United Firefighters' Union of Australia v Airservices Australia

[2016] FWC 6329

[2016] FWC 6329

FAIR WORK COMMISSION

DECISION

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

United Firefighters' Union of Australia
v
Airservices Australia
(C2016/1402)

COMMISSIONER WILSON MELBOURNE, 14 SEPTEMBER 2016

Application for the Commission to deal with a dispute. Basis upon which Agreement provides for advertising and offering of Fly In/Fly Out arrangements.

[1] This decision concerns an application by the United Firefighters' Union of Australia, in respect of its Aviation Branch, for the Fair Work Commission to deal with a dispute pursuant to the provisions of s.739 of the Fair Work Act 2009 (the Act), with the dispute relating to the employment of aviation rescue firefighters employed under the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013 - 2017 1 (the ARFF Agreement).

[2] In short, and as it was argued before me, the dispute concerns two aspects of employees’ entitlements when they work in a Fly-in/Fly-out (FIFO) arrangement. The first aspect is a question of whether Airservices Australia may make an offer of FIFO work conditional upon a requirement that an employee relocate their place of residence or home location. The second aspect of the dispute relates to whether an offer of FIFO work can be on the basis that paid travel to the ultimate work destination is only to and from a particular location, without regard being had to where the employee usually resides.

[3] The UFU sought representation in the proceedings by a lawyer, relying on the criteria within s.596(2)(b) of the Act relating to the inability of the union to represent itself for reason of the small size of the union’s Aviation Branch and that its Branch Secretary has limited experience conducting arbitrations before the Commission. The UFU also noted that Airservices Australia was to be represented by an in-house employee relations lawyer and that it has a significant and experienced Human Resources section. I was satisfied that it was appropriate to grant the application to be represented by a lawyer. Mr A Rich, solicitor, of Slater and Gordon appeared for the Applicant and Mr S Jenkins-Flint, Employee Relations Lawyer, from Airservices Australia appeared for the Respondent.

LEGISLATION

[4] The UFU’s application to the Commission is made pursuant to s.739 of the Act which provides jurisdiction to deal with disputes in certain circumstances set out within that section and s.738, namely where a “term” of a modern award, an agreement or a contract or Public Service Determination allows. Arbitration of a dispute may only be where the parties have agreed for that to occur, in accordance with the term. The Commission’s powers to deal with a dispute under the section are constrained in the ways set out in the section, and most particularly in the manner set out in sub-section (5), such that the Commission may not make a decision that is inconsistent with the Act or a fair work instrument applicable to the parties.

[5] Sections 738 and 739 are in these terms;

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

RELEVANT FACTUAL BACKGROUND

[6] Evidence in this matter was provided for the Applicant by Michael Farrell, a former Branch Secretary of the UFU Aviation Branch, Henry Lawrence, the current Branch Secretary, and Eden Morris, a Leading Firefighter employed by Airservices Australia and presently engaged in FIFO work. Airservices Australia’s lawyer, Stephen Jenkins-Flint, gave evidence on behalf of the Respondent, as did James Harrington, an Airservices Australia Aviation Rescue Firefighting Service Training Manager who was involved in bargaining for the ARFF Agreement on behalf of the Respondent.

[7] The evidence of the UFU witnesses was aimed at providing background to the negotiation of the terms of the ARFF Agreement and in particular how the FIFO provisions came about. The evidence emphasised that the FIFO arrangements were to be implemented in a way that avoided uprooting families 2 and supplanted other forms of relocation already available to Airservices Australia, such as temporary or permanent transfer arrangements.

[8] The union also took the view that the way in which Airservices Australia was presently approaching FIFO arrangements amounted to “coercing employees into paying their own way to Perth for FIFO appointments in Western Australia”. 3

[9] Mr Morris gave evidence of how the Airservices Australia interpretation affected his own employment. Having been employed by Airservices Australia since 1990, he commenced a FIFO arrangement to Newman, Western Australia in July 2014. His place of residence was, and remains, on the Gold Coast in Queensland. He was initially engaged for the Newman FIFO arrangement for 12 months, with the initial arrangement being extended for a further 12 months. The extension was scheduled to end on 1 August 2016, if it was not further extended.

