some post COVID-19 refresher training to at least three bus drivers.[144] When one considers the principal purpose for which Mr Anestoudis is employed against the A.5.1(c), specifically, providing on-the-job training, the Respondent clearly relies upon Mr Anestoudis to perform this task on occasion. Again, while the frequency of Mr Anestoudis providing such training is not high, it is nevertheless the case there exists a meaningful relationship between the principal purpose of Mr Anestoudis’ role and that of the classification descriptor in A.5.1(c).

There are two descriptors where the evidence is insufficient to support a finding that the principal purpose of Mr Anestoudis’ bears a meaningful relationship to those descriptors. I am not satisfied that the evidence shows that Mr Anestoudis operates special services with a sound knowledge of the routes of other depots or carries out passenger surveys and service monitoring – despite Mr Anestoudis evidence about ‘auditing’ bus drivers. It may however be accepted that the Respondent does not require Mr Anestoudis to perform such work.

The examination conducted to this point shows that Mr Anestoudis does not, on balance, perform work as described in A.5.1(g), A.5.1(e) and in part A.5.1 (c).

I have however had regard to the nature of Mr Anestoudis work, the circumstances in which he is employed to do the work and have in turn ascertained the principal purpose for which he is employed. In doing so, I have had regard to the A.4 Grade 4 and have similarly considered the A.5 Grade 5 classification. On balance, the work of Mr Anestoudis, that is the principal purpose for which he is employed, sits above the descriptions detailed in the A.4 Grade 4 classification. By way of observation, Mr Anestoudis’ work is of greater complexity than that detailed in the A.4 Grade classification. In part this is borne from working in an environment where legislation governs access to the operation of vehicles at airports. Mr Anestoudis works within two areas – Landside and Airside where the road rules differ and as a consequence, he is required to hold additional qualifications than would otherwise be required in driving a bus elsewhere, such as only Landside or on metropolitan roads.

The Respondent proposed that under the Airline Operations - Ground Staff Award,[145] Mr Anestoudis would be classified as a Grade 2. Yet the submission sits outside of task the Commission is required to undertake and at best proves to be of distraction. The level of classification Mr Anestoudis sits in, within another award, is irrelevant.

The Respondent further submitted that A.5 Grade 5 properly construed is for the principal purposes of providing instruction, induction, and service monitoring. According to the Respondent, it is a bridge between a A.4 Grade 4 classification which is a bus driver in the traditional sense, and the A.6 Grade 6 classification which is a supervisor and trainer in the traditional sense. In my view, the proposition cherry picks those particular descriptors of the A.5 Grade 5 classification and places upon them weight that is not similarly attributed to the other descriptors. Further, when one considers the A.6 Grade 6 classification the Respondent’s proposition appears to sit comfortably within the descriptor parameters for that Grade, not A.5 Grade 5.

Recommendation

It would be evident from this decision that my recommendation is that Mr Anestoudis, and the duties that he carries out working both Airside and Landside at Perth Airport, meet the requirements to be classified as A.5 Grade 5 under Schedule A – classifications in the Award. While Mr Anestoudis may not work predominately on Airside, it nevertheless remains that he is employed to undertake bus driving duties on both ‘sides’ of the Airport and that is the principal purpose for which he is employed.

As a result, I recommend that the parties engage in further discussions to discuss such recommendation and the implication that his may have for both the Respondent and Mr Anestoudis, at their earliest convenience.

DEPUTY PRESIDENT

Appearances:

Mr A. Dzeiciol on behalf of the Applicant;

Mr N. Burmeister on behalf of the Respondent.

Hearing details:

6 October 2022
Video (via Microsoft Teams)

Final written submissions:

Applicant – 21 October 2022

Respondent – 19 October 2022

[1] Statement of Agreed Facts [1] (SOAF); MA000063 (the Award).

[2] [2016] FWC 2072.

[3] Ibid [18].

[4] See the Full Bench decision in Pearljit Singh v Metro Trains Melbourne [2015] FWCFB 3502, [16]. See also The Police Federation of Australia (Victoria Police Branch) T/A The Police Association of Victoria v Victoria Police/Chief Commissioner of Police [2021] FWC 4582, [13] and Toby Artery v G Case & H Case T/A Gavin Case Marine Services [2021] FWC 4130, [19] (Artery).

[5] Artery (n 4) [19].

[6] Applicant v Respondent [2014] FWC 2860, [20] (Sams DP), citing Priestley v Department of Parliamentary Services [2011] FWAFB 5585, [13] (Watson VP, Sams DP and Asbury C (as her Honour then was)).

[7] SOAF (n 1) [3].

