Transport Workers' Union of Australia v Sydney Night Patrol and Inquiry Co Pty Ltd t/a SNP Security

Case •

[2016] FWC 6791

•

30 SEPTEMBER 2016

No judgment structure available for this case.
[2016] FWC 6791
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s 739—Dispute resolution

Transport Workers’ Union of Australia
v
Sydney Night Patrol & Inquiry Co Pty Ltd t/a SNP Security
(C2016/3608)

DEPUTY PRESIDENT SAMS

SYDNEY, 30 SEPTEMBER 2016

Dispute arising under the SNP Aviation Security (Sydney Airport) Agreement – interpretation of cl 46 Vacant Shifts and Use of Labour Hire – nature of contracts – whether short term, ‘low demand’ contracts – use of labour hire subcontractors – minimum hours for part time employees – individual shifts not compliant with Agreement – nomination for additional shifts – refusal to work in other locations within the airport precinct – words in disputed clause not ambiguous – no breach of Agreement – determinations sought refused – claims otherwise lack industrial merit.

BACKGROUND

[1] This decision will determine an application filed under s 739 of the Fair Work Act 2009 (the ‘Act’), by the Transport Workers’ Union of Australia – NSW Branch (the ‘Union’) in which the Fair Work Commission (the ‘Commission’) has been requested to deal with a dispute under the Disputes Settlement Procedure (‘DSP’) of the SNP Aviation Security (Sydney Airport) Agreement 2016 (the ‘EBA’ or the ‘Agreement’). The dispute is with the Sydney Night Patrol & Inquiry Co Pty Ltd (‘SNP’ or the ‘respondent’), which is an aviation security provider under contract to various airlines operating in and out of Australia’s major airports. The dispute is confined to SNP’s contracts with Qantas and Jetstar at Gates 8 and 9 at Sydney’s International Airport (Terminal 1 / T1) and will require the Commission’s interpretation of cl 46 of the Agreement – Vacant Shifts and Use of Labour Hire, in respect to the allocation of SNP employees to shifts at the lobbies of Gates 8 and 9.

[2] The dispute concerns a claim by the Union that the relevant SNP Qantas contract employees (numbering 16), most of whom are part time, should be able to nominate for Jetstar shifts on the once a day Jetstar flight leaving from Gate 8. Importantly, under the Agreement, part time employees must be rostered for at least 26 hours a week. Subject to being suitably trained, they can be rostered to various locations across the airport (see: the evidence later) where their hours on the Qantas Gate are insufficient and/or they request additional work. The Jetstar lobby shift is covered by Manpower Direct (MPD) subcontract labour under a separate contract between SNP and Jetstar, although the MPD labour is supervised by an employee of SNP.

[3] The relief sought by the Union in this matter is as follows:

    (a) a determination of the Commission that the actions taken by the respondent in the Jetstar lobby are not in accordance with clause 46 of the 2016 Agreement;

    (b) a determination of the Commission that work in the Jetstar lobby should be offered to employees of the respondent before contractors;

    (c) a determination of the Commission that work of a ‘last minute’ and ‘short shift’ nature should be offered to employees of the respondent before contractors; and

    (d) any such other relief that the Commission considers appropriate.

[4] The present application was filed on 2 May 2016 under the then applicable Agreement – the 2012 Agreement. This Agreement has subsequently been replaced by the SNP Aviation Security (Sydney Airport) Agreement 2016. While the relevant clauses are different, for present purposes, the parties proceeded on the basis that the relief claimed by the Union could be sought under either the 2012 or the 2016 Agreement. No relevant distinction was pressed by SNP in the proceeding. For completeness, I note that there is no argument that the DSP has been followed by the parties, and that the Commission is empowered by cl 43.5 of the Agreement to arbitrate the dispute and make a determination binding on the parties (subject to appeal).

Relevant Agreement provisions

[5] A number of the provisions of the 2016 Agreement were referred to by the parties and are relevant to the Commission’s determination of this matter. The primary provision is that found at cl 46, which I set out hereunder:

    ‘46. VACANT SHIFTS & USE OF LABOUR HIRE

    SNP is committed to a permanent workforce with fair allocation of shifts to its employees. Due to the nature of work at the airport with short term spikes in demand, short term staff vacancies, short term contracts and low demand contracts, SNP may require the support of labour hire / subcontractors to ensure delivery of contractual commitments and protection of permanent SNP jobs.

    In order to deliver this, any contract that has a demand that is possible to roster in compliance with this agreement will be offered first to SNP employees. This covers all major contracts, yet may exclude short term contracts.

    For the purposes of this clause "short term contracts" are contracts that
    - are of an ad hoc nature i.e. for a special or immediate purpose and not part of a previously planned activity under an existing contract, and
    - are less than 30 days in duration

    Upon request SNP will provide parties to this Agreement with:

    - Details of contracts which labour hire / sub-contractors have been utilised and the labour hire companies that have been engaged

    Subject to:
    - Frequency of these requests being reasonable
    - The details requested from SNP excluding commercially sensitive information, but may include roster related details such as shifts and hours worked
    - The details being shared in face to face meetings only and not being made available electronically or distributed outside the meeting
    - Any non SNP communication on these meetings to be authorised by SNP before distribution
    - Any breaches of these conditions removing the need for SNP to share any future details on labour hire / subcontractors other than required by law

    SNP commits to prioritising additional shifts based on the weekly accrual of an SNP employee. SNP will provide first choice on all unallocated, last minute and short-shift vacancies to SNP employees, then SNP casuals. SNP will only use contractors for these vacant shifts after reasonable attempts have been made to get SNP employees to fill these shifts. It is not SNP's intention to use contractors as a replacement workforce.

    When allocating vacant shifts, consideration will be given to how many actual hours an individual has been allocated during the applicable week, this essentially means part-timers are offered work before full-timers (dependent on willingness and availability).’

[6] Its corresponding clause in the 2012 Agreement was as follows:

    ‘47. VACANT SHIFTS

    SNP commits to prioritising additional shifts based on the weekly accrual of an SNP employee. SNP will provide first choice on all unallocated, last minute and short-shift vacancies to SNP employees, then SNP casuals. SNP will only use contractors for these vacant shifts after reasonable attempts have been made to get SNP employees to fill these shifts.

    When allocating vacant shifts, consideration will be given to how many actual hours an individual has been allocated during the applicable week, this essentially means part-timers are offered work before full-timers (dependent on willingness and availability).’

[7] Clause 7.4 of the current Agreement deals with the minimum ordinary hours of part time employees and is set out as follows:

    ‘7.4 Part-time employees will be entitled to be paid for a minimum number of ordinary hours in accordance with the following provisions:

      7.4.1 For SNP part-time employees, the minimum number of ordinary hours will be 26 hours per week averaged on the basis of one of the cycles specified in clause 13.

