Federal Court of Australia

Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1030

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer and, if possible within 14 days of the date of these orders, submit to the court an agreed minute of orders that give effect to the attached reasons for judgment.

2.    In the event that the parties are unable to reach such agreement, the matter be listed for case management on a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

Part 1: Overview

1    The applicant (“Civil Air”) is an organisation that represents, or is eligible to represent, the industrial interests of air traffic controllers in Australia. It is an “employee organisation” within the meaning attributed to that phrase by s 12 of the Fair Work Act 2009 (Cth) (“the FW Act”). The respondent (“Airservices”) is a statutory corporation established pursuant to s 7(1) of the Air Services Act 1995 (Cth). It provides air traffic management services throughout Australia (and Australian-controlled airspace) and, to that end, engages employees who are members of, or who are eligible to be members of, Civil Air.

2    Two such employees were (and possibly still are) Ms Rachel Pattenden and Ms Sally-Anne Balharry. At times material to this matter, they were employed by Airservices as air traffic controllers. Between March 2017 and April 2020, their employment, like that of Airservices’ other air traffic controllers, was the subject of regulation by an enterprise agreement made pursuant to the FW Act: namely, the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020 (the “2017 EA”).

3    The terms of the 2017 EA are explored in some detail below. For now, it suffices to note that it made provision for various forms of consultation and for the transfer of employees from one work location to another (and, more specifically in that regard, for the reimbursement of relocation costs incurred in certain circumstances in connection with such transfers).

4    In 2018, each of Ms Pattenden and Ms Balharry had occasion to move from one location to another: in Ms Pattenden’s case, from Perth to Brisbane; in Ms Balharry’s case, from the Gold Coast to Rockhampton. Each left the air traffic control position in which she had been employed at her old location and took up an equivalent role at her new location. A dispute has arisen as between Civil Air and Airservices concerning Ms Pattenden’s and Ms Balharry’s entitlement under the 2017 EA (if any) to reimbursement for certain relocation costs.

5    Civil Air maintains that Airservices was obliged by the 2017 EA to reimburse to each of Ms Pattenden and Ms Balharry certain amounts for expenses that were incurred in connection with their relocation. Airservices denies that any such obligation arose. It has refused, or indicated that it will refuse (which is a distinction that assumes some significance), to reimburse either of Ms Pattenden or Ms Balharry for expenses associated with their relocation.

6    In light of those refusals (or indications), Civil Air contends that Airservices has contravened or proposed to contravene the 2017 EA; and, thereby, has contravened or proposed to contravene s 50 of the FW Act.

7    Additionally, Civil Air submits that Airservices has effected changes to two policies without required consultation. The first such policy concerns the reimbursement of relocation expenses occasioned by employee transfers such as those undertaken by Ms Pattenden and Ms Balharry. Civil Air alleges that, in approximately mid-2017, Airservices’ policy on that score changed in a way that is inconsistent with the requirements of the 2017 EA. It contends that, by adopting the change, Airservices should be understood to have proposed not to honour (and, thereby, to have proposed to contravene) obligations conferred upon it by the 2017 EA. By doing so, Civil Air submits, Airservices has proposed to contravene s 50 of the FW Act. Additionally, Civil Air submits that the change in question was effected without required consultation; and, therefore, was effected in contravention of s 50 of the FW Act.

8    The second such policy concerns what is known as the “ATC [or Air Traffic Controller] Career Model”: a written policy that Airservices maintains with respect to the career progression of its air traffic control employees. Civil Air contends that, in March 2015, Airservices made changes to that policy that were not the subject of prior consultation. By that failure to consult, it says, Airservices contravened consultation requirements contained within the predecessor to the 2017 EA; and, thereby, contravened s 50 of the FW Act.

9    For the reasons that follow:

(1)    Airservices did not contravene, or propose to contravene, s 50 of the FW Act by refusing, or indicating that it would refuse, to reimburse Ms Pattenden and Ms Balharry for expenses incurred in connection with their respective relocations;

(2)    Airservices’ policy regarding employee transfers:

(a)    did not change in mid-2017; and

(b)    was not, from mid-2017 onwards, inconsistent with the requirements of the 2017 EA;

(3)    consequently:

(a)    Airservices did not fail to engage in consultation in a manner required under the 2017 EA; and

(b)    did not propose to contravene the employee transfer provisions of the 2017 EA,

and, as a result, did not contravene, or propose to contravene, s 50 of the FW Act in the way or ways alleged; and

(4)    Airservices did unilaterally effect changes to its “ATC Career Model” policy in March 2015 in contravention of consultation obligations that it owed under the predecessor to the 2017 EA—and, thereby, did contravene s 50 of the FW Act.

10    In light of those central findings, the matter must proceed to further consideration to determine what relief the court should grant in respect of the statutory contraventions that have been established.

Part 2: Background and evidence

2.1 The Trial

11    Civil Air’s contentions are advanced by means of an amended originating application dated 5 November 2018 and an amended statement of claim dated 10 October 2020. That latter document was the subject of a further amendment application that was made on the final day of the trial, after receipt of the evidence. I shall return to that application in due course.

12    The matter proceeded to trial in October 2020. At the time, Victorians laboured under the demoralising and now all-too-familiar clutches of COVID-19-inspired restrictions on their freedom of movement. Consequently, the trial was conducted entirely by remote means; a sub-optimal reality by which the parties and their advisers abided with considerable grace and skill, for which I record the court’s gratitude.

13    As is customary in matters such as this, the trial proceeded only on the questions of liability and loss, with the issue of penalty and other relief to be addressed later if or when necessary.

14    Civil Air led evidence from five witnesses, namely:

(1)    Ms Balharry;

(2)    Ms Pattenden;

(3)    Mr Stuart Michael Brades, a former Civil Air office holder who was involved in the negotiations that culminated in the 2017 EA;

(4)    Mr Peter McGuane, Civil Air’s Executive Secretary; and

(5)    Mr Joel Winters, Civil Air’s in-house legal officer.

15    Airservices led evidence from four witnesses, namely:

(1)    Ms Megan Brennan, the Workforce Deployment Manager in Airservices’ Air Navigation Services business group;

(2)    Mr David Wells, Airservices’ former Workforce Deployment Planning Manager;

(3)    Mr Lance Dale, Airservices’ former “Acting ATC Line Manager” at Jandakot airport; and

(4)    Mr Anthony Chudleigh, Airservices’ former “ATC Line Manager” at Jandakot airport.

16    Each witness’s evidence was the subject of a written statement, all but one of which (subject to various objections that need not presently be rehearsed) were received into evidence by consent. The exception to that course was the witness statement of Mr Brades, to which Airservices objected in its entirety. With the consent of the parties, that witness statement was received subject to my consideration of its admissibility. More is said of that below. With the exception of Ms Balharry, Mr Brades and Mr Winters, all of the witnesses were cross-examined.

17    Additionally, the parties prepared and tendered two helpful statements of agreed facts.

2.2 The 2017 EA

18    The 2017 EA was an enterprise agreement within the meaning attributed to that phrase by s 12 of the FW Act. It was approved by the Fair Work Commission on 23 March 2017 and commenced to operate seven days later. Although negotiated as between Civil Air and Airservices, it was made (consistently with the way in which most enterprise agreements are made) as between Airservices and those of its employees at the time that were to be covered by its terms. Upon its approval by the Fair Work Commission (and pursuant to s 53 of the FW Act), the 2017 EA “covered” Civil Air.

19    Two clauses of the 2017 EA—cll 8 and 21—assume some significance in this matter and it is convenient to replicate the relevant parts of each:

8.     CONSULTATION ON CHANGE

8.1.     The intent of this consultation provision is to ensure employees and any employee representatives are fully informed, consulted and provided with a genuine opportunity to express their views and provide comments and/or suggestions prior to any final decision being made about changes that are likely to have a significant impact on employees covered by this Agreement and/or changes to an employee's regular roster or ordinary hours of work. Airservices will give genuine consideration and respond to matters raised and proposals and options put forward.

8.2.     These consultation arrangements support Airservices in meeting legislative and Operating Certificate requirements.

8.3.     Airservices will consult employees and their employee representatives about:

(a)     the introduction of changes that are likely to have a significant impact on employees covered by this Agreement before a final decision is made to adopt a proposal and implement any change; and/or

(b)     changes to an employee's regular roster or ordinary hours of work.

Consultation on changes that are likely to have a significant impact on employees

8.4.     Changes that will be regarded as likely to have a significant impact on employees covered by this Agreement will include changes of a structural or technological nature, changes in the deployment or methods of operation of employees covered by this Agreement and any changes that are likely to lead to the redundancy of positions held by employees covered by this Agreement.

8.5.     Before making a decision to introduce change that is likely to have a significant effect on employees, Airservices will consult with affected employees by:

(a)     notifying the relevant employees of the proposal to introduce the change;

(b)     providing all relevant information regarding any change as outlined in clause 8.3(a) above, including but not limited to:

     (i)     the nature of the proposed change;

(ii)     the information about the expected effects on employees; and

     (iii)     any other matters likely to affect the employees;

(c)     providing the relevant employees with an opportunity to nominate or appoint a representative for the purposes of consultation under this clause, and recognise the nominee or representative appointed;

(d)     discussing with the relevant employees and their employee representatives:

     (i)     the introduction of the change;

(ii)     the effect the change would be likely to have on the employees; and

(iii)     the measures Airservices is taking to avert or mitigate the adverse effect of the change on the employees;

(e)     inviting the employee and their employee representatives to give their views about the impact of the change (including, but not limited to any impact in relation to their family and caring responsibilities); and

(f)     giving prompt and genuine consideration to matters raised about the change.

…

21.     TRANSFERS

21.1.     An employee will have the opportunity to transfer between locations to cater for circumstances where placements occur as a result of redeployment, consolidation of functions, individuals returning from a secondment, mutual exchanges, compassionate transfers, equal opportunity, and other employee movements such as a recruitment/selection exercise or promotion.

  21.2.     Definitions

In this clause:

"Compulsory Transfer", means Airservices have directed an employee to transfer due to part of Airservices' operations moving to a new location.

"Dependant", for the purposes of transfer entitlements, is an employee's domestic partner or child who normally resides with an employee, and who moves with an employee or to join an employee. Airservices may deem another person that does not fit this definition as a Dependant where it is reasonable to do so.

"Home", means a dwelling occupied at the Home Location, which an employee and an employee's family owned, ordinarily lived and housed an employee's possessions immediately before the employee was notified of the transfer in writing.

