Federal Court of Australia
Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1313
ORDERS
CIVIL AIR OPERATIONS OFFICERS' ASSOCIATION OF AUSTRALIA Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. The Respondent contravened s 50 of the Fair Work Act 2009 (Cth) by contravening cl 8.3(a) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017 – 2020 (Enterprise Agreement), by making the SAFRA Implementation decision referred to at [14] of the Court’s reasons for judgment without consulting affected employees in the manner provided for by cl 8.5 of the Enterprise Agreement.
2. The Respondent contravened s 50 of the Fair Work Act 2009 (Cth) by:
(a) contravening cl 19.9 of the Enterprise Agreement, by effecting changes to the base roster arrangements for Cairns TCU employees to facilitate an overnight SAFRA service for the Rockhampton/Mackey sector without consulting or discharging the other requirements imposed by that clause;
(b) contravening cl 19.14 of the Enterprise Agreement, by publishing the Published Roster referred to at [4] of the Court’s reasons for judgment without consulting or discharging the other requirements imposed by that clause; and
(c) contravening cl 8.3(b) of the Enterprise Agreement, by changing base roster arrangements and thereby changing the regular roster of the Cairns TCU employees without consulting in the manner provided for by cl 8.10 of the Enterprise Agreement.
THE COURT ORDERS THAT:
1. Within 14 days of the publication of these reasons, the parties file a minute of proposed orders addressing the steps to be taken to effectuate the hearing of the Applicant’s application for pecuniary penalties.
2. Should the parties not be agreed as to the proposed orders, each party file and serve the proposed orders it contends for and a short submission of no more than two pages in support thereof.
3. Any dispute between the parties raised under order 2 be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BROMBERG J:
1 The respondent (Airservices) is a Commonwealth statutory corporation established under and regulated by the Air Services Act 1995 (Cth) (Air Services Act). Airservices is the national provider of civilian air traffic services and the only employer of air traffic controllers (ATCs) licensed to provide civilian air traffic services. Airservices is and was at all material times a national system employer within the meaning of s 14 of the Fair Work Act 2009 (Cth) (FW Act).
2 The applicant (Civil Air) is and was at all material times an employee organisation within the meaning of the FW Act and entitled to represent the industrial interests of ATCs.
3 The Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017 – 2020 (Enterprise Agreement) is an enterprise agreement made under the FW Act which commenced operation on 30 March 2017 and continued in operation at all material times. The Enterprise Agreement applied to Airservices and, amongst others, all ATCs employed by it.
4 Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. In summary, Civil Air claims that Airservices contravened s 50 of the FW Act by:
(i) On 10 October 2019, deciding that from 31 October 2019 the ATCs in the Cairns Terminal Control Unit (Cairns TCU employees) would be deployed to provide a remote overnight arrival and departure service (SAFRA service) not previously provided by those employees without prior consultations with affected employees as required by cl 8.3(a) of the Enterprise Agreement;
(ii) On 17 October 2019, publishing a roster for the Cairns TCU employees (Published Roster) and thus changing the rostered hours of work of employees in the Cairns TCU without consulting with affected employees as required by cl 8.3(a) and cl 8.3(b) of the Enterprise Agreement;
(iii) By publishing the Published Roster:
(a) effecting a change to base roster arrangements for employees in the Cairns TCU without complying with the consultation and other requirements provided for by cl 19.9 of the Enterprise Agreement; and
(b) without satisfying the requirements of cl 19.11 and the consultation and other requirements made by cl 19.4 of the Enterprise Agreement; and
(iv) Failing to maintain or reinstate the status quo after a dispute was notified about those matters, thereby failing to comply with cl 10 of the Enterprise Agreement.
5 Civil Air accepted that the asserted contraventions listed at (ii) and (iii) above dealing with roster change arose out of a course of conduct and, if proven and by reason of s 557 of the FW Act, are to be taken to constitute a single contravention of s 50 of the FW Act. Civil Air pleaded two contraventions of cl 10, and thus s 50 of the FW Act, but only pressed one, being a contravention of cl 10.1(h). Accordingly, three contraventions of s 50 of the FW Act were pressed by Civil Air.
6 Civil Air seeks declarations and an order that Airservices pay a pecuniary penalty for each of the contraventions of s 50 of the FW Act which it asserts.
Factual background
7 Airservices operates in a highly regulated environment which is supervised by the Civil Aviation Safety Authority (CASA). On 31 August 2004, a Ministerial directive (Ministerial Directive) was issued pursuant to s 16 of the Air Services Act. The Ministerial Directive applied to certain airspaces including an airspace sector around the Queensland cities of Rockhampton and Mackay (Rockhampton/Mackay sector). Relevantly, the effect of the Ministerial Directive was that Airservices was required to “provide an operating ATC control tower at the airport and an approach radar control service at the earliest time one can be supplied and installed” for the Rockhampton/Mackay sector.
8 Compliance with the Ministerial Directive was the subject of ongoing review by Airservices as well as by CASA. As a result of these reviews and to comply with the Ministerial Directive, Airservices determined to implement an overnight SAFRA service for certain regional airports including Rockhampton and Mackay. SAFRA is an acronym for “Surveillance Approach for Regional Airports”, which is an approach and departure service whereby ATCs who hold an endorsement called an ‘Approach Rating’ guide aircraft down to aerodrome circuit height from a remote location during the overnight period when an air traffic control tower at a regional airport is not manned.
9 From about 2013 a SAFRA service was provided for the Rockhampton/Mackay sector by ATCs working in a roster group within Airservices known as the Capricornia Group.
10 In November 2016, Airservices ceased providing an overnight SAFRA service for the Rockhampton/Mackay sector between 11 pm and 6 am (Australian Eastern Standard Time) each day. Airservices informed aircraft that an overnight SAFRA service was unavailable and provided a ‘Flight Information Service’ instead.
11 On 25 May 2018, CASA issued a Safety Finding (Safety Finding). The Safety Finding identified a regulatory breach of civil aviation legislation by reason of Airservices’ failure “to maintain enough suitably qualified and trained personnel to enable it to provide the published approach services to Rockhampton and Mackay for the entire period the Tower was inactive as required by Part 172.110 of [the Civil Aviation Safety Regulations 1998 (Cth)]”.
12 Following the Safety Finding, a range of communications and discussions between CASA and Airservices occurred as to how the deficiencies found by the Safety Finding were to be addressed. Those exchanges included various applications for and the grant of extensions of time by CASA by which remedial action by Airservices would occur. On 6 September 2018 a proposal was communicated, including to employees of the Cairns TCU, that the Cairns TCU would be used to provide an overnight SAFRA service for the Rockhampton/Mackay sector. That proposal and various extensions of time sought and obtained for the implementation of a SAFRA service will be dealt with in more detail below. On 9 October 2019, CASA informed Airservices that it would not be granted the further extension of time then sought by Airservices for the provision of an overnight SAFRA service for the Rockhampton/Mackay sector. CASA required Airservices to provide a full SAFRA service for the Rockhampton/Mackay sector without further delay and considered that it should be achievable by no later than 31 October 2019.
13 On 10 October 2019, a meeting of various Airservices managers was convened to discuss CASA’s directive. A plan was developed for the resumption of an overnight SAFRA service for the Rockhampton/Mackay sector from 31 October 2019. On 11 October 2019, Mr David Wells, Airservices’ Director Operations, Airspace Services, informed employees, including the Cairns TCU employees, that “we have received instructions to resume full SAFRA services using the existing APPR rating and endorsement model by 31st October 2019”.
14 Although there was some contest on this issue to which I will return, I accept Civil Air’s contention that on or about 10 October 2019 Airservices decided that it would implement the CASA directive by reinstating from 31 October 2019 an overnight SAFRA service for the Rockhampton/Mackay sector between 11 pm and 6 am and that the Cairns TCU would be deployed to operate that service (SAFRA Implementation decision).