      7.4.2 A part-time employee wishing to be paid for the minimum number of hours must make him/herself available and be willing to work on sufficient days in the roster cycle to enable rostering on an average of five days in seven over the cycle.

      7.4.3 The minimum hours will include periods of paid leave during the averaging period.

      7.4.4 The minimum hours will be reduced by periods of unpaid leave or other absences.

      7.4.5 Nothing in this clause prevents a part-time employee from offering to work an arrangement of hours that does not require SNP to provide the minimum ordinary hours prescribed during the averaging period. For example, a part-time employee may prefer to work only on particular days or between particular hours. Such arrangements will be confirmed in writing.’

[8] Clause 7.7 is also relevant. It reads:

    ‘7.7 Employees covered by this Agreement may be required by SNP to perform all work within their skill and competence, including work which is incidental or peripheral to their main tasks or function, at any facility within the Sydney Airport precinct.’

[9] Clause 13 deals with Hours of Work. Clauses 13.1.3 and 13.3 specifically deal with part time employees as follows:

    ‘13.1 Ordinary Hours

    […]

      13.1.3 Ordinary hours for part-time employees shall include any hours up to 37.75 hours per week.

    […]

    13.3 Part-time Employees

      13.3.1 Where duty is rostered, ordinary hours for a part-time employee are to be averaged on one of the bases.

        (a) not more than 75.5 hours within a roster cycle not exceeding 2 weeks by agreement;
        (b) not more than 112.5 hours within a roster cycle not exceeding 3 weeks;
        (c) not more than 150 hours within a roster cycle not exceeding 4 weeks by agreement; or
        (d) not more than 300 hours within a roster cycle not exceeding 8 weeks by agreement.

      or such other configuration of hours as will enable equitable distribution of hours amongst part-time employees and enable SNP to satisfy client requirements. Such roster configurations will result from the consultative processes described in 18.6.’

[10] Roster notice and change of roster notice is dealt with at cl 18. It is set out as follows:

    ‘18. ROSTERS AND TRANSFER OF EMPLOYEES

    18.1 Notice
    Employees (other than Relieving Officers and casual employees) must work their normal hours of work in accordance with a roster for which advance notice has been given. A Relieving Officer or casual employee may also, at SNP's discretion, work their normal hours of work in accordance with a roster for which advance notice has been given.

    18.2 Rosters

      18.2.1 A roster shall be distributed or exhibited to the employees at least 7 days prior to the commencement of the shift period to which it relates.

      18.2.2 Where the roster is provided to employees via post or email, it shall be posted sufficiently in advance so that it could reasonably be expected to be received by an employee at least 7 days prior to the commencement of the shift period to which it relates.

      18.2.3 Where SNP seeks to introduce 12-hour shifts that are not part of a rotating roster, agreement must be reached between SNP and United Voice before the rostering of such shifts are implemented.

    18.3 Display

    SNP must, by legible notice displayed at a place accessible to the employees or distributed via email / post, notify employees who work their normal hours in accordance with a roster, of the commencing and ceasing times of their rostered hours of work. Such times, once notified, may not be changed without the payment of overtime, or by seven days' notice given in accordance with this sub-clause. However, by agreement between SNP and the employee less than 7 days' notice may be substituted.

    18.4 Transfer of an Employee in Response to Client Demand

    Where SNP transfers an employee in response to client demand and that transfer results in a loss of income for the employee, the employee must have their income at the site from which the employee was transferred maintained for the period remaining in the roster cycle.

    18.5 Shift Swaps

    Employees may arrange between themselves to swap shifts, provided such arrangements have been approved by the relevant Supervisor(s) and/or Manager(s), at least 2 days in advance or such shorter period as may be approved. In these circumstances, no overtime or additional penalties will be payable by SNP to the employee undertaking duty, if such overtime or other penalties would not have been payable had the shift swap not occurred.

    18.6 Employee Participation in Workforce Planning & Rostering

    The parties to this Agreement are committed to achieving equitable, flexible and efficient operational and administrative rostering, work practices and overall workforce planning. The parties recognize that flexibility is an integral part of achieving these aims and objectives. Consequently, SNP is committed to effective involvement of employee representatives in major rostering initiatives.

    In Aviation there are two types of demand:
    1. Schedule Sensitive demand = screening points
    2. Static demand = protective services work

    Screening point demand is determined by our clients and is impacted by Australia's geographical location, as many airlines prefer to fly at a time that allows passengers to arrive at their destinations at decent time of the day. Additional considerations are the curfews that are in effect at Sydney airport and aircraft turnaround times. The Aviation industry is also impacted by change in season, which means there are two distinct roster changes each year. Together these things drive when the peaks occur at the Airport. SNP are advised by our clients when they want people and our head count and rosters must allow flexibility to meet these changing demands.

    SNP's Rostering Committee has a successful history of employee involvement. Employee nominations are called for and individuals respond if they want to be involved in the process. Where more than two employees nominate for the Rostering Committee, the work-area will be informed of all nominees and asked to vote anonymously for their preferred candidate. The counting of these votes will be undertaken by SNP with a delegate in attendance.

    The effectiveness of such involvement is dependent upon:
    - open communication and information sharing;
    - co-operation and mutual trust; and
    - recognition of each other's needs and concerns.

    SNP will give effect to this commitment by ensuring that up to two (2) employee representatives are nominated to specific project teams to develop rostering recommendations for consideration by SNP.

    In addition to developing roster proposals, such project teams will be asked to identify for SNP consideration, opportunities to establish additional full-time roles that are viable and sustainable.

    Employee representatives participating in such project teams will not be financially disadvantaged by such participation.

    The Rostering Committee will be a sub-committee of the Employee Consultative Committee (ECC). The ECC will meet on a regular basis and the Rostering Committee will report back on shift patterns of each unit.

    The ECC will discuss matters covered by Section 5 of this document. It will be comprised of SNP management representatives, SNP employee representatives, 1 TWU delegate, 1 United Voice delegate, a United Voice Official/ TWU Official will be invited to the meetings. The ECC will be a communication forum that allows for consultation and feedback by all parties. Final decisions will be made by SNP.

    The ECC meetings will be formal meetings and minutes will be taken and distributed to employees.

    18.7 Rostering of Workers

    SNP are working to achieve a better outcome for everyone. SNP needs a flexible workforce to meet the changing needs of our clients, and our employees have differing needs.

    The Employee Consultative Committee (ECC) will review the average number of planned hours rostered for:
    - all unrestricted part-time probationers
    - all unrestricted part-time non-probationers

    Should the average planned hours of all unrestricted part-time probationers be greater than all unrestricted part-time non-probationers then SNP will review its rostering practices to enable a fairer allocation of hours to unrestricted part-time non-probationers.’