"Home Location", means an employee's usual work and living location.

"New Location", means the location to which an employee has been transferred.

"Permanent Transfer", means an employee's New Location becomes the employee's Home Location on transfer.

…

  21.3.     Principles

(a)     An air traffic controller is generally transferable for the purposes of Term and Permanent Transfers. An employee may be transferred to any position at level for the reasons of operational efficiency, development of the employee, equal opportunity and for compassionate reasons.

(b)     The basic principle Airservices will use in the application of these provisions is that an employee will be reimbursed for reasonable expenses that would not have been incurred by the employee if the employee was not transferred. Where there is any doubt as to what an employee is entitled to under this clause, this principle will be applied.

…

(f)     To be reimbursed for an expense incurred under this clause, employees shall provide a tax invoice or other evidence such as a Statutory Declaration.

…

21.4.     Transfer on recruitment or for an employee's convenience

(a)     Compulsory Transfer entitlements do not apply if an employee was advised on commencement of employment that relocation was scheduled or periodic relocation was expected.

(b)     On recruitment of a new employee, any transfer assistance will be at Airservices' discretion.

(c)     Where transfers not involving promotion are arranged for an employee's convenience, rather than to meet the business requirements of Airservices, any assistance will be determined by Airservices.

…

21. 7.     Permanent Transfer entitlements

If an employee is required to permanently transfer, an employee will be reimbursed for reasonable expenses incurred as follows:

(a)     Fares and travel costs for an employee and an employee's Dependants;

(b)     For the first 21 days of the transfer, the following provisions apply:

     (i)     Reimbursement for accommodation costs;

(ii)     Where accommodation with full cooking facilities cannot be found a reimbursement for reasonable food and drink expenses up to $48 per day per adult and $24 per day per child under 12 years of age; and

(iii)     An incidentals amount of $29 per week shall be paid to employee's without Dependants and $59 per week shall be paid to employee's with Dependants when at the new location alone;

(c)     Reimbursement for rental accommodation costs up to $719 per week once settled into longer term accommodation, for up to six months, provided an employee owned or had entered into an agreement to purchase a home at the pre-transfer location. A higher amount may be reimbursed subject to prior approval;

(d)     For employees with Dependants and whose Dependants remain at their home location, the following provisions apply once settled into accommodation, for the first six months of the transfer:

(i)     Reasonable food and drink expenses consistent with ATO Taxation Determination 2016/4, as varied from time to time shall be reimbursed;

     (ii)     An incidentals amount of $59 per week shall be paid;

(iii)     When in accommodation without laundry facilities, reasonable laundry expenses may be reimbursed; and

      (iv)     electricity and gas expenses reimbursed;

(e)     Removal costs for an employee's household effects, including an employee's car and household pets. Other items will be moved at Airservices' discretion;

(f)     Storage costs for household effects will be reimbursed for a maximum of six months;

(g)     Costs of a pre-transfer visit by an employee and an employee's Dependants where the visit would reduce the cost of temporary accommodation;

(h)     If a bond is required under a lease agreement, Airservices will advance the bond to a maximum of four (4) weeks' rent, which will be recovered from an employee's salary over a one year period;

(i)     Reasonable professional and legal costs associated with the sale and purchase of homes (including costs exceeding normal charges, if discharging a mortgage due to the transfer) will be reimbursed. The sale must be within two years and the purchase within four (4) years of the permanent transfer date, based on the date of contract exchange;

(j)     Other reasonable costs will be reimbursed on production of receipts;

(k)     Allowances as specified in this Agreement that may be payable are: Disturbance Allowance (clause 23.5), Water Subsidy (clause 23.6), Air-conditioning Subsidy (clause 23.7), Education re-imbursement (clause 23.8), District Allowance (clause 23.9), and Remote Locality Leave Fares (clause 23.10); and

(l)     Assistance with extra costs to achieve a 'like to like' living situation (e.g. home owner to home owner) as soon as possible. The level of assistance provided for sale/purchase of a dwelling will be limited to a level which reflects the ordinary living needs of a family of similar size.

…

2.3 The 2012 EA

20    The 2017 EA was the successor to the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2012-2015 (the “2012 EA”). Like the 2017 EA, the 2012 EA was made and had effect pursuant to the FW Act. Two of its clauses—cll 7 and 8—assume some significance in this matter and it is convenient to replicate the relevant parts of them:

7.     AIRSERVICES POLICIES AND PROCEDURES

7. 1.     Airservices policies and procedures pertaining to employment matters do not form part of this Agreement. To the extent that there is any inconsistency between any such policy and/or procedure, the terms of this Agreement prevail.

7.2.     Airservices will consult with employees and the Union in the development and variation of such policies and will not unilaterally change them without such consultation.

8.     CONSULTATION ON CHANGE

8. 1.     Airservices will consult employees and their Union representatives about the introduction of changes that have an impact on employees covered by this Agreement before a final decision is made to adopt a particular proposal and implement the change. Changes that will be regarded as having an impact on employees covered by this Agreement will include, but will not be limited to, changes of a structural or technological nature, changes in the deployment or methods of operation of employees covered by this Agreement and any changes that are likely to lead to the redundancy of positions held by employees covered by this Agreement.

8.2.     The purpose of that consultation will be to give employees and their Union representatives a genuine opportunity to express their views about changes that are under consideration and have them taken into account, and to allow them to contribute to proposals for the introduction of the change before a final decision is made to adopt a particular proposal and implement the change. Thorough and reasonable consideration will be given to proposals and options put forward and responses will be provided.

…

2.4 The history of cl 21 of the 2017 EA

21    Clause 21 of the 2017 EA has existed, in one form or another, in predecessor instruments (including the 2012 EA) since at least 2005. Then, cl 4.7.5 and 4.7.6 of the Airservices Australia Certified Agreement 2005-2008 (Air Traffic Control and Supporting Air Traffic Services) agreement relevantly provided as follows:

4.7.5     Principles

(a)     As an air traffic controller you are generally transferable for the purposes of term and permanent transfers under this clause.

(b)     Travel and transportation costs incurred by you and your dependants on transfer (unless arranged for your convenience) or promotion will be met by us.

(c)     You will be given as much notice as possible of the date of transfer and of the completion date of the transfer if appropriate.

…

(f)     The basic principle we will use in the application of these provisions is that you will be recompensed for expenses reasonably and actually incurred in fulfilling our requirements.

4.7.6     Transfer on recruitment or for your convenience

(a)     Compulsory transfer entitlements do not apply if you were advised on commencement of employment that relocation was scheduled or periodic relocation was expected.

(b)     On recruitment of a new employee, any transfer assistance will be at our discretion.

(c)     Where transfers not involving promotion are arranged for the convenience of you rather than to enhance the efficient running of Airservices, any assistance will be determined by us.

Elsewhere, that instrument made provision for the expenses in respect of which reimbursement would be provided.

22    In the instrument that succeeded that one—the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Collective Agreement 2009-2012—the equivalent provision was cl 20, which was a closer facsimile of cl 21 of the 2017 EA. Clause 20 of that agreement relevantly provided:

…

20.3.     Principles

(a)     An air traffic controller is generally transferable for the purposes of term and permanent transfers. An employee may be transferred to any position at level for the reasons of operational efficiency, development of the employee, equal opportunity and for compassionate reasons.

(b)     Travel and transportation costs incurred by an employee and an employee's dependants on transfer (unless arranged for an employee's convenience) or promotion will be met by Airservices.

…

20.4.     Transfer on recruitment or for an employee's convenience

…

(c)     Where transfers not involving promotion are arranged for an employee's convenience, rather than to meet the business requirements of Airservices, any assistance will be determined by Airservices.

Again, that instrument made provision elsewhere for the specific expenses for which a qualifying employee would be reimbursed.

23    Clause 20 appeared in materially identical terms in (and by the same clause number of) the 2012 EA.

2.5 Historical treatment of transferring employees

24    The court heard evidence as to the manner in which Airservices employees who have transferred from one location to another have historically qualified (or not qualified) for reimbursement of relocation expenses under cl 21 of the 2017 EA and its predecessors. Although very little of it was challenged, the parties are at odds as to what the court should make of that evidence.

25    Civil Air led evidence—none of which was contested—concerning a number of specific employees, each of whom was said to have requested and been granted a transfer “for career- development purposes”, and each of whom was thereafter reimbursed for expenses incurred in consequence of their relocation. Additionally, Mr McGuane’s evidence was that Airservices employees who transferred from one location to another for the purpose (or for purposes that included the purpose) of career development were “always” reimbursed for qualifying relocation expenses. According to Mr McGuane, the “…only exception to this was where a transfer was for genuine compassionate reasons…limited to pressing or urgent circumstance[s] such as a medical issue (relating to the [air traffic controller] or his/her family) or caring responsibilities”.

26    Airservices led evidence about its “ATC Workforce Plan”: a rolling model that identifies expected workforce needs at the various air traffic management locations at which it operates. Airservices’ evidence was that employees who transferred from one location to another were reimbursed for qualifying relocation expenses if the transfer was made in order to meet the operational requirements identified by the ATC Workforce Plan. In some cases, transfers of that nature might also serve interests personal to the transferring employee, such as career-development goals. In those instances, reimbursement of relocation expenses is (and has been) made, as the transfer nonetheless serves the interests identified by the ATC Workforce Plan. According to Ms Brennan, however, in the case of transfers that are agreed to “for the employee’s convenience/compassionate reasons rather than Airservices’ business requirements, Airservices has the discretion to determine whether it will provide any assistance to the ATC”. Ms Brennan’s evidence was that, in the financial year ending 30 June 2018, 20 per cent of employee transfers occurred on an “own time, own cost” (that is, on a non-reimbursed) basis.

27    Evidence was also led about Airservices’ reaction to earlier litigation in this court; and, in particular, to a settlement agreement struck in 2017, apparently relating “to the reimbursement of home sale and purchase costs” under the 2017 EA. Civil Air contends that, from about the time of that settlement, Airservices’ approach to the reimbursement of relocation expenses incurred by transferring employees changed. Civil Air’s evidence was that, prior to that point in time, Airservices’ practice was to provide reimbursement for all transfers that afforded career-development opportunities (that practice is referred to, hereafter—and as it was in the parties’ submissions and pleadings—as the “Old Policy”). From approximately mid-2017, Civil Air contended that Airservices’ position changed, in that it stated that it would not entertain the transfer of an employee to a location in respect of which no business requirement existed—and, perhaps more specifically, to Brisbane or Melbourne (where no such requirements typically exist)—unless the employee first agreed that the transfer would be effected on an “own time, own cost” basis (that position is referred to, hereafter, as the “New Policy”). Airservices, via the evidence given by Ms Brennan and Mr Wells, maintained that its position had always been in line with the New Policy and that there had never been any change to it.