15 On 17 October 2019 the Published Roster was published. It allocated various shifts to the Cairns TCU employees, including evening and night shifts for the provision of the overnight SAFRA service, for a six week period commencing on 2 December 2019. For the period from 31 October 2019 to 2 December 2019, Airservices intended to make changes to the then existing roster to accommodate the provision of the overnight SAFRA service.
16 Shortly thereafter CASA agreed to delay to the implementation of the overnight SAFRA service until mid-December 2019. On 28 November 2019 the Published Roster was withdrawn. In its place Airservices published two rosters applying from 2 December 2019 to 12 January 2020 and 13 January 2020 to 23 February 2020, respectively. Airservices contended that the former substantially adopted the form of a previous draft roster published on 1 October 2019 which did not include the additional shifts for the overnight SAFRA service. On the following day, Airservices withdrew both rosters and replaced them with a single roster applying from 2 December 2019 to 23 February 2020. That roster was also said to be in a substantially similar form to the draft roster of 1 October 2019 in that it did not include the additional shifts for the overnight SAFRA service.
Clause 8 and some issues of construction
17 Clause 8 of the Enterprise Agreement provides:
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.
8.6. Airservices is not required to disclose confidential or commercially sensitive information. Airservices will provide and discuss its reasons for not making such information available.
8.7. Information that is provided by Airservices to employees and their employee representatives under these provisions will be used only for the purposes for which it is provided unless Airservices expressly consents to it being used for another purpose.
8.8. If there are disputed issues between the parties during the consultation process, the parties acknowledge they will take all reasonable steps to resolve these issues. If the parties are unable to resolve any issues, the matters can be addressed under clause 10, “Dispute Avoidance and Settlement Process”.
8.9. Following consultation, and once a final decision is made by Airservices to implement a change, employees and their employee representatives will be informed of that decision and steps to mitigate any adverse effects on employees.
Consultation on changes to an employee's regular roster or ordinary hours of work
8.10. For a change of the kind referred to in clause 8.3(b) Airservices will consult with affected employees and their representatives by:
(a) providing information about the change;
(b) inviting the employee to give their views about the impact of the change (including any impact in relation to their family and caring responsibilities);
(c) giving prompt and genuine consideration to matters raised about the change.
18 In so far as construction issues are raised, the applicable principles were not in contest. They are sufficiently summarised by the Full Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at 197, where together with Tracey and Rangiah JJ, I said:
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 Ltd 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 378-379, 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 Ltd (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).
19 Clause 8 is a consultation provision. Consultation provisions have been a familiar feature of industrial instruments for many decades. The FW Act requires that enterprise agreements made under that Act include a consultation term. Relevantly, s 205 of the FW Act provides:
(1) An enterprise agreement must include a term (a consultation term) that:
(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about:
(i) a major workplace change that is likely to have a significant effect on the employees; or
(ii) a change to their regular roster or ordinary hours of work; and
(b) allows for the representation of those employees for the purposes of that consultation.
(1A) For a change to the employees’ regular roster or ordinary hours of work, the term must require the employer:
(a) to provide information to the employees about the change; and
(b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
(c) to consider any views given by the employees about the impact of the change.
20 Clause 8 of the Enterprise Agreement is to be understood as having been agreed to on basis of, among other things, ensuring that the Enterprise Agreement complied with the requirements of s 205. In particular, it is instructive to observe that the structure of cl 8.3 reflects that of s 205(1)(a).
21 The intent of cl 8 is also to be discerned from its text, purpose and context applying the principles just canvassed. So far as the purpose of cl 8 is addressed expressly that is done by cl 8.1.
22 The obligation to consult is set out in cl 8.3 which:
(i) directs that Airservices “will consult”;
(ii) identifies the persons who are to be consulted as “employees and their employee representatives”; and
(iii) identifies in each of paras (a) and (b), the particular circumstances which give rise to the obligation to consult and the subject of the consultations required. The circumstances requiring consultation are:
(a) the introduction of changes that are likely to have a significant impact on employees covered by the Enterprise Agreement; and
(b) changes to an employee’s regular roster or ordinary hours of work.
23 Clause 8.4 identifies for the purposes of cl 8.3(a) the changes that are to be regarded as likely to have a significant impact on employees and includes “changes in the deployment or methods of operation of employees covered by [the Enterprise Agreement]”.
24 The employees who must be consulted as required by cl 8.3 are those employees who will be “affected” by the change in prospect as is expressly provided for in cl 8.5 and 8.10. Clause 8.5 addresses the nature of the consultation required in relation to an introduction of change within the scope of para (a) of cl 8.3, and cl 8.10 correspondingly addresses the nature of the consultation required for a change within the scope of para (b) of cl 8.3. Whilst each of those clauses speak in obligatory terms (“Airservices will consult”), they each should be construed as identifying the content of the obligation to consult, the source of which is to be found in cl 8.3. Accordingly, and as Civil Air accepted, a failure to consult in the manner required by either cl 8.5 or 8.10 constitutes a breach of either para (a) or para (b) of cl 8.3 and not two breaches of either cl 8.3(a) and 8.5 or, alternatively, of cl 8.3(b) and cl 8.10.
25 The obligation imposed by cl 8.3 to consult is expressed in terms of an obligation to consult about “changes”. Properly understood, the clause is requiring consultation about a proposed change rather than a change that Airservices has already decided it would make or a change that has already been implemented. To construe the obligation to consult as requiring consultation after, rather than before, a final decision that a change be implemented has been made would circumvent the obvious and expressed intent of the clause. Clause 8.1 states that “[t]he 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…” (emphasis added).
26 A further constructional issue concerns the potential for overlap as between paras (a) and (b) of cl 8.3. The question raised is whether the obligation to consult about a prospective change to “an employee’s regular roster” which falls within para (b) of cl 8.3 also separately engages the obligation to consult in para (a) of cl 8.3 where such a change meets the description in para (a) of a change that is likely to have a significant impact on employees.
27 Civil Air contended that a proposed change to a “regular roster” engaged para (b) and where that change was likely to have a significant impact on employees (as it asserted was here the case) it also engaged para (a). Civil Air submitted that the connecting phrase “and/or” in cl 8.3 indicates that a proposed change may simultaneously engage both limbs of cl 8.3.
28 That submission is unpersuasive. The connecting phrase “and/or” is notoriously ambiguous and does not here assist in resolving whether cumulative or mutually exclusive obligations were intended to be imposed in relation to the same conduct. What does assist is that it is unlikely that an obligation to consult over a proposed change to a regular roster was intended to be imposed twice. The imposition of a second obligation is unnecessary.
29 I agree with Airservices’ submission that the two limbs of cl 8.3 are intended to be disjunctive. What is intended is that the obligation to consult with affected employees in relation to a proposed change to the “regular roster” of employees is only engaged once by cl 8.3.
30 Para (a) of cl 8.3 is general as to the subject of the proposed change whilst para (b) is specific to change to a “regular roster”. That observation supports Airservices’ construction that only cl 8.3(b) can be engaged. It ought to be presumed that the specific rather than the general provision was intended to exclusively address the specific subject matter of a proposed change to a “regular roster”: see, eg, Smith v The Queen (1994) 181 CLR 338 at 348 (Mason CJ, Dawson, Gaudron and McHugh JJ) and Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J).
31 I consider the meaning of the term “regular roster” below. My conclusion as to the intended meaning of that phrase is not inconsistent with my conclusion that only the second limb of cl 8.3 is engaged in relation to a prospective change to an employee’s regular roster.
The Decision to deploy the employees to provide a SAFRA service and the asserted non-compliance with clause 8.3(a)
32 Civil Air contended that the SAFRA Implementation decision was a decision to use or deploy the Cairns TCU employees to provide the overnight SAFRA service from 31 October 2019. That was the change which, prior to a decision being made to adopt it, Civil Air contended required consultations with the Cairns TCU employees. The decision to introduce that change without the consultation required by cl 8 was pleaded as a failure to comply with cl 8.3. Read in context, including by reference to [17] of the Further Amended Statement of Claim, which sets out why the change was likely to have a significant impact upon the Cairns TCU employees, what was being asserted was a failure to comply with para (a) of cl 8.3 by the failure of Airservices to consult in the manner required by cl 8.5.