THE EVIDENCE

[11] The following persons provided written and oral evidence in the proceeding:

  • Mr Ahmed Shalaby, Supervisor


  • Ms Farnaz Faizaan, Guard


  • Mr Knut Anderson, National Workforce Planning Manager


  • Mr Harry Kopsaris, National Qantas Accounts Manager


For the Union

Mr Ahmed Shalaby

[12] Mr Shalaby has been employed by SNP for approximately seven years. He is presently a full time Supervisor. Mr Shalaby and his colleagues work in the Qantas International lobby, which handles flights to United States destinations: Honolulu, San Francisco, Los Angeles, Dallas and New York. Mr Shalaby described this Qantas lobby as ‘unique’ in that SNP employees are required to conduct an additional passport check and screen random passengers. SNP employees also perform a physical and exterior inspection of the aircraft and a guard is placed at the front gate to the aerobridge and on the ground.

[13] The other lobby serviced by SNP is the Jetstar lobby. It is led by an SNP Team Leader, but is staffed by MPD labour. This lobby services one Jetstar flight a day to Honolulu. Mr Shalaby understood that the Jetstar lobby operates six days a week and has done so for at least eight years. SNP has had this Jetstar contract for at least that period of time.

[14] Mr Shalaby described the shifts in the two lobbies. The Qantas lobby operates two shifts – morning (6:00 am – 1:15 pm) for full time employees and 8:15 am – 1:15 pm for part time employees. Four flights are covered by the morning shift. The afternoon shift (12:00 pm – 11:30 pm) covers one flight and is supervised by an SNP Supervisor. The Jetstar lobby covers flight JQ3 and the shift commences at 2:30 pm and ends at 6:30 pm. Mr Shalaby said a number of MPD employees transfer to the QF3 evening flight.

[15] Mr Shalaby identified other airport areas which the employees can nominate in order to obtain extra work:

  • T1 Screening (International Baggage Scan);


  • T2 Screening (Domestic Baggage Scan);


  • T3 (Qantas Domestic);


  • PS (Protective Services);


  • CBS (Check Baggage Scan);


  • GA/Express T1 (Greeters and Express Lane/Customer Service, International);


  • GA/Express T2 (Greeters and Express Lane/Customer Service, Domestic);


  • Qantas lobby; and


  • Other.


[16] Mr Shalaby claimed that no SNP employee (except the Team Leader) can nominate to work at the Jetstar lobby. Nor will any SNP employee be offered work there.

[17] In cross-examination, by reference to a diagram layout, Mr Shalaby accepted that the entries to the Qantas and Jetstar lobbies are via different accesses. At Gate 9, there is an extra X-ray baggage check. Both Gates 8 and 9 have separate crews; one servicing Qantas and the other Jetstar. Mr Shalaby agreed that from late spring through summer an additional flight (QF17) to the United States is scheduled. He said that in the event of a cancellation of the Jetstar flight, that crew could be redeployed to service QF17, but this would mean over-crewing.

[18] Mr Shalaby explained his understanding of SNP rostering in circumstances where there were a large number of Jetstar cancellations or delays. He believed SNP rostered according to the airlines’ schedules, knowing that cancellations occur which are not scheduled flights. Mr Shalaby conceded that there are occasions when flights are cancelled at short notice, such as the day or night before. However, he did not consider these to be cancellations, because the flight is not actually a scheduled flight. He did not believe this was a regular occurrence.

[19] Mr Shalaby was referred to Mr Anderson’s statement, in which it was said that of 182 Jetstar flights from 1 January to 30 June 2016, 38 flights were generally cancelled the night before. Mr Shalaby acknowledged that if flights are cancelled the night before, it would be impossible for SNP to give the EBA’s required seven days’ notice to employees of a shift change. The departure records for the same period showed 144 flights, of which 100 were delayed by one minute to 261 minutes, and 69 were delayed by five minutes or more.

[20] Mr Shalaby was asked about his view that SNP employees can perform other duties if a flight is cancelled, such as preparing machines and paperwork. However, he conceded that only supervisors and Team Leaders do paperwork. Mr Shalaby accepted that the Jetstar shift was four hours and that the part time minimum hours were 26 a week.

[21] Mr Shalaby agreed that if a Qantas flight is at the gate and delayed for any reason, SNP employees must remain until the plane is pushed back and leaves. If the delay is extended for some time, they would not be able to do the Jetstar work. Mr Shalaby understood Jetstar schedules six flights a week in peak times and five in off-peak.

[22] In re-examination, Mr Shalaby said that 18 SNP employees work on the Qantas morning shift and, if there is a delay, 12 are required to remain behind. Six persons, including the Team Leader, are required for the Jetstar shift. This means any delays can be accommodated by the 12 SNP employees, and the other six could do the Jetstar shift.

[23] In explaining his evidence about the 38 cancelled Jetstar flights, Mr Shalaby estimated that about half were genuine ‘night before’ cancellations. By reference to actual rosters from 1 January to 28 June 2016, Mr Shalaby identified 10 occasions where no MPD contractors were working. This suggests the flight had been cancelled much earlier than the night before. This meant there may be been 10 genuinely cancelled flights – not 38 as claimed by Mr Anderson.

[24] It was Mr Shalaby’s evidence that there can be occasions when there are aircraft at both Gates 8 and 9. These are mostly in the morning Qantas shifts, between 11:00 am and 1:00 pm, and one team of 18 people is assigned. If the two flights are delayed, the full team is required to stay behind, but if only one is delayed, 12 employees are required. In any event, it is very rare to have a two flight delay.

[25] In explaining how an EBA compliant roster might work, Mr Shalaby proposed allowing SNP employees to work the afternoon Jetstar flight and QF3 at night. Mr Shalaby believed that part time SNP employees on the five hour morning shift which finishes at 1:30 pm, could easily make up their hours in the Jetstar lobby.

Ms Farnaz Faizaan

[26] Ms Faizaan has been employed by SNP as a part time guard for the last seven years. Her written evidence largely replicated that of Mr Shalaby. Ms Faizaan said she was qualified to work in the following areas:

  • T1 Screening (International Baggage Scan);


  • T2 Screening (Domestic Baggage Scan);


  • T2 VAPL (Virgin Premium Lounge);


  • T3 (Qantas Domestic)


  • PS (Protective Services);


  • CBS (Check Baggage Scan);


  • GA/Express T1 (Greeters and Express Lane/Customer Service, International);


  • GA/Express T2 (Greeters and Express Lane/Customer Service, Domestic); and


  • Qantas lobby T1.


[27] Ms Faizaan explained that there are two processes to obtain extra work. One is on the SNP intranet, which allows staff to nominate for locations for which they have been trained and when staff are unavailable. This is called the weekly nomination process. The second nomination process is known as ‘available tomorrow’, which is for shifts that become available the following day. These can be at:

  • T1 Screening (International Baggage Scan);


  • T2 Screening (Domestic Baggage Scan);


  • T3 (Qantas Domestic)


  • PS (Protective Services);


  • CBS (Check Baggage Scan);


  • GA/Express T1 (Greeters and Express Lane/Customer Service, International);


  • GA/Express T2 (Greeters and Express Lane/Customer Service, Domestic);


  • Qantas lobby (T1); and


  • Other.