2.6 Ms Pattenden’s transfer

28    Ms Pattenden’s employment with Airservices commenced in January 2011, when she commenced training as an air traffic controller. She was then based at Jandakot airport tower, in Perth. She worked as an air traffic controller at Jandakot until July 2018.

29    In November 2014, Ms Pattenden submitted to Airservices a “Career Development Discussion Preparation Form”, in which she formally recorded her desire to move to Brisbane, so that she could “be closer to family”. In addition, she identified a number of career-development goals, one of which was to work at a “radar tower” (being one that services large commercial aircraft rather than the predominantly light aircraft to which Jandakot airport caters).

30    About a month later, Ms Pattenden had a discussion with her then manager, Mr Simon Anderson. During that discussion, she confirmed her desire to transfer from Jandakot airport, and requested that she be transferred to Brisbane or Adelaide. Again, her purposes in requesting a transfer were twofold: to develop her skills and career (on the one hand), and to be closer to her partner’s family in Brisbane and her own family in New Zealand.

31    In early 2015, Ms Pattenden’s career was the subject of a discussion that she had with Mr Mike Tesser, her “Manager Once Removed”. During that discussion, Mr Tesser acknowledged that, in order that she might improve her skills, Ms Pattenden would need to transfer to a larger airport. Ms Pattenden again expressed an interest in being moved to Brisbane or Adelaide. Mr Tesser told her that a transfer to Brisbane might be possible but that it might take in the order of two to four years to transpire.

32    In late 2015, Ms Pattenden discussed with Mr Chudleigh the possibility of her transferring to Brisbane. She was told that any such possibility would be “dependent on staffing levels” but that a transfer in or around October 2016 could be possible. In a “Performance Agreement” document that she signed in November 2015, Ms Pattenden again recorded her desire to transfer to Brisbane in order that she might develop her skills in a new tower environment and be closer to family.

33    Throughout 2016, Ms Pattenden and Mr Chudleigh had a number of discussions about a potential transfer. Ms Pattenden was told that a transfer to Brisbane would likely not be possible prior to 2018; but that it might be possible to arrange for her to be transferred to Perth airport instead. Ms Pattenden’s preference was to transfer to Brisbane, which she considered was a busier and more complex airport, and which would put her in closer proximity to family.

34    In November 2016, Mr Chudleigh told Ms Pattenden that she could transfer to Brisbane in late 2017, provided that she accepted that she would not be reimbursed for any relocation expenses. That followed from an email that Ms Pattenden sent to Mr Chudleigh, by which she enquired whether there might be some possibility of transfer to another tower, such as Coolangatta, if Brisbane airport was unavailable. Ms Pattenden recorded that she was “getting hassled by the other half to look in to it a bit more”.

35    The offer to transfer to Brisbane airport on an “own time, own cost” basis was not attractive to Ms Pattenden. In late November 2016, she told Mr Chudleigh as much.

36    In June 2017, Ms Pattenden had a discussion with Mr Chris Murray, the Jandakot Unit Tower Supervisor. Mr Murray informed her that no advertised positions were available at Brisbane, and that any transfer there would be at her own time and cost.

37    On 8 June 2017, Ms Pattenden sent an email to Mr Dale and Mr Chudleigh, in which she made the following observations:

I have spoken to Chris [Murray] about possible transfer to Brisbane. I would like to ask if I am filling an operational need at Brisbane tower? I know that they need new staff to fill requirements when the new runway is built. If selection is being done on a truly “Merit” basis and I am filling an operational need at Brisbane tower, then the clause “transfer for an employee’s convenience” in the certified agreement does not apply.

38    On 15 June, Ms Pattenden received an email from Mr Dale, in which, amongst other things, Mr Dale identified potential “north-eastern locations” to which she might potentially transfer. On that list was Brisbane airport, although Mr Dale noted that a transfer there would be on an “own time, own cost” basis “due [to] numerous local candidates”.

39    In the weeks that followed, Ms Pattenden’s potential transfer to Brisbane firmed. The situation came to a head on 9 August 2017, when Ms Pattenden and Mr Dale met and agreed that she would accept a transfer to Brisbane. Ms Pattenden was told that her relocation to Brisbane would be for her to finance. She indicated her belief that she was entitled to reimbursement under the 2017 EA; but indicated in any event that she wished to proceed with the transfer. Mr Dale confirmed that Airservices would write to her with a formal offer of employment in that regard.

40    For reasons not apparent or material, that correspondence was not sent until January 2018. Somewhat remarkably, it recorded that Ms Pattenden potentially would be reimbursed for costs associated with her relocation to Brisbane, a position that was confirmed by an email that she later received from a “People Services Coordinator” at Airservices. At some point soon thereafter, Airservices realised its error and, on 19 January 2018, Ms Pattenden was provided with a new written offer of employment at Brisbane tower. That offer confirmed that Ms Pattenden’s transfer to Brisbane would be “for [her] convenience” and that Airservices would “not be offering relocation assistance” in respect of it.

41    On 20 January 2018, Ms Pattenden signed the revised offer and returned it to Airservices. She did so under cover of correspondence by which she “reserve[d] her rights” (apparently including in respect of any entitlements that she might have under cl 21 of the 2017 EA). After a period of training in Melbourne, Ms Pattenden commenced as an air traffic controller at Brisbane airport in August 2018.

42    In relocating from Perth to Brisbane, Ms Pattenden incurred costs totalling $53,757.78. She did not make any attempt to claim from Airservices reimbursement for those amounts. Nonetheless, there is not now any dispute about the amounts that Ms Pattenden incurred. Airservices accepts that, if she is (or was) entitled under the 2017 EA to reimbursement for relocation expenses—and if she had sought to be reimbursed for the expenses that she in fact incurred—it would have been obliged to reimburse her a total of $53,757.78.

2.7 Ms Balharry’s transfer

43    Ms Balharry’s employment with Airservices commenced in May 2006, when she commenced training as an air traffic controller. Between December 2006 and March 2009, and again between August 2010 and May 2014, she was stationed at Rockhampton airport, Queensland. After a period in a non-operational role, she was, in March 2015, transferred to the Gold Coast Air Traffic Control tower.

44    In mid-2017, Ms Balharry was the subject of a training review, which resulted in her being assessed as an under-performing air traffic controller. By correspondence from Airservices dated 3 October 2017, she was informed that she could no longer remain at the Gold Coast Air Traffic Control tower. She was advised that she would either be redeployed to a different location or dismissed from her employment.

45    On 4 October 2017, Ms Balharry had a discussion with Mr Anthony Nugent, Airservices’ Service Manager. Mr Nugent told her that there was a position available at Rockhampton airport, where she had previously worked; and that she could be transferred there if she wished.

46    On 27 October 2017, Airservices published an advertisement for a vacant air traffic controller position at Rockhampton airport. The advertisement indicated that applications for the position would close on 13 November 2017.

47    On 2 November 2017, Ms Balharry received correspondence from Airservices notifying her that she would be redeployed to an air traffic controller position at Rockhampton airport. The letter noted that Airservices would “…bear no financial costs for your relocation to Rockhampton and you will be required to organise your own relocation”.

48    On 10 November 2017, Civil Air responded on Ms Balharry’s behalf to Airservices’ 2 November correspondence. By that response, it indicated that Ms Balharry would accept her transfer to Rockhampton airport; but not that it should occur without reimbursement of the costs that she would incur in relocating there. On that (relocation costs) issue, Civil Air proposed that the parties should reserve their positions and resolve it (or have it resolved) at some later point.

49    On 4 December, Airservices wrote to Ms Balharry and again offered to redeploy her to Rockhampton airport, subject to her assuming responsibility for the costs of relocating. It noted that Ms Balharry was “…being offered redeployment…for your convenience as Airservices does not consider that you are able to gain all of the required endorsements to remain at Gold Coast Tower”. In the event that she chose not to deploy on that basis, Ms Balharry was given “…until 19 December 2017 to confirm viable options [and was told that] Airservices will also continue to seek alternate redeployment opportunities for you until [that] date, but…that any opportunity you obtain will not provide for the financial cost of any relocation.”

50    On 8 December 2017, Civil Air, on Ms Balharry’s behalf, accepted the offer of transfer to Rockhampton “…in the terms offered whilst reserving her rights”. After a period of training, Ms Balharry resumed her role as an air traffic controller at that location in May 2018.

51    In relocating to Rockhampton, Ms Balharry incurred costs totalling $65,770.17. Like Ms Pattenden, she too did not make any attempt to claim reimbursement from Airservices for those amounts. Nonetheless, there is not now any dispute about the amounts that Ms Balharry incurred. Airservices accepts that, if she is (or was) entitled under the 2017 EA to reimbursement for relocation expenses—and if she had sought to be reimbursed for the expenses that she in fact incurred—it would have been obliged to reimburse her a total of $65,770.17.

2.8 The ATC Career Model

52    At times relevant to this matter, Airservices maintained what has come to be known as the “ATC Career Model”. That instrument serves to record processes by which Airservices’ employees can monitor and manage their career progression.

53    There is no dispute that Airservices amended the ATC Career Model when it adopted “version 3” with effect from March 2015. There is also no dispute that that occurred without consultation of the kind contemplated by cll 7 and 8 of the 2012 EA.

54    Version 3 of the ATC Career Model introduced a wide array of changes. It is necessary to record only some of them. Amongst other things, version 3 of the ATC Career Model:

(1)    removed what had previously been a requirement for Airservices’ ATC Executive Management Team to meet every six months to review training, work experience opportunities and requests across the ATC group; and

(2)    increased the number of years’ experience that an employee required (or would typically require) before qualifying for consideration for various career-development opportunities.

