Transport Workers' Union of Australia v Qantas Catering Group Ltd T/A Q Catering

[2015] FWC 5874

[2015] FWC 5874

FAIR WORK COMMISSION

DECISION

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

Transport Workers’ Union of Australia
v
Qantas Catering Group Ltd T/A Q Catering
(C2015/1752)

DEPUTY PRESIDENT BOOTH SYDNEY, 2 SEPTEMBER 2015

Application to deal with a dispute – correct classification of employees

[1] QCatering Limited t/as QCatering (QCatering) is a wholly owned subsidiary of Qantas Airways Limited. QCatering is the flight catering branch of Qantas and operates from four airports around Australia: Sydney, Melbourne, Brisbane and Perth.

[2] The Qantas Airways Ltd and QCatering Ltd – Transport Workers Agreement 2015 (the Agreement) 1 covers the employees of Qantas and QCatering who are employed in the classifications at Clause 18 of that Agreement.

[3] Prior to 2013 the leading hand duties, performed by Level 5 - Airline - services
co-ordinators at Sydney Airport servicing international flights, were split into two types of leading hand duties. Namely, the Kitchen Leading Hand (KLH) and the Aircraft Leading Hand (ALH). During 2013, QCatering decided to combine the two roles into one role, known as the Consolidated Leading Hand (CLH).

[4] QCatering conducted a trial of the new role and during 2014, came to the conclusion that the trial was successful. QCatering decided the CLH role was appropriately classified as a Level 5 position, as described in Clause 18.3.6 of the Qantas Airways Limited and QCatering Limited – Transport Workers Workplace Determination 2012 (the Determination). 2

[5] The Transport Workers’ Union (TWU) contend that the CLH is a Level 6 position and having not reached agreement with QCatering as to the appropriate classification, lodged a dispute in the Commission under s. 739 of the Fair Work Act 2009 (the Act) on 19 February 2015.

[6] The matter was listed for conciliation before me on 27 February 2015 and again on 25 March 2015. The matter was unable to be resolved and was subsequently listed for a Directions Hearing on 22 April 2015. On that same day, I issued formal Directions. Direction 1 reads as follows:

1. “….on or before COB Wednesday 6 May 2015, the Parties shall file the agreed question to be arbitrated.”

[7] Accordingly, on 6 May 2015, the Parties submitted the agreed question to be arbitrated. That is:

“Is the new consolidated leading hand role a Level five position for the purposes of the Qantas Airways Ltd and QCatering Ltd – Transport Workers Agreement 2015 (‘the Agreement’)? If not, what Level is the new consolidated leading hand role for the purposes of the Agreement?”

[8] I note the original application was made pursuant to the Determination, the predecessor to the current Agreement which came into operation on 17 March 2015. At the outset of the hearing of this matter on 27 July 2015 and with the consent of the parties, I exercised my discretion under s.586(a) of the Act to amend the application to apply to the Agreement.

[9] Mr Guy appeared for the TWU and Ms McKenzie of Ashurst appeared for QCatering. Clause 12.11 of the Dispute Resolution Clause in the Agreement provides as follows:

“The parties to the dispute are entitled to be represented including by legal and/or union representatives, in proceedings pursuant to this dispute resolution procedure.”

[10] In accordance with this Clause, neither Mr Guy nor Ms McKenzie required the permission of the Commission to appear.

[11] In considering this classification dispute, I am guided by the recent Decision of VP Lawler in Inna Grobovsky v United Protestant Association T/A UPA 3at paragraph 14:

“It is trite that when there is a dispute over the proper classification of an employee, that dispute is resolved by ascertaining the work performed by the employee and then comparing that work to the classification descriptions in the applicable industrial instrument, construed in accordance with the established principles of construction for industrial instruments.”

[12] The established principles for interpreting enterprise agreements were conveniently summarised by a Full Bench of the Commission in The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited. 4Both QCatering and TWU submit that I should apply these principles and in this case I should not look beyond the words in the Agreement because they have a plain meaning and contain no ambiguity.5 I agree.