[28] Ms Faizaan said that on numerous occasions, she had asked SNP to allocate her shifts in the Jetstar lobby, but was told they were only available to MPD contractors.

[29] In cross-examination, Ms Faizaan accepted that there were different accesses to Gates 8 and 9. Ms Faizaan clarified that as she was a qualified bag loader and checker, her duties were limited. Ms Faizaan confirmed that if she was offered extra work at Terminal 3 (T3), she would accept it, but when this had been offered in the last six months, it was not for additional hours, but replaced her usual job in the Qantas lobby.

[30] Ms Faizaan claimed that she was not satisfied with the number of hours she works at the Qantas lobby, because 26 hours is not enough to support her family. In a further question, Ms Faizaan conceded she had been offered work at T3, but did not accept it. In re-examination, she clarified that this work merely substituted for her Qantas lobby work – it was not extra work.

For the respondent

Mr Knut Anderson

[31] Mr Anderson is responsible for designing rosters and work patterns for SNP, including those at the Qantas and Jetstar lobbies. He is not personally involved in the day to day allocation of shifts to individual employees.

[32] Mr Anderson deposed that over the last nine months, Qantas made two main changes to their scheduling. These changes reduced the requirement for staff and the length of shifts in the Qantas lobby by 20%. They were:

    1. a reduction in the period of time staff are required for each flight; and

    2. a seasonal reduction in the number of flights.

[33] Effective 25 April 2016, the Qantas lobby hours were reduced from 1240 a week to 977.25. As a result, Mr Anderson said it was no longer possible to roster employees solely in the Qantas lobby to meet the EBA minimum of 26 hours per week. This meant employees were rostered to work other shifts in other areas where vacant shifts exist.

[34] Mr Anderson described the Jetstar lobby requirements. With a daily afternoon flight to Honolulu, it was common for Jetstar to cancel flights at short notice. Jetstar lobby hours for the Team Leader (an SNP employee) and Aircraft and Lobby Guard shifts are from 2:30 pm to 6:30 pm. It was Mr Anderson’s evidence that these shifts are covered by subcontractor labour because the Jetstar contract is a ‘low demand’ contract which requires flexibility that cannot be catered for in an EBA compliant roster. Mr Anderson claimed that Jetstar services fluctuate from week to week and flights are frequently cancelled at short notice, such as the night before. As a result, SNP cannot provide employees with the EBA’s requirement for seven days’ notice of roster changes.

[35] A major source of controversy was Mr Anderson’s evidence that from 1 January to 30 June 2016, 38 of 182 Jetstar flights were cancelled, generally the night before. 144 actual Jetstar flights were recorded during this period. Of this number, 100 flights were delayed by times ranging between one and 261 minutes, with 69 delays of more than five minutes.

[36] Mr Anderson acknowledged that SNP allocates its own Team Leaders to the four hour Jetstar lobby shift, in addition to a longer shift inclusive of responsibilities, other than in the Jetstar lobby. These responsibilities are not required of the MPD Aircraft and Lobby Guards.

[37] Mr Anderson generally agreed with the Union’s evidence as to the options which have been in place for two years, allowing employees to nominate for extra shifts across the airport precinct. This involves two mechanisms – weekly allocation and day before allocation. He described the process as follows:

    ‘19. The weekly allocation has the following process:

    • 12-7 days before a working week starts and after employees have received their roster for that working week, they can nominate to work extra shifts using an electronic nomination form.
    • 7-3 days before a working week starts, vacant shifts are allocated to employees who nominated in order of the employee with the least rostered hours to the most rostered hours.
    • Most of employees who work in the Qantas Lobby who nominates for extra shifts will get extra shifts in this process and SNP is always left with shifts that are still vacant in the Qantas Lobby.
    • Once we have exhausted the direct staff nominations, the remaining shifts in the Qantas Lobby are allocated to our subcontractor.

    20. The day before allocation has the following steps:
    • Employees who did not nominate in the weekly process or employees who want to add to their weekly nomination complete an electronic form called “Available Tomorrow”.
    • Any shifts that have become vacant since the weekly allocation are allocated. Priority is given to anyone who nominated weekly but still have not been allocated a shift.
    • If any shifts remain unallocated these are allocated to the “Available Tomorrow” nominees. In both cases, shifts are allocated first to the person with the least hours allocated for that week at that point.
    • The remaining last minute vacant shifts that cannot be filled by SNP employees are then allocated to our subcontractor or could be left vacant.’

[38] Mr Anderson provided details of the actual current Qantas lobby rosters. Alone, the Qantas lobby demand does not allow for an EBA compliant roster. This is achieved by adding three shifts from elsewhere. These are selected because they are vacant and blend well with the Qantas demand which was ‘rosterable’ under cl 46 of the Agreement. For Supervisors, the average weekly hours are 38.08, for Aircraft Guards 29 and Lobby Guards 26.59.

[39] In cross-examination, Mr Anderson was asked to explain the 10 Jetstar cancellations referred to in Mr Shalaby’s evidence; see: paragraph [23] above. The reports Mr Shalaby had relied on were from the rostering system called MyRoster. These do not reflect what actually happens operationally each day at the airport. Mr Anderson said the 38 cancelled flights he mentioned above were from a count completed each day at the gate by the Jetstar Team Leader. The two figures are not compatible. Mr Anderson said it was likely the 10 examples identified by Mr Shalaby were cancelled early enough to remove them from the MyRoster report.

[40] It was Mr Anderson’s further evidence that Jetstar contractually demanded six people (including the Team Leader) every day, seven days a week. His job is to cover this demand independently of what the schedule requires. He stressed that the Jetstar demand is not the same as saying there are seven daily flights a week. Mr Anderson conceded that he did not have the source document which identifies how many, and when Jetstar flights are cancelled each week. As Mr Anderson was unaware of the commercial arrangements between SNP and Jetstar, he could not say if SNP was paid for cancelled flights, not requiring staff.

[41] In respect to the Qantas lobby hours, Mr Anderson said that hours go up in October at the start of the peak season in accordance with the planning sequence. He also agreed that on the morning Qantas lobby shift, there are both SNP employees and MPD contractors. Mr Anderson acknowledged that SNP employees could work in the Jetstar lobby, because their training was similar.

[42] Mr Anderson accepted that when Qantas made scheduling changes in April 2016, the reduced hours available to SNP employees affected their take home pay. Mr Anderson restated that the objective was to satisfy the client demand, consistent with compliance with the EBA. It was Mr Anderson’s evidence that he could not comment on whether there were enough SNP staff members to cover both lobbies. Mr Anderson was unaware of why SNP employees could not nominate to work the Jetstar lobby shift, although it appeared some had done so prior to 9 May 2016. He agreed this might be seen as ‘favouritism’; however, that practice had now ceased.