33 There was a suggestion in the opening written submissions of Civil Air that the SAFRA Implementation decision also engaged cl 8.3(b), but I disregard that as falling outside of Civil Air’s pleaded case.
34 Civil Air pleaded that the SAFRA Implementation decision was a “change” within the meaning of cl 8.3 of the Enterprise Agreement. Airservices contended in response that cl 8.3 was directed to “change” not to a decision. As stated already, properly understood cl 8.3 is directed to a proposed change. Clause 8.3 contemplates that a change will be determined once a “final decision” (cl 8.1) is made to implement the change. For that reason the clause requires that the consultation about the proposed change occur prior to a “final decision”.
35 Airservices correctly contended that Civil Air’s contention that it had failed to consult regarding its decision to implement the overnight SAFRA service begins from the premise that Airservices in fact made such a decision. Airservices denied it had made any such decision. It made the following submission (citations omitted):
No such decision was made by Airservices: in taking steps to reinstate a SAFRA service Airservices was either implementing the 2004 Ministerial Directive to provide the SAFRA service or complying with the Safety Finding of 25 May 2018. To characterise such action by Airservices as being a decision regarding significant change does not properly reflect the true state of affairs. Airservices did not have a choice regarding implementing the SAFRA service – it had to do so to meet its statutory obligations as a provider of civilian air traffic services.
Seeking to characterise the decision under contemplation to a decision by Airservices to utilise the Cairns TCU group ATCs to provide the SAFRA service does not improve Civil Air’s position. The selecting of one group of ATCs over another group of ATCs to implement a service which must be provided by some number of Airservices’ staff does not elevate Airservices’ mere compliance with its statutory obligations to a decision.
36 I reject that submission. That the SAFRA Implementation decision was driven by the need for Airservices to comply with the Safety Finding and thus its statutory obligation does not deny that decision the character of a “final decision” contemplated by cl 8.
37 There are all manner of compliance requirements made by occupational, health and safety laws amongst many other laws which regulate and, from time to time, require changes to be effected in a workplace. The decision made to implement a measure in order to comply with the law as required by a regulator is not a decision of the regulator in question, even if the regulator’s decision is quite specific as to the particular change being required. Nor is a decision made by Airservices to implement compliance measures to be characterised as involuntary in the sense that it is not the decision of Airservices. How the directive of a regulator is to be implemented and the consequences for employees of different paths taken to effectuate compliance is fruitful ground for the kind of consultation which cl 8 envisages.
38 Airservices’ compliance with its statutory obligation could have been effected by a range of means. The evidence was that Airservices considered four different options for complying with the Safety Finding, three of which did not involve the Cairns TCU employees. In relation to effectuating compliance with the Safety Finding by 31 October 2009, the possibility of using the controllers manning the towers at Rockhampton and Mackay airports to provide the necessary services was also considered.
39 Airservices chose to bring about compliance by deciding that particular measures utilising particular employees be implemented in accordance with a particular timeframe. The particularity of the compliance path chosen had consequences particular to the employees affected and, consequently, there was utility of the kind envisaged by cl 8 in those employees being consulted. The decision, in my view, was unquestionably the kind of final decision which cl 8 intends not to be made without the prior consultation which the clause requires.
40 Next, Airservices contended that the SAFRA Implementation decision did not constitute a “change” or more correctly a proposed change which engaged cl 8.3(a). Airservices contended that the asserted “change” was not a change because the decision to implement an overnight SAFRA service and utilise the Cairns TCU employees to provide it was not new but a long standing position dating from 2018. It was therefore said to be not a change in issue in this proceeding.
41 Airservices essentially contended that the only change in prospect as at October 2019 was the rostering changes that needed to be made to provide the overnight SAFRA service as and from 31 October 2019. It was Airservices’ case that that prospective change did not engage cl 8.3(a) because it was wholly encompassed by cl 8.3(b) in circumstances where cl 8.3(a) and (b) were asserted to be disjunctive.
42 Civil Air agreed that the SAFRA Implementation decision heralded rostering changes but contended that the nature of the change was broader. It also contended that the change was new rather than the product of a longstanding proposal. It sought to deny that a firm decision to provide an overnight SAFRA service had been made prior to October 2019 and, if made, Civil Air essentially sought to say that any such proposal had lapsed by October 2019. Furthermore, Civil Air sought to give the implementation of the SAFRA overnight service currency as a new change because its implementation date of 31 October 2019 was said to be both short and of such significance as to relevantly distinguish that proposal from any prior proposal.
43 I then need to assess whether by the SAFRA Implementation decision Airservices determined to impose a change in the deployment of the Cairns TCU employees or merely effectuated a previously determined change in deployment. To do that I need to return to the facts and the detail of the background which preceded the making of the SAFRA Implementation decision.
44 Between CASA issuing the Safety Finding on 25 May 2018 and September 2018, Airservices considered various options to address the Safety Finding including the provision of an overnight SAFRA service. On 16 August 2018, CASA requested that Airservices provide it with an action plan, timeline and measurable milestones outlining Airservices’ intent to address the Safety Finding.
45 On 6 September 2018, an email was sent to various employees including the Cairns TCU employees. That email advised that several options had been explored to allow Airservices to provide a full SAFRA service for the Rockhampton/Mackay sector. The email advised that the proposal which had been assessed as being the most appropriate to Airservices current situation was to use the Cairns TCU employees to provide the SAFRA service. Employees were directed to a website in which it was said information would be shared about the changes and were informed that once Airservices had a clearer idea of what training would be required, further details would be provided.
46 On 10 September 2018, Airservices briefed a number of representatives of Civil Air on the future direction of the Rockhampton/Mackay sector including in relation to training. The proposal discussed was described as “at the preliminary stage at the moment”. On 21 September 2018, employees including the Cairns TCU employees were advised that two controllers from the Capricornia Group with an approach rating for the Rockhampton/Mackay sector would transfer to the Cairns TCU. Employees were informed that there was still a lot of work to do on the rostering side and that they should expect to see some changes over the coming weeks.
47 On 21 September 2018, Airservices provided CASA with an action plan setting out the proposed utilisation of ATCs working in the Cairns TCU group to provide the overnight Rockhampton/Mackay SAFRA service, a timetable for the training of the Cairns TCU employees to allow this to occur and an expected implementation date of 31 March 2019. That action plan was agreed to by CASA on 15 October 2018.
48 In the meantime, Airservices was also progressing a project called the “Airspace Modernisation Program”. Work on that project had commenced in about September 2018. The Airspace Modernisation Program was being undertaken by Airservices to better align airspace use across Australia and standardise procedures and training required to deliver air traffic control services. Mr Wells deposed that the program would deliver a better use of resources to the places where industry required them. In October 2018, as part of that program, Airservices reviewed the continued need for an overnight SAFRA service for the Rockhampton/Mackay sector and for three other regional locations. It was determined that on a traffic volume metric the SAFRA service was not needed and the only reason the service was to be provided was because of the Ministerial Directive.
49 On 5 November 2018, Airservices requested CASA to approve an updated action plan including an extension of time until about August 2019 for the provision of any overnight SAFRA service for the Rockhampton/Mackay sector. That updated action plan was accepted by CASA on 13 November 2018.
50 On 19 November 2018, employees including the Cairns TCU employees were told that a full SAFRA service would commence on 3 June 2019 and that various preparations would occur in the interim including the training of the Cairns TCU employees and the development of new rosters.
51 However, for various reasons including further extensions sought by Airservices and granted by CASA, that proposal was not implemented in circumstances where on 13 February 2019 CASA agreed to a request by Airservices to further extend the date for the provision of a full SAFRA service to 30 September 2019.