Part 3: The case against Airservices

3.1 Summary

55    By its amended statement of claim, Civil Air alleges that Airservices:

(1)    contravened s 50 of the FW Act by failing to reimburse Ms Pattenden amounts related to the expenses that she incurred in connection with her relocation to Brisbane;

(2)    proposed to contravene s 50 of the FW Act by indicating that it would not reimburse Ms Pattenden amounts related to the expenses that she incurred in connection with her relocation to Brisbane;

(3)    contravened s 50 of the FW Act by failing to reimburse Ms Balharry amounts related to the expenses that she incurred in connection with her relocation to Rockhampton;

(4)    proposed to contravene s 50 of the FW Act by indicating that it would not reimburse Ms Balharry amounts related to the expenses that she incurred in connection with her relocation to Rockhampton;

(5)    proposed to contravene s 50 of the FW Act by adopting the New Policy (and, thereby, indicating to employees who, from that point, transferred from one location to certain other locations for reasons that included career development that they would not be reimbursed amounts related to the expenses that were incurred in connection with relocation);

(6)    contravened cl 8 of the 2017 EA (and, thereby, s 50 of the FW Act) by adopting the New Policy without first consulting about it with its employees and their representatives, including Civil Air;

(7)    contravened cl 7.2 of the 2012 EA by adopting version 3 of the ATC Career Model without first consulting about it with its employees and Civil Air; and

(8)    contravened cl 8.1 of the 2012 EA by adopting version 3 of the ATC Career Model without first consulting about it with its employees and their representatives, including Civil Air.

56    Civil Air moves the court for relief in the form of:

(1)    declarations recording the contraventions of s 50 of the FW Act that it attributes to Airservices;

(2)    pecuniary penalties to be imposed in respect of each such contravention;

(3)    compensation (specifically for each of Ms Pattenden and Ms Balharry, in amounts reflecting the costs that they incurred in relocating); and

(4)    other, ancillary relief.

3.2 The legislative framework

57    As has been recorded, it is not controversial that each of the 2012 EA and the 2017 EA were enterprise agreements that were made and had force under the FW Act, and that applied to Airservices in connection with its employment of Civil Air’s members (or some of them). Section 50 of the FW Act provides (and, at all times, provided) as follows:

50 Contravening an enterprise agreement

A person must not contravene a term of an enterprise agreement.

58    Section 50 of the FW Act is a “civil remedy provision”: FW Act, s 539(1). Civil Air has (at least for present purposes) standing to prosecute an action alleging that s 50 has been contravened and this court has jurisdiction to entertain and determine any such action: FW Act, s 539(2). With minor qualifications, that jurisdiction authorises the granting, in appropriate circumstances, of relief in the nature of that which Civil Air seeks: FW Act, ss 545 and 546.

59    The qualification to that last observation concerns “proposed” contraventions of s 50. Section 545(1) of the FW Act provides as follows:

(1)     The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision.

60    It is apparent that jurisdiction is conferred upon the court to make orders if it is satisfied that a person has contravened or “proposes to contravene” a civil remedy provision. By contrast, s 546(1) of the FW Act provides as follows:

(1)     The Federal Court, the Federal Circuit Court or an eligible State or Territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

Part 4: The proper construction of cl 21 of the 2017 EA

4.1 Principles of construction

61    The principles governing the construction of enterprise agreements are not materially in contest. They were recently summarised by this court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536, 580 [197] (Tracey, Bromberg and Rangiah JJ):

The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context:  City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ...”:  Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor)  at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–9, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

62    To the extent that the language of an enterprise agreement might admit of multiple constructions, evidence is admissible to establish circumstances that inform which of them conforms, or most closely conforms, to what appears to have been the underlying or animating intention of the agreement’s parties. In BP Australia Pty Ltd v Nyran Pty Ltd (2003) 198 ALR 442, 452-453 [33]-[34] (R D Nicholson J), this court observed (albeit in relation to the proper construction of a contract, rather than an enterprise agreement):

If the language of the contract is “ambiguous or susceptible of more than one meaning” evidence of “surrounding circumstances” is admissible to assist in the interpretation of the contract.

The concept of “surrounding circumstances” is to be understood to be a reference to “the objective framework of facts”. It will include evidence of prior negotiations so far as they tend to establish objective background facts known to both parties and the subject matter of the contract. It will also include facts so notorious that knowledge of them is to be presumed. Additionally it will include evidence of a matter in common contemplation and constituting a common assumption. From the evidence of that setting the parties’ presumed intention may be taken into account in determining which of two or more possible meanings is to be given to a contractual provision. What cannot be taken into account is evidence of statements and actions of the parties which are reflective of their actual intentions and expectations. Objective background facts can include statements and actions of the parties which reflect their mutual actual intentions. That is, evidence of the mutual subjective intention of the parties to a contract may be part of the objective framework of facts within which the contract came into existence. It is the mutuality which makes the evidence admissible.

63    Those observations have been applied for the purposes of construing enterprise agreements: Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCAFC 149, [59] (Jessup, Rangiah and White JJ). They reflect the oft-quoted principles essayed by Mason J (with whom Stephen and Wilson JJ agreed) in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, 352-353 (“Codelfa”); in particular, his Honour’s recitation of what has come to be known as the “true rule”:

The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.

64    Where an enterprise agreement incorporates provisions taken from predecessor instruments, the parties will ordinarily be presumed to have intended that those provisions should be applied consistently with any common understanding that developed prior to that incorporation: Shop Distributive and Allied Employees’ Association v Woolworths Limited (2006) 151 FCR 513, 520 [31] (Gray ACJ). Proof of a common understanding, however, will not arise merely because a particular clause has a history of consistent application. In Australian Liquor, Hospitality and Miscellaneous Workers Union v Prestige Property Services Pty Ltd (2005) 149 FCR 209, Gray J observed (at 222 [44]):

Care must be taken…to distinguish a common understanding from common inadvertence. If the only reason [that a clause had been historically applied in a particular way] was that neither the union nor the employer adverted to the possibility that there was [an alternative], no common understanding results. In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no-one has thought about the issue.

65    All the more is that so in the case of enterprise agreements. Although often (as in this case) negotiated as between an employer and an employee organisation, enterprise agreements are in fact made as between an employer and those of the employer’s employees to whose employment it is intended to apply. Insofar as concerns the meaning of a provision adopted from predecessor instruments, it is not automatically the case that any understanding common as between an employer and an employee organisation will also exist as between that employer and those of its employees with whom the bargain was struck: Health Services Union v Ballarat Health Services [2011] FCA 1256, [79] (Gray J).

4.2 The existence of a common understanding

66    As has been rehearsed above, Civil Air submits that cl 21 of the 2017 EA—and the equivalent provisions that appeared in predecessor instruments—has always operated such that employees transferring from one location to another for career-development purposes (or for purposes including career development) received reimbursement for expenses associated with their relocation. That, it is said, should serve as proof that the parties have operated—and, at the time that the 2017 EA was agreed, did operate—upon the common understanding that relocation expenses would be reimbursed in those circumstances. With that common understanding established, it is said that cl 21 of the 2017 EA ought to be construed consistently with it, such that the court should find that each of Ms Pattenden and Ms Balharry was entitled to be reimbursed for the costs that they incurred in relocating.

67    Airservices denies that cl 21 (or its earlier incarnations) was the subject of any such common understanding. It maintains that employee entitlement to reimbursement for relocation costs has always been conditioned upon transfers being tied to Airservices’ business requirements. In the absence of operational necessity, the reimbursement of a transferring employee’s relocation costs has, so it says, always been a matter for Airservices’ discretion.

68    The evidence of past practice is insufficient to establish a common understanding of the kind to which Civil Air adverts. At best, it establishes that employees who have transferred for reasons of career development (or for reasons including career development) have been reimbursed for expenses related to their relocation. It is unclear whether that has occurred because their transfer was occasioned by operational necessity or because Airservices opted, as an exercise of its residual discretion, to pay. The evidence rises no higher than to establish that reimbursement has been paid in those circumstances in the past to at least some employees.

69    There was conflicting evidence as to the payment of relocation expenses related to transfers per se (that is to say, transfers that were actuated by any reason, whether related to career-development considerations or otherwise). Mr McGuane’s evidence was that Airservices “always” reimbursed transferring employees unless the transfer was effected for “compassionate reasons”. Ms Brennan’s evidence was that reimbursement was only paid when it served an operational imperative. In the year ending 30 June 2018, there were at least ten employees who transferred from one location to another without reimbursement. Airservices’ evidence was that Civil Air representatives, including Mr McGuane, were not always involved in arranging transfers.

70    I describe that evidence as conflicting. That is not necessarily so. It might be that the employees to whom Mr McGuane refers were reimbursed the costs of their relocation because their transfer served operational requirements. Likewise, the employees to whom Ms Brennan refers might well not have been reimbursed their costs because their transfers were made for “compassionate reasons”. The evidence does not admit of any definitive conclusions one way or the other.

71    That being so, I cannot accept Civil Air’s contention that, at the time that the 2017 EA was made, there existed a common understanding to the effect that Airservices was obliged to reimburse the relocation expenses of employees who transferred from one location to another otherwise than for compassionate reasons. The evidence does not establish any such mutual understanding.

4.3 The evidence of Mr Brades

72    It is convenient at this juncture to return to the evidence of Mr Brades (to the admissibility of which Airservices objected).

73    Mr Brades’s evidence concerned the negotiation of the 2017 EA. According to Mr Brades, a feature of those negotiations was the recognition, by both parties, that what ultimately became cl 21 of the 2017 EA would function to preserve—that is, not to reduce—existing reimbursement entitlements.

74    Respectfully, if that is as far as Mr Brades’s evidence was intended to go, it’s not obviously objectionable. It reflects what would readily be inferred from the materially identical nature of cl 21 of the 2017 EA and clause 20 of the 2012 EA (which it succeeded). Given that similarity—and appreciating, as has already been observed, that Civil Air’s intention might not marry precisely with that of the employees with whom Airservices made the 2017 EA—the parties should readily be understood to have intended that transferring employees should qualify for reimbursement under the 2017 EA in the same way that they qualified under the 2012 EA.

75    Mr Brades’s evidence does not serve to establish what those qualifying principles were. Had an attempt been made to that end by leading evidence about statements that were made during the negotiations that led to the making of the 2017 EA, that evidence would very likely not have been admissible: Codelfa, 352 (Mason J). As it is (and intending no disrespect), Mr Brades’s evidence is, at worst, inadmissible and, at best, not particularly helpful.

76    Either way, I make nothing of it.

4.4 The words that are used

77    Those observations made, attention must turn to the words in which cl 21 of the 2017 EA is expressed.

78    Structurally, cl 21 is easy enough to follow. Clause 21.1 bestows upon employees an “opportunity to transfer” from one location to another. That broad opportunity is conditioned upon the existence of a need or desire to “cater for circumstances where placements occur” by reason of other circumstances, which the clause then lists (namely, “redeployment, consolidation of functions, individuals returning from a secondment, mutual exchanges, compassionate transfers, equal opportunity, and other employee movements such as a recruitment/selection exercise or promotion”).

79    That general “opportunity” then leads in to the somewhat less confusing terms of cl 21.3(a). That provision—appearing, as it does, under the heading “Principles”—stipulates that employees are “generally transferable” for the purposes of “Permanent Transfers” (which are the only kind of transfer with which the present application engages). It then authorises such transfers “to any position at level” in four nominated circumstances, namely “operational efficiency, development of the employee, equal opportunity [and] compassionate reasons”.

80    Clause 21.3(b) then establishes another headline (or “basic”) principle: namely, that employees who transfer from one location to another will be reimbursed for the expenses that they incur in doing so. In the case of employees who are “required to permanently transfer”, cl 21.7 serves to qualify that “basic principle” by identifying specific expenses in respect of which reimbursement is to be afforded.

81    Clause 21.4(c) serves as a further qualification. By it, an employee who transfers to a position “not involving promotion” is not entitled (as of right) to “any assistance” if his or her transfer was “arranged for [his or her] convenience, rather than to meet the business requirements of Airservices”. It is those words that are the source of the present dispute.

82    Civil Air maintains that, conceptually, “an employee’s convenience” must be construed under the light of cl 21.3(a) of the 2017 EA and the four circumstances that it enumerates (namely, “operational efficiency, development of the employee, equal opportunity [and] compassionate reasons”). Of those four circumstances, it submits, only one—compassionate reasons—invokes considerations of employee convenience. Hence, Civil Air contends that the qualification to which cl 21.4(c) gives voice should be understood to apply only in the case of transfers made for compassionate reasons.

83    Respectfully, that contention must be rejected for at least two reasons. First, compassionate reasons are not the only species of circumstance listed in cl 21.3(a) that are capable of invoking employee convenience considerations. Mr McGuane himself appeared to accept as much when, in correspondence that he sent to Airservices on 16 June 2017, he referred to “compassionate reasons” merely as an “example” of employee convenience. The transfer of an employee for career-development purposes could also (at least potentially) be effected “for an employee’s convenience, rather than to meet the business requirements of Airservices”. Potentially, so too could a transfer for reasons of equal opportunity, although I confess some confusion as to what, in practice, such a transfer might entail.

84    Second and more significantly, the four circumstances enumerated in cl 21.3(a) of the 2017 EA are not the only circumstances in which the 2017 EA contemplates that employees might transfer from one location to another. To conclude otherwise would be to ignore the terms of cl 21.1, which contemplates that transfers might be effected in additional circumstances (that is to say, for reasons additional to those listed in cl 21.3(a)). Clause 21.1 contemplates, for example, that employees might transfer (or “have the opportunity to transfer”) to “cater for…mutual exchanges”.

85    If the qualification of the “basic principle” under cl 21.4(c) were intended to apply only in respect of transfers effected for “compassionate reasons”, one might expect that it would have said so. The better construction of the clause recognises a more general bifurcation that distinguishes transfers that are “arranged” to “meet the business requirements of Airservices” from transfers that are made “for an employee’s convenience”. That bifurcation calls for an evaluation as to why a transfer is (or was) “arranged”.

86    An employee who transfers from one location to another and who is thereafter put to work is, of course, put to work in the service of his or her employer’s “business requirements”. That being so, it will always be the case that the transfer of an employee from one location to another will “meet the business requirements of Airservices”. Yet it is clear that cl 21.4(c) of the 2017 EA contemplates that some transfers should be thought more a function of “an employee’s convenience” than of “the business requirements of Airservices”.

87    Senior counsel for Airservices sought to draw a distinction between the effect that any given transfer might realise (on the one hand) and the reason or purpose for which it was “arranged” (on the other). A transfer that has the effect of serving Airservices’ business needs might nonetheless be arranged for other reasons (including reasons of employee convenience).

88    Respectfully, that distinction is no more than superficially compelling. At a practical level, it is very likely illusory. The objective or purpose for which any given transfer is or was “arranged” will invariably align with the realisation of a benefit or result that is or was expected to flow from it. It is the benefit or result in which a transfer naturally culminates (or is or was likely or expected to culminate) that will generally inform why it was that it was arranged.

89    It is not difficult to conceive of circumstances in which a transfer is mutually beneficial, and is arranged with both the convenience of the employee and the business requirements of Airservices in mind. Indeed, one imagines that most (and probably all) transfers under cl 21 of the 2017 EA (or terms equivalent to it) would be in that category. As has already been recorded, all of them (at least to some extent) will result in the servicing of Airservices’ business requirements. How, then, does cl 21.4(c) operate in the case of an arrangement that serves both ends? When will a transfer be less about Airservices’ business requirements and more about employee convenience?

90    By its terms (and however artificially), clause 21.4(c) of the 2017 EA contemplates the binary grouping of non-promotion employee transfers into one category or the other. In the case of any given transfer, then, the task contemplated by cl 21.4(c) is to assess all of the relevant prevailing circumstances with a view to identifying a single, primary or animating reason to which, above all others, the arrangement is properly attributed. A non-promotion transfer that serves both the convenience of an employee and the business requirements of Airservices—but that would not be arranged on the basis of the latter alone—must necessarily be one that is arranged for an employee’s convenience. A non-promotion transfer that serves both ends and that would be arranged (or, perhaps more realistically, pursued or encouraged) regardless of how convenient it was for the employee is one that is arranged to meet the business requirements of Airservices.

Part 5: Application to Ms Pattenden

5.1 The competing contentions

91    In the case of Ms Pattenden’s transfer from Perth to Brisbane, Civil Air’s submission advanced on two fronts. First, it was put that Ms Pattenden’s transfer was not actuated by “compassionate reasons”. Second, it was said that Airservices had a business need for air traffic controllers at Brisbane airport tower and that Ms Pattenden’s transfer to that location is properly to be understood as having been arranged with the service of that need in mind. In either case, Civil Air submits that Ms Pattenden’s transfer was not actuated by considerations of employee convenience.

92    Additionally, Civil Air submits that Ms Pattenden’s transfer to Brisbane was consistent with (and was designed to serve) a mutually-agreed career-development goal, namely her deployment to a radar tower. Her career development, it submitted, served Airservices’ business needs; and, to the extent that her transfer was animated by those considerations, it could not properly be understood to have been effected (or relevantly effected) for her convenience.

93    Airservices submits that Ms Pattenden was transferred to Brisbane because she wanted to be. Although there were positions available at Brisbane into which she could be placed (and into one of which she ultimately was placed), Airservices could and, in the normal course, would have filled them with local candidates (of which, the evidence made clear, it had many). Additionally, it was open to it to afford Ms Pattenden the same career-development opportunities at Perth airport (which, unlike Jandakot, where she was based, was and is a radar tower). It had no need to transfer her to Brisbane to achieve those ends.

94    A volume of evidence was led about the state of Airservices’ activities at Brisbane airport tower, almost none of it controversial. The evidence confirmed that, in the lead up to and following Ms Pattenden’s transfer:

(1)    the Brisbane tower introduced a computerised “strip display system” that seems universally to have been referred to as “Integrated Tower Automation Suites” or “INTAS”;

(2)    additionally, the Brisbane tower was in the process of preparing (and, in particular, recruiting) for the introduction of air traffic operations on a second, parallel runway at the airport;

(3)    those processes (that is, the INTAS consolidation process and the introduction of an additional runway) required an array of training and training development, which in turn required the allocation of additional air traffic controller resources (to allow those measures to be undertaken without interruption to ongoing services);

(4)    approximately 10 air traffic controllers were recruited to the Brisbane tower; and

(5)    the complement of air traffic controllers at the Brisbane airport tower occasionally worked overtime hours.

95    Additionally, evidence was led about discussions that were had with Ms Pattenden (prior to her transfer) about potentially moving to Perth airport, which was a radar tower of the kind to which she had expressed some interest in being transferred. Those discussions did not emerge much beyond the realm of possibility: the evidence established that the possibility of a transfer was raised with Ms Pattenden but nothing formal was ever put to her in that regard. Whether that was because of her expressed preference to transfer to Brisbane doesn’t much matter. What was clear enough was that the possibility of a transfer to Perth airport remained, albeit it was not one to which Ms Pattenden was attracted because she “…considered that a transfer to Perth Tower would mean [she] would be stuck there for another 3-5 years, and [she preferred to] wait…to move to Brisbane”.

96    Airservices acknowledged that, at the time that Ms Pattenden transferred to Brisbane, there was an ongoing recruitment drive allied to the INTAS consolidation and the introduction of the second runway. Its evidence (which was not seriously challenged) was that it had available to it sufficient candidates local to the Brisbane area to fill those positions; and, hence, had no need to transfer Ms Pattenden to that end.

5.2 Why was Ms Pattenden’s transfer to Brisbane arranged?

97    Although Civil Air was, for obvious and understandable reasons, keen to impress upon the court the commercial advantages that arose from Ms Pattenden’s transfer to Brisbane—specifically, advantages related to her career development and the fact that there was important work for her to engage in at that location—neither it nor Ms Pattenden herself sought to downplay the significance of the personal reasons for which she sought her transfer. It was accepted that her desire to be closer to family was at least a reason for which she sought that transfer. As is summarised above, the evidence established beyond doubt her enduring desire—communicated regularly to Airservices over several years—to relocate to Brisbane in order to be closer to her family.

98    Airservices’ evidence was straightforward. It agreed to transfer Ms Pattenden to Brisbane because that’s where she wanted to be transferred and her request was one that Airservices was able to accommodate. The satisfaction of business requirements did not factor into its decision. Indeed, although there plainly was work available at Brisbane to which Ms Pattenden could usefully be deployed, Airservices had available to it sufficient local candidates for those roles. It undoubtedly stood to benefit from Ms Pattenden’s deployment and development—and, in particular, from her transfer from Jandakot to a “radar tower”—but Airservices did not agree to the transfer for those reasons. It was content to fill the roles that were available at Brisbane with local candidates and to afford Ms Pattenden opportunities to develop her career in Perth.

99    With those realities accepted, it cannot be said that Ms Pattenden’s transfer from Perth to Brisbane was arranged to meet the business requirements of Airservices. On the contrary, the primary moving force that animated the transfer was Ms Pattenden’s desire to move to Brisbane. The transfer was arranged for her convenience.

100    Although largely addressed already in the context of the correct construction of cl 21, I should address Civil Air’s contention that Ms Pattenden’s transfer from Perth to Brisbane was not arranged for reasons of employee convenience because it was not actuated by compassionate reasons. The latter half of that proposition is probably right: Ms Pattenden’s transfer may well not have been arranged for compassionate reasons. However, as has already been rehearsed (above, [82]-[85]), that does not preclude a finding that it was arranged for reasons of employee convenience. For the reasons outlined above, I am satisfied that it was.

5.3 Did Airservices contravene or propose to contravene cl 21.7?

101    It follows from the conclusion above that Ms Pattenden was not entitled (as of right) to reimbursement of her relocation expenses pursuant to cl 21.7 of the 2017 EA. In turn, it necessarily follows that Airservices cannot be said to have done anything in contravention, or proposed contravention, of that clause. It is tempting to conclude the analysis there; but, for the sake of completeness, I should wish to make some observations about the case that Civil Air advanced.

102    By its pleading, Civil Air accused Airservices of having made a decision “…not to pay to [Ms] Pattenden the permanent transfer entitlement in accordance with cl 21.7 of the [2017 EA]” and, thereby, of having contravened or proposed to contravene that clause. By that contravention or proposed contravention of cl 21.7, it was said that Airservices respectively contravened or proposed to contravene s 50 of the FW Act.

103    Those pleas reflect the acknowledged history. Ms Pattenden was told, before transferring, that she would not be reimbursed any amounts for expenses that she incurred in relocating from Perth to Brisbane. Having been given that indication, she did not make any attempt to recover from Airservices the amounts that she subsequently expended in that regard. She did not, for example, attempt to comply with cl 21.3(f) of the 2017 EA. Instead, she was content to reserve her rights (as, to be clear, she was entitled and well-advised to do).

104    Ms Pattenden’s having not made any request for reimbursement, it was not open to Civil Air to plead that Airservices had failed or refused to do anything that cl 21.7 of the 2017 EA obliged it to do. Instead, Civil Air’s contention rested upon what Airservices indicated that it would do in the event that reimbursement were sought (or, more accurately, on the decision that it made as to what it would do in that event).

105    Two observations flow from that. First, Civil Air’s contention that Airservices contravened cl 21.7 by making a decision cannot succeed. Clause 21.7 could only be contravened by Airservices’ failure to pay amounts that that clause obliged it to pay. In the absence of some attempt by Ms Pattenden to recoup what she had spent, there were no such amounts. Even assuming, contrary to the conclusion that I have reached, that Ms Pattenden’s transfer was not arranged for her convenience, there was no failure on Airservices’ part sufficient to constitute a contravention of the clause.

106    That leads to a second observation. Civil Air’s alternative plea was that, by deciding as it did, Airservices proposed to contravene cl 21.7. If one assumes, again contrary to the conclusion that I have reached, that Ms Pattenden’s transfer was not arranged for her convenience, Airservices’ decision not to reimburse her pursuant to cl 21.7 (and, perhaps more accurately, its communication of such a decision) likely would, as Civil Air submitted, amount to a proposal to contravene cl 21.7. Importantly though, any such proposal to contravene cl 21.7 of the 2017 EA would not amount to a contravention of s 50 of the FW Act. Section 50 of the FW Act is contravened when a person engages in conduct, whether by act or omission, in which a term of an enterprise agreement prohibits them from engaging. It is not contravened by a person proposing to engage in such conduct.

107    The significance of that distinction is limited to some degree by s 545(1) of the FW Act. The court has power under that section to make any order considered appropriate in the event that it is satisfied that a person has contravened or has proposed to contravene a civil remedy provision. Although a proposal to contravene a term of an enterprise agreement will not amount to a contravention of s 50 of the FW Act, it will (or might) nonetheless amount to a proposal to contravene s 50, which will suffice to invoke the jurisdiction that s 545(1) confers.

108    The relief that a court might appropriately grant in respect of a proposed contravention of a civil remedy provision will not always align with what might appropriately be granted to address an actual contravention. Most obviously is that so in relation to the imposition of pecuniary penalties. Section 546(1) of the FW Act is clear: the court’s power to impose a pecuniary penalty is conditioned upon satisfaction that a person has contravened a civil remedy provision. Courts are not empowered to impose penalties in relation to proposed contraventions.

109    In Ms Pattenden’s case, the point is illustrated further by Civil Air’s claim that Ms Pattenden should receive compensation. Ms Pattenden’s loss (had she suffered any) would not have arisen merely because Airservices made a decision; it would only have arisen in the event that Airservices failed to pay what the 2017 EA obliged it to pay. If there were no such amounts, then there could be no such failure. In other words, Airservices’ proposal to contravene s 50 of the FW Act (had there been one) would not, in and of itself, have caused Ms Pattenden any loss. It is, therefore, difficult to see how it might have been appropriate to grant compensation in respect of any proposed contravention. Had I reached a different conclusion regarding the purpose for which Ms Pattenden’s transfer from Jandakot to Brisbane was arranged—and had I thereafter accepted that Airservices’ conduct amounted to a proposed contravention of s 50 of the FW Act—it might be that the only relief that could appropriately have been granted in respect of that conduct would have been declaratory relief.

110    For obvious reasons, those academic inquiries needn’t be explored any further.

Part 6: Application to Ms Balharry

6.1 The competing contentions

111    As it did in respect of Ms Pattenden, Civil Air advanced two contentions concerning Ms Balharry’s transfer from Coolangatta to Rockhampton. First, it submitted that Ms Balharry’s transfer was not actuated by “compassionate reasons”. Second, it was said that Airservices had a business need for an air traffic controller at Rockhampton and that Ms Balharry’s transfer to that location was effected to service that need. In either case, Civil Air submitted that Ms Balharry’s transfer was not actuated (or relevantly actuated) by considerations of employee convenience.

112    Airservices submitted that Ms Balharry accepted a transfer to Rockhampton because the alternative was dismissal. Again, it does not dispute that there was work available at Rockhampton to which Ms Balharry could be (and has been) usefully deployed; but it maintains that it did not need to (and did not) transfer Ms Balharry in order to have that work undertaken. Instead, it arranged for her to be transferred there solely as an alternative to dismissing her.

113    Again, evidence was led about the state of Airservices’ activities at Rockhampton airport tower at and around the time of Ms Balharry’s transfer. Ms Brennan told the court that Airservices has (and had) a “mature requirement” of 5.5 fully-endorsed air traffic controllers at that location; and that, at the point that Ms Balharry transferred there, it was below that complement.

114    That evidence appeared to coincide with the advertisement for an air traffic controller that Airservices had published in respect of that location in October 2017 (above, [46]). On its terms, applications for that vacancy closed on 13 November 2017. It was not controversial that Airservices did not receive any applications for that vacancy and it may be recalled that it was on 2 November 2017 that Airservices first proposed that Ms Balharry could transfer from Coolangatta to Rockhampton.

115    On the strength of that evidence, Civil Air submitted that Ms Balharry’s transfer to Rockhampton ought to be understood as having been arranged to service the business requirements that existed there.

116    Although, for reasons to which I shall shortly advert, it doesn’t much matter, Airservices’ evidence about the operational requirements that existed at Rockhampton between late 2017 and the point that Ms Balharry recommenced there was incomplete and difficult to follow. For the most part, it was led through Ms Brennan, who, to significant degrees, was unable to illuminate much in the way of detail. I do not say so in criticism of Ms Brennan. Civil Air described her—with respect, unfairly—as evasive; in truth, she simply wasn’t able to answer much of what was put to her.

117    In particular, Ms Brennan was unable to explain why it should be thought that the position in Rockhampton to which Ms Balharry was redeployed was not the same position that Airservices had advertised in October 2017 (above, [46]). Ms Brennan’s evidence was that the vacancy that was advertised “ceased to exist prior to Ms Balharry’s redeployment”. The court was told of a trainee at Rockhampton who became “fully rated” and of another, part-time air traffic controller who returned to full-time hours there (albeit in both cases after Ms Balharry’s transfer was agreed). Additionally, Ms Brennan’s evidence was that Airservices ultimately determined “…that we didn’t need to proceed with the recruitment activity for Rockhampton Tower”. She could not, however, identify when that decision was made, nor why, other than that there were “…multiple moving parts happening at the same time in Rockhampton Tower” and that there were “…circumstances that were changing, and it involved a number of staff”. Mr Adrian Fitzgerald—the Airservices manager to whom Ms Brennan attributed the decision “…that we didn’t need to proceed with the recruitment activity for Rockhampton Tower”—did not give evidence.

118    Ms Brennan’s evidence about Airservices’ decision to not “proceed with the recruitment activity” didn’t easily reconcile with an email that Mr Dale sent to Ms Pattenden on 15 June 2017. That email listed a number of locations in Queensland and New South Wales to which Ms Pattenden might have been transferred in 2018. One was Rockhampton, in respect of which Mr Dale noted that “ASA pays”.

119    Respectfully, Airservices’ evidence that, when it offered Ms Balharry the role to which she later transferred, there was no business requirement for an air traffic controller at Rockhampton was not compelling. By his closing oral submissions, senior counsel for Airservices properly conceded that the evidence as it fell tended the other way.

6.2 Why was Ms Balharry’s transfer to Rockhampton arranged?

120    It does not necessarily follow, however, that Ms Balharry’s transfer was arranged “…to meet the business requirements of Airservices.”

121    For reasons with which this matter does not engage, Airservices formed the view in October 2017 that Ms Balharry was not able to perform at a level sufficient to maintain her employment at Coolangatta. Having done so, it assessed that it could either find somewhere else for Ms Balharry to work or terminate her employment. As is to be expected, its preference—which it expressed in its correspondence of 3 October 2017 (above, [44])—was the former.

122    Although it is the case that Airservices had an opportunity or vacancy in Rockhampton to which Ms Balharry was able to be (and ultimately was) transferred, it remains nonetheless that that opportunity only came within the parties’ mutual contemplation because the alternative—Ms Balharry’s dismissal—was considered unpalatable.

123    In its letter to Ms Balharry of 3 October 2017, Airservices noted as follows:

…

Airservices values you as an employee and would like to retain you within our organisation. As such, Airservices would prefer to redeploy you into another suitable role on the relevant terms and conditions of the role. Airservices will consider suitable redeployment opportunities; however, if you are unable to be successfully redeployed to a suitable role, Airservices proposes the termination of your employment.

…

124    In the discussions that ensued with her thereafter, consideration was given to the possibility of her deploying to Rockhampton on an “own time, own cost” basis. It is apparent, then, that Airservices “value[d] Ms Balharry as an employee” and expressed an interest in “retain[ing her] within [its] organisation”; but not at any cost. It did not consider that a role that would require it to pay for Ms Balharry’s relocation was a “suitable role” into which she might be deployed. It was “suitable”—and, therefore, an acceptable alternative to dismissal—only inasmuch as Ms Balharry made her own relocation arrangements.

125    That being so, Ms Balharry’s transfer from Coolangatta to Rockhampton cannot be said to have been arranged to meet the business requirements of Airservices. It was arranged to spare her the inconvenience of dismissal. Clause 21.4(c) applied in that context. That the transfer also serviced Airservices’ operational interests is not to the point.

126    Again, I should address Civil Air’s submission that Ms Balharry’s transfer was not arranged for her convenience because it was not actuated by compassionate reasons. For the reasons identified in respect of Ms Pattenden (above, [100]), that contention cannot be accepted.

6.3 Did Airservices contravene or propose to contravene cl 21.7?

127    It follows from the conclusion above that Ms Balharry was not entitled (as of right) to reimbursement of her relocation expenses pursuant to cl. 21.7 of the 2017 EA. In connection with her transfer from Coolangatta to Rockhampton, Airservices did not do or propose to do anything in contravention of that clause.

Part 7: Alleged change in policy regarding cl 21

7.1 Summary of allegations

128    By its amended statement of claim, Civil Air alleges that, in or about June 2017, Airservices changed its policy regarding the payment of relocation expenses to employees who transferred from one location to another for career-development purposes. Prior to that point, it alleged, Airservices applied the “Old Policy” (above, [27]), whereby employees who transferred from one location to another for career-development purposes were reimbursed their relocation expenses. Thereafter, it says, Airservices’ policy changed to the “New Policy”, by which it would not entertain an employee’s request for transfer from one location to another for career-development purposes unless the employee first agreed that the transfer was effected for his or her convenience and would not attract any entitlement to reimbursement.

129    That change, Civil Air submits, sounds in two breaches of the FW Act. First, it is said to constitute a proposal to contravene cl 21.7 of the 2017 EA; and, consequently, to constitute a proposed contravention of s 50 of the FW Act. Second, it is said to have contravened cl 8 of the 2017 EA; and, consequently, to have contravened s 50 of the FW Act.

130    Airservices denies that there was ever any change in policy. It maintains that its policy has always been that employees who transfer for reasons of their own convenience, rather than to satisfy a business requirement, are not entitled (as of right) to reimbursement for their relocation expenses. By its written outline of opening argument, Airservices suggested that, if there was a change, it did “…not in any event constitute a ‘significant change’ within the meaning of cl 8 of the 2017 [EA]”.

131    On the fourth day of the trial, mid-way through its closing oral submissions, Civil Air made an application to amend its pleading. Specifically, it sought to clarify that the so-called New Policy applied only in respect of requests to transfer to Brisbane or Melbourne. Airservices opposed that application and I resolved to rule upon it in my reasons for judgment.

132    Insofar as concerns Civil Air’s claims relating to the alleged change from the Old Policy to the New Policy, then, the following questions arise, namely:

(1)    should Civil Air have leave to amend its pleading;

(2)    does the New Policy amount to a proposal to contravene cl 21.7 of the 2017 EA;

(3)    did Airservices effect the change from the Old Policy to the New Policy (as amended or otherwise); and

(4)    if it did, did it do so in contravention of cl 8 of the 2017 EA?

7.2 Leave to amend pleading

133    Civil Air’s application seeks to align its pleading with the evidence that it led. That evidence was to the effect that, at a meeting that took place between representatives of the parties on 17 August 2017, Civil Air was advised that Airservices would not consider itself obliged to pay for relocation expenses in the case of employees who, for reasons of career development, transferred to Brisbane or Melbourne. That representation, it was said, was reflective of Airservices’ decision to change its policy with respect to reimbursement on transfer from the Old Policy to the New Policy. By its pleading, however, Civil Air did not allege that the New Policy was limited in its application to Brisbane and Melbourne.

134    In Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 (Tracey, Reeves and Bromwich JJ) (“Hall”), this court observed (at 368 [49]-[50]):

[49]     One of the main purposes of pleadings is to define the issues in dispute with sufficient clarity to enable the opposite party to understand the case he or she has to meet and to provide him or her with an adequate opportunity to prepare to meet that case: see Dare v Pulham (1982) 148 CLR 658 at 664 (Murphy, Wilson, Brennan, Deane and Dawson JJ). A concomitant of this principle is that a party is not entitled to depart from his or her pleaded case except if the parties have both deliberately chosen to conduct the dispute on a different basis. That principle was expressed in Banque Commerciale S.A., En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286–287 in the joint judgment of Mason CJ and Gaudron J as follows:

The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (In Liquidation) [(1916) [1916] HCA 81; 22 CLR 490], per Isaacs and Rich JJ at 517. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. See, e.g., Brown v Dunn [(1893) 6 R 76]; Mount Oxide Mines [(1916) [1916] HCA 81; 22 CLR 490 at 517-518].

[50]    In our view, these observations apply with even more force in a proceeding such as this where declarations of contravention of the FWA were sought against the respondents and civil penalties were sought to be imposed on them. Faced with those serious consequences, the respondents were entitled to be told clearly and precisely in the Commissioner’s ASOC what case it was they had to meet and, unless they deliberately chose to allow the case to be conducted on a different basis, to direct their evidence and arguments to that case and that case alone. Plainly, this latter exception did not permit the Commissioner to make a significant addition to, or departure from, the pleaded case, in counsel’s opening or closing submissions and then seek to justify that course by pointing to the respondents’ failure to object as evidence of their acquiescence in that course. If that were the test, this departure from the basic requirements of procedural fairness would not occur by the deliberate choice of the party entitled to fair notice but rather at the self-serving behest of his or her opponent. If such an approach were permitted, the requirement to give fair notice would be made redundant, trial by ambush would become a legitimate tactic, and the issues in dispute at trial would become a movable feast. As well, the ability of a trial judge to manage the trial to ensure it fairly addressed the issues in dispute would be significantly eroded, if not entirely destroyed. So, too, would be the capacity of the trial judge to identify the issues he or she needed to decide.

135    Leave to amend pleadings at a late stage is to be considered under r 16.53 of the Federal Court Rules 2011 (“Rules”), which provides that, unless r 16.51 applies (which is of no present relevance), a party must apply for leave of the court to amend a pleading. In Tamaya Resources Ltd (in Liq) v Deloitte Touch Tohmatsu (a Firm) Re Tamaya Resources Ltd (in Liq) [2015] FCA 1098 (subsequently approved on appeal in Tamaya Resources Ltd (In Liq v Deloitte Touche Tohmatsu (A Firm) (2016) 332 ALR 199 (Gilmour, Perram and Beach JJ), Gleeson J considered an application to amend a statement of claim under r 16.53 (as well as an application to amend an originating application under r 8.21 of the Rules). Her Honour observed:

[125]    The applicable principles are well established. The court’s powers in rr 8.21(1) and 16.53 are broad. Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act: Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]; Suzlon Energy Ltd v Bangad [2011] FCA 92 ; (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14]; Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8].

[126]    The onus is on the party seeking leave to amend to persuade the court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17].

[127]    The principles articulated by the High Court in Aon apply to matters in this court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 (“Cement Australia“) at [43]. Relevant matters the court is to consider include:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck“) at [44];

(6)    The detriment to other litigants in the court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

[128]    The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51].

136    Although, for the reasons to which I shall shortly come, it scarcely matters, I am not persuaded that Civil Air should have leave to amend its pleading. On this aspect of its case, Civil Air alleges contraventions of clause 21.7 of the 2017 EA and a contravention of clause 8 of the 2017 EA, in respect of which it seeks the imposition of penalties. In those circumstances, the observations of the full court in Hall at [50] are apposite. Airservices was entitled to be told clearly and precisely the case that it was required to meet. The amendments sought by Civil Air would have the effect of confining the alleged application of the New Policy to two locations, Brisbane and Melbourne. That might have resulted in Airservices calling additional witnesses who work in those locations, or adducing evidence in chief from Ms Brennan and Mr Wells (who gave evidence as to the application of Airservices’ reimbursement policy in general terms) in relation to the alleged, narrower point now sought to be advanced.

137    In those circumstances, I am not persuaded that it is in the interests of justice that leave to amend at this late stage should be granted.

7.3 Does the New Policy amount to a proposal to contravene cl 21.7?

138    Civil Air submits that the New Policy, if given effect to in any given transfer situation, would offend cl 21.7 of the 2017 EA. That contention presupposes that, properly construed, cl 21.7 of the 2017 EA serves to mandate reimbursement of relocation expenses incurred by employees who transfer from one location to another otherwise than for compassionate reasons. For reasons already explored (above, [77]-[90]), that is not so. The New Policy is not inconsistent with cl 21.7 of the 2017 EA.

139    It follows—even assuming that there was some change from the Old Policy to the New Policy—that Airservices did not thereby propose to contravene cl 21.7 of the 2017 EA or s 50 of the FW Act.

140    Again, had I reached a different conclusion about the proper construction of cl 21.7 of the 2017 EA, it would have been necessary to pay closer attention to whether or not the adoption of the New Policy amounted to a proposal to contravene s 50 of the FW Act. For obvious reasons, that is not a question to which attention should now turn, save to make this observation: it is by no means clear that an employer should be thought to have proposed to conduct itself in contravention of s 50 of the FW Act merely because it has formed or expressed an incorrect view about the proper construction of an enterprise agreement. In some circumstances, it might; but, in most, a proposal to act in contravention of a statutory injunction will manifest in something less hypothetical. Moreover, the relief that might be granted in connection with such a proposal will very likely be limited to declaratory or injunctive relief (see above, [108]-[109]).

7.4 Was there any change in policy?

141    The existence or application of the New Policy—at least from mid-2017—is not materially in dispute. Airservices accepts that its policy with respect to the reimbursement of employees who transferred from one location to another for career-development purposes depended upon the existence of a business requirement at the destination location; and that, in the case of Brisbane and Melbourne, where at that time it did not have any such requirement that it might need to address by means of employee transfer, its policy was that it would not agree to transfers otherwise than on an “own time, own cost” basis.

142    What is in issue is whether or not that policy was, in fact, new: in other words, whether it succeeded the so-called “Old Policy” at or around the time alleged (mid-2017). Airservices denied that it ever maintained a policy that relocation expenses for employees who transferred from one location to another for career-development purposes would always be reimbursed. Rather, it claimed that its policy was always (and remained) that the entitlement to reimbursement was dependent upon the existence of some business requirement at the destination location. The New Policy, it submitted (in effect), was the only policy.

143    It falls to Civil Air to establish the former existence of the Old Policy. The policy that it alleges is not alleged to have assumed written form. Instead, it is said to have existed as some manifestation of a corporate state of mind, by reason of which transfer requests relating to career development were, in each case, “treated…as a transfer where the entitlements…were payable”. That “treat[ment]”, so the contention proceeded, reflected an understanding, consciousness or acceptance, on the part of Airservices, that employees should (or would) be entitled to reimbursement of relocation expenses in the event of transfer for purposes that included career development.

144    Any such understanding, consciousness or acceptance, of course, could exist only in the mind or minds of one or more of Airservices’ human agents. Yet neither by its pleading nor its evidence did Civil Air attempt to identify with which such agent or agents that corporate state of mind was said to reside. One can readily appreciate the evidential difficulties that proof of such a matter presents in a case like this. Moreover, it should be noted that Civil Air did identify some Airservices employees (or managers) with or by whom some historical transfers were arranged in circumstances that apparently attracted payment.

145    Nonetheless, the existence of the corporate state of mind that animated the “treat[ment]” by which Airservices’ Old Policy was said to have manifested was for Civil Air to establish, by inference or otherwise. On the evidence as it fell, it is not possible to know in whose mind or minds the Old Policy might be thought to have resided, nor why that person or those people served as the custodians of the corporate state of mind upon the establishment of which this aspect of Civil Air’s claim partly turns.

146    Let it be supposed, momentarily, that that evidential gap is not fatal. It is hypothetically possible that Civil Air might otherwise establish, by inference, the existence of the Old Policy. Doing so would require evidence from which its existence could properly be inferred. On the evidence before the court—and for the reasons rehearsed above in relation to the existence of a “common understanding” (above, [66] and following)—that is not presently possible. At its highest, the evidence establishes no more than that some employees who transferred from one location to another for career-development purposes (or for purposes that included career development) were reimbursed their relocation expenses (that is to say, as Civil Air pleaded, were “treated” in a particular way). It does not establish that that was so despite the absence of some business requirement at the destination location, nor otherwise because of some underlying policy prescription adopted by Airservices. It is equally conceivable that those payments were made because they were payable on the proper construction of cl 21.7 (or its predecessors); or because Airservices resolved, on a case-by-case basis (and in the exercise of its discretion), to make them. The evidence is capable of supporting competing inferences.

147    It follows that I am not satisfied that Airservices ever effected a change from the Old Policy to the New Policy (nor to any other policy by which employees who transfer from one location to another for career-development purposes are automatically to be denied reimbursement). The statutory contraventions asserted in respect of that alleged change in policy must fail.

7.5 If there was a change, was it sufficiently significant?

148    Having concluded that Airservices did not, in fact, migrate from the “Old Policy” to the “New Policy”, it is not necessary to explore whether any obligation arose in that regard under cl 8 of the 2017 EA, nor whether Airservices failed to comply with any such obligation. Nonetheless, I should address Airservices’ contention—if it was maintained—that the change that Civil Air alleged did not constitute a “…‘significant change’ within the meaning of cl 8 of the 2017 [EA]”.

149    I say, “if it was maintained”: Airservices did not, by its closing submissions, elaborate upon the assertion that it made in opening that any change to the “New Policy” was not one that would visit “significant change” (which I read as a facsimile of the concept to which cll 8.1 and 8.3(a) of the 2017 EA refer, namely “changes that are likely to have a significant impact on employees”).

150    The point can be swiftly addressed. Had I reached the alternative conclusion about whether or not any change in policy had been effected, I would very readily have concluded that that change was one that was “…likely to have a significant impact on employees”, such that the obligation to consult under cl 8 of the 2017 EA would have been triggered. As the evidence involving Ms Pattenden and Ms Balharry made abundantly clear, the entitlements that were contemplated under cl 21.7 of the 2017 EA were monetarily significant: in the order of many tens of thousands of dollars. I am unable to see how a change in policy that would, by design, result in some qualification to or removal of that entitlement might not be one whose impact was relevantly significant.

151    Had there been a change in policy, it would have been one in respect of which cl 8 mandated prior consultation. That having not occurred, I would have readily concluded that Airservices had adopted the “New Policy” in contravention of cl 8 of the 2017 EA (and, by extension, s 50 of the FW Act).

Part 8: Alleged change to the ATC Career Model

8.1 Summary of allegations

152    Civil Air’s final suite of allegations concerns Airservices’ adoption, in March 2015, of version 3 of the “ATC Career Model” (above, [52] and onwards). It is alleged that, by adopting that version in preference to the version that preceded it—and by doing so without prior consultation with its employees or Civil Air—Airservices contravened each of cll 7 and 8 of the 2012 EA.

153    Airservices submits that its adoption of version 3 of the ATC Career Model did not offend either clause because:

(1)    the ATC Career Model is not a policy (as that term is properly understood for the purposes of cl 7.2 of the 2012 EA); and

(2)    the changes to the ATC Career Model that version 3 introduced were not changes of sufficient moment to excite the application of either of cll 7 or 8 of the 2012 EA.

154    Respectfully, neither proposition can be accepted.

8.2 Was the ATC Career Model a policy?

155    By its amended statement of claim, Civil Air sought to constitute the ATC Career Model as “…a policy or procedure within the meaning of clauses 7.1 and 7.2 of the 2012 [EA]”. Save for a technical objection to which attention needn’t presently turn, Airservices admitted that allegation. Seizing upon the imprecision of the plea, Airservices now contends that the ATC Career Model was one but not the other.

156    As is apparent from its terms, cl 7 of the 2012 EA (above, [20]) was not consistently phrased. Whereas cl 7.1 made reference to “Airservices policies and procedures” and their interrelationship with the 2012 EA, cl 7.2 referred only to consultation regarding “the development and variation of such policies” (emphasis added). Properly read, Airservices submitted, the ATC Career Model was a “procedure”, not a “policy”.

157    As valiantly as that contention was put, it is not compelling. In the present context, the terms “policy” and “procedure” are synonymous. At the very least, the concept of a “procedure” is subsumed within the concept of a “policy”. A policy is a state of mind, whether recorded in writing or otherwise, that concerns a particular circumstance or course of events: a belief, understanding or intention that some identified end should be pursued, advanced or preferred. A procedure is the same thing, albeit perhaps limited in scope to a series of identified actions that are thought to be suitable or are designed with the service of a particular end in mind. The constituent actions (or processes) that comprise a procedure to be followed toward any particular end will always also qualify as expressions of policy as to how that end should be achieved. At their core, both envisage engagement in conduct (whether by act or omission) in the service of an identified purpose.

158    In support of its contention, Airservices sought to distinguish cl 7.2 of the 2012 EA from its predecessors. In the immediate predecessor instrument, the clause was expressed in the same terms. The predecessor once removed, however, provided as follows:

1.7.2     We will consult with you and the Union in the development of new, and the maintenance of existing policies and procedures that relate to matters covered by this Agreement. We will not unilaterally change policies or procedures to your detriment without consultation.

159    It was suggested that the omission of “or procedures” in the 2009 EA (which was then repeated in cl 7.2 of the 2012 EA) must have been deliberate. Respectfully, that submission is unpersuasive. It is far more likely that the words “or procedures” was omitted as an unintended (and inconsequential) incident of phrasing, perhaps on account of the change from first- and second- to third-person drafting, to which the 2009 instrument gave effect.

160    Regardless, I do not accept that the absence of reference to “procedures” in cl 7.2 of the 2012 EA is of any moment. The reference to “such policies” in cl 7.2 can only sensibly be read as a reference to the “policies and procedures” referred to more compendiously in cl 7.1. The use of the inclusive qualifier “such” in cl 7.2 tells against a construction that was intended somehow to distinguish policies from procedures.

161    But even were it otherwise, I do not accept that the ATC Career Model should be thought exclusively as a procedure rather than a policy. Amongst other things, it:

(1)    identified “career management pre-requisites that operational ATCs [were] expected to achieve, or be able to demonstrate an effort to achieve, to be assessed for further development experiences”; and

(2)    set “performance standards [that were] expected to be met to progress through stages” of an employee’s career.

162    At the very least, the instrument qualified as a policy in those regards (that is to say, as a written record of Airservices’ policy with respect to those matters).

8.3 Were the changes of sufficient scope?

163    Airservices contended that, even if the ATC Career Model properly qualified as a policy to which cll 7 and 8 of the 2012 EA applied, the changes brought in by the adoption of version 3 in March 2015 were not sufficiently material to enliven the application of those clauses.

164    Again, that contention cannot be sustained. Clause 7, on its face, applies in respect of any policy change; not merely “significant” or “material” changes. On any view, the changes to which the adoption of version 3 gave effect were more than simply cosmetic (see above, [54]). They were changes of the kind that cl 7.2 prohibited otherwise than upon relevant consultation.

165    Clause 8 was enlivened by “changes that have an impact on employees”. Airservices submitted that “impact on employees” should be understood under the light of the qualifying examples to which the clause refers. It submits that changes that do not materially affect the way in which work is performed are not changes of the sort to which cl 8 of the 2012 EA applied.

166    Again, with respect, to construe the clause in that way would be to attribute to it words that it doesn’t contain. It is apparent from the breadth of the phrase “changes that have an impact on employees” that the clause was intended to afford employees and Civil Air a consultative role in relation to changes that affected them, materially or otherwise. The hurdle was not particularly high (unlike the successor provision in the 2017 EA—above, [19]—which required the likelihood of “a significant impact on employees”).

8.4 Conclusions

167    However generous cll 7 and 8 of the 2012 EA might appear, their application is clear enough. Airservices was not at liberty to adopt version 3 of the ATC Career Model without first consulting with its employees and Civil Air. Having done so, it contravened those provisions and, by extension, s 50 of the FW Act.

Part 9: Next steps

168    In light of the findings above, it is appropriate for the matter to progress for further consideration as to what, if any, declaratory, injunctive, penal or associated orders of the kind for which Civil Air applies should be made. That may or may not require further evidence and further hearing. The parties should liaise and provide to my chambers within 14 days a minute of agreed orders concerning the further progress of the matter. Those proposed orders should address whether further evidence needs to be tendered (and, if so, a timeframe by which that might occur), a timeframe for the provision of written submissions concerning the relief that should be granted, and an indication as to whether a further hearing is required or whether the issue of relief can be determined on the basis of the material so submitted. If the parties are unable to agree on those issues, the matter will be listed for further case management.

Associate:

Dated:    30 August 2021