[43] Mr Anderson was asked about his reference to ‘blended’ shifts and why this could not include the Jetstar lobby. He answered that it was not possible to create a roster based on the limited demand generated by Jetstar because they are all four hour shifts. Nevertheless, he conceded it was possible to blend the Jetstar and Qantas lobby shifts. However, according to the Agreement, it was not mandatory, because they were two separate contracts. When taken to the Agreement provisions, Mr Anderson said it was his understanding that the priority for shifts to be given to SNP employees arose if the contract has a demand which is possible to roster according to the Agreement. The Jetstar shift was not such a contract. Mr Anderson added that he did not know if it was possible to combine the Qantas morning roster with the Jetstar afternoon roster and still remain EBA compliant. He agreed that one five hour shift, plus one four hour shift, multiplied by five days a week, equals 45 hours.

[44] Mr Anderson conceded it was possible, in the event of a delay in the Qantas lobby, to roster MPD contractors to cover the delay. Mr Anderson agreed that under the EBA, ordinary hours for part time employees can be up to 37.75 a week and the average hours worked by Qantas lobby and aircraft guards mean they could work another 11.16 and 8.75 hours respectively. Nevertheless, Mr Anderson said that there are plenty of opportunities for Qantas lobby staff to work extra shifts, including at T3. Many employees do take up these extra hours. He also believed that most employees work more hours than they are rostered for.

[45] Mr Anderson accepted that given the demand for the Jetstar contract to have shifts allocated seven days a week, it could not be considered a short term contract.

[46] In re-examination, Mr Anderson added that because the roster cannot be EBA compliant, the Jetstar contract is a ‘low demand’ contract. Mr Anderson confirmed that the following schedule of weekly average hours of SNP employees in the Qantas lobby was extracted from payroll records for the period 6 June to 28 August 2016:

    #

    Name

    Weekly Avg Hrs

    Weekly Avg Pay

    1

    Ahmed Shalaby

    47.79

    $1,678.80

    2

    Monir Ahmed

    39.83

    $1,208.32

    3

    Iftekhar Taher

    39.73

    $1,201.99

    4

    Sakib Ahmed

    39.04

    $1,146.51

    5

    Salah Saffaga

    38.54

    $1,154.35

    6

    Lidija Ilievska-Djuric

    38.08

    $1,091.33

    7

    Paul Primrose

    35.83

    $1,185.90

    8

    Judith Allison

    35.52

    $1,114.56

    9

    Chaalan Choucair

    34.56

    $1,024.63

    10

    Marisl Herrera

    31.23

    $932.30

    11

    Farnaz Faizaan

    30.88

    $916.51

    12

    Peco Markovski

    30.63

    $904.23

    13

    Maryna Barylyasta

    29.88

    $886.80

    14

    Badoui Mourched

    28.30

    $825.65

    AVERAGE

    35.70

    $1,090.85

[47] Mr Anderson confirmed that if the Union wanted the source documents to verify the number of 38 Jetstar cancellations; see paragraphs [19] and [35], the documents could be obtained.

Mr Harry Kopsaris

[48] Mr Kopsaris deposed that the Jetstar contract is a separate contract from the Qantas contract. It is managed by SNP Operations Manager, Mr William Kallu. In terms of delivery, the general Qantas contract is to provide services for T3 at Sydney Domestic Airport, last point of departure screening of Qantas flights departing from the International Terminal (T1) for the United States and freight screening and guarding of domestic freight sites.

[49] Mr Kopsaris said that in October 2015, he was approached by Qantas to assist in a review of security services performed by SNP at the Qantas lobby (T1). The terms of reference were:

    (a) Tasks performed by SNP security personnel.

    (b) Headcount Review.

    (c) SNP – Drug and Alcohol Management Plan.

    (d) Qantas contracted requirements for Work Health and Safety.

    (e) Rostering review.

    (f) Realignment on the designation of a US bound, Qantas Aircraft.

    (g) SNP internal auditing and compliance.

[50] Mr Kopsaris said that changes arising from the review included the following:

    (a) SNP and subcontractor personnel working at the Qantas lobby were required to undertake Drug and Alcohol testing with an external service provider.

    (b) Aircraft guarding tasks were revised to also include the inspection of Aviation Security Identification Cards (ASIC) on commencement of guarding responsibilities on certain Qantas flights.

    (c) Review of Supervisor rostering, which included changes in rostering times.

    (d) Re-instigated the SNP Supervisor to be present at the Qantas lobby at all operational times.

    (e) Removal of the Team Leader allocation as this was not required by Qantas.

    (f) Realignment of Qantas lobby guards [sic] rostering times to reduce unnecessary downtime.

    (g) Introduction of a robust audit and compliance program.

[51] It was Mr Kopsaris’ evidence that meetings were held with SNP employees and their Union to provide feedback on these changes and the effect on their earning capacity. Following a meeting on 8 April 2016, a blended roster for the Qantas lobby and T3 was provided, as a Qantas lobby only roster would not be EBA compliant. Mr Kopsaris said that this roster was declined by the SNP employees, as they did not want to work at T3. Instead, they had proposed picking up the Jetstar lobby shift. SNP advised that the Jetstar contract was a separate contract and due to operational uncertainties in relation to flight delays, there was a high risk for SNP of being unable to service the airline’s requirements. For example, if the Qantas flight was delayed, the Qantas shift employees could not leave the Qantas lobby until the flight departed. This might leave the Jetstar lobby short staffed. Two further meetings were held on 11 and 14 April 2016, at which Qantas lobby employees were informed that the blended option between the Qantas lobby and T3 remained and they could also nominate for extra shifts in both areas. SNP advised that it was prepared to continue consultation and discuss various roster options. The employees and the Union representatives raised concerns that the process was taking too long and they should be able to work in the Jetstar lobby.

[52] Mr Kopsaris stated that in a further meeting on 27 April 2016, SNP advised employees and the Union that consultation had been completed and the option of working in the Jetstar lobby would not be available. SNP noted that in the recently negotiated Agreement, SNP had committed to converting 100 part time positions to full time. This was a complex process, which needed to be factored into a holistic review across all the business units, in which all rosters will need to be changed. An alternative roster was provided which included an additional three vacant T1 Transit B shifts, with refresher training to be arranged.

[53] In cross-examination, Mr Kopsaris acknowledged that there was a contract between SNP and Jetstar for work in the Jetstar lobby, and a separate contract between Qantas and SNP. This later contract was Mr Kopsaris’ responsibility. Mr Kopsaris agreed that the review he had referred to in his statement had seen a reduction in hours for SNP and contract labour. Mr Kopsaris noted that SNP employees can still nominate for additional hours.