[10] Mr Morris’ evidence is that prior to being appointed as a FIFO employee to Newman Airport he held a permanent position as a Leading Firefighter at the Brisbane station. In March 2016 he saw and responded to an advertisement for FIFO positions at the Newman Airport. The advertisement was in these terms;

“Aviation Fire Fighters - Newman

We are currently seeking reliable and diligent Aviation Fire Fighters to commence on 24 month Fly-In Fly-Out (FIFO) contracts to Newman, WA. In accordance with the provisions of the ARFF Enterprise Agreement, you will return to your substantive position at the completion of your contract.

This is a Fly-In Fly-Out (FIFO) working arrangement out of Perth. Applicants from other stations are also welcome to apply however Perth applicants will be given preference.

Applicants should also be aware that we anticipate interviews to take place 7-8 April 2016. Please ensure you keep some time free on these dates should you be selected for an interview.

Please note that all applicants must hold a current Certificate III in Public Safety (Fire Fighting and Emergency Operations) or demonstrate progression towards completion.

For more information, please contact [name and contact details].

To apply, please lodge your application through AvNet > HR > Current Vacancies. Applications close at 23:00 WST on Sunday, 3 Apri1 2016.” 4

[11] When Mr Morris queried why the position in which he was engaged was not being extended, he was told that “costing would be a criteria”, 5 which he understood to be a reference to the cost of flying an employee to and from Newman. His evidence is that he understood the selection process to involve not only considerations of his skills and the like demonstrated in the course of an interview and referee report, but also considerations of cost. His evidence is that when he was told on 13 April 2016 that he had been unsuccessful in his application the manager concerned, Shane Fox, the Fire Station Manager at Newman, informed him that while he had interviewed well;

“He said that I ranked the highest in the interview, but was ranked last financially. He told me that I was unsuccessful on the basis of the costing criteria.” 6

[12] Prior to being informed that he was unsuccessful in the application, Mr Morris had sent an email to Mr Fox which set out some alternatives for consideration by Airservices Australia in the event that he was ranked low in the Order of Merit because of his expected costs of travel. The alternatives included, in part, the following;

“I would like the following options to be considered in conjunction with my application if I was to be placed outside of the first 5 applicants in order of merit under Airservices practices and policies in merit based job applications.

For the purpose and agreed term of my FIFO position at Newman I would be Perth based and not incur or claim any costs associated with the transferring of my current residence at [Gold Coast address].

This offer would be subject to the following conditions that are based on both personal commitments and Airservices commitment to Fair and equitable policies.

1: Commencement of my FIFO travel arrangements from Perth to start on 6/3/17.This is due to personal commitments that I have in place on the East Coast until the end of Feb 2017.

2: At the Termination of my FIFO position at Newman I am returned to Brisbane at Airservices expense under applicable conditions of the CA.

3: If at any time during my agreed FIFO term at Newman a position is filled from a location other than Perth, that I would be offered similar FIFO conditions to that Person or Persons.

These above 3 conditions I believe to be both Fair and equitable considering the circumstances under which this recent Job application has associated with it, to support this statement I would like to add the following comments.” 7

[13] The evidence of Airservices Australia dealt with the history of the dispute, which includes a Recommendation having been made to the parties by Commissioner Deegan in July 2012, as well as matters relating to the negotiation of the ARFF Agreement. In this latter regard, Airservices Australia noted that certain changes to the FIFO arrangements had been sought by the UFU in negotiation, and that ultimately;

“Airservices considered and rejected each of the claims made by the UFU with respect to FIFO arrangements. Clause 4.8 was included in the Agreement without any differences from clause 4.8 in the preceding enterprise agreement, apart from the correction of three small typographical errors.” 8

THE APPLICANT’S DRAFT DETERMINATION

[14] The UFU’s Draft Orders for these proceedings, filed in accordance with directions from the Commission, are in the following terms;

“1. For the purposes of these orders “Agreement” means the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2013-2017.

2. Subject only to the right to transfer employees under clause 4.10 of the Agreement, the offer of a FIFO position under clause 4.8 of the Agreement cannot require an employee to change their place of residence or their home location.

