Transport Workers' Union of Australia v Qantas Ground Services Pty Ltd & Qantas Airways Limited

[2015] FWC 3155

[2015] FWC 3155 [Note: An appeal pursuant to s.604 (C2015/5046) was lodged against this decision - refer to Full Bench decision dated 23 July 2015 [[2015] FWCFB 5046] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
Qantas Ground Services Pty Ltd & Qantas Airways Limited and Another
(C2014/3148)

COMMISSIONER CAMBRIDGE SYDNEY, 7 MAY 2015

Dispute settlement procedure - dispute as to whether particular work of a person in charge of aircraft towing was work comprehended by particular industrial instruments - one instrument passed its nominal expiry date and was subsequently replaced - other instrument held to comprehend work in question - application dismissed.

[1] This Decision is made in respect to an application taken under section 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP).

[2] The application was lodged at Sydney on 21 February 2014. The application was made by the Transport Workers' Union of Australia (the TWU) and taken against Qantas Ground Services Pty Ltd (QGS) and Qantas Airways Limited (Qantas). The Australian Licenced Aircraft Engineers Association (ALAEA) was also named as a respondent in the application. However, the involvement of the ALAEA was broadly confined to its appearance and oral submissions made at the initial conference held in the matter on 28 February 2014.

[3] The Commission is empowered to deal with this matter by virtue of two DSPs which are contained in two industrial instruments. The relevant DSPs are respectively found at clause 8 of the Qantas Ground Services Pty Limited Ground Handling Agreement 2013 (the QGS Agreement), and at clause 12 of the Qantas Airways Limited and QCatering Limited - Transport Workers Workplace Determination 2012 (the Qantas Determination).

[4] The dispute was unable to be resolved by conciliation and the matter has proceeded to arbitration involving the Commission conducting an inspection at Perth airport followed by a Hearing in Perth on 30 October 2014, and further Hearing in Sydney on 17 and 18 November 2014. The TWU was represented by Mr O Fagir, counsel, who called a total of 7 witnesses who provided evidence in support of the claim. QGS and Qantas (the employers) were represented by Mr R Warren, counsel, who adduced evidence from two witnesses together with additional evidence in the form of a further witness statement, the deponent of which was not required for cross examination.

Background

[5] The question in dispute in this case has involved a claim by the TWU that work associated with the ground movement of aircraft under tow which is described as the Person in Charge duties (PiC duties), does not fall within the classifications contained in either the QGS Agreement or the Qantas Determination. The QGS Agreement and the Qantas Determination contain various job classifications which are broadly described as covering ground staff operations employees (ground staff).

[6] Historically the PiC duties undertaken in respect of the employers’ operations have been performed by engineering qualified employees known as “Aircraft Maintenance Engineers” (AMEs) or “Licenced Aircraft Maintenance Engineers” (LAMEs) who are ordinarily not members of the TWU. From March 2014, ground staff TWU members at Perth airport have, at the request of the employers, commenced to perform certain PiC duties. The TWU has claimed that neither the QGS Agreement nor the Qantas Determination contains classification structures which are capable of regulating the employment of a person who performs the PiC duties.

[7] The employers, as part of the Qantas group of Companies, undertake multiple daily movements of commercial aircraft on the ground by means of independent towing of the aircraft as opposed to the aircraft moving by its own propulsion. Perhaps the most readily apparent form of such ground movement of aircraft is the “push back” of an aircraft away from a terminal departure/arrival bay. The “push back” movement is one of various ground operational tows which can be distinguished from what is referred to as an engineering tow. Engineering tows involve the movement of the aircraft for some reason which is not connected with the operational movement of passengers or freight. Most typically an engineering tow might involve the ground movement of an aircraft to or from a maintenance hangar or similar location.

[8] In this case the PiC duties which are the subject of the dispute are confined to operational tows performed at Perth airport (Perth operational tows). The Commission observed a number of Perth operational tows during the inspection.

[9] The Perth operational tows which were observed by the Commission involved three persons, namely, a “Flight Deck Operator” (FDO), a “tug/tractor driver” (Driver) and a “Person in Charge” (PiC). Apparently, in certain circumstances a fourth person may be involved in the role of a “Clearance Marshaller”, sometimes also referred to as a “wing walker”.

[10] By way of an abbreviated summary, the FDO is an engineer or flight crew qualified person who goes on board the aircraft and undertakes certain tasks on the aircraft flight deck which permit the movement of the aircraft. The Driver operates the tow vehicle or tug, and the PiC coordinates a number of aspects of the tow movement, including visual checks of the aircraft prior to and during its movement.