[54] It was Mr Kopsaris’ belief that it was not possible to have a blended Qantas and Jetstar lobby roster because based on resources, SNP would not be able to service both aircraft. He gave an example on 20 July 2016, when two Qantas flights were delayed and it was necessary to have ‘all hands on deck’. On that occasion, the delay was only known about on the day. Mr Kopsaris said that it would not be possible, at short notice, to cover the delay by calling in MPD contractors. While Mr Kopsaris acknowledged this incident occurred once in the last six weeks, he could not say how often it might occur. He agreed this was a ‘worst case’ scenario. Mr Kopsaris was asked about another scenario where only one aircraft was delayed. He agreed that it would not be necessary to have all 18 employees covering such a delay, but it would depend on the type of aircraft and the nature of the delay.

[55] Mr Kopsaris did not know the hourly rate of MPD contractors or SNP employees, as he was not privy to SNP’s contractual terms with Qantas or Jetstar. Since Mr Kopsaris had no knowledge of the Jetstar contract, he could not say if it was a short term contract, even when shown the definition of a short term contract at cl 46 of the 2016 Agreement. Mr Kopsaris was asked about the maximum hours a part time employee can work (37.75 a week) and the average weekly hours disclosed in Exhibit C; see: paragraph [46]. He agreed that there is capacity for the SNP employees to work 8-11 hours extra a week.

[56] In re-examination, Mr Kopsaris explained that if there is a delay in the Qantas lobby, SNP employees must stay until the aircraft departs. There can also be a scenario where an unserviced aircraft arrives at the gate and has to be sent back to maintenance. The Qantas passengers have to wait for a fresh search of the aircraft. Mr Kopsaris also said that because there is a second later Qantas flight and employees may be delayed, this would have a significant operational effect.

[57] In a reply statement, Mr Shalaby said that it is possible to work in the Jetstar lobby in compliance with the Agreement, despite the assertion of ‘low demand’, by blending the Qantas morning or evening rosters with the Jetstar lobby shift.

[58] Mr Shalaby rejected SNP’s claim that work in the Jetstar lobby cannot be catered for because late notice cancellations would not provide employees with seven days’ notice of roster changes. This could be accommodated by a number of options, including allocation to alternative duties. Mr Shalaby did not accept that 38 of 182 Jetstar flights were cancelled in the first six months of 2016 because during the off-peak period, SNP knows in advance that the flights per week will be scaled back to five, but the roster is not altered.

[59] Mr Shalaby said the Qantas and Jetstar lobbies are in the same physical space and there can be no risk of SNP being unable to service both aircraft if one is delayed. There are usually 18 guards in place at the relevant times. This is sufficient to cover any delay.

SUBMISSIONS

[60] Prior to his formal submissions, Mr Lestal advised that the Union did not require the source documents relating to the 38 cancelled Jetstar flights; see: paragraphs [19] and [35], or the Jetstar schedules.

[61] In the Union’s written submissions, an amendment to the application was sought such as to rely on the 2016 Agreement and its relevant clauses to the present matter. It is assumed no objection was taken to that course and to the extent necessary, the F10 application is amended accordingly.

[62] After setting out the factual background to the dispute, the Union contended that the Qantas and Jetstar lobbies are in the same physical space, but are used by different airlines at different times of the day. It was claimed that as the contracts for the two lobbies have been operating for a number of years, they are not short term or ad hoc in nature.

[63] The Union explained that employees may nominate for extra shifts, either a week or a day in advance in a variety of locations around the airport, so long as they have the requisite training and experience. However, despite a variety of available options they are not permitted to nominate for the Jetstar lobby and have been told that only MPD contractors are permitted to work there.

[64] Particular reliance was placed by the Union on the second last paragraph of cl 46 of the Agreement. It was submitted that the weekly and daily nomination processes do not allow SNP employees to nominate for the Jetstar lobby, despite a clear requirement that SNP employees are to be preferred over contractors. The Union maintained that cl 46 has a plain meaning and is not ambiguous. Accordingly, it is not necessary to have regard to the negotiations for the 2016 Agreement or other extrinsic material; see: AMIEU vGolden Cockerel [2014] FWCFB 7447 (‘Golden Cockerel’).

[65] In oral submissions, Mr Lestal pointed out that SNP has had the Jetstar lobby contract for many years, including recently, a contract requiring SNP rostering for once a day Jetstar flights. Accordingly, this contract cannot meet the definition of a short term contract for which contractors might be used; being ad hoc or for a special or immediate purpose, not part of a previously-planned activity or of less than 30 days’ duration; see: cl 46 at paragraph [5] above.

[66] Mr Lestal relied on Mr Anderson’s evidence that some SNP employees may be limited, in terms of training, to work in other areas of the airport. As the work in the Qantas and Jetstar lobbies is the same, it is logical for them to undertake both. According to cl 46, the Jetstar lobby should be preferenced to them over contractors. Mr Lestal said that while the Qantas shift finishes at 1:15 pm and the Jetstar shift commences at 2:30 pm, employees could use the one hour and 15 minute gap to take a break or complete other duties, such as photocopying or cleaning.

[67] It was Mr Lestal’s submission that the Jetstar contract was not a ‘low demand’ contract. Again, by reference to Mr Anderson’s evidence, it requires staffing seven days a week, with flights on either five or six days. While it is accepted that on its own, it could not be an EBA compliant shift (being only four hours long), a mixed or blended roster with the Qantas lobby so as to meet the minimum part time hours of 26 and maximum of 37.75 a week, would be compliant.

[68] Mr Lestal emphasised that Mr Anderson had accepted it was possible to blend the Qantas and Jetstar lobby shifts. He noted that blended shifts are already necessary because the Qantas morning shift is five hours long and additional hours have to be made up at other airport locations.

[69] Mr Lestal submitted that SNP produced no evidence to show that Jetstar did not pay SNP for cancelled flights. Even if this were so, if a flight is cancelled, employees can make up the time at other locations.

[70] Mr Lestal observed that Mr Kopsaris could only identify one occasion in 42 days where two flights were at Gates 8 and 9 at the same time because of one or both of them being delayed. In any event, Mr Lestal relied on Mr Kopsaris’ evidence that alternative arrangements could be made to cover such infrequent events. Further, it was Mr Shalaby’s evidence that in respect to delays, only 12 of the 18 rostered staff were required, so the other six could go onto the Jetstar lobby shift, which is the required number of staff anyway. Mr Lestal noted that significantly, there are presently MPD contractors working on both the Qantas and Jetstar shifts, so why could SNP employees not do the same? Mr Shalaby’s evidence was significant, because he supervises both the Qantas and Jetstar lobbies, and knows their requirements. Mr Lestal said that the respondent’s ‘doomsday’ prediction of two delayed flights can be answered by:

    (a) it being an unlikely event;
    (b) there being sufficient processes to ensure coverage of both shifts; and
    (c) a fall back option was to call in contractors to cover the event.