3. Employees covered by the Agreement who are working under FIFO arrangements, are entitled to have their air travel from their place of residence to their initial FIFO post, paid by Airservices Australia in accordance with clause 4.9 of the Agreement.” 9

CONSIDERATION

[15] Clause 3.4 of the ARFF Agreement sets out a dispute resolution procedure. Consideration of that clause allows a finding that the dispute notified by the UFU is validly before the Commission. It is a dispute about a matter arsing under the Agreement, and there is evidence that the dispute has been properly the subject of discussion between the parties, and later reference to the Commission in accordance with the terms of the procedure. So far as is relevant to this decision, the ARFF Agreement provides the following;

“3.4.2 If the matter cannot be resolved by following the process outlined above, then any of the parties to the dispute may apply to the FWC to have a dispute resolution process conducted under the Act in relation to the matter.

3.4.3 In relation to that dispute resolution process, the FWC will have the power to settle the dispute by:

(a) Conciliation;

(b) Arbitration, if conciliation is not successful in resolving the dispute, or if the parties agree that they wish the FWC to settle the dispute by arbitration without recourse to conciliation.

3.4.4 Unless otherwise agreed by the parties, the powers that the FWC can exercise under this clause are those powers available to it under the Act as at the time that this agreement commences to operate.”

[16] In dealing with a dispute such as this the Commission is not undertaking an exercise of judicial power but is instead exercising a power of private arbitration, with that power deriving from the parties’ agreement to submit their differences for decision by a third-party and the resultant arbitrator’s award not being binding of its own force but instead its effect depending on the law which operates with respect to it. 10 It is accepted that while not exercising judicial power, the Commission “may legitimately form and act upon opinions about legal rights and obligations as a step in the exercise of its own functions and powers”.11

[17] In considering whether the dispute settlement procedure in an enterprise agreement “requires or allows” the Commission to deal with the dispute, it is necessary to look at the text of the dispute settlement procedure, understood in light of its industrial context and purpose, to determine whether the dispute, properly characterised, falls within it. 12 However in doing so the scope of a dispute settlement procedure in an enterprise agreement should not be narrowly construed.13 In characterising the nature of a dispute the Commission is not confined to the application filed to deal with the dispute.14 The entire factual background is relevant, and may be ascertained from the submissions advanced by the parties on the question of jurisdiction.15 Further, a dispute may evolve during proceedings in the Commission. It may therefore be necessary in some cases when ascertaining the character of a dispute to have regard to both the nature of the dispute alleged in an originating application and the factual circumstances as they evolve.16

[18] While the character of a dispute is distinguishable from any relief which may be sought, or granted, following an arbitration of the dispute, 17 in some cases the relief sought may cast light on the true nature of the dispute.18

[19] Having found jurisdiction to deal with the dispute, the nature of the relief that may be granted will depend on the limitation in s.739(5) of the Act 19 and the agreement of the parties as recorded in their enterprise agreement, provided that such relief is reasonably incidental to the application of the enterprise agreement to which the dispute relates.20

[20] As a private arbitrator, the Commission is authorised to make decisions as to the legal rights and liabilities of parties to whom the enterprise agreement applies, 21 which involves deciding “all questions both of law and of fact”22 that arise in the dispute, subject to any limitation on power in the dispute settlement clause, together with therequirement not to make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties.

[21] Interpretation of an enterprise agreement requires construction of the words of the instrument, with the Full Bench in AMIEU v Golden Cockerel Pty Ltd 23 (Golden Cockerel), setting out the principles for such task. In that matter, and after an extensive analysis of the subject, the Full Bench summarised the principles to be applied in the following way;

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

1. The AI Act 24 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.

[22] In this matter, the disputed provisions of the ARFF Agreement are within clause 4.8, entitled “Fly in Fly Out (FIFO)”, which is itself within Part 4, entitled “Working Conditions”. Clause 4.8 is in the following form;

“4.8 FLY IN FLY OUT (FIFO)

4.8.1 At locations where we determine FIFO as the suitable staffing model, you may be offered FIFO positions. During the period of the FIFO arrangements the terms and conditions of your employment will continue to be subject to this Agreement and you will retain your substantive classification and right of return to your home location (Fire Station).