[11] Prior to March of 2014, the person who performed the PiC role in a Perth operational tow was someone with an engineering qualification, an AME or LAME. A number of non engineering qualified ground staff, who performed work such as Driver and Clearance Marshaller, undertook training in the PiC duties. Once the “non-qualified” ground staff had been determined to have the necessary competencies and accreditations they commenced to perform the PiC duties. A number of the “non-qualified” ground staff at Perth airport did not, of their own volition, undertake the training in the PiC duties.

[12] Consequently, since March 2014, the Perth operational tows have involved a ground staff person performing the PiC duties, together with a Driver, who is also ground staff, and a FDO who is either an AME, or a LAME, or a qualified flight crew member. Those ground staff individuals who are PiC trained interchange roles between Driver and PiC.

The TWU Case

[13] At the Hearing, Mr O Fagir, barrister, was granted permission to appear on behalf of the TWU. Mr Fagir made submissions which elaborated upon written outlines of submissions filed on behalf of the TWU.

[14] The TWU has resisted the inclusion of PiC duties as part of the role of ground staff. The TWU contended that it was impermissible for the PiC duties to be performed by ground staff because neither the QGS Agreement nor the Qantas Determination were industrial instruments which could properly regulate the employment of a person who performed PiC duties.

[15] The TWU submissions focused upon the character of the PiC duties which were asserted to involve the supervision of others, a substantial degree of responsibility, exercise of discretion, and possession of technical knowledge. Mr Fagir submitted that an examination of the various factors which characterised the PiC duties when assessed against the classifications contained in both the QGS Agreement and the Qantas Determination, established that the PiC duties were qualitatively different to the other ground staff roles and functions.

[16] Mr Fagir made detailed submissions about the particular factors involved with the PiC duties and which he said set the PiC duties outside of the QGS Agreement and the Qantas Determination. Mr Fagir referred to the particular clauses contained in the QGS Agreement and the Qantas Determination which dealt with the duties, indicative tasks, and functions of the various classifications which were contained in the two industrial instruments.

[17] According to the submissions made by Mr Fagir, the relevant clauses in the two industrial instruments made no specific mention of PiC duties and when those duties were properly analysed they did not fall within the classifications set out in either instrument. Mr Fagir stressed that the PiC duties were of a supervisory and highly technical nature which was not comprehended by either the QGS Agreement or the Qantas Determination. Consequently the TWU sought that the Commission make the following Orders:

“1. That the Commission determines that the PiC duties ground staff have been directed to perform at Perth Airport do not fall within the classifications set out in clause 18 of the Qantas Airways Limited and QCatering Limited - Transport Workers Workplace Determination 2012 or schedule B to the Qantas Ground Services Pty Limited Ground Handling Agreement 2013.

2. That the Commission orders that the ground staff employed under the Qantas Determination and the QGS Agreement not be directed to perform PiC duties.”

[18] Mr Fagir made further submissions which stressed that the Qantas Determination had been made at the time before there was any contemplation of transferring PiC duties from engineers to ground staff. Consequently, according to Mr Fagir, an examination of the terminology contained in the Qantas Determination does not reveal any prospect that it contemplated the PiC duties.

[19] The submissions made by the TWU also introduced the prospect that the circumstances involving ground staff performing the PiC duties raised safety concerns. It was submitted that the ground staff performing the PiC duties did not have the underpinning knowledge necessary to apply and interpret certain engineering maintenance manual requirements and thus gave rise to potential safety implications.

[20] Mr Fagir also made submissions about the relevance of the mention of PiC duties in a document which was provided to employees of QGS at around the time that the QGS Agreement was made. Mr Fagir described this document as a “side letter” which he said was irrelevant because the QGS Agreement did not include particular mention of the PiC duties. Mr Fagir submitted that the Commission was required to determine the dispute based upon the words that were included in the relevant industrial instruments and not upon extraneous material such as the “side letter”.

[21] In conclusion, Mr Fagir submitted that the Commission should accept that the plain and ordinary meaning which should be given to the words contained in the QGS Agreement and the Qantas Determination did not contemplate the PiC duties. In particular it was submitted that the PiC duties were of a highly technical and supervisory nature such that they were outside of the classifications contained in either the QGS Agreement or the Qantas Determination. Mr Fagir urged the Commission to make the Orders sought by the TWU.

The Employers’ Case

[22] Mr R Warren, barrister, was granted permission to appear on behalf of the employers at the Hearing. Mr Warren commenced his submissions by referring to particular evidence about the nature of the PiC duties, the circumstances surrounding those duties being transferred to ground staff in respect of Perth operational tows, and the broad terminology used in the classification descriptors contained in both the QGS Agreement on the Qantas Determination.

[23] The submissions made by Mr Warren stressed that the classifications contained in the industrial instruments used broad and general categories of activity rather than specifying individual tasks. Mr Warren said that this was a commonly adopted approach to the construction of classification clauses in industrial instruments. Mr Warren rejected the TWU assertion that the nature of PiC duties was qualitatively different to the range of duties that could be identified within the various classification descriptors in the industrial instruments.

[24] Mr Warren made submissions which emphasised that the ground staff at Perth had not been compelled to undertake training in the PiC duties and that those individuals who did not wish to undertake the training were not compelled to do so. Mr Warren stressed that the ground staff had not been forced to undertake the PiC duties but instead, most had indicated an interest in performing the PiC duties.

[25] Mr Warren made further submissions which specifically dealt with the QGS Agreement and the information which had been provided to employees about the new classification of GC3B which would inter alia, include PiC duties. Mr Warren submitted that it was unnecessary for the QGS Agreement to specifically include mention of PiC duties as it was clear that the classification clauses in both industrial instruments did not attempt to particularise all duties and functions which were comprehended by a particular classification level. Mr Warren stressed that the evidence clearly established that the employees who voted to approve the QGS Agreement did so in the knowledge that the new classification of GC3B included the PiC duties.

[26] The submissions made by Mr Warren strongly rejected that there were any safety concerns arising from ground staff performing the PiC duties. Mr Warren mentioned evidence of the training and assessment that the ground staff had to undertake and evidence of the practices that are observed by other airline operators. In addition, Mr Warren said that since the ground staff had been performing the PiC duties for the Perth operational tows there had been no identified safety incidents. Mr Warren said that the ground staff were performing the PiC functions safely and properly.

[27] Mr Warren also submitted that just because an employee covered by a particular industrial instrument attained new skills and performed upgraded functions, those changed circumstances do not necessarily warrant alteration to their existing classification or, as the TWU had asserted, move the employee outside of coverage of the industrial instrument. Mr Warren asserted that the PiC duties were of a nature consistent with the classification structure in the industrial instruments which involved general ground transport operations.

[28] Mr Warren further submitted that there was nothing unreasonable or unjust about the employers’ application of their managerial prerogative to implement Perth operational tows which involved ground staff undertaking the PiC duties. According to the submissions made by Mr Warren, the PiC duties involved work of a nature which was broadly comprehended by ground staff activities and provided that employees had been appropriately trained and were competent in those duties, there was no proper basis for the Commission to in any way, interfere with an arrangement that was working well.

[29] In conclusion, Mr Warren submitted that particularly as neither QGS nor Qantas have required any employee to perform the PiC duties if they did not wish to do so, it would be unfortunate if QGS and Qantas were Ordered to not direct ground staff to perform PiC duties. Mr Warren urged that the Commission reject the TWU application, refrain from making the Orders sought, and dismiss the matter.

Consideration

[30] The dispute in this instance is unusual. As was identified on the first day of Hearing 1 if the TWU was successful its members would be precluded from performing work which they have voluntarily undertaken and which broadly represents an enhanced and higher skilled job.

[31] The rationale which may have underpinned the approach adopted by the TWU in this case is difficult to comprehend. It would appear that in pursuit of an objective to have the PiC duties attract higher remuneration in circumstances where its members have willingly undertaken those duties without securing higher remuneration (or a commitment to it), the TWU has sought to have the Commission stop its members from performing the PiC duties.
[32] The argument that was advanced as the basis to preclude the TWU ground staff from performing the PiC duties has involved an assertion that the particular requirements of the PiC duties were so qualitatively different to the classifications contained in either the Qantas Determination or the QGS Agreement as to place the PiC duties outside of the scope of those industrial instruments. The pursuit of this argument manifest as a case which included the implied proposition that individuals without engineering qualifications could not properly perform the PiC duties. The potential danger with this approach is that if it was successful it would be likely to permanently preclude ground crew from performing PiC duties unless and until they obtained engineering qualifications. An outcome of this nature can be colloquially described as “shooting oneself in the foot”.

[33] It appeared that the TWU argument against ground staff performing PiC duties became something of an “overreach” proposition which emerged from the desire to have PiC duties attract increased remuneration rather than place the PiC duties as beyond the capabilities of ground staff and outside the scope of their industrial instruments. Realistically, the nature of PiC duties fit comfortably with the purview of ground staff operations. The TWU ground staff can, with appropriate training, perform the PiC duties, formal engineering qualifications are not necessary.

[34] Therefore, the true character of the dispute has been revealed to be about the value that might attach to the ground staff performing the PiC duties. In days past, the Commission might have been asked to conduct a work value assessment for the PiC duties. In the contemporary workplace relations system a matter of this nature is an issue for the bargaining table.

[35] There would seem to be undeniable benefit and value to the employers to have a ground staff employee who was capable and did perform the PiC duties as compared to another ground staff employee who did not. In the case of the Qantas Determination, the PiC duties have been introduced after the commencement of the instrument. The change was facilitated by the ground staff who voluntarily undertook training and subsequently performed the PiC duties. Even though the employees may benefit by way of a more interesting job, it would seem likely that an employer might, as a means to encourage ongoing workplace change, be persuaded to monetarily recognise the added value of ground staff who perform PiC duties.