[71] Mr Lestal submitted that SNP are using MPD as a replacement workforce. Mr Anderson had conceded that a blended roster, including the Qantas and Jetstar shifts, was a possibility, but had not been explored. The work is there and it should therefore be offered to SNP employees, pursuant to the Agreement.

For the respondent

[72] In written submissions, Mr Warren submitted that SNP has compiled its rosters and managed its employees in compliance with the Agreement, and in particular the provision of subcontracted security guards for the Jetstar lobby. This lobby is a ‘low demand’ contract which, on its own, is unable to meet the minimum hours for part time employees under the Agreement. In addition, the lack of certainty in respect to Jetstar flight cancellations and delayed flights, creates operational difficulties affecting the efficient rostering of SNP employees. Mr Warren put that to meet its contractual obligations and comply with the EBA, it is necessary for SNP to acquire subcontractor support. He added that unallocated, last minute or short shift vacancies are allocated in an equitable manner, in compliance with cl 46 of the EBA.

[73] In oral submissions, Mr Warren dealt with each of the determinations sought by the Union seriatum; see: paragraph [3] above. Mr Warren pointed out that the Union did not have regard to the whole of cl 46. The clause requires SNP to be committed to a permanent workforce – not a full time workforce. The clause recognises that spikes in demand may result in short term vacancies, short term contracts and ‘low demand’ contracts. Mr Warren submitted that there was clear, unchallenged evidence from Mr Anderson that the Jetstar contract is a ‘low demand’ contract, which cannot be rostered according to EBA requirements.

[74] Mr Warren stressed that while it might not be a short term contract, cl 46 distinguishes between short term contracts and ‘low demand’ contracts, with one form of contract not prevailing over the other. In addition, Mr Warren submitted that the Jetstar and Qantas contracts are separate. As the Jetstar contract is a contract that has a ‘low demand’, which it is not possible to roster in accordance with the Agreement, it is not required to be offered first to SNP employees.

[75] Mr Warren said that SNP does not submit that the Jetstar contract is a short term contract. Rather, it puts that it cannot roster the Jetstar contract to ensure compliance with the EBA. Mr Warren continued that the commitment to provide first choice to SNP employees to all unallocated, last minute and short shift vacancies does not arise, because there is no evidence that the Jetstar contract is unallocated; indeed, rather the reverse is the case.

[76] Mr Warren referred to Mr Anderson’s evidence as to the demands of the Jetstar contract and the now uncontested common occurrences of cancellations at short notice. These fluctuations require flexibility that cannot be catered for in an EBA compliant roster. Mr Warren noted that the two shift demands mean a gap of one and a quarter hours between the end of the Qantas morning shift and the commencement of the Jetstar afternoon shift. He said that SNP is not in the business of paying people for no work during this period. The Union suggested the employees could take their break. However, as the EBA provisions require a 30 minute break, not a one and a quarter hour break, and the payment of a broken shift allowance of $12.51 per week, it does not make any commercial sense, despite Mr Anderson agreeing it could be done. There is the added problem of delayed aircraft requiring employees to service both lobbies.

[77] In referring to the tendered payroll records, Mr Warren observed that while the minimum weekly part time hours were 26, the vast majority of the Qantas lobby employees worked in excess of 26 hours a week. He noted that in the records provided, Mr Shalaby worked an average of 47.79 hours a week. Mr Warren dealt with the process of nomination for extra shifts and the requirement to allocate first to the person with the least hours for that week, at that point in time. This essentially means part time employees are offered additional work before full time employees. Mr Warren referred to the evidence of Mr Kopsaris that SNP had provided a blended roster to the employees for work in the Qantas lobby and at T3, but this had been rejected because the employees wanted extra shifts at the Jetstar lobby. This was contrary to cl 7.7 of the Agreement, see: paragraph [8] above. Mr Warren noted that SNP had not taken a ‘hard nosed’ view by directing employees to work at T3. Nevertheless, the employees can hardly complain about not getting additional work when it is offered and refused. Even training was offered, if this was considered necessary. Extra work was available, but it appears the employees are ‘a bit choosy’ as to where they want to work. In any event, Mr Warren stressed that vacant shifts are offered on a fair and equitable basis, with the person with the least number of hours getting preferenced over someone with a greater number of hours.

[78] Finally, Mr Warren submitted that SNP was complying with all its EBA obligations and there were plenty of options for employees to work extra hours. The determinations sought by the Union should be refused and the dispute concluded.

[79] In reply, Mr Lestal submitted that the problem with SNP’s claim concerning the Jetstar roster as being not EBA compliant, is that the Qantas morning shift is not compliant either. Hence the very reason for requesting a blended Qantas and Jetstar roster to make both compliant. Indeed, Mr Anderson had agreed this was possible. Mr Lestal said it did not make sense to send employees to other locations in the airport precinct, when they were virtually next to the area they had worked in during the morning.

[80] Mr Lestal asked why there could not be a mechanism for SNP employees to nominate to fill vacant Jetstar shifts, just as there is in other areas of the airport? At least this should be available to SNP employees, if the need arose. They have the necessary training and experience, so no additional cost would be incurred.

[81] Mr Lestal emphasised that the evidence of the Union witnesses was that what is being sought in this case is what has operated in the past and there is no good reason why it could not be reinstated. Mr Lestal disagreed with SNP’s contention that in dealing with the rare event of two aircraft being delayed, SNP had to roster to cater for ‘worst case’ scenarios. As Mr Anderson had conceded, there were other options for handling these exceptions. There was no evidence that these options would not work effectively.

[82] As to the 30 minute meal break and broken shift allowance which might be required, Mr Lestal said the amount was insignificant as it affected only six employees a day at a cost of $37.50 per day. Mr Lestal put that another alternative was for SNP employees to work the 2:30 pm – 6:30 pm Jetstar shift, then the 6:30 pm – 10:30 pm Qantas evening shift.

[83] In a final exchange with the Commission, Mr Warren said that 65% of the 16 affected employees are part time employees. As a consequence of the recent EBA negotiations, agreement was reached with the Union to create 100 full time positions, including from existing part time employees. This process is to be completed by October 2016. Mr Lestal confirmed that a number of the part time employees affected by this dispute have applied to become full time.

CONSIDERATION

[84] Given the drafting of the determinations sought by the Union, it is necessary for the Commission to undertake an interpretation of the relevant Agreement provision, cl 46. The principles to be applied in such an exercise are of long standing; see: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426; Short v FW Hercus Pty Ltd (1993) 40 FCR 511; Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, and were usefully summarised and reaffirmed by the Full Bench of the Commission in Golden Cockerel. At paragraph [41], the Full Bench said:

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

    1. The AI [Acts Interpretation] 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.’

[85] Thus, the first step in construing the terms of cl 46 is to determine whether the words used have a plain and ordinary meaning, or give rise to an ambiguity or are capable of more than one interpretation. If no ambiguity or uncertainty is found, it is not permissible to embark on the next step of establishing evidence of surrounding circumstances to aid in the interpretation of the clause. Mr Lestal submitted (and I ascertain Mr Warren inferentially agreed) that the words in cl 46 have a plain and ordinary meaning. I agree with this submission. However, I do not accept that the words in cl 46 have a meaning for which Mr Lestal contends. This is so because another ‘golden rule’ of agreement interpretation is that the words in cl 46 must be viewed in the context of the totality of the clause, and by reference to the clause’s place in, and the arrangement of the Agreement. Unsurprisingly, Mr Lestal, focussed on relying on parts of cl 46 which tended to support his arguments, but he ignored the totality of the clause, which clarified the true purpose and context of the provision.