52 In March 2019, SAFRA training for some of the Cairns TCU employees commenced. Between March 2019 and May 2019, three ATCs were trained but none undertook their final endorsements.
53 On 29 May 2019, Airservices asked CASA for yet a further extension to December 2019.
54 Although in the middle of 2019 the training program necessary to enable Cairns TCU employees to provide the SAFRA service was continuing, it occurred in circumstances where, as Mr Wells described it, Airservices was hoping that it would never actually have to provide the service because the “Airspace Modernisation Program” would take effect. If implemented, the program would have brought about regulatory changes which would have avoided the need for a SAFRA service in the Rockhampton/Mackay sector.
55 On 10 July 2019 CASA told Airservices that it would not agree to a further extension without Airservices providing a case in support.
56 The SAFRA training for a few of the Cairns TCU employees continued until 19 September 2019 when it was paused or suspended. Mr Wells deposed that the training had been described as a box-ticking exercise and was undertaken on the basis that Airservices hoped that it would not be required to provide the overnight SAFRA service. Mr Fitzgerald, who as at October 2019 held the position of Transitional Line Leader for the Cairns TCU employees, understood that the training was postponed in September 2019 because Airservices would not have to provide the full SAFRA service for the Rockhampton/Mackay sector. Despite that evidence, Airservices asserted that the training was in fact paused or postponed because of illness and other difficulties rather than because Airservices had concluded that the overnight SAFRA service would not be needed. It suffices for present purposes to conclude that irrespective of the specific cause of the pause in training, the evidence to which I have just referred as well as the evidence of Airservices’ desire to implement the Airspace Modernisation Program and its expectation that the proposal would be supported (see [58]) reveals that by this time Airservices was of the view that the training would likely be of no utility because there was a likelihood that an overnight SAFRA service would not be required. Mr Wells accepted that, over the three months prior to October 2019, communications had been made to the Cairns TCU employees as well as to the Capricornia Group to the effect that the SAFRA service might not be implemented at all for “a myriad of reasons” including the development of the Airspace Modernisation Program and a lack of trainees.
57 On 23 September 2019, Airservices wrote to CASA informing CASA that it will not be able to meet the 30 September 2019 deadline for the implementation of the full SAFRA service. The correspondence suggested that full service provision could be achieved in mid-January 2020.
58 By that correspondence, Airservices also sought CASA’s support in respect of pending elements of the Airspace Modernisation Program that would otherwise enable the Safety Finding to be addressed. At that point in time, Airservices was still regularly meeting with CASA regarding the Airservices Modernisation Program proposal and was also seeking change at the Ministerial level to have the Ministerial Directive rescinded. Mr Wells deposed that, at that time, Airservices anticipated that it would obtain CASA’s support not to recommence the SAFRA service.
59 The then implementation deadline of 30 September 2020 was not met by Airservices in circumstances where no extension had been granted by CASA.
60 On 9 October 2019, CASA responded to the correspondence from Airservices of 23 September 2019, stating that Airservices’ proposal that the adoption of the Airspace Modernisation Program would dispense with the need for a SAFRA service was not satisfactory to CASA for several reasons. CASA stated that in its view it would be inappropriate to sanction a further period of non-compliance by Airservices based on assurances that a service, being the Airspace Modernisation Program, will be implemented following changes that had not yet been formally notified or assessed. CASA then stated:
In the interests of safety, CASA requires [Airservices] to return to a compliant state without further delay. According to the training figures advised, this should be achievable no later than 31 October 2019.
61 The letter concluded by stating, in essence, that CASA has explained its position and its expectation that Airservices will make all proper efforts to return to compliance by resuming the SAFRA service to Mackay and Rockhampton without further delay.
62 Mr Wells gave evidence as to Airservices’ reaction to CASA’s correspondence of 9 October 2019. As a consequence of the correspondence, Airservices was concerned that CASA might issue a “Safety Alert”, the consequence of which might entail Airservices losing its operating certificate. Mr Wells accepted that the potential issue of a Safety Alert was of serious concern for Airservices’ business and that it would have attracted the attention of the Board of Airservices. Mr Wells deposed that Airservices wanted to avoid the potential consequences that the issue of a Safety Alert might entail.
63 It was in that context that a meeting of senior managers of Airservices was convened on 10 October 2019. Mr Wells deposed that in that meeting the decision was made by Airservices “to attempt to comply with the new 31 October 2019 deadline” and that compliance would be achieved using the Cairns TCU group. Mr Fitzgerald deposed that a meeting was convened to discuss what he referred to as CASA’s directive that Airservices was required to provide a full SAFRA service for the Rockhampton/Mackay sector by no later than 31 October 2019. He stated that, at the meeting, discussion ensued as to the measures that would need to be taken in order to comply with that directive. The measures discussed included roster options for the Cairns TCU and the Capricornia Groups and the training, including refresher training, that would be required for the Cairns TCU employees.
64 A summary of the minutes of the meeting presented in Mr Fitzgerald’s evidence included a comment that the Cairns TCU will require a refresher and endorsement for three controllers, will require “backfill of shifts” and that new rosters will be required for the Cairns TCU and for the Capricornia Group. In his oral evidence, Mr Fitzgerald stated that it was decided in the meeting that to attempt to meet the deadline Airservices would use a combination of existing Capricornia Group employees and the Cairns TCU employees who had previously received training in the SAFRA role. He stated that at the meeting a rough plan was developed for how the staffing was to be organised to provide the SAFRA service by 31 October 2019.
65 Both Mr Wells and Mr Fitzgerald confirmed that the decision made at the meeting of 10 October 2019 was then communicated to employees by an email sent by Mr Wells on 11 October 2019. That email was addressed to Capricornia Group and Cairns TCU employees and stated (emphasis added):
Please be advised we have received instructions to resume full SAFRA services using the existing APP R rating and endorsement model by 31st October 2019.
The resumption will be project managed by Peter Bloom from CSE, in conjunction with your Line Leaders Mike Vokes and Adrian Fitzgerald. They will be talking to you early next week to consider the training and other interim shift and roster changes required to make this date.
Further work and contribution is welcome for the end state rosters, seeing this service integrated with CS TCU.
I know this may seem at odds with previous communications but will be our way forward until new methods of SAFRA delivery become available and are implemented, hopefully in 2020.
Thank you for your patience and commitment in what will be a busy few weeks ahead. Any questions, please come and ask.
66 It was not in contest that the SAFRA Implementation decision was a “final decision” of the kind contemplated by cl 8. However, as earlier stated, Airservices contended that neither the provision of an overnight SAFRA service nor that the Cairns TCU employees would provide that service were changes effected by the SAFRA Implementation decision because each of those changes were the subject of decisions made by Airservices in 2018. Airservices’ case was that the only change encompassed by the SAFRA Implementation decision was roster change for the Cairns TCU employees.
67 There are a number of aspects of cl 8 which assist in contributing to an understanding of when a proposed modification of some kind is contemplated by the clause to satisfy the description of a proposed change. First, it must be presumed that the clause imposes an obligation to consult about something that the clause contemplates would justify consultation. Accordingly, in having a proposed change in mind as the trigger which engages the obligation to consult, the clause must have had in mind a proposal for something to be done which justifies consultation with affected employees. Second, the intent of the clause, as subclause 8.1 states, is for employees to be fully informed and consulted. That tends to suggest that the proposed change that is contemplated was conceived of in broad rather than narrow terms. Third, the change is to occur prior to a “final decision”. It is not any decision which heralds a change but a firm and (at least when made) what must be capable of being characterised as a final decision.