[8] Witness Statement of Mr Evan Leeuwangh, [14] (Leeuwangh Statement); Digital Hearing Book, 303.

[9] Leeuwangh Statement (n 8) [14] Digital Hearing Book, 304; SOAF (n 1) [3].

[10] SOAF (n 1) [2], [13].

[11] Ibid [7].

[12] Leeuwangh Statement (n 8) [9] – [10]; Digital Hearing Book, 304.

[13] Witness Statement of Mr Arthur Anestoudis, [4] (Anestoudis Statement); Digital Hearing Book, 31.

[14] Anestoudis Statement (n 13) [7]; Digital Hearing Book, 31.

[15] Leeuwangh Statement (n 8) [16]; Digital Hearing Book, 304.

[16] Leeuwangh Statement (n 8) [16]; Digital Hearing Book, 304.

[17] Leeuwangh Statement (n 8) [17]; Digital Hearing Book, 304.

[18] Leeuwangh Statement (n 8) [17]; Digital Hearing Book, 304.

[19] Leeuwangh Statement (n 8) [17]; Digital Hearing Book, 304.

[20] SOAF (n 1) [7].

[21] Ibid.

[22] Ibid [8].

[23] Ibid.

[24] Ibid [9].

[25] Ibid.

[26] Ibid [10].

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid [12].

[31] Ibid [13].

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid.

[40] Anestoudis Statement (n 13) [10]; Digital Hearing Book, 31.

[41] Anestoudis Statement (n 13) [10]; Digital Hearing Book, 31.

[42] Anestoudis Statement (n 13) [11]; Digital Hearing Book, 31.

[43] Anestoudis Statement (n 13) [11]; Digital Hearing Book, 31.

[44] Anestoudis Statement (n 13) [11]; Digital Hearing Book, 31.

[45] Anestoudis Statement (n 13) [11]; Digital Hearing Book, 31.

[46] Anestoudis Statement (n 13) [12]; Digital Hearing Book, 31.

[47] Leeuwangh Statement (n 8) [22]; Digital Hearing Book, 305.

[48] Leeuwangh Statement (n 8) [10]; Digital Hearing Book, 303.

[49] Leeuwangh Statement (n 8) [10]; Digital Hearing Book, 303.

[50] Leeuwangh Statement (n 8) [10]; Digital Hearing Book, 303.

[51] Leeuwangh Statement (n 8) [10]; Digital Hearing Book, 303.

[52] Anestoudis Statement (n 13) [17]; Digital Hearing Book, 32.

[53] Anestoudis Statement (n 13) [18]; Digital Hearing Book, 32.

[54] Anestoudis Statement (n 13) [19]; Digital Hearing Book, 32.

[55] Anestoudis Statement (n 13) [23]; Digital Hearing Book, 33.

[56] Anestoudis Statement (n 13) [24]; Digital Hearing Book, 33.

[57] Anestoudis Statement (n 13) [25]; Digital Hearing Book, 33.

[58] Anestoudis Statement (n 13) [27]; Digital Hearing Book, 33.

[59] Anestoudis Statement (n 13) [28]; Digital Hearing Book, 34.

[60] Anestoudis Statement (n 13) [29]; Digital Hearing Book, 34.

[61] Anestoudis Statement (n 13) [31]; Digital Hearing Book, 34.

[62] Leeuwangh Statement (n 8) [24]; Digital Hearing Book, 305.

[63] Leeuwangh Statement (n 8) [27] – [28]; Digital Hearing Book, 305.

[64] Anestoudis Statement (n 13) [31] Digital Hearing Book, 34.

[65] Anestoudis Statement (n 13) [32]; Digital Hearing Book, 34.

[66] Anestoudis Statement (n 13) [32]; Digital Hearing Book, 34.

[67] Leeuwangh Statement (n 8) [19]; Digital Hearing Book, 304.

[68] Leeuwangh Statement (n 8) [19]; Digital Hearing Book, 304.

[69] Leeuwangh Statement (n 8) [20]; Digital Hearing Book, 304.

[70] Leeuwangh Statement (n 8) [20]; Digital Hearing Book, 305.

[71] Leeuwangh Statement (n 8) [41]; Digital Hearing Book, 308.

[72] Leeuwangh Statement (n 8) [41]; Digital Hearing Book, 308.

[73] Anestoudis Statement (n 13) [33] Digital Hearing Book, 34.

[74] Anestoudis Statement (n 13) [33] Digital Hearing Book, 34.

[75] Anestoudis Statement (n 13) [36] Digital Hearing Book, 34.

[76] Anestoudis Statement (n 13) [37] Digital Hearing Book, 34.

[77] Anestoudis Statement (n 13) [38] Digital Hearing Book, 35.