4.8.2 Any particular terms of employment that are specific to the FIFO location in addition to the standard conditions stated in clause 4.8.3 will be contained in a Group Flexibility Agreement made under this Agreement.

4.8.3 When working under FIFO arrangements, the following standard conditions will apply:

a) The selected location will be defined as your initial FIFO post for the purposes of FIFO confirmation.

b) When under FIFO arrangements your home location will be your place of residence.

c) The initial FIFO posting will be for period of twenty four (24) months unless a variation to that period is agreed between you and us.

d) In exceptional circumstances either you or we can terminate the FIFO arrangement by giving three (3) months notice, unless a shorter period of notice is agreed.

e) After giving the required notice in accordance with (d), or at the conclusion of the initial two year period, we may offer you another FIFO post at any Fire Station across the network. Acceptance of any offer made to you would be made on a voluntary basis.

f) FIFO working arrangements will be a designated rotational period of fourteen (14) days. You will be required to work the equivalent of one hundred and fifty two (152) hours (based on a thirty eight (38) hour week x four ( 4) weeks) in the designated rotational period, which will include travel time from your place of residence to your FIFO post.

g) We will pay the first twelve months of Qantas Club or Virgin Blue Lounge membership or until you achieve a flying status which provides membership at no cost, whichever occurs first.

h) We will reimburse gymnasium fees at your home location, where requested in accordance with the Airservices Australia Gym Program Guidelines.

i) Should you elect to relocate from your home location to another permanent location within Australia during the initial FIFO period or to give effect to an initial FIFO arrangement you are responsible for all costs associated with the relocation.

j) Requests to change the FIFO travel arrangements to another location other than returning to the home location (i.e. for the 14 days off) must have prior agreement from us and not result in any additional cost to us. It remains your responsibility to ensure that the return travel arrangements from locations other than your home location are in accordance with the FIFO Fire Station's roster requirements.

k) We will provide you with furnished accommodation to a reasonable standard with the following conditions applied:

• all utilities will be paid by Airservices



• individual and separate bedroom for each person;



• no more than two people to share domestic ablutions; and



• linen and cleaning consumables provided.

l) A general use vehicle will be made available to transport staff between the workplace and accommodation and for reasonable out of hours use.

m) We will meet reasonable personal telephone call costs associated with telephone facilities provided at the FIFO Fire Station and your accommodation.

n) Where meals are not provided, you will be paid an allowance equivalent to the Travelling Allowance (TA) specified in clause 4.11.4 for each (12) twelve hour period when you are at FIFO post.

o) The twelve (12) hour period for the purpose of travel incorporates (1) hour to travel to the airport for departure and one (1) hour from the airport on return.

p) We will provide reasonable reimbursement of expenses actually incurred for travel between your usual residence or your FIFO accommodation (as the case may be) and the airport to give effect to FIFO or training requirements. Individual circumstances will be considered and approved by your Station Commander.

q) Subject to our agreement, you may elect to drive your private vehicle to the FIFO post. In these circumstances you will receive the financial equivalent of the air travel cost which would normally have been provided as reimbursement for all costs incurred. There will be no additional travel time over and above provided for at clause 4.8.3 (n).

r) When under FIFO arrangements you will not be entitled to term transfer entitlements provided for at clause 4.10.5 of this Agreement.”

[23] The other clauses of Part 4 deal with categories of employment (4.1), hours of work (4.2) rostering (4.3), additional hours and emergency duty (4.4), on-call allowance (4.5), time off in lieu (4.6), rest relief (4.7), travel standard (4.9), and transfers (4.10).

[24] Other than clause 4.10, the remaining clauses within Part 4 appear not to have relevance to the subject matter within clause 4.8, and it was not argued that they do.

[25] Clause 4.10 potentially provides some guidance to the ordinary and grammatical meaning of clause 4.8, setting out definitions of some words that are also used within clause 4.8 and especially the terms “home” and “home location”. However, I am satisfied that the definition of “home location” within clause 4.8 is different to the term within clause 4.10. Whereas the term “home location” as defined in clause 4.10 “means your usual work and living locality”, clause 4.8.3(b) provides that “[w]hen under FIFO arrangements your home location will be your place of residence”.

[26] This analysis leads me to accept that the characterisation of the dispute put forward by the UFU is appropriate, with it being both consistent with the factual background put forward by the parties, but with minor modification to phrase the characterisation as questions to be answered by the Commission.

[27] Accordingly I find the correct characterisation of the dispute to be as follows;

1. Subject only to the right to transfer employees under clause 4.10 of the ARFF Agreement, can the offer of the FIFO position under clause 4.8 of the ARFF Agreement require an employee to change their place of residence or their home location?

2. Are employees covered by the ARFF Agreement, and working under FIFO arrangements, entitled to have their air travel from their place of residence to their initial FIFO post paid by Airservices Australia in accordance with clause 4.9 of the ARFF Agreement?

[28] The first question for consideration in determining the foregoing matters is whether the disputed clause in the ARFF Agreement has a plain meaning or contains an ambiguity. In ascertaining whether an ambiguity exists, regard may be had to evidence of surrounding circumstances, however if the agreement has a plain meaning evidence of the surrounding circumstances will not be admitted to contradict the plain language of the ARFF Agreement.

[29] The evidence led before me on the question of whether there may be an ambiguity within the term is either not admissible for the reason that it amounts to the subjective intentions of the parties and is thereby not evidence of the objective framework of fact, or does not lead to a finding that there is an ambiguity within the disputed term.

[30] For example, while Mr Farrell’s evidence that it was his intention with the negotiation of the FIFO term to avoid “uprooting’ families”, such evidence, in the absence of documentary evidence or independent oral evidence on the subject, amounts only to his subjective intention for the clause.

[31] Likewise, Mr Harrington’s evidence that “Airservices considered and rejected each of the claims made by the UFU with respect to FIFO arrangements” 25 in the course of the negotiations for the ARFF Agreement and that clause 4.8 was included in the agreement without any substantial differences from the same clause in the preceding agreement is reflective only of the subjective intention of the Respondent’s negotiator, and in any event provides limited utility in ascertaining whether the disputed term contains an ambiguity or not.

[32] As a result I find that there is no admissible evidence of the surrounding circumstances that would assist in determining whether an ambiguity exists within the disputed term. I also find that the term itself is not ambiguous or susceptible to more than one meaning.

[33] Accordingly it is appropriate to construe the disputed FIFO term, clause 4.8, on the language of the ARFF Agreement understood having regard to its context and purpose.

[34] In my consideration, the clause contains a plain meaning of several matters, to which I now turn.

[35] The clause makes arrangements for employees to be domiciled in one location, flown to another where they perform work for a period and then return to their domicile. It provides confidence to employees that even though they take up a FIFO arrangement for up to 2 years, they will have a right of return to their substantive classification and their “home location (fire station)”. 26 It provides some standard conditions about an employee’s FIFO posting and the duration of the initial post and provides for a period of notice to be given by either party to terminate a FIFO arrangement before the end of the standard duration, should that be necessary. The clause also provides standardised rostering arrangements and commits to making payment of “travel time from your place of residence to your FIFO post”27 while limiting the amount of travel time that may be claimed.

[36] In clause 4.8.3 the locality that a person actually works is referred to as the “selected location” and the term “home location” operates on the basis that “when under FIFO arrangements your home location will be your place of residence.” The effect of this provision is to establish what amounts to a default arrangement for the purposes both of an employee’s retention of their substantive position and employment location and also for the purposes of establishment of the entitlement to the payment of travel costs.

[37] While creating that default, the clause also establishes an arrangement to deal with the circumstances of an employee choosing to permanently relocate their “home location” or to do so only temporarily. Understandably, there will be a myriad of circumstances in which a FIFO worker may choose to do this. It could be the case that a person working for a two year period in Newman may find that commuting from their home on the Gold Coast is no longer as attractive as it once was and that they instead wish to spend their non-rostered time, at least for a while, in Bali. Equally, it could be the case that the desire to move away from the Gold Coast is not a permanent proposition but one of only a few months or maybe a year.