[13] Therefore, I have not taken into account any of the surrounding circumstances such as meetings between the parties in the lead into the trial, the rate of pay paid to ‘early adopters’ or ‘trainers’ during the trial, the disagreement about when the trial concluded, understandings allegedly given by a former manager and rates of pay paid to employees in other States of Australia. There are real industrial interests revealed in these surrounding circumstances, and the parties attempted (unsuccessfully) to reconcile these interests in conciliation, but they are not an appropriate consideration for me now that the matter is before me for arbitration.

[14] For reasons that are outlined below I have decided that the answer to the first question posed by the parties is ‘yes’ and it is not necessary for me to answer the second question. I find that the CLH is a Level 5 position for the purposes of the Agreement.

The correct approach to answering the question

[15] QCatering submitted that the Commission is required to assess, based on the evidence as to the usual duties and responsibilities of the CLH, which classification definition best matches the role. 6 It was also submitted that I should take note that the Agreement applies to all transport workers employed by both Qantas and QCatering and as such, the classifications are generic and quite general in their descriptions.7

[16] QCatering referred me to the decision of Sim v Luo Enterprise Pty Ltd (No 2) 8 at paragraph 127:

“The principle generally applied to determining whether an employee is engaged in a particular classification or class of work has been referred to as “the principle of major and substantial employment”. It has also been referred to as the ‘principal purpose’ test.”

[17] I also refer to the case of Nicholas Hufton v Victoria – Department of Justice – Consumer Affairs: 9

“The true classification of a position should be based on the highest functions of the position which are performed on a regular basis and which constitute a substantial component of the work position.”

The approach that I have taken is to examine the work performed by the CLH by reference to the usual duties and responsibilities of the CLH, based on the evidence before me. I have then compared this with the classifications in the Agreement to determine which classification best aligns with the principal purpose of the role.

The work performed by the CLH

[18] The duties of the KLH role and the ALH role, that were combined to create the CLH role, were set out in an agreed set of facts provided by the parties. The agreed set of facts are attached as Attachment A to this decision.

[19] In addition to the agreed set of facts Mr Whitby, Mr Crescenti and Mr Webber gave evidence for the TWU about the role of the CLH. Both Mr Crescenti and Mr Webber are currently performing the CLH role however, Mr Whitby is not. Mr Whitby is currently employed as a Sierra Driver in the transport department and prior to that, he was employed as an ALH, approximately 10 years ago. 10 For this reason, I place less weight on his evidence in relation to the duties of the CLH. Nevertheless, his evidence is consistent with the evidence of Mr Webber and Mr Crescenti.

[20] Each witness for the TWU confirmed that the duties of the KLH and the ALH were accurately described in the agreed statement of facts and gave further detail about each of those duties. In addition to the list of duties in the agreed statement of facts, Mr Crescenti gave evidence that since the introduction of the consolidated role, a handover sheet has been created “…to give more information to the crew.” 11

[21] Mr Edwards, Business Manager and Ms Thomas, Human Resources Manager, gave evidence for QCatering. Both witnesses gave further detail about the duties as listed in the agreed set of facts.

[22] A helpful overview of the CLH role and the work flow and was given by Mr Edwards

“…there are a series of tasks from beginning to end … that all need to be completed and the CLH is responsible for…ensuring that all those tasks have been … done.” 12

and

“I would break the catering centre down into four distinct departments. You’d have a wash department, a supply chain and warehouse department, a consolidation department, which is the old kitchen, and then a transport department.” 13

[23] Based on the evidence before me I conclude that the role of the CLH is to oversee an end to end process, from the kitchen through to the cabin of the aircraft, and is designed to ensure that each flight departs with the correct catering required. It is the responsibility of the CLH to address any issues that arise along the way, such as a truck breaking down, or a shortage of meals, before the flight departs. It is, as Ms McKenzie submitted, a responsible position. 14

[24] Ms Thomas prepared what might be described as a process map incorporating five distinct locations that the CLH works in to satisfy the catering for an international aircraft. They are the kitchen, the fridge, the dock, the truck and the aircraft. 15 Ms Thomas agreed with Mr Guy that the KLH and ALH came from two separate departments or work groups.16 She reconciled her process map with the evidence given by Mr Edwards by describing KLH as working in the consolidation department which corresponded to the kitchen and the fridge on her process map, and the ALH working in the customer delivery department which corresponded to the dock, the truck and the aircraft on her process map.