68 To my mind, the decision made by Airservices in November 2018 and communicated to employees on 19 November 2018 (initial SAFRA decision) that the Cairns TCU employees had been chosen to provide an overnight SAFRA service for the Rockhampton/Mackay sector was, when made, a final decision about those matters. Whether cl 8 was then complied with is not here in issue. The question here raised is whether the SAFRA Implementation decision that an overnight SAFRA service be implemented by 31 October 2019 also engaged cl 8.3(a). I consider that whilst it was a firm decision when made, the initial SAFRA decision had, by at least mid-September 2019, become highly conditioned by Airservices’ desire to avoid implementing a SAFRA service at all and its expectation that it would not need to do so because it anticipated that CASA would support its proposition that the SAFRA service not be recommenced pending the acceptance and implementation of the proposed Airservices Modernisation Program.
69 I also consider that by at least mid-September 2019 Cairns TCU employees had been told that it was unlikely that they would be required to provide an overnight SAFRA service for the Rockhampton/Mackay sector.
70 By that time, what had been a final decision when initially made was so qualified by Airservices’ contrary intent and its expectation that it would not be ultimately required to implement an overnight SAFRA service that, in my view, it could not be said that a SAFRA overnight service for the Rockhampton/Mackay sector to be provided by the Cairns TCU employees was sufficiently certain to be regarded as a prospective change. In other words, the change which had been proposed was no longer sufficiently proposed by Airservices to enable it being characterised as a proposed change of the kind contemplated by cl 8 of the Enterprise Agreement.
71 When, however, the SAFRA Implementation decision was made on 10 October 2019, that which had effectively lapsed as a proposal for change was re-enlivened. The change in Airservices’ position is, I think, well captured in the following comment in Airservices’ communication of the SAFRA Implementation decision to the employees that “[the SAFRA Implementation decision] may seem at odds with previous communications but will be our way forward…”.
72 The re-enlivenment of the proposal that an overnight SAFRA service be provided and that the Cairns TCU employees be deployed to do so was sufficient to re-engage the consultation obligation provided for by cl 8, even if it be accepted that cl 8 had been earlier engaged by the initial SAFRA decision. The re-enlivened proposal that a SAFRA service be provided by the Cairns TCU employees was a matter which, in terms of what cl 8 contemplates, justified consultation even if it were the case that some consultation had occurred prior to, or at or about, the time of the initial SAFRA decision taken nearly a year beforehand. A “genuine opportunity” for employees to express their views in order to facilitate the mitigation of potential adverse effects of a proposed change ordinarily requires a close temporal connection between the consultation and the implementation of the change. That is particularly likely to be the case in relation to changes proposed to the way in which employees are to be deployed in the future. In relation to matters of that kind, the prevailing personal circumstances of an employee, rather than those that may have existed a year earlier, are likely to be of significance to any assessment of whether, and the extent to which, the employee may be adversely affected.
73 Furthermore, pursuant to the SAFRA Implementation decision the deployment of the Cairns TCU employees was to occur within 21 days. That was a significantly different proposal to the initial SAFRA decision where the action plan for implementation allowed for 245 days. A large part of the reason for the long lag-time initially planned for was the need to train the employees in the provision of the SAFRA service so that they could obtain the relevant endorsements to enable them to provide that service. That was to be done progressively with only a few of approximately 18 Cairns TCU employees being able to be trained at the one time. With all of the Cairns TCU employees endorsed to provide SAFRA, as the initial SAFRA decision envisaged, the adverse effects of performing the evening and night shifts (including over weekends) which the provision of an overnight SAFRA service required could have been shared amongst all of those employees.
74 In contrast, the SAFRA Implementation decision was made in circumstances where only three or four of the Cairns TCU employees were trained and where, I would infer, the adverse burden of repeated evening and night shifts would fall very heavily on a few and then somewhat on others covering for yet other employees who would be frantically undertaking training. In circumstances where the change would likely have rostering consequences for some or all of the employees, the short notice of the change was also likely to have adverse consequences for employees because the Christmas holiday period was less than two months from the impending implementation.
75 These are all matters about which, it may be said, the likely adverse consequences for some or all employees were significantly different from what would have been the likely adverse consequences of an implementation made in consequence of the initial SAFRA decision. They were consequences that employees had a legitimate interest to avoid or mitigate and thus an interest in being consulted about, not simply as rostering changes, but in relation to whether given the short implementation period and the lack of trained and endorsed employees, the Cairns TCU employees should have been deployed to provide the SAFRA service at all on and from 31 October 2019. As earlier observed, other options such as an overnight service being provided by the Rockhampton and Mackay towers were considered by Airservices when the SAFRA Implementation decision was made. It was in the interests of the Cairns TCU employees that Airservices genuinely consider that possibility amongst other possibilities which may have either fully or partially mitigated the likely adverse impact upon the Cairns TCU employees of the SAFRA Implementation decision. These are the kind of interests that cl 8 contemplates that the consultation obligation it provides for should address.
76 It follows, therefore, that if the SAFRA Implementation decision entailed changes that were likely to have a significant impact upon the Cairns TCU employees, as I find it did, the consultation obligation imposed by cl 8.3(a) was engaged not only by reason of inevitable rostering changes which would be required but also by reason of the change involved in the SAFRA work being allocated to the Cairns TCU employees or, in other words, by reason of the deployment of those employees into that new work in the particular circumstances which then prevailed and in the timeframe in which the SAFRA Implementation decision required that deployment to be effectuated.
77 That deployment was sufficiently identified as the asserted change by the Further Amended Statement of Claim. However, although the consequences for the employees of that deployment were wider, the only consequence relied upon as explaining why the change was likely to have a significant impact upon the Cairns TCU employees was that changes would be required in the regular work patterns of those employees, including significant increases in night and weekend shifts such that the preparation of a new master roster would be required.
78 Those asserted consequences should be accepted as being likely to have had a significant impact upon the employees. However, although formally denied by Airservices, no part of its evidentiary case sought to diminish the correctness of that proposition and the evidence led by Civil Air confirmed it. Each of Mr Wells, Mr Fitzgerald and Mr Adkins (Airservices’ ATC Line Manager for the Cairns TCU Group and Brisbane TCU Group) accepted that the introduction of SAFRA required a new base roster for the Cairns TCU employees. Mr Wells accepted that the introduction of SAFRA would result in a doubling, or thereabouts, of night and evening shifts for the Cairns TCU employees. Furthermore, and for the reasons later discussed, the Published Roster included very significant changes from the then regular roster of the Cairns TCU employees. All of that confirms the likelihood (as at the time the SAFRA Implementation decision was made) of the prospective change having a significant impact upon the Cairns TCU employees.
79 Accordingly, I find that Airservices was obliged by cl 8.3(a) of the Enterprise Agreement to consult with the Cairns TCU employees about the deployment of those employees to provide an overnight SAFRA service for the Rockhampton/Mackay sector from 31 October 2019. Airservices was obliged to consult in the manner required by cl 8.5 of the Agreement.
80 The evidence demonstrates that Airservices did not discharge that obligation.
81 The consultation relied upon by Airservices was its evidence that the Cairns TCU employees were informed in September 2018 that Airservices considered that the provision by them of a SAFRA service was the most viable option and that an internet site for the sharing of information had been established. During September and October 2018, feedback was also provided by some ATCs. Additionally, reliance was placed on feedback about training sought from Civil Air delegates in September 2018 and some correspondence and other communications in May through to July 2019 with and by the then local rostering representative for the Cairns TCU employees regarding the preparation of a master roster to accommodate provision of a SAFRA service.
82 All of that consultation related to the initial SAFRA decision. None of that consultation was or could have been about the proposed specific change made by the SAFRA Implementation decision. The significance and distinction between those two proposed changes has already been addressed. Whilst the consultation in relation to the initial SAFRA decision may have somewhat eased the burden of the consultation that was required in relation to the SAFRA Implementation decision, it could not and did not discharge that burden. Consultation in accordance with the detailed and thorough requirements made by cl 8.5 in relation to the deployment of the Cairns TCU employees to provide an overnight SAFRA service from 31 October 2019 did not occur and it follows that Airservices failed to comply with cl 8.3(a) of the Enterprise Agreement.