[86] When viewed from this perspective, it is my opinion that the Jetstar contract is one which meets the requirements of cl 46. That this is so is because the Jetstar contract is:

    (a) a separate contract to the Qantas contract and is managed separately by different SNP management;
    (b) a contract which is not possible to be roster compliant on its own, so it does not require being offered first to SNP employees;
    (c) a ‘low demand’ contract. The wording of the clause makes clear that there is a distinction between a short term contract and a ‘low demand’ contract; and
    (d) a contract which is not unallocated. It is not last minute or one involving short shift vacancies. This means the priority for SNP employees does not arise.

[87] For these reasons, I am satisfied that the determinations sought by the Union should not be granted, in that I conclude that:

    (a) SNP is not in breach of the provisions of cl 46 of the Agreement;
    (b) Clause 46 of the Agreement does not prevent SNP from utilising subcontract labour for a ‘low demand’ contract, such as the Jetstar lobby contract;
    (c) Clause 46 does not require SNP to give preference to its own employees for separate ‘low demand’ contracts, as distinct to short term contracts; and
    (d) SNP’s existing arrangements, whereby preference is given to employees with the lowest number of hours for unallocated, last minute cancellations is fair and reasonable and consistent with the provisions of cl 46.

[88] With this in mind, I am satisfied that this dispute can be determined on this basis alone. However, I feel moved to make some additional comments on the merits of the Union’s case.

[89] In my opinion, the Union’s merit case would have been significantly more compelling if the Qantas SNP employees had no other options to nominate for extra shifts at other airport locations. In the Union’s submissions, it agreed that the employees have a wide variety of options to nominate for extra work at other locations, subject of course, to having the requisite training and experience. The fact is that the majority of affected employees have no desire to nominate for other locations (which is their right) because the only option they wish to nominate for is work in the Jetstar lobby.

[90] While in the minds of the SNP employees it might make logical sense to simply transfer from the Qantas to the Jetstar lobby, given their proximity and the known aircraft scheduling, in my view, it is not open for employees to insist on being preferenced for work in an area which the employer has deemed to be more efficiently rostered by subcontractor labour (assuming the employer’s compliance with the other associated terms of the Agreement). This is a classic example of management prerogative. Logic is irrelevant. In short, SNP is entitled to rely on cl 7.7 of the Agreement, which sets out that:

    ‘7.7 Employees covered by this Agreement may be required by SNP to perform all work within their skill and competence, including work which is incidental or peripheral to their main tasks or function, at any facility within the Sydney Airport precinct.’ [my emphasis]

[91] On the other hand, it is not entirely clear to me why employees are not prepared to nominate other airport locations for extra work. If, as Ms Faizaan said, she needs the extra shifts to maintain her income to support her family, it is curious why the blended options proposed by SNP were rejected by the employees; see: paragraph [51] above. (I note of course that in Ms Faizaan’s case, she rejected the extra work at T3 because it merely replaced the existing hours she had at the Qantas lobby.)

[92] Perhaps the stance of this small cohort of SNP employees is because they work in close proximity to the Jetstar lobby, or that they are unhappy to work adjacent to subcontract labour, supervised by an SNP supervisor, or that working at other airport locations is not as ‘glamorous’ as the international lobbies. In any event, the uncontested payroll figures do not bear out the Union’s claim that they are being denied opportunities to work extra shifts. This data disclosed that of the 14 (out of 16 in total) highlighted employees, 12 worked a weekly average (over a recent 12-week period) in excess of 30 hours, of which eight worked an average in excess of 35 hours, five of whom worked an average in excess of 38 hours and one – Mr Shalaby – who worked average weekly hours of 47.79.

[93] At this juncture, I also note that as a result of the recently negotiated Agreement, SNP has committed to provide 100 full time positions to existing part time employees by the end of October. This is likely to reduce the need to engage subcontract labour, but also limit the capacity of SNP to offer additional shifts to the remaining part time employees. During closing submissions, Mr Lestal confirmed that some of the part time employees, the subject of this dispute, have applied to become permanent full time employees. This is to be welcomed and encouraged and should go some way to accommodating the employees’ desire for additional work.

[94] Mr Lestal made much of Mr Anderson’s evidence that it was possible to blend the Qantas and Jetstar shifts in order to ensure EBA compliance with part time minimum hours. He also criticised Mr Warren’s argument that the Jetstar shift, while not being EBA compliant on its own, neither was the Qantas morning shift. Mr Anderson’s candid acknowledgement was entirely understandable. Of course, it was possible to blend the two shifts, but it came with some important caveats, which went directly to operational requirements and efficiency. These were firstly, that there are examples of delays or cancellations which would affect the capacity of SNP to efficiently conduct its business and comply with its contractual obligations with both Qantas and Jetstar. Mr Lestal described the single two aircraft coincidence in six weeks, identified by Mr Kopsaris, as a ‘doomsday’ scenario. However, in my view, it was entirely reasonable and responsible of SNP to ensure any adverse contingencies – no matter how remote – which could seriously affect the critical operational imperatives of airline deadlines, are accounted for. I do not consider alternative options, such as calling in other SNP employees or subcontract labour, as making much practical operational sense. Secondly, the one and a quarter hour gaps between shifts were said to be able to be covered by employees taking a break, doing other work or being paid for broken shifts. It cannot be doubted that these options add to the cost of efficiently managing the contracts. I also note that the EBA meal break is 30 minutes – not an hour – and that the Union’s evidence of what other work could be performed was vague and exiguous.

[95] I am also cognisant of Mr Anderson’s evidence concerning the frequency of short notice cancellations of the Jetstar service (ultimately this evidence was not seriously challenged by the Union). This would not only cause operational difficulties, but would not allow SNP to give the EBA required seven days’ notice to employees of shift changes.

[96] For these reasons, I would not, as a matter of industrial merit, grant the Union’s primary claim in this case that SNP employees should be preferenced over subcontract labour for work in the Jetstar lobby. The Commission refuses to grant the determinations sought by the Union. The dispute is concluded accordingly. Orders to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr D Lestal, solicitor, for the applicant.

Mr R Warren of counsel for the respondent.

Hearing details:

Sydney.

2016.

September 2.

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AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10
Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10