Transport Workers' Union of Australia v Jetstar Services Pty Limited T/A Jetstar Services

[2017] FWC 2603

[2017] FWC 2603

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

Transport Workers’ Union of Australia
v
Jetstar Services Pty Limited T/A Jetstar Services
(C2016/5257)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 17 MAY 2017

Application to deal with dispute in accordance with a dispute settlement procedure – whether employees classified as GC3As under enterprise agreement be required to certify that an aircraft has been loaded in accordance with load instruction report or equivalent.

[1] On 2 September 2016, the Transport Workers’ Union of Australia (Victorian/Tasmanian Branch) (TWU) applied to the Fair Work Commission to deal with a dispute in accordance with the dispute settlement procedure (DSP) in the Jetstar Services Agreement 2016 1(the 2016 agreement) under s.739 of the Fair Work Act 2009 (FW Act).

[2] In its application, the TWU indicated that under the 2016 agreement, the task of certifying that an aircraft has been loaded in accordance with the load instruction report (or its equivalent) is a Ground Crew 4 (GC4) task. However, Jetstar Services Pty Ltd (Jetstar, the respondent) was directing GC3A employees to certify the load instruction report (or its equivalent) without proper training and pay. The TWU stated that this direction was unreasonable and outside the role and duties of GC3A employees.

[3] Following private discussions between the parties, a conference was held before Watson VP on 26 October 2016. After this conference, further discussions were held between the parties, but the dispute remained unresolved. On 7 December 2016, the TWU asked that the matter be returned to Watson VP for a recommendation. The parties agreed on a timetable for the development of an agreed statement of facts, and an exchange of outlines of submissions.

[4] The dispute was referred to me due to the resignation of Watson VP, and a hearing was conducted in Melbourne on 10 May 2017. The TWU was represented by Mr Baarini and the respondent by Mr Zielinski.

Background

[5] Clause 15 of the 2016 agreement concerns classifications and duties. Amongst other things, it includes the following:

‘15.2. The Company has the right to determine the size, composition and duties and other work practices in place at any of its work sites.

15.3. The roles and duties for each classification are provided at Appendix C. All employees will work in a flexible and cooperative way to ensure that their responsibilities are met.

15.4. The parties acknowledge that aircraft types and operating requirements will evolve over the life of the Agreement and that the duties relating to the functions identified at Appendix C will change from time to time in meeting those operating requirements.’

[6] Appendix C includes the following:

‘Ground Crew 3A (“GC3A”)

All of GC1, GC2 & GC3 +

• Responsible for the safe loading and unloading of aircraft in accordance with operating procedures and all compliance regulations



• Compile operational reports and documents using designated systems and equipment as required by Jetstar Services,



• Towing equipment and towing activities,



• Complete all aircraft documentation including and not limited to any weight and balance documents,



• Ensure all operating procedures and requirements as applicable to client airlines are followed,



• Where required, hold any client airline certification or licences for the safe loading and unloading of aircraft,



• Responsible for the safe work practices of staff in and around the aircraft and workplace,



• Assist with safety investigations and reporting as directed. Conduct incident reporting, Safety Observations and Critical Task reviews.



• Carry out team leader and related duties for employees classified in trainee, GC1, GC2 and GC3, including assisting with performance assessments and managing minor performance matters,



• Conduct on the job training and assist with assessment of Ground Crew Operators as part of the usual loading and unloading of aircraft and other on the job related activities.



• Work down as required.

Note

It is agreed that existing tasks will continue as part of required operations including but not limited to Tow Bar Dispatch at GC3A in BNE and CNS and Radio at GC3A in AVV and CNS

Ground Crew 4 (“GC4”)

All of GC1, GC2, GC3 & GC3A +
• Employees at the level are responsible for a number of groups of staff in a work area and/or a shift operation, including all Team Leader and related duties for Ground Crew employees;
• Organise and co-ordinate work within their area of responsibility;
• Assume full responsibility for the loading and unloading of aircraft including for checking, writing and signing the appropriate documents, certifying that the aircraft has been loaded in accordance with the load instruction report;
• Be responsible for the control, supervision, training and assessment of designated staff;
• Perform various administrative and reporting duties using designated systems and equipment;
• Demonstrate leadership, decision making and organisational skills necessary to efficiently meet performance requirements in a changing work environment, including completing required reports and regular performance assessments;
• Make recommendations on all aspects of the operations, seeking to identify opportunities to improve performance and productivity;
• ”Work down” as required.’

[7] The following history is based on the agreed statement of facts.

[8] Jetstar first commenced flying operations in Australia in around 2004. The ground handling employees were employed under the Express Ground Handling Agreement 2004 (the 2004 agreement), a predecessor of the 2016 agreement.

[9] The 2004 agreement did not contain the GC3A classification. Instead, employees were employed at either the GC3 (essentially, a Loader Operator responsible for physically loading or unloading aircraft) or the GC4 classification.

[10] GC4 employees assumed responsibility for overseeing the loading and unloading of aircraft, including signing off load documentation and supervising gangs on shift. The GC4 classification in the 2004 agreement was drafted in almost identical terms to how it is drafted in the current 2016 agreement.

[11] Jetstar’s aircraft fleet expanded during the period between 2004 and 2006. The number of flights it operated also increased significantly. In 2004, Jetstar operated 8 aircraft, with an average of around 18 flights per day. By 2006, the number of aircraft had increased to 24 aircraft, with an average of around 131 flights per day. Currently, Jetstar operates 82 aircraft with an average of around 357 flights per day.

[12] Due to the expansion of Jetstar’s fleet and flying operations, it was no longer possible for GC4s to perform both shift supervisory and loading duties in an efficient and safe manner. Accordingly, the GC3A classification was introduced in the Express Ground Handling Agreement 2006 (the2006 agreement).

[13] This newly-created role became responsible for supervising the safe loading and unloading of aircraft by individual work gangs, in accordance with Jetstar’s operating procedures. It also allowed existing GC4s to focus on supervising the efficient operation of the overall shift, a task that had become increasingly complex with the significant increase in flights.

[14] The pay grade for the new GC3A classification was set between GC3 and GC4. This provided recognition for the additional responsibilities required of the GC3A role when compared to a Loader Operator (GC3) (e.g. for overseeing the safe loading of the aircraft), but also continued to recognise the more significant overall supervisory role that continued to be performed by GC4s. The GC3A classification in the 2006 agreement was drafted in almost identical terms to how it is drafted in the 2016 agreement.

[15] Since the introduction of the GC3A classification in the 2006 agreement, the loading or unloading of aircraft has typically been performed by gangs of three team members, with two GC3s operating in-hold systems and associated equipment to load the aircraft, and one GC3A (otherwise known as a Leading Hand) supervising the process, including checking that the load has been correctly loaded and secured in line with company-provided loading instructions, before reviewing, completing and signing relevant load documentation. In other words, with the introduction of the GC3A role, the responsibility for signing-off of aircraft documentation has passed from the GC4 to the GC3A role.

[16] The agreed statement of facts also describes the current situation.

[17] There are currently around 107 GC3As and 22 GC4s nationally across all ports. The GC4 typically oversees a number of teams performing ramp operations on a shift. They are responsible for a number of groups of staff in a work area or on a shift operation, and are responsible for the coordination and organisation of all work on that shift operation, to ensure the efficient operation of the overall shift.

[18] GC3As are primarily involved in co-ordinating work within their direct team. GC3As provide supervision and oversight of the actual loading and unloading of aircraft, to ensure employees follow safe work practices and required procedures in and around aircraft. However, GC3As can also directly supervise teams not involved in loading an aircraft or working immediately in the vicinity of an aircraft, for example GC2s and GC1s working in the Baggage Room.

[19] By way of example, in Melbourne, there is one GC4 rostered on any given shift, with up to 15 GC3As rostered at the same supervising individual gangs working the shift. Gangs involved in loading and unloading an aircraft typically service 5 or 6 aircraft per day.

[20] Jetstar Services has a number of operational manuals which all team members are expected to comply with in performing their work. These operational manuals include procedures for the safe loading and unloading of aircraft.

[21] There are two different types of load reports, used for different aircraft – Load Instruction Reports (LIR) and Underfloor Load Advices (ULA). The load report sets out details of the number of bags and cargo loaded into each aircraft and the required under floor position. The LIR is generated off-site by specialist Load Planners, and sent to ports.

[22] Leading Hands (GC3As) supervise Loader Operators in loading the aircraft in accordance with a pre-determined load matrix that has been determined by Jetstar. In compliance with Jetstar’s operational manuals, the aircraft must be loaded in accordance with the load instructions in the load reports. The Leading Hand has only a limited involvement in planning the load, as the load is either set for them by specialist load planners, or it is set in accordance with a pre-configured load matrix.

[23] Once an aircraft is loaded, both the Leading Hand and Loader Operators must then sign the load documentation to confirm they have loaded the aircraft according to the instructions provided.

[24] In the case of a ULA, a ‘Loader Copy’ is provided to Loader Operators involved in the actual loading of an aircraft, which they are required to sign once the aircraft has been loaded, to indicate that it has been loaded in accordance with the load instructions.

[25] Leading Hands are then required to complete a ‘Final Copy’ once they have checked the load, confirming that the aircraft has been loaded in accordance with loading instructions. They then compile all relevant documentation (including cargo manifests and security forms) and provide copies to the pilots on the flight deck for weight and balance verification.

[26] In the case of an LIR, it is a single sheet which is signed by all persons involved in the loading of the aircraft.

[27] Both documents contain wording whereby the Loader Operators and Leading Hand ‘certify’ that the aircraft has been loaded in accordance with the required load matrix.

