Transport Workers' Union of Australia v QCatering Limited T/A QCatering

[2016] FWC 3051

[2016] FWC 3051

FAIR WORK COMMISSION

DECISION

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

Transport Workers' Union of Australia
v
QCatering Limited T/A QCatering
(C2015/7877)

VICE PRESIDENT WATSON MELBOURNE, 20 MAY 2016

Alleged dispute about matters arising under the enterprise agreement – Interpretation of enterprise agreement – Whether employees required to work with and provide on the job exposure to labour hire contractors – Fair Work Act 2009, s.739.

Introduction

[1] This decision concerns an application for the Fair Work Commission (the Commission) to deal with a dispute. The application is made by the Transport Workers’ Union of Australia (TWU) under s.739 of the Fair Work Act 2009 (the Act) and concerns employees employed by QCatering Limited t/a QCatering (Q Catering). The dispute relates to provisions of the Qantas Airways Limited and QCatering Limited - Transport Workers Agreement 2015 and the contested requirement for employees to work with, buddy and train personnel provided by labour hire contractors.

[2] The matter was listed for conference on 4 December 2015. The parties were unable to reach a resolution and the TWU requested that the matter be listed for arbitration. At the hearing of the matter Mr B Baarini appeared on behalf of the TWU and Ms H McKenzie, of counsel, appeared with Ms K Srdanovic on behalf of Q Catering.

Jurisdiction

[3] The dispute comes to the Commission by way of the dispute settlement procedure in the Agreement. The clause relevantly provides:

“PROCEDURES FOR THE SETTLEMENT OF INDUSTRIAL DISPUTES

12.1 In the event of a dispute arising in the workplace about matters arising under this Agreement or in relation to the National Employment Standards the procedure to resolve the matter will be as follows:

12.1.1 The employee and the employee's supervisor meeting and conferring on the matter.

12.1.2 If the matter is not resolved at this meeting, the parties to the dispute must arrange for further discussions between the employee and more senior levels of management.

12.1.3 If the matter cannot be resolved it may be referred by either party to the FWC for resolution. This does not affect the right of either party to a dispute to take other action to resolve the dispute.

…

12.4 If a dispute is referred to the FWC for resolution, the FWC can take any or all of the following actions as it considers appropriate to resolve the dispute:

12.4.1 convene conciliation conferences of the parties to the dispute or their representatives at which the FWC is present;

12.4.2 require the parties to the dispute or their representatives to confer among themselves at conferences at which the FWC is not present; and

12.4.3 where the matter or matters, in dispute cannot be resolved (including by conciliation) and one party to the dispute or both request, the FWC may arbitrate or otherwise determine the matter, or matters, in dispute.

12.5 Once a request has been made for arbitration, the FWC must follow due process and allow each party to the dispute a fair and adequate opportunity to present their case.

12.6 In relation to such an arbitration:

12.6.1 the FWC may, after giving both parties the opportunity to be heard, give all such directions and do all such things as are reasonable and necessary for the just resolution of the dispute. the FWC may exercise powers of conciliation and arbitration.

12.6.2 before making a determination and/or direction the FWC will give the parties an opportunity to be heard formally on the matter(s) in dispute;

12.6.3 the decision of the FWC will be binding on the parties subject to the right of appeal of the decision to a Full Bench of the FWC. The decision of the Full Bench in the appeal will be binding upon the parties.

12.7 Any determination by the FWC must be in writing, if either party to the dispute so requests and must give reasons for the determination.

12.8 Any determination made by the FWC must be consistent with applicable law and must not require a party to the dispute to act in contravention of an applicable industrial instrument or law.

12.9 Where relevant, and circumstances warrant, the FWC will consider previous relevant decisions of the FWC, Fair Work Australia, the Australian Industrial Relations Commission and the Courts.

12.10 The FWC must not issue interim orders, 'status quo' orders or interim determinations.

…”

[4] I am satisfied that the parties have empowered the Commission to arbitrate this dispute under the terms of the Agreement.

The Question for Determination

[5] The parties have agreed that the dispute is to be determined by answering the following question:

“Whether employees covered by the Qantas Airways Limited and QCatering Limited - Transport Workers Agreement 2015 and working in the Melbourne Catering Centre can be required by Q Catering Limited to work with, buddy and train personnel provided by labour hire contractors pursuant to clauses 14 and 18 of the Agreement.”

Background Facts and Evidence

[6] Q Catering operates a catering and food production centre and provides flight catering services. The employees in the Melbourne Centre work across a number of different areas including food production, wash, customer delivery, procurement and supply chain. This dispute concerns those employees employed in Customer Delivery.