[25] The CLH works across the consolidation department and the transport department. Mr Edward’s evidence was that the CLH does not work upstream in the supply chain in the wash department and/or the supply chain and warehouse department.

[26] The process of assembling the carts for the economy class cabin and the business and first class cabin occurs differently.

[27] The economy class food and beverage carts are assembled by a ‘Preset team” and placed in the holding fridge. The Preset team comprises level 2 and 3 employees under the direction of a level 5 employee called an ‘economy marker’. This cart was handed over to the KLH and is now handed over in the same way to the CLH. The CLH has a responsibility to check that the cart is correct but does not have responsibility for the Preset team. 17

I note that Mr Crescenti gave evidence that “we have to direct those people how to bulk it and how many to load” 18however under cross examination by Ms McKenzie he conceded that a different Level 5 is responsible for those assembling the economy carts.19

[28] The business and first class food and beverage carts were assembled by the KLH , now the CLH, who obtained food components from trolleys in the fridges and dry locations in the consolidation area and placed them inside the carts. 20

[29] Prior to the role of KLH and ALH being combined the KLH would hand over responsibility for the carts to the ALH at the holding fridge and return to repeat the process for another flight.

[30] The ALH took responsibility for the loading of the carts (as well as other equipment and beverage carts) onto the catering trucks, accompanied the carts out to the aircraft on the truck and, along with the drivers, loaded the carts onto the aircraft. The ALH identified which carts went where and focused on first and business class sections of the cabin. The ALH may also have assisted the drivers loading the economy carts into the economy section of the cabin. Now the CLH follows through with the next stages of the process as was performed by the ALH. The CLH is responsible for any issues arising on the aircraft in relation to this process and is the first point of escalation.

The relevant classifications

[31] I have set out classification definitions for levels 4, 5 and 6 from clause 18.3 of the Agreement because in order to determine which classification is the best match for the role
I consider that I need to compare the work with each of the classifications that might apply in sequence from lowest to highest.

[32] Level 4 is defined at clause 18.3.5 of the Agreement as follows:

“18.3.5 Level 4 - Airlines services operator

● Operate all in hold aircraft systems and all ground handling and commercial type airport equipment
● Ground handling equipment means all equipment associated with ramp, freight/cargo, catering, aircraft servicing and general transport operations
● Operate communication and computer aids
● Compile reports and documents
● Work without direct supervision
● Carry out basic serviceability and maintenance checks of vehicles and/or equipment, including refuelling of vehicles

[33] Level 5 is defined at clause 18.3.6 of the Agreement as follows:

“18.3.6 Level 5 – Airline services co-ordinator

● Responsible for a group of staff in a work area
● Ensure that productivity and performance criteria are met in the designated area of responsibility, including completion of regular performance assessment reports
● Responsible for the control, supervision and training of designated staff
● Make recommendations on all aspects of the operation, identification of opportunities to improve performance and productivity
● Organise and co-ordinate work within their area of responsibility

● Carry out various administrative and reporting duties, including the operation of communication and computer aids
● Form part of the assessment panel for probationary employees
● Must demonstrate leadership, decision making and organisational skills necessary to efficiently meet performance requirements in a changing work environment”

[34] Level 6 is defined at clause 18.3.7 of the Agreement as follows:

“18.3.7 Level 6 – Senior airlines services co-ordinator

● Responsible for a number of groups of staff
● Otherwise as per level 5”

Does the CLH role meet the definition of Level 4 for the purposes of the Agreement?

[35] I can identify some operational duties of the CLH that come within a Level 4 – Airline services operator classification, for example, the assisting in loading and unloading the aircraft.  21

[36] The definition includes some features that would appear to be relevant to the CLH role such as ‘operate …ground handling equipment associated with …catering’ and ‘works without direct supervision’.

[37] I am satisfied that the CLH is at least a level 4 position. I will now compare it with the definition for a Level 5 to see if it satisfies the next highest level.

Does the CLH role meet the definition of Level 5 for the purposes of the Agreement?

[38] The core of the CLH role appears to me to be to organise, perform and coordinate a series of tasks, in order to ensure the aircraft has the required catering, as provided to the CLH on a checklist at the outset of their shift. This is the principle purpose of the role.