[38] Faced with such eventualities, it could be considered that Airservices Australia does not especially mind where a FIFO employee chooses to live temporarily or permanently, merely that they report for work as rostered and do so in a manner which does not cost the taxpayer any more than the FIFO arrangement originally entered into.

[39] In such circumstances the following parts of clause 4.8.3 are entirely sensible parts of the bargain between the UFU and Airservices Australia;

“i) Should you elect to relocate from your home location to another permanent location within Australia during the initial FIFO period or to give effect to an initial FIFO arrangement you are responsible for all costs associated with the relocation.

j) Requests to change the FIFO travel arrangements to another location other than returning to the home location (i.e. for the 14 days off) must have prior agreement from us and not result in any additional cost to us. It remains your responsibility to ensure that the return travel arrangements from locations other than your home location are in accordance with the FIFO Fire Station's roster requirements.”

“o) The twelve (12) hour period for the purpose of travel incorporates (1) hour to travel to the airport for departure and one (1) hour from the airport on return.

p) We will provide reasonable reimbursement of expenses actually incurred for travel between your usual residence or your FIFO accommodation (as the case may be) and the airport to give effect to FIFO or training requirements. Individual circumstances will be considered and approved by your Station Commander.

q) Subject to our agreement, you may elect to drive your private vehicle to the FIFO post. In these circumstances you will receive the financial equivalent of the air travel cost which would normally have been provided as reimbursement for all costs incurred. There will be no additional travel time over and above provided for at clause 4.8.3 (n).”

[40] The effect of these clauses is to provide, through mutual agreement, considerable flexibility to both parties in a FIFO arrangement, which includes;

• That an employee will be responsible for the costs of relocation of one’s home location (i);



• That FIFO travel may be changed to another location, but with prior approval, and so as not to incur further cost for Airservices Australia (j);



• That irrespective of where an employee’s actual house may be and how long travel actually takes, 12 hours is allowed for door-to-door travel, incorporating a total of 2 hours for travel to and from airports (o);



• That there will be reasonable expenses of travel to and from airports, which may require individual consideration and approval (p);



• That Airservices Australia may allow an employee to drive from their home location to their FIFO post (q).

[41] The sum of the flexibility appears to be a mutual compact that employees may structure their lives as suits them best, with the commitment that they have their original job to return to and, in return, that the employer will be assured of a workforce reporting to remote locations on time and according to a known roster, but also safe in the knowledge that the costs faced by it will not rise above those it committed to at the start of the FIFO arrangement.

[42] Within this construct, the plain meaning of the clause may be discerned.

[43] An employee’s “home location” for the purpose of clause 4.8 is their “place of residence”, which means the place where they live when they commence the FIFO arrangement.

[44] Consistent with that, the expense reimbursement or cost of flights that Airservices Australia commits to in the course of a FIFO arrangement is the cost of the flights between the FIFO location and the employee’s place of residence as it was at the start of the FIFO arrangement, irrespective of where the employee later chooses to base themselves.

[45] The exception to this commitment for reimbursement is when there has been a permanent relocation exercised in accordance with clause 4.8.3(i). The operation of that clause covers two circumstances. The first is when an employee elects to relocate their home location, perhaps because they no longer wish to live in Adelaide and prefer Melbourne. The second is when, as articulated within the clause, the relocation is “to give effect to an initial FIFO arrangement”. In either circumstance an employee gives up the capacity to have costs associated with the relocation paid by Airservices Australia.

[46] Importantly, there is nothing within the whole of clause 4.8, or elsewhere in the ARFF Agreement, which prevents Airservices Australia stipulating that a FIFO arrangement is to commence from a particular “home location”, as that term is used within clause 4.8.3. To the contrary, the clause contemplates that such stipulation may be made. The words within clause 4.8.3(i) that relocation may be “to give effect to an initial FIFO arrangement” plainly give rise to that construction. The phrase would be redundant it if did not have the purpose of allowing Airservices Australia to stipulate the place from which a FIFO arrangement will commence.