[7] The Customer Delivery team performs the final step of the Catering value chain. A team of two, including one Marshaller and one Driver, completes the transport of catering from the Melbourne Catering Centre to the aircraft. The team is responsible for collecting carts according to flight specifications, loading the trucks, transferring the carts to the aircraft using Catering trolleys and other equipment and ensuring adherence with quarantine guidelines.

[8] On 18 May 2015, Q Catering announced that it had engaged Aerocare, a labour hire provider, to support Customer Delivery in Sydney and Melbourne. Following a period of consultation, Q Catering commenced training of Aerocare labour hire contractors at the Melbourne Catering Centre on or around 1 July 2015. The Aerocare contractors work with and perform the same work as Q Catering’s employees who are covered by the Agreement and employed as Drivers and Marshallers.

[9] Q Catering has a formal training program in place for the training of Aerocare labour hire contractors. The training must be completed before the contractor becomes operational and is able to be utilised as part of the Customer Delivery team.

[10] The training involves completion of a range of prerequisites (conducted by Aerocare), four weeks of formal classroom and practical (simulated) training, and additional practical application training conducted by certified trainers. This is followed by a two week period of “buddying” or “on the job exposure” (OTJE), where the labour hire contractor receives on the job familiarisation with a more experienced member of the Customer Delivery team. The dispute relates to this two week period and any subsequent rostering of Aerocare employees to work with a Q Catering team member.

[11] Q Catering requires its employees to do the following in relation to the use of Aerocare contractors:

• work cooperatively with Aerocare labour hire contractors who are fully trained and certified as competent to carry out the duties of a Driver or Marshaller;



• assist Aerocare contractors to gain OTJE by working as a partner to employees who have completed the formal training component; and



• deliver the formal classroom and simulated training component of the training to the Aerocare labour hire contractors provided they have the requisite qualifications to do so.

[12] Ms Amanda Egboiyi, Human Resources Manager at Melbourne Airport gave evidence that the training received by the Aerocare contractors is the same training and familiarisation program that any new Customer Delivery staff member in the Melbourne Catering Centre would receive. Ms Egoiyi said that the main difference is that Aerocare contractors complete the prerequisites before the commencement of formal training, while Q Catering employees training as a Driver complete the HR licence and Airside Drivers Authority through Q Catering. Q Catering employees training as Marshallers complete the same training program delivered to Aerocare by Q Catering.

[13] Ms Egboiyi gave evidence that the training for sixteen Q Catering employees engaged after the recent consultation process was conducted by Q Catering employees covered by the Agreement without any issues arising. Employees covered by the Agreement also completed the OTJE partnering without any issues arising.

[14] Ms Egboiyi said that in contrast, in relation to new Aercocare contractors, Q Catering has been relying upon a small group of volunteers to act as OTJE partners, with the majority of Q Catering employees refusing to partner with Aerocare contractors. More recently, suitably trained and experienced Aerocare contractors have been performing the OTJE role.

[15] Mr George Stella, TWU Delegate and Q Catering employee employed as a level 5 leading hand of international bond gave evidence of safety concerns related to working with labour hire contractors. Mr Stella said that many casual employees work extended hours with two or three different employers or areas, and many work large amount of hours to compensate for the uncertain nature of casual work. Mr Stella said that fatigue levels of contractors can often go unnoticed due to the floating nature of casual labour hire.

[16] Mr Stella said there are real risks of working with labour hire contractors who fall outside of the Agreement. For example, a labour hire worker does not fall foul of clause 29.3 (rest period) for working on a Monday after a Sunday night shift. Mr Stella stated that he knows of examples of where outside labour hire workers have worked with less than a 10 hour break.

[17] Mr Stella said that he is aware of incidents that have occurred on the tarmac with casual labour hire workers in breach of safety policy and procedures. These outside labour hire casuals are working with equipment and machinery. Mr Stella is concerned that these workers are tired or fatigued or affected by drugs and alcohol. He says the same disciplinary outcomes do not seem to apply to them as it does for employees under the Agreement. Operational policies do not prescribe duties on these staff. Mr Stella is concerned that unlike Q Catering employees, Aerocare contractors are not required to report safety or conduct issues.

[18] Ms Egboiyi gave evidence that employees do not require any additional training before they can act as the OTJE partner. Ms Eboiyi said that OTJE partnering does not carry with it any supervisory responsibilities for the Q Catering employee – he or she is simply required to perform their duties and share their knowledge. Drivers and Marshallers in the Customer Delivery team work in teams. OTJE simply provides for a less experienced team member to be paired up with a more experience team member. The OTJE partner is not required to provide any feedback regarding the performance of the Aerocare contractor.