[39] The fifth element of the Level 5 classification definition is ‘Organise and co-ordinate work within their area of responsibility.’

[40] The eighth duty of the Level 5 classification is ‘Must demonstrate leadership, decision making and organisational skills necessary to efficiently meet performance requirements in a changing work environment’

[41] On the evidence before me these two elements of the definition of the Level 5 classification strongly align to the CLH role and are a better fit for the role than the definition of Level 4. Some elements of the definition appear not apply and others describe activity that is incidental to the principle purpose of the role.

[42] In light of the core purpose of the CLH role I am satisfied that it at least meets the definitions for the Level 5 classification. I will now compare it with the definition for a Level 6 to see if it satisfies the next highest level.

Does the CLH role meet the definition of Level 6 for the purposes of the Agreement?

[43] The definition of Level 6 is identical to Level 5, with the additional definition that a Level 6 is ‘responsible for a number of groups of staff’. I am satisfied that the CLH role meets the definition of Level 5 so I will turn my attention to the one distinction, that is, whether the CLH is responsible for a number of groups of staff?

Is the CLH ‘responsible’ for a ‘number of groups of staff’?

[44] The TWU submitted that, in giving direction and leadership to the kitchen staff and the transport staff, the CLH is responsible for two groups of staff. Furthermore, the TWU submitted that the CLH is held responsible if there are any issues with the catering on the flight and that this accountability aspect of their role means the CLH has responsibility for the groups of staff who perform the tasks along the way. 22

[45] The TWU contended that given the KLH and the ALH were considered to be correctly classified in Level 5, when the roles were combined into one role, it follows that the CLH now has responsibility for two groups of staff. 23

I think this last submission misconstrues the correct approach to classification. The CLH role meets the definition of Level 5 not because the CLH is responsible for a group of staff in a work area but because the core or principal purpose of the role best aligns with the whole of the definition of Level 5.

[46] It does not follow that because the KLH and ALH were correctly classified as level 5 both roles were responsible for a group of staff in a work area. It is not the classification definition that dictates the duties and responsibilities of the role. Those are to be revealed by an examination of the work performed.

[47] Classifying a role rests on the core duties and responsibilities of the role being better aligned with the definitions of one classification over another. The duties and responsibilities of a role do not have to exactly match each and every element of the definition of a classification for a role to be classified at that level.

[48] It is not disputed by QCatering that the CLH give direction and leadership throughout the course of their day. 24 While QCatering concede that the CLH is responsible and accountable for the tasks assigned to them, it is disputed that the CLH is accountable for the output or performance of any staff,25 and do not have responsibility for a group or groups of staff. QCatering draw attention to the title of Level 6 ‘Senior airline services co-ordinator’ (my emphasis) and contend that the responsibility required to be demonstrated to be classified at this level is of a supervisory or managerial nature.26

[49] It is convenient to consider whether the CLH is responsible for a group or a number of groups of staff by reference firstly to the duties of the KLH, and secondly to the duties of the ALH. This is because the CLH role was created by amalgamating the two roles and the statement of agreed facts is set out this way.

[50] Turning firstly to the former KLH duties, I note the duties of the KLH in the agreed statement of facts are to liaise, identify, build, check, handover and to provide support to ensure the catering for the flight is complete. 27

[51] Additionally, I have carefully considered the details given by the TWU witnesses about their duties. Relevantly, when asked directly about whether the KLH was responsible for any staff members in the kitchen, Mr Webber responded:

“in the kitchen itself, we do go around and we chase up all our food and we’ve got to chase – we haven’t got access to the fridges, so we’ve got to chase up people to open the fridges for us. So I’d say yes.” 28

[52] Mr Crescenti gave evidence of his current responsibility in the kitchen:

“…people are working on bulk loading according to your directions…At the same time, you keep an eye on this group of people, making sure that they’re doing the right thing. If there is any issue they will come to you…” 29

[53] It was uncontested that if there was a staff issue in the kitchen, it would be reported to a crew leader. 30

[54] On the evidence before me I cannot find a group of staff for whom the KLH was responsible. To be responsible for a group of staff I do not think that it is necessary that the group of staff report to the person in the traditional ‘line management’ sense, - training them, motivating their performance, undertaking their performance reviews or disciplining them if a policy or practice is breached. However, I do think that it is necessary that the responsibility extend beyond that of cooperating with another team member or members, and checking that the tasks performed in a process handed over to them are of the required standard. This seems to me to have been the role of the KLH in the kitchen work area.