[47] In the dispute before me Airservices Australia desires, for purposes of cost control, to determine that the FIFO arrangement for the Newman airport is to be for employees domiciled in Perth and not elsewhere. However it goes further, as I understand the argument before me, to the effect that should an employee from another locality win the position, it would intend to say to the employee that the cost reimbursement it is prepared to pay is only to be on the basis of the costs of any airfare between Perth and Newman. However, it appears not to say to prospective employees that they will only be considered for the position if they relocate to Perth, and that their ongoing position will be reassigned to Perth.

[48] In relation to these matters, Airservices Australia submit that the ARFF Agreement in its totality permits it to make decisions about recruitment and selection that take into account cost;

“20. Airservices is expressly permitted by clause 5.7.1 of the Agreement to take “relative efficiency” into account when selecting employees for positions. Clause 5.7.1 provides:

“We will ensure that all selections for recruitment and promotion are determined with regard to merit and relative efficiency…”

21. Airservices’ submits that relative efficiency is a commonly understood term that means the cost to Airservices of selecting an applicant to fill a position compared to the cost of selecting another applicant. Given the very significant costs of paying for travel to and from very distant geographical locations, choosing to make offers of FIFO employment only to applicants with a particular residential status falls squarely within Airservices’ discretion under clause 5.7.1.

22. If the FWC were to find that Airservices was not permitted to formally designate a residential home location for a particular FIFO position, the existence of clause 5.7.1 would raise the following question: could Airservices lawfully consider only applicants that live in its desired, but not formally designated, home location?

23. If the answer to this question is ‘yes’, then a finding in favour of the UFU as to the meaning of clause 4.8 would create the strange situation of Airservices not being able to write words to the effect of ‘the home location for this FIFO position is Perth’ or ‘travel will only be paid to and from Perth’ in a job advertisement or letter of offer, but would still be able to make offers only to people who notify Airservices that they reside in Perth, or will reside in Perth when under FIFO arrangements. Such an outcome would not provide practical benefit to any employees and only serve to increase the lack of transparency in advertising and increase confusion between hiring managers and applicants during recruitment.

24. By informing potential applicants of the nature of a vacant position, and the requirements to be a successful applicant, in no way is Airservices directing any employee to do anything. The repeated claim by the UFU that by Airservices’ transparent act of not offering the travel arrangements that a particular employee wants to receive in a position (even though that employee is under no obligation whatsoever to apply for the position) Airservices is engaging in some form of “coercion”, is false.” 28 (original emphasis)

[49] On the proper construction of the ARFF Agreement, this submission is partially correct, at least inasmuch as the agreement recognises that decisions about recruitment and selection may be made having regard to matters of “relative efficiency”. Plainly it would be inimical to that provision of the agreement for Airservices Australia to not be able to decide that a particular person was preferred for employment, including for FIFO arrangements, because the cost of flights were significantly lower than might apply to some other person, otherwise comparably meritorious. There is nothing within the ARFF Agreement that would force Airservices Australia to such decision-making, provided the candidates were comparably meritorious.

[50] There is also nothing within the ARFF Agreement which would lead to a construction that Airservices Australia could not designate a particular location as being the “home location” for a particular FIFO arrangement. It is permissible within the agreement, and certainly consistent with the expectation within clause 4.8.3(i), for Airservices Australia to advertise a position on the basis that the FIFO arrangement for Newman is from Perth. At the point the successful employee, domiciled in a place other than the Perth region, accepted an offer of FIFO work from Perth, they would relocate to Perth “to give effect to an initial FIFO arrangement”.

[51] In such case, being an exercise of clause 4.8.3(i), the employee goes through a relocation and gives up the capacity to claim costs associated with relocation. Such leads to the view that the employee’s circumstance would be a “permanent transfer” as that term is used within clause 4.10, which carries with it the implication set out within the definition of the term in clause 4.10.1 that the new location becomes the employee’s “home location on transfer”. Concomitant with a situation in which Airservices Australia advertised a FIFO arrangement for Newman to be from a home location of Perth would be the implication that the employee’s ongoing employment would be in Perth at such time as the FIFO arrangement ceased.