[19] Ms Egboiyi said that Q Catering has taken steps to ensure the issue that occurred involving an Aerocare worker will not happen again. She said that Q Catering has a number of measures in place to ensure the safety of workers and contractors and there are systems in place to manage any potential risks arising from fatigue. For example, the Melbourne Workforce Planning team sends Aerocare the clock punches for their staff, and Aerocare sends the Customer Delivery Manager its roster. The Q Catering workforce planning system provides automated alerts when maximum hours are near. Additionally, Q Catering employees are currently working with Aerocare contractors who only work at Q Catering. This enables both Q Catering and Aerocare to monitor the amount of work being performed by each labour hire contractor, to ensure that no fatigue issues arise.

[20] Ms Egboiyi said that further, there are regular meetings between the Customer Delivery Manager and local Aero-Care Manager, and between all Customer Delivery Managers to address any concerns. A minimum of 56 safety observations, and typically in the order of 100, occur across Customer Delivery each month. A review of safety reports and incidents conducted since the introduction of the Aerocare employees revealed only one legitimate safety concern and this has been addressed to avoid a recurrence.

The Relevant Clauses of the Agreement

[21] The dispute relates to clauses 14 and 18 of the Agreement.

[22] Clause 14 provides as follows:

“14. EMPLOYER AND EMPLOYEE DUTIES

14.1 Employees will be available for deployment in any work area or work centre provided the Company may only direct an employee to carry out such duties as are within the limits of the employee's skill and competency and training consistent with the classification structure of the Agreement (provided the duties are not designed to reduce skills) and will include cross-utilisation and/or working down as directed.

14.2 The Company may direct an employee to carry out duties and use tools and equipment as may be required provided that the employee has been properly trained in the use of the tools and equipment.

14.3 Any direction issued by the Company under this clause is to be consistent with the Company's responsibilities to provide a safe and healthy working environment.

[23] Clause 18 of the Agreement contains the classification descriptors and pay rates for employees covered by the Agreement. The Drivers and Marshallers who work in Customer Delivery are engaged as Airline Service Operators, Levels 3 and 4 under the Agreement. The classification descriptors for Level 3 and 4 employees are as follows:

“18.3.4 Level 3 - Airlines services operator

● Hands-on activities in all areas of work including that which is both directly and indirectly associated with aircraft handling, and/or AAF PUD drivers
● Operate equipment and vehicles including tow motors, small vans, tarmac buses, mobile steps, belts, non-tarmac fork-lift and equipment, requiring similar operational skills associated with ramp cargo, freight, catering, aircraft servicing and general transport operations
● Carry out basic serviceability and maintenance checks of vehicles and/or equipment, including refuelling of vehicles
● Operate basic communication and computer aids

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”

Principles of Interpretation

[24] The principles for interpreting terms of enterprise agreements are well established by various High Court and Federal Court decisions. They have been summarised by a Full Bench of the Commission as follows 1:

“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.”

[25] I will apply these principles to the interpretation of the Agreement.

The direction to perform the contested work

[26] The TWU submits that the activities of working with, buddying (OTJE partnering) and training Aerocare labour hire contractors are not within the scope of clauses 14 and 18 of the Agreement, and are therefore not activities that Q Catering can lawfully require be undertaken.

[27] The TWU submits that the plain meaning of the actual provisions of the Agreement supports the construction and operation of clauses 14 and 18 of the Agreement contended for by the TWU.

[28] The TWU submits that the direction given by Q Catering that staff undertake the abovementioned duties is not consistent with the classifications structures set out in the Agreement. It submits that the duties include significant supervisory duties, and the relevant classifications contained in the Agreement do not extend to supervisory responsibilities or training or buddying roles concerning labour hire contractors.

[29] The TWU stated that due to the generality of clause 14.1, employees would be required to perform the duties in question with new Q Catering employees, however the same does not apply to labour hire contractors.

[30] The TWU submits that in giving consideration to the proper construction and application of clauses 14 and 18 of the Agreement, the Commission may turn its mind to the following matters arising from the Agreement:

• The provisions create positive obligations on Q Catering as to what it can direct an employee to do and what the employee is required to do



• These clauses are clear and unambiguous about what obligations exist



• There is no reference to ‘work with, buddy and train personnel provided by labour hire contractors’



• The company has historically and up until recently not directed employees in this way



• The classification structure and pay levels are clear as to what duties are required and the relevant wages apply



• There is a duty on Q Catering to provide a safe and healthy working environment.

[31] The TWU submits that there are also a range of contextual factors that strongly support the conclusion that, judged objectively, the parties did not intend to include the new duties in the classifications contained in the Agreement, including as follows:

• At the time of the making of the Agreement those duties did not exist



• Operational policies and procedures do not prescribe these duties on staff



• Staff have not been provided with appropriate training and support and do not have access to the necessary policy and procedure documents to undertake the role. The introduction of such new duties without such training and support compromises safety and is inconsistent with the Agreement

• The pay structure in the Agreement does not remunerate employees for the new Duties.