[55] I now turn to the former role of the ALH and the duties outlined in the agreed statement of facts.

[56] Mr Webber gave evidence that he is responsible for the checkers and the drivers 31 and that he is ‘accountable for their performance.’32 I asked Mr Webber to explain to me where that responsibility arises during the course of his duties.33

“…I would show them where everything is…we’ve got to count all the carts, we’ve got to count the trolleys…so we liaise like that and then…we tell them when to leave the dock and then … we’ve got to guide them into the aircraft, go up on the truck with them, we undo all the straps and then we start our procedure. We tell the drivers where to work, what to do.” 34

[57] While it is uncontested that there are Level 8 positions, transport coordinators, to whom the drivers report, 35 I note in particular, paragraph 11(f) of the agreed statement of facts that the ALH ‘act as the first point of escalation for staff members if issues arise.’

[58] Ms Thomas of Q Catering confirmed this evidence and agreed that the CLH has some responsibility for the staff on the aircraft. 36

As an example of that responsibility on the aircraft, Mr Webber explained that if someone was sick or injured on the aircraft, the ALH would be responsible for that person. 37

[59] Given the work performed by the CLH to act as a first point of escalation for other catering staff whilst on the aircraft, I am satisfied that the CLH does have the responsibility for a group of staff on board the aircraft.

[60] The CLH, combining as it does the role of KLH and ALH, is therefore responsible for a group of staff in a work area (the staff on the aircraft). However I cannot find another group of staff for whom they are responsible. Therefore the CLH role does not meet the threshold required to satisfy the definition of Level 6.

Conclusion

[61] The answer to the first question posed by the parties is ‘yes’ and it is not necessary for me to answer the second question. That is, the CLH is a Level 5 position for the purposes of the Agreement.

DEPUTY PRESIDENT

Appearances:

A Guy, Transport Workers’ Union.

H McKenzie, Ashurst, for QCatering Limited t/as QCatering.

Hearing details:

2015.

Sydney:

27 July.

ATTACHMENT A

BEFORE THE FAIR WORK COMMISSION FAIR WORK ACT 2009

s.739- Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure

Transport Workers’ Union of Australia

Applicant

Q Catering Limited t/as QCatering

Respondent

C2015/1752

Question to be answered

The Parties, by consent, and with the approval of Deputy President Booth agree that in resolution of the present dispute, the following question needs to be answered:

Is the new consolidated leading hand role a level five position for the purposes of the Qantas Airways Ltd and QCatering Ltd - Transport Workers Agreement 2015 (‘the Agreement)? If not, what level is the new consolidated leading hand role for the purposes of the Agreement ?

Agreed Facts

The Parties, by consent, agree to the following set of facts:

Introduction

1. QCatering Limited t/as QCatering (‘QCatering’) is a wholly owned subsidiary of

Qantas Airways Limited (‘Qantas’).

2. QCatering is the flight catering branch of Qantas, providing a premium, full service catering solution to Qantas and a number of other airline customers.

3. QCatering operates from four (4) airports around Australia: Sydney; Melbourne; Brisbane; and Perth.

4. The Transport Workers’ Union of Australia (‘TWU’) has national coverage of employees engaged by QCatering.

5. The QCateringQantas Airways Limited and QCatering Limited- Transport Workers Agreement 2015 (‘the Agreement’) covers and applies to: employees of Qantas and QCatering who are employed in classifications specified in clause 18 of the Agreement; Qantas and QCatering; and the lWU.

6. The current dispute concerns the sets of tasks performed by Level 5 Airline Services Operators (‘L5 ASOs’) at QCatering’s Sydney Airport site.

The Agreement and the Determination

7. The current dispute initially arose under the predecessor to the Agreement, the
Qantas Airways Limited and QCatering Limited - Transport Workers’ Determination 2012 (‘the Determination’).