[78] Anestoudis Statement (n 13) [38] Digital Hearing Book, 35.

[79] Anestoudis Statement (n 13) [39]; Digital Hearing Book, 35.

[80] Leeuwangh Statement (n 8) [31]; Digital Hearing Book, 306.

[81] Anestoudis Statement (n 13) [46]; Digital Hearing Book, 35.

[82] Leeuwangh Statement (n 8) [34]; Digital Hearing Book, 306.

[83] Leeuwangh Statement (n 8) [34(a)]; Digital Hearing Book, 306.

[84] Leeuwangh Statement (n 8) [34(a)]; Digital Hearing Book, 306.

[85] [2013] FCA 638.

[86] Ibid [27]-[30].

[87] [2020] FWCFB 2993.

[88] [2018] FCAA 545.

[89] [2020] FWCFB 2993, [33].

[90] [2016] FCA 621, [27].

[91] [2002] AIRC 1562.

[92] [2021] FWCFB 3478 (Poten).

[93] MA000065.

[94] AP812692CAV.

[95] Poten (n 92) at [45].

[96] Ibid.

[97] Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200, [67]-[73]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696, [38]-[39]; Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621, [27]; Choppair Helicopters Pty Ltd v Bobridge [2018] FCA 325, [64]-[66].

[98] Cf. Associated Newspapers v Walsh (1956) 96 CLR 526, 528.

[99] Applicant’s Outline of Submissions, [6].

[100] Leeuwangh Statement (n 8) [10]; Digital Hearing Book, 303.

[101] Leeuwangh Statement (n 8) [65]; Digital Hearing Book, 312.

[102] Leeuwangh Statement (n 8) [42]; Digital Hearing Book, 308.

[103] Leeuwangh Statement (n 8) [34] – [35]; Digital Hearing Book, 306.

[104] Leeuwangh Statement (n 8) [52]; Digital Hearing Book, 309.

[105] Leeuwangh Statement (n 8) [29]; Digital Hearing Book, 305.

[106] Applicant’s Submissions, [49].

[107] [2022] FWC 229.

[108] Telstra Corporation Limited T/A Telstra v CPSU v the Community and Public Sector Union[2022] FWCFB 64.

[109] Respondent’s Schedule – Award History [H1]; Award Modernisation [2009] AIRCFB 450, [177] et seq.

[110] Award Modernisation [2009] AIRCFB 450, [185].

[111] BIC submissions in AM2008/51 dated 6 March 2009.

[112] RTBU submissions in AM2008/53 dated March 2009.

[113] BIC submissions in AM2008/51 dated 6 March 2009, [43]-[44]. Note the proposed draft award was named Road Transport (Passenger Vehicles) Award 2010.

[114] RTBU submissions in AM2008/53 dated April 2009, [20]. Note the proposed draft award was named Omnibus, Tramway and Light Rail Award 2010.

[115] RTBU submissions in AM2008/53 dated March 2009, [17].

[116] RTBU submissions in AM2008/53 dated April 2009, [23].

[117] RTBU submissions in AM2008/53 dated March 2009, [17].

[118] Transcript in AM2008/53, 24 March 2009, PN275.

[119] Digital Hearing Book, 930.

[120] Ibid 1121.

[121] Ibid 1026, 1050.

[122] Ibid 1082.

[123] Ibid 1056.

[124] The Award (n 1) cl 4.1-4.2.

[125] Poten (n 92) [44].

[126] [2019] FCA 37, [52].

[127] Gourabi, Vahid Sedighi v Westgate Medical Centre[2019] FWCFB 3874.

[128] Digital Hearing Book, 90.

[129] Leeuwangh Statement (n 8) [Annexure EL-1]; Digital Hearing Book, 314.

[130] Leeuwangh Statement (n 8) [17]; Digital Hearing Book, 304.

[131] SOAF (n 1) [13].

[132] Transcript PN476, PN390.

[133] Leeuwangh Statement (n 8) [52]; Digital Hearing Book, 309.

[134] Transcript PN810.

[135] Transcript PN665-666.

[136] Anestoudis Statement (n 13) [Annexure AA-2]; Digital Hearing Book, 79.

[137] Anestoudis Statement (n 13) [Annexure AA-3]; Digital Hearing Book, 173.

[138] SOAF (n 1) [9].

[139] Leeuwangh Statement (n 8) [67]; Digital Hearing Book, 312.

[140] SOAF (n 1) [10].

[141] Anestoudis Statement (n 13) [Annexure AA-2]; Digital Hearing Book, 79.

[142] Transcript PN437-PN443.

[143] Transcript PN833.

[144] Transcript PN465.

[145] MA000048.

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