[32] The second limb of the TWU’s argument is that to direct employees to work with and provide OTJE to labour hire contractors infringes the obligation to provide a safe working environment, and is therefore not a valid direction by virtue of clause 14.

[33] Q Catering submits that the activities of working with and OTJE partnering Aerocare contractors are within the scope of the Agreement. It submits that clauses 14 and 18 of the Agreement are not ambiguous or uncertain, and their words are capable of being given their plain and ordinary meaning.

[34] Q Catering submits that the TWU is attempting to prohibit or restrict Q Catering’s use of labour hire contractors when no such restriction is imposed by the Agreement or otherwise. It submits that it does not matter that the Agreement does not specifically say that employees are required to work with labour hire contractors.

[35] Q Catering submits that the classification structure is descriptive rather than prescriptive, and notes that the positions of Driver and Marshaller are not specified in the Agreement.

[36] Q Catering does not agree that the OTJE partnering and training requirements are ‘new’ or ‘additional’ duties. Q Catering submits that it is entirely within the “skills, competency and training” of employees covered by the Agreement to perform their usual duties while working alongside a less experienced Driver or Marshaller (whether a labour hire contractor or employee).

[37] Q Catering submits that there is no proper basis for drawing a distinction between employees covered by the Agreement performing this role for other Q Catering employees, but not Aerocare labour hire contractors. To do so would be to impose restrictions on the use of contractors and interfere with the way in which Q Catering manages its business.

[38] In relation to the TWU’s safety concerns, Q Catering submits that there is nothing unsafe or unreasonable in a request that Q Catering employees from the Customer Delivery team work in a team comprising labour hire contractors who have been trained and certified as competent to perform the duties of a Driver or Marshaller.

[39] Q Catering submits that for the TWU to rely on clause 14.3 to invalidate a direction to work with and provide OTJE partnering to a labour hire contractor, there would need to be an inherent risk that working with labour hire contractors is unsafe. Q Catering submits that there is no evidence that would provide a basis for such concern. Further, it submits that it is not sufficient that there has been a safety incident involving a labour hire contractor in the past.

[40] The dispute primarily relates to the terms of the Agreement, although general equity and safety issues are also relied upon. The starting point for an analysis of the relevant terms of the Agreement is a consideration of the purpose and effect of clause 14. This clause is of a common type found in awards and agreements and generally accompanies a skills based classification structure. In my view it reflects the general notion that the duties employees can be required to perform are only limited by the limits of their skill, competence and training. Such a notion is usually inherent in contracts of employment in any event.

[41] The addition of the words “consistent with the classification structure” is said to qualify this general notion. In my view, when the classification structure is considered, they do not. The classification structure expresses duties in a broad sense and should not be interpreted as imposing limitations on the work that can be required to be performed.

[42] The TWU contends that requiring employees to work with Aerocare employees in the manner proposed is a step too far. It concedes, correctly in my view, that working with fellow Q Catering employees during the two week OTJE period and beyond can be required of employees covered by the Agreement due to the generality of clause 14 in particular. However, the TWU has not been able to advance a plausible legal basis for the proposition that the same duties cannot be required to be performed in relation to Aerocare employees or employees of another employer. I am unable to locate any limitation on the rights of an employer to require work to be performed for which the employees are capable and trained to perform based on the employer of the other employees at the workplace.

[43] Further I do not consider that the alleged safety concerns alter the position in any way. The TWU has failed to establish a sound basis for safety concerns that might arise in relation to Aerocare employees simply because they are not Q Catering employees.

[44] In my view therefore Q Catering can require its employees to work with Aerocare employees during the OTJE period and beyond. The agreed question should therefore be answered in the affirmative.

Conclusion

[45] The dispute referred to the Commission is answered by determining the agreed question as follows:

Q: “Whether employees covered by the Qantas Airways Limited and Q Catering Limited - Transport Workers Agreement 2015 and working in the Melbourne Catering Centre can be required by Q Catering Limited to work with, buddy and train personnel provided by labour hire contractors pursuant to clauses 14 and 18 of the Agreement.”

A: Yes they can be required to perform the work in question.

VICE PRESIDENT

Appearances:

Mr Baarini, B on behalf of TWU.

Ms McKenzie, H of counsel with Ms Srdanovic, K on behalf of Q Catering.

Hearing details:

2016.

Melbourne.

13 May.

Final written submissions:

TWU on 7 March 2016.

Q Catering on 11 April 2016.

 1   [2014] FWCFB 7447.

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