Rostering changes and the asserted non-compliance with clauses 8 and 19
83 In order to implement an overnight SAFRA service for the Rockhampton/Mackay sector by 31 October 2019, there were two rosters for the Cairns TCU employees which Airservices needed to address: the then current “published” roster dealing with the roster period to 1 December 2019 and the roster period from 2 December 2019. It was determined that the need to provide the overnight SAFRA service in the then current roster period would be addressed by the making of what operationally are called “tactical changes” against that roster. The Enterprise Agreement provides for a process for making such changes in cl 19.15(b). Subject to certain conditions, the process permits Airservices to change an employee’s rostered shifts from those set out in the “published roster”. There are consultation requirements and additional payments in some circumstances to employees provided for by that process.
84 For the roster period from 2 December 2019, on 17 October 2019 Airservices published the Published Roster which covered the period from 2 December 2019 until 12 January 2020. The Published Roster provided for evening shifts and night shifts, including across weekends, to facilitate the provision of an overnight SAFRA service for the Rockhampton/Mackay sector. Civil Air pleaded that the Published Roster constituted a change that was likely to have a significant impact on the Cairns TCU employees and that this was a change within the meaning of cl 8.3(a). Civil Air also contended that the Published Roster was a change to the “regular roster” of the Cairns TCU employees within the meaning of cl 8.3(b). Civil Air contended that by failing to consult in the manner required by cl 8.5, Airservices failed to comply with cl 8.3(a) and that by failing to consult in the manner specified by cl 8.10, Airservices failed to comply with cl 8.3(b).
85 The publication of the Published Roster raised related allegations of various contraventions of cl 19 of the Enterprise Agreement. It is necessary to refer to the terms of cl 19 and set out in full the most relevant of its sub-clauses.
86 Clause 19 is headed “Hours of Work”. Clause 19.1 provides:
An employee will be consulted and Airservices will endeavour to accommodate an employee’s preferences for working hours considering an employee’s personal needs and impact on family and work life. These preferences must meet the relevant legislative requirements, Airservices’ business needs, and take account of the effect on other members of an employee's group.
87 Clause 19.2 defines various terms including the term “Base Roster” as follows:
“Base Roster”, sets out the pattern of shifts to be worked by the group showing the number of consecutive days rostered on/rostered off and the start and finish times of each shift.
88 Clause 19.3 concerns ordinary hours of duty and specifies that an employee’s total rostered ordinary hours of duty shall not exceed an average of 72 hours per fortnight. Clause 19.4 deals with the permitted length of shifts; cl 19.5 with commencement and cessation of rostered shifts; cl 19.6 with the extension of a rostered shift; cl 19.7 with the minimum and maximum number of consecutive rostered shifts permitted; and cl 19.8 deals with time off between shifts. Clauses 19.9-19.14 then provide:
19.9. There will be Local Rostering Representatives (‘LRRs’) nominated by employees who will meet as and when required. In any case where Airservices intends to affect [sic] a change to existing base/regular roster arrangements, it will consult with LRRs. In addition to the provisions in clause 8 (consultation on change), Airservices will:
(a) develop and provide three or more alternative base rosters for consideration;
(b) consult with LRRs in relation to those or any other local alternatives presented that meet operational objectives;
(c) give prompt and genuine consideration to matters raised;
(d) seek to reach agreement;
(e) implement any change in accordance with LRRs preference on roster alternatives.
19.10 Where the implementation of a particular roster is required to be supported by a Group Flexibility Arrangement in accordance with clause 13, the LRRs will also be consulted about the Group Flexibility Arrangement.
19.11 Airservices will ensure that matters concerning fatigue management, WHS and equity principles are fully considered in the management of shifts.
19.12 An employee will progress through the Base Roster in an orderly way.
19.13 It is acknowledged that while progression through the Base Roster pattern of shifts is the ideal principle, changes are sometimes necessary for a range of reasons. The following describes the agreed processes to facilitate these roster changes.
19.14 To give effect to 19.1 and 19.11 to 19.13, Airservices will, as part of its roster preparation processes:
(a) collect roster inputs (includes business and operational needs and employee requests);
(b) create a draft roster based on roster inputs;
(c) provide the draft roster, highlighting any proposed significant changes against the base roster, including any explanatory notes.
A significant change is a change to the pattern of rostered days on or off, or a change to shift start or finish times by greater than 2 hours.
Provision of the draft roster will be by electronic means. It is the employee’s responsibility to review the draft roster and provide feedback to Airservices.
Airservices will consider the feedback provided prior to publishing the roster.
89 Lastly, cl 19.15 provides that rosters shall be published with at least 45 days’ notice and deals with the making of “tactical changes” as described above.
Were cll 9.15 and 9.11 not complied with?
90 A number of assertions of contravention of cl 19 made by Civil Air can be dispensed with at the outset. First, a failure to comply with the 45 day notice requirement in cl 19.15 was pleaded but not pressed. Second, the Further Amended Statement of Claim asserted that in preparing the published roster Airservices failed to ensure matters concerning fatigue management, workplace health and safety, and equity principles were fully considered. That assertion is an apparent reference to the requirements of cl 19.11 but was pleaded in the Further Amended Statement of Claim as a contravention of cl 19.10. The Further Amended Originating Application reflects that apparent error. It makes no reference to cl 19.11 but does refer to a contravention of cl 19.10. In any event, even if I was to ignore Civil Air’s failure to properly plead this part of its case, I am not satisfied that cl 19.11 was not complied with by Airservices.
91 Civil Air contended that if cl 19.14 is not complied with then there will necessarily be a failure to comply with cl 19.11. I reject that contention. Clause 19.11 is concerned with Airservices’ obligation to consider fatigue management, work health and safety, and equity principles in the “management of shifts”. The management of shifts is a broader concept than the preparation of a published roster but the placement of cl 19.11 in a clause dealing with the formulation of rosters suggests that its subject is to be so confined. The chapeau to cl 19.14 indicates that its requirements are made in order to “give effect” to cl 19.11 amongst other subclauses. The better view of that phrase, it seems to me, is that the full consideration called for by cl 19.11 would be facilitated by the consultation and other requirements for the preparation of a published roster made by cl 19.14. That being so, it does not follow that a failure to take a measure that would facilitate the full consideration required by cl 19.11 necessarily means that there was not the full consideration required by that sub-clause. It was necessary, in my view, for Civil Air to demonstrate that the full consideration called for by cl 19.11 did not occur. Civil Air could not discharge the burden simply by demonstrating that cl 19.14 was not complied with.
Some observations about the rosters required by cl 19
92 I turn then to the other claims made by Civil Air based on Airservices’ failure to comply with cl 19. Broadly speaking, cl 19 is dealing with the hours or periods of hours that are to be worked by ATCs employed by Airservices. Its terms are to be construed in the context of the nature of the work which those terms regulate. Airservices provides air traffic control services 24 hours a day 7 days a week. Its ATCs are organised into roster groups. Clause 19 is premised upon the working hours of ATCs being organised into shifts including, where necessary, day, evening and night shifts over the course of a whole week including weekends. Clause 19 provides for the shift work undertaken by ATCs to be organised and regulated. It requires the formulation of rosters for each group of ATCs, the Cairns TCU employees being one such roster group.
93 There are two kinds of rosters required to be prepared. First, a “base roster” which, as the definition of that term broadly provides, sets out the pattern of shifts to be worked by the group. A base roster is referred to at cl 19.9 as a “base/regular roster” and in the evidence was sometimes called a “master roster”. As the head of Airservices Workforce Deployment Rostering Team, Mr Dawes deposed, a base roster acts as a “template”. It is generic. It does not allocate shifts to any specific employee, its function is to identify the pattern of shifts to be worked by the roster group including the starting and finishing time of each shift, and the number of each particular kind of shift (day, evening or night) that will be worked as well as the number of shifts to be worked on weekends. By reference to factors such as those just mentioned a base roster sets the pattern of the shifts to be worked by the roster group.