[52] With that being the case, an advertisement of a FIFO arrangement for Newman on the basis that employees from bases other than Perth, if selected, would be paid only the cost of flights to Newman to and from Perth and with their employment remaining in their home city, is unlikely to be a correct exercise of the ARFF Agreement’s provisions. Ultimately, should Airservices Australia go through its selection exercise and determine that the only available candidate for a position lives in a place other than Perth, then, in the absence of a decision by the employee to relocate Perth, costs of airfares to their actual home base would have to be paid.

[53] I note that the disputed term appears not to deal with the circumstance in which there are no suitable candidates already working at a designated location, and that no candidate in any other location is willing to relocate, at their own expense, to the designated location in order “to give effect to an initial FIFO arrangement”.

CONCLUSION

[54] For the reasons set out above, I determine the dispute in the following way;

Q: Subject only to the right to transfer employees under clause 4.10 of the ARFF Agreement, can the offer of the FIFO position under clause 4.8 of the ARFF Agreement require an employee to change their place of residence or their home location?

A: Airservices Australia may advertise a FIFO position on the basis that it commences from a nominated locality, or “home location” and, in order to be considered for the position, employees domiciled at other locations would need to undertake to relocate to the nominated locality or “home location”.

Q: Are employees covered by the ARFF Agreement, and working under FIFO arrangements, entitled to have their air travel from their place of residence to their initial FIFO post paid by Airservices Australia in accordance with clause 4.9 of the ARFF Agreement?

A: Yes; provided that an employee’s “place of residence” may well be a nominated locality of “home location” to which the employee has undertaken to relocate in order to “give effect to an initial FIFO arrangement”.

COMMISSIONER

Appearances:

Mr A Rich, Slater & Gordon Lawyers, for the UFU.

Mr S Jenkins-Flint, solicitor, for Airservices Australia.

Hearing details:

2016.

Melbourne:

July 25.

 1   AE401293.

 2   Exhibit UFU 2, Witness Statement of Michael Farrell, [25].

 3   Exhibit UFU 3, Witness Statement of Henry Lawrence, [9].

 4   Exhibit UFU 4, Witness Statement of Eden Morris, Attachment EM-1.

 5 Ibid [7].

 6   Ibid [11c].

 7   Ibid Attachment EM-2.

 8   Exhibit Airservices 2, Witness Statement of James Harrington, [5].

 9   Exhibit UFU 5.

 10   Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; (2001) 203 CLR 645 [30]–[32]; cited in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82, at [25].

 11   Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd [2012] FCAFC 87 [21]; cited in Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2016] FWCFB 2019 [52].

 12   CEPU v Thiess Pty Ltd (2011) 212 IR 327 at [42], [47]; CFMEU v AIRC [2001] HCA 16.

 13   SDA v Big W Discount Department Stores PR924554 at [23].

 14   AMWU v Holden Limited PR940366 at [47]; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [23].

 15   Ibid.

 16   MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [19], [23]; R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 163 at 168; United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884.

 17   MUA v Australian Plant Services Pty Ltd PR908236; MUA v ASP Shipping Management Pty Ltd[2015] FWC 4523 at [21]-[22].

 18   United Firefighters’ Union v Metropolitan Fire and Emergency Services Board PR973884 at [20].

 19   The Commission must not make a decision that is inconsistent with the Act, or a fair work instrument that applies to the parties.

 20   MUA v Australian Plant Services Pty Ltd PR908236 at [63]; Seven Network (Operations) Ltd v CPSU (2003) 122 IR 97 at [31]-[32].

 21   CFMEU v AIRC (2001) 203 CLR 645 at [32]; Linfox Australia Pty Ltd v TWU [2013] FCA 659 at [19]-[24]; AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [34]-[36].

 22   AMWU v ALS Industrial Australia Pty Ltd [2015] FCAFC 123 at [36].

 23   [2014] FWCFB 7447.

 24   the Acts Interpretation Act 1901 (Cth).

 25 Exhibit Airservices 2 [5].

 26   AE401293 clause 4.8.1.

 27   AE401293 clause 4.8.3(f).

 28 Exhibit Airservices 3, Respondent’s Outline of Submissions, [20]-[24].

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