[28] The completed documents are provided to the pilots on flight deck for verification and review to ensure the load distribution and aircraft’s weight and balance is safe.

[29] In the case of ULAs, the pilot-in-command can take a more active role in determining whether the plane has been safely loaded, and make any necessary modifications to the load (including directing the Leading Hand and Loader Operators to reload the aircraft in a different configuration).

[30] Any deviations from an LIR generally require the specialist load planners to reissue the LIR to ensure the aircraft is within weight and balance limitations. Occasionally, GC3As may propose a modification to the under floor load on an LIR; however, only the pilot-in-command or the off-site load planner can authorise the amendment of an LIR.

[31] In smaller ports, with lower flight frequency, fewer GC3As are employed, and GC4s who are employed within those ports may occasionally supervise the loading or unloading of aircraft, and perform the duties typically performed by a Leading Hand.

[32] All Leading Hands are provided with training in their role. The training consists of two parts – Part A and Part B. Part A details the general roles and responsibilities of the Leading Hand in the loading process (in line with Jetstar’s operational manuals). It includes training on inspecting the cargo hold and cargo loading system, supervising the loading or unloading of an aircraft, cross-checking cargo-hold locks, and the loading and carriage of dangerous goods. Part B provides training in aircraft specific procedures and documentation. Leading Hands are not able to perform leading hand duties on a particular aircraft unless they have completed training and been certified in the applicable aircraft type.

Consideration

[33] The roles and duties for GC3As in Appendix C seem clearly to encompass the requirement to certify that an aircraft has been loaded in accordance with the load instruction report (or its equivalent). In particular, a GC3A is explicitly responsible for:

• the safe loading and unloading of aircraft in accordance with operating procedures and all compliance regulations; and



• completing all aircraft documentation including and not limited to any weight and balance documents.

[34] The only grounds for any doubt is that the roles and duties of GC4As include the following:

• Assume full responsibility for the loading and unloading of aircraft including for checking, writing and signing the appropriate documents, certifying that the aircraft has been loaded in accordance with the load instruction report.

[35] Of course, there is no reason why a particular role or duty cannot come within two or more classifications (even if expressed in slightly different terms). Moreover, any remaining uncertainty can be disposed of by considering the relevant historical and industrial context.

[36] The GC4 classification was first included in the 2004 agreement. This agreement was negotiated and implemented around the time Jetstar commenced operations. At that time there was no GC3A classification. GC4s performed a ‘hands-on’ role directly overseeing the loading and unloading of individual aircraft, including signing off on load documentation.

[37] The number of aircraft operated by Jetstar subsequently increased and the GC3A classification was introduced in the 2006 agreement. The GC3A classification largely took over responsibility for direct oversight of the safe loading and unloading of individual aircraft, in accordance with Jetstar’s operating procedures. As part of this, the GC3A took over the role of completing all the relevant aircraft documentation certifying that the specific aircraft had been loaded in accordance with Jetstar’s requirements. The description of the role of the GC4 in the 2006 agreement was not altered from that contained in the 2004 but in practice – in most cases – the responsibility for ensuring that an individual aircraft had been loaded in accordance with the relevant requirements was picked up by the GC3A employees. As the number of aircraft being loaded and unloaded increased, the GC4 largely ceased being directly involved in loading and unloading aircraft, and focused more on overseeing a number of teams performing ramp operations during a given shift. While a GC4 might still on occasion be required to complete the relevant documentation, in reality the responsibility for signing off aircraft documentation had almost entirely passed to the GC3A role – something clearly envisaged by the relevant role description.

[38] The TWU submitted that GC3A employees are not being properly trained to undertake the requirements that Jetstar is placing on them. However, I have perused the relevant training documents and I am satisfied that the training provided clearly covers the requirement that GC3As supervise and certify the safe loading of Jetstar aircraft.

[39] I should also note that while the roles and duties of GC4 employees include assuming ‘full responsibility for the loading and unloading of aircraft’, the reality is that loading and unloading of aircraft is a shared responsibility. Appendix C states that GC3As are responsible for the safe loading and unloading of aircraft (in accordance with operating procedures and compliance regulations.) While not covered by the 2016 agreement or its predecessors, Load Planners and pilots also have responsibilities for the safe loading and unloading of aircraft.

Conclusion

[40] I am satisfied that it is reasonable for Jetstar to require employees working in the Ground Crew 3A classification to certify the load instruction report or its equivalent. This falls within the role and duties of their classification as provided for in the Jetstar Services Agreement 2016. I am also satisfied that they receive appropriate training to perform this role.

SENIOR DEPUTY PRESIDENT

Appearances:

B Baarini for the Transport Workers’ Union of Australia.

M Zielinski for Jetstar Services Pty Limited.

Hearing details:

Melbourne.

2017.

May 10.

Final written submissions:

Jetstar Services Pty Limited: 12 May 2017.

Transport Workers’ Union of Australia: 16 May 2017.

 1   AE420052.

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