8. The parties agree that insofar as the dispute existed under the Determination, the dispute remains unchanged under the Agreement.

Arrangements prior to December 2013

9. Before around December 2013, the leading hand duties performed by L5 ASOs at the Sydney Airport site were split into two types of leading hand duties.

10. The first of these sets of tasks was known as the ‘Kitchen Leading Hand’ (‘KLH’).

The tasks and duties of the KLH were as follows:

a. liaises with section leaders to obtain the paperwork for the flight allocated;

b. identifies the other staff in kitchen who are also allocated to work on the departing aircraft;

c. ‘builds the flight’ (ensures that the requisite amount of items are readied for the flight, including identifying and liaising with other staff members to correct shortages in supplies or missing food);

d. liaises with Warehouse staff to allocate late additions of supplies or food to the departing aircraft;

e. conduct a final check of the flight and conducts a handover to the Aircraft Leading Hand (‘ALH’) and advises the ALH what supplies and or food is missing on the departing aircraft; and

f. if necessary, provides support to complete the consolidation of the flight set up to the point in which the trucks are ready to leave for the departing aircraft , in conjunction with the ALH.

11. After the ASO performing the KLH tasks had completed his or her duties in the kitchen, they would hand over to the ASO performing the ALH tasks. The tasks and duties of the ALH were as follows:

a. takeover responsibility of the supplies and food from the KLH by way of a formal handover;

b. consolidates the flight carts and trolleys in the transport area prior to loading

the delivery trucks to ensure all the relevant food and equipment is present;

c. liaises with allocators to identify the drivers and marshallers allocated to the flight;

d. issues carts and trolleys to the drivers and marshallers for their allocated galleys to load the trucks with the required supplies for the departing flight (e.g. garbage bins, dry stores, ice etc);

e. conducts a final check that each delivery truck has the required catering carts, trolleys and equipment in conjunction with the driver and marshaller, prior to leaving the loading dock for the departing aircraft;

f. at the departing aircraft, assists the other catering staff on their particular tasks in loading and/or unloading the departing aircraft and act as the first point of escalation for staff members if issues arise;

g. conducts a handover of food and supplies to the cabin crew on the departing aircraft, including . the ALH showing the cabin crew the locations and types of food on the departing aircraft;

h. in the event of late increases in the number of passengers, or if food and/or equipment is found to be missing, the ASO performing the ALH tasks will liaise with the dock (for equipment) or the ASO performing the KLH tasks (for food); and

i. remains with the departing aircraft until instructed by the flight crew to depart the aircraft to handle any late arrivals of food and/or equipment or questions from the cabin crew.

12. Both the KLH and ALH tasks are performed by L5 ASOs, and are paid at Wage Rate Level 5 under the Agreement.

13. Since around December 2013, L5 ASOs have been performing the combined KLH and ALH tasks.

Transport Workers Union of Australia QCatering Limited

Dated: 4 June 2015

 1   PR561781.

 2   PR527506.

 3   [2015] FWC 2504.

 4   [2014] FWCFB 7447 at [41].

 5   PN676.

 6 Respondent’s Outline of Submissions at paragraph [5].

 7   PN715.

 8 [2009] FMCA 1060 at [127].

 9   [2015] FWC 2008 at [80].

 10   PN57 to PN58.

 11   PN393.

 12   PN526.

 13   PN523.

 14   PN733.

 15   Exhibit M2, Statement of Natalie Thomas.

 16   PN561.

 17   PN527 and Exhibit M1 Statement of Matthew Edwards, paragraph 5.

 18   PN 378.

 19   PN422 – 424.

 20   Exhibit M1, Statement of Matthew Edwards, paragraph 5.

 21   Paragraph 11(f) of the agreed statement of facts.

 22   PN683.

 23   PN766.

 24   PN733.

 25   PN582.

 26   PN741 and 743.

 27   Paragraph 10 (a) to (f) of the agreed statement of facts.

 28   PN275.

 29   PN393.

 30   PN416 and PN589.

 31   PN275.

 32   PN277.

 33   PN295.

 34   PN297.

 35   PN310 to PN312.

 36   PN576 to PN578 and PN637.

 37   PN318.

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