94 Although I will for convenience continue to refer to it as a roster, it may be observed that what the Enterprise Agreement refers to as the “base roster” is not really a roster because it does not allocate work to any particular employee. It is, however, the foundation for the working roster which cl 19 contemplates and regulates, providing the generic pattern of shifts which, subject to the change permitted by cl 19.14, the roster group will work.
95 The allocation of a particular shift specified by the base roster to a particular employee within the roster group, or what Mr Dawes referred to as the process for populating a roster by allocating shifts to specific employees, is the function of the second kind of ‘roster’ which cl 19 requires to be prepared. This is the roster which cl 19.15 requires be published. It was referred to in the evidence as the “published roster” and the particular roster I have defined as the Published Roster is an example of such a roster.
96 Mr Dawes’ evidence was that a base roster for each ATC group is commonly updated around once a year, but that the timing may vary. He deposed that a change to a base roster would generally be initiated where operational requirements within a group change or where staff request that specific changes be made. A new published roster is usually prepared every six weeks.
97 In relation to each of the two kinds of roster dealt with by cl 19, the clause imposes consultation obligations upon Airservices. Clause 19.9 addresses those obligations in relation to a base roster. It requires consultation with a local rostering representative (LRR) (a nominee of employees) in any case where Airservices “intends to affect [sic] a change to existing base/regular roster arrangements”. That consultation is specifically stated to be required in “addition to the provisions in cl 8”. Clause 19.9 requires that Airservices will:
(a) develop and provide three or more alternative base rosters for consideration;
(b) consult with LRRs in relation to those or any other local alternatives presented that meet operational objectives;
(c) give prompt and genuine consideration to matters raised;
(d) seek to reach agreement;
(e) implement any change in accordance with LRRs preference on roster alternatives.
98 Clause 19.14, dealing with the published roster, requires that Airservices will as part of its roster preparation process:
(a) collect roster inputs (includes business and operational needs and employee requests);
(b) create a draft roster based on roster inputs;
(c) provide the draft roster, highlighting any proposed significant changes against the base roster, including any explanatory notes.
The sub-clause provides for employees to review the draft roster and provide feedback to Airservices which Airservices is then required to consider prior to publishing the published roster.
99 The requirements made by each of cl 19.9 and cl 19.14 are to be read and understood in the light of the more general pronouncement made by cl 19.1 that employees will be consulted and that Airservices “will endeavour to accommodate an employee’s preferences for working hours considering an employee’s personal needs and impact on family and work life” taking into account “relevant legislative requirements [and] Airservices’ business needs”.
100 Civil Air contended that the Published Roster constituted a change to the existing “base/master roster arrangements” and that cl 19.9 was contravened because, prior to affecting a change to those arrangements, Airservices failed to take each of the steps required by paras (a)-(e) of cl 19.9. Civil Air also contended that cl 19.14 was contravened because prior to the publication of the Published Roster, Airservices failed to take each of the steps required by paras (a)-(c) of cl 19.14 and also failed to consider employee feedback. As earlier recorded, Civil Air also relied on the publication of the Published Roster as the basis for its contention that cl 8 was contravened.
Did Airservices fail to comply with cl 19.9?
101 The first issue that requires consideration in determining whether or not cl 19.9 was contravened is whether the sub-clause was engaged. The circumstances which engage the operation of cl 19.9 are dealt with expressly. The obligations to consult with the LRR and to then take the steps required by cl 19.9 are engaged “where Airservices intends to affect [sic] a change to existing base/regular roster arrangements”.
102 As at 17 October 2019 when the Published Roster was published to employees, the existing base roster for the Cairns TCU was a base roster prepared in accordance with cl 19 and approved by the Cairns TCU employees on or about 18 July 2019. It was accepted that the existing base roster did not provide for shifts to enable the provision of an overnight SAFRA service for the Rockhampton/Mackay sector. In other words, the shifts required to provide the SAFRA service were not part of the pattern of shifts set by the base roster. In contrast, the Published Roster did provide for shifts to accommodate the provision of an overnight SAFRA service. Mr Irvine, an ATC within the Cairns TCU and the LRR at the relevant time, deposed as to the extent of those new and additional shifts included in the Published Roster. His unchallenged evidence was that, as compared to the existing base roster, “[t]here [were] nearly double the amount of night shifts, double the amount of evening shifts and a significant reduction in the number of weekends off”.
103 Civil Air’s case was that the number and nature of the shifts and in particular the number of evening shifts, night shifts and weekend shifts rostered by a base roster was a “roster arrangement” within the meaning of that phrase in cl 19.9. It contended that an intended change in such an arrangement engaged the consultation and other requirements of cl 19.9. On its case, the publication of the Published Roster with the additional SAFRA shifts effected a change to such an “arrangement” and cl 19.9 was thereby engaged.
104 It was not really in contest that the number of shifts and the number of particular kinds of shifts to be worked by a roster group is a base roster “arrangement” within the meaning of cl 19.9. It seems to me that it must be so because those factors are some of the building blocks for the formulation of any pattern of shifts and, as earlier stated, the function of a base roster is to provide for the generic pattern of shifts upon which a published roster is then prepared. Confirming that conclusion, each of Mr Wells, Mr Fitzgerald and Mr Adkins as well as Mr Irvine agreed that the introduction of SAFRA required a new base roster for the Cairns TCU. That is, a new generic pattern of shifts was required for the roster preparation process which culminates in the publication of a published roster.
105 Airservices’ response to Civil Air’s case was that cl 19 permits some variation between the base roster and the published roster and that cl 19.13 provided the answer to Civil Air’s proposition that base roster arrangements could not be altered without consultation. Airservices contended cl 19.13 made it clear that changes from the pattern set out in the base roster are sometimes necessary for a range of reasons. Airservices referred specifically to Mr Dawes evidence of various examples of why a change may be made as between a base roster and a published roster.
106 However, the submission mischaracterised what cl 19.13 means where it states that “changes are sometimes necessary”. The clause is not speaking of changes to base roster “arrangements” but about a change from the usual rule specified by cl 19.12 that there be an “orderly” progression of a particular employee through the pattern of shifts specified by the base roster. So much is clear enough from the text of cl 19.12 and cl 19.13, when those provisions are understood by reference to the function of the base roster in setting a “pattern of shifts”.
107 The pattern of shifts and the building blocks which establish it, like the number of shifts to be worked by the roster group and the number of each kind of shift to be worked, are the “roster arrangements”. The pattern of shifts, or what Mr Dawe referred to as the “template”, is not changed when an employee is required by a published roster to progress through that pattern other than in an “orderly way” because such “changes are sometimes necessary”. Clauses 19.9 and 19.13 are speaking of different categories of change. The fact that a change may be permitted from the orderly way in which an employee may progress through the base roster pattern of shifts (where consultation in accordance with cl 19.14 occurs) does not mean that Airservices is relieved of the obligation to consult about a change to the generic pattern of shifts provided by the base roster.
108 Airservices also relied upon its ability to make “tactical changes” in accordance with cl 19.15. However, again, that capacity is not addressing a change to existing base roster “arrangements”. It has nothing to do with a change to the generic template, but is again addressing permitted alterations from the way the shifts worked by a particular employee may depart from the generic pattern of shifts through which the employee would ordinarily progress.
109 Nor can the Published Roster be characterised, as Airservices contended, as doing no more than providing employees with advance notice of the “tactical changes” Airservices intended to make. That was not the objective purpose of the Published Roster. The evidence did not suggest that, even subjectively, that was the intent of those who prepared it. What the publication of the Published Roster did manifest, which in my view is critical, was Airservices’ need and intent to change the arrangements made by the then existing base roster in order to provide for a generic pattern of shifts which would accommodate the working of an overnight SAFRA service. On the formation of that intent, cl 19.9 was engaged.