[36] Consequently, the issue of recognition and reward of the PiC duties would logically appear to be an attractive issue for bargaining. It was therefore puzzling to observe that at the time that the TWU was agitating the case in respect of the PiC duties, the Qantas Determination had passed its nominal expiry date and negotiations for a replacement agreement were underway. To confound matters further, on 10 March 2015, the Commission (Booth DP) approved the Qantas Airways Ltd and QCatering Ltd - Transport Workers Agreement 2015 (the 2015 Agreement) which replaced the Qantas Determination, and the 2015 Agreement does not appear to have made any mention of the PiC duties.

[37] Consequently, as the Qantas Determination has ceased to operate on and from 17 March 2015, the application in this matter in so far as it relates to the Qantas Determination cannot provide for any form of practical outcome and is effectively null and void.

[38] In so far as the application relates to the QGS Agreement, the resolution of the dispute has required the Commission to decide whether or not the terms of the QGS Agreement can be interpreted to include the PiC duties. Specifically, the interpretation question has involved an examination of the provisions of clause 13 and attachment B, specifically the GC3B classification descriptors which are set out on page 30 of the QGS Agreement.

[39] The correct approach to interpretation of the terms contained in an enterprise agreement has been the subject of a recent Decision of a Full Bench of this Commission in the matter of The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited  2 (Golden Cockerel). At paragraph 41 of the Golden Cockerel Decision the Full Bench set out the following principles that apply to the approach to interpretation of enterprise agreements:

“[41] From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.

2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.

3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b) notorious facts of which knowledge is to be presumed;

(c) evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.

8. Context might appear from:

(a) the text of the agreement viewed as a whole;

(b) the disputed provision’s place and arrangement in the agreement;

(c) the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.

10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

[40] Accordingly, the principles as established by the Full Bench Decision in Golden Cockerel have been adopted and relevantly applied in this instance to the contested interpretation of the terms of the QGS Agreement.

[41] Firstly, upon reading the particular terms of clause 13 and attachment B of the QBS Agreement the absence of any specific mention of PiC duties cannot be translated to mean that the Agreement should be interpreted to exclude PiC duties. The classification descriptors are not definitive or comprehensive but instead, provide mention of a range of broad tasks and duties. Importantly, there are no terms in the QBS Agreement upon which a plain and unambiguous meaning could be found to establish that PiC duties were specifically or generally excluded.

[42] Consequently, I believe that, in accordance with principal number 5 as set out in the Golden Cockrell Decision, evidence of surrounding circumstances should appropriately be admitted to aide the interpretation of the QBS Agreement.

[43] Secondly, in this instance there is important evidence going to the common contemplation and common assumptions of the parties at the time that the QBS Agreement was made. That evidence is in the form of the Explanation of Agreement document which can be found at annexure 2 to the statement of Bradley Sheldon 3.

[44] The Explanation of Agreement document contains the following:

“The new classification GC3B covers responsibility for loading and unloading aircraft, towing and towing activities including Person in Charge and leading Ground Crew Levels 1, 2 and/or 3.”

[45] When the job descriptor for the GC3B classification is considered in the context of the specific elaboration provided in the Explanation of Agreement document, there is a compelling basis to conclude that the PiC duties are included as part of work performed at the GC3B classification level contained in the QGS Agreement.

Conclusion

[46] The determination of the dispute in this instance has revealed that, in large part the contest surrounding the PiC duties cannot be resolved by the argument advanced by the applicant. In fact, there was significant potential that if the applicant was to succeed, the outcome would have served to disadvantage both the applicant and its members.

[47] In any event, to the extent that the application was taken in respect to the Qantas Determination and that Determination has ceased to operate, no practical purpose can be obtained in respect to that aspect of the application.

[48] In respect to that aspect of the application which related to the QGS Agreement, by way of application of relevant principles for the interpretation of Enterprise Agreements, I have concluded that the classification level GC3B comprehends and includes the PiC duties.

[49] In view of the conclusions that I have reached the application must be dismissed. An Order dismissing the application shall be issued separately and the proceedings are concluded accordingly.

COMMISSIONER

Appearances:

Mr O Fagir of Counsel, together with Ms W Carr of the Transport Workers’ Union of Australia appeared for the applicant.

Mr R Warren of Counsel, together with Ms E Raynor of Ashurst Australia appeared for Qantas Ground Services Pty Ltd and Qantas Airways Limited.

Hearing details:

2014.

Perth:

October, 30.

Sydney:

November 14, 18.

 1   Transcript @ PN1091 - PN1094.

 2   The Australasian Meat Industry Employees Union v Golden Cockrell Pty Limited [2014] FWCFB 7447.

 3   Exhibit 6.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR567129>