110 Finally, I reject Airservices’ contention that where the operational requirements of Airservices make it impractical to consult as cl 19.9 requires, the obligations imposed by cl 19.9 are not engaged. Clause 19 includes various flexibilities including those provided by cl 19.13 and cl 19.15 to enable the reasonable operational requirements of Airservices to be accommodated through the rostering process. There is no textual or contextual basis for the view that the consultative requirements made by cl 19.9 were intended to be dispensable where the circumstances, including those of Airservices’ own making, made those requirements difficult to achieve in the time available. In any event, the evidence did not establish that it was impracticable for the LRR to have been consulted in accordance with the requirements of cl 19.9.
111 From 14 October 2017 and in the period immediately prior to the time of the publication of the Published Roster on 17 October 2017, Mr Irvine was the LRR. On 14 October 2017, Mr Irvine contacted Mr Fitzgerald stating that on the basis of the SAFRA Implementation decision communicated to employees on 11 October 2019, it appeared that there was a requirement for a new base roster to be developed and that he wanted to be kept informed of any relevant requirements for the formation of a new roster.
112 Mr Irvine then attended two meetings on 16 October 2019 to discuss rostering issues. However, his evidence was that prior to the publication of the Published Roster, apart from being informed on 11 October 2019 that an overnight SAFRA service was to be introduced and provided by the Cairns TCU employees and that he understood that this would necessarily entail a change to the base roster, Airservices did not:
notify him that there would be a change from the base roster;
inform him about how the base roster was going to change or the details of the specific change;
discuss the introduction of the change, the effect of the change or measures to mitigate the adverse effects of the change;
invite him to give his views about the impact of the change;
provide him with at least three alternative rosters for consideration;
discuss those three alternative rosters with him, or afford him the opportunity to prepare an alternative roster; or
seek to reach agreement with him about those rosters.
113 I accept that evidence and regard it as sufficient to establish that the consultation and other requirements imposed on Airservices by cl 19.9 were not discharged in relation to the intent then held by Airservices to effect the changes to base roster arrangements which the introduction of the SAFRA shifts entailed. I am therefore satisfied that Airservices failed to comply with the requirements of cl 19.9 of the Enterprise Agreement.
Did Airservices fail to comply with cl 19.14?
114 I turn then to cl 19.14 which deals with the process of preparing a published roster.
115 A threshold contention raised by Airservices was that a contravention of cl 19.14 is not complete unless and until an employee is required to work the published roster in respect of which the consultation requirements imposed by cl 19.14 were not discharged. I reject that novel contention. It has no textual basis whatsoever. The text of the sub-clause, including that the feedback from employees must be considered by Airservices “prior to publishing the roster”, confirms that if the consultation obligation is not discharged prior to the publication of the roster there will be non-compliance with the requirements of the sub-clause. The vice being dealt with by cl 19.14 is publication of the roster without the requisite consultation. It is not necessary to demonstrate some harm or prejudice to employees resulting from a failure to consult in order for non-compliance to be established.
116 Clause 19.14 is directed at providing employee input into decisions to be made by Airservices as to the future allocation of work to the particular employee. It may be accepted that the objective of that consultation includes avoiding prejudice or inconvenience to an employee where that can be reasonably accommodated. It needs to be borne in mind, however, that those rostering decisions have a capacity to adversely affect an employee whether or not the employee is ultimately required to work a particular rostered shift. The consequences of being allocated an undesirable shift, for example, a shift that conflicts with a personal commitment the employee has or wishes to take up, will be avoided where the employee is consulted and his or her request accommodated. However, where the employee is not consulted, the fact that the undesirable shift allocated to the employee is later cancelled will not necessarily avoid the prejudice which the employee sought to avoid, including because the opportunity to take up the personal commitment, for example, attending a concert with friends, may no longer be available. There is utility in requiring consultation about rostering allocation decisions of the kind cl 19.14 is concerned with irrespective of whether or not those decisions are ultimately effectuated. That provides a further basis for rejecting Airservices’ contention.
117 Airservices contended that the consultation required by cl 19.14 occurred. It contended that that was done in two tranches. There is evidence that after a new base roster was approved in July 2019, the Cairns TCU employees were consulted about the preparation of a published roster which would commence on 2 December 2019. On 1 October 2019 a draft of such a published roster (draft roster) was circulated to the affected employees and those employees provided Airservices with feedback on the draft roster. This was what Airservices referred to as the first tranche of consultation.
118 However, the reliance placed by Airservices on that consultation lacks significance in circumstances where the Published Roster bore little resemblance to the draft roster. A comparison chart relied upon by Civil Air demonstrated that for all but two of the Cairns TCU employees there was some alteration in allocated shifts as between the draft roster and the Published Roster. For many, if not most of those employees, the alterations were numerous and significant.
119 The alterations between the draft roster and the Published Roster were the product of the SAFRA Implementation decision which required the inclusion of the overnight SAFRA shifts. That inclusion not only required an extra two shifts a day to be worked but a very substantial reallocation of shifts from those indicated by the draft roster. In those circumstances, compliance with cl 19.14 required Airservices to inform the employees of the revised generic pattern of shifts that would now need to be worked. That is because the consultations required by cl 19.14 are premised on that generic pattern being set out in the base roster. Upon that foundation, Airservices should then have:
(i) collected roster inputs from the employees (cl 19.14(a));
(ii) based on those inputs, created a draft published roster (cl 19.14(b)); and
(iii) provided the draft published roster (by “electronic means”) to the employees, highlighting any proposed significant changes against the revised generic pattern of shifts including by providing any explanatory notes (cl 19.14(c)).
120 Airservices was then required to consider the feedback provided by employees “prior to publishing the roster”.
121 The conduct engaged in by Airservices between 10 October 2019 when the SAFRA Implementation decision was made and 17 October 2019 when the Published Roster was published and relied upon as the second tranche of consultations with employees, was:
(i) the communication to the relevant employees on 11 October 2019 of the SAFRA Implementation decision. In that communication employees were told that Airservices will be talking to them early the following week to consider, amongst other things, roster changes and also told that further work and contributions in relation to rosters were welcome;
(ii) on 13 October 2019, an email from Mr Fitzgerald to the Cairns TCU employees stating that a SAFRA service for Rockhampton/Mackay must be implemented and that that meant “the Evening period [and] the Doggo period” (presumably a reference to the working of evening and night shifts). Mr Fitzgerald then indicated that that involved various matters including roster shifts. He advised employees he was only available in Brisbane on the following Wednesday morning of 16 October 2019 “to discuss issues”. Mr Fitzgerald asked employees to “make a list of items to discuss”;
(iii) on 15 October 2019, a communication from Mr Fitzgerald to Mr Irvine (the LRR), which in dot point form stated that there was a need to promulgate a new roster from 17 October 2019 and that roster changes were necessary. Mr Fitzgerald also stated that he had asked “the folks” to make a list of potential issues and hoped that Mr Irvine could look at that and add to it;
(iv) consultations said to have occurred by reason of Mr Fitzgerald having left a sheet of paper for a few days prior to 16 October 2019 in the Cairns TCU console area on which a few different entries had been made by staff, much of which was about staff concerns regarding the Cairns TCU employees commencing to provide the SAFRA service;
(v) an email from an employee on 16 October 2019 conveying her concerns to Mr Fitzgerald about the safety of conducting the SAFRA service; and
(vi) a meeting attended by Mr Fitzgerald, other Airservices’ management personnel and Mr Irvine on 16 October 2019 in which there was, amongst other things, a discussion about the delivery of the SAFRA service and roster/training needs. There was no evidence that the particulars of the rosters that would be required to deliver the service were given at this meeting.
122 Additionally, Airservices relied on evidence given by Mr Fitzgerald that when he attended at Brisbane on 16 October 2019 he printed copies of a draft of a roster which included the SAFRA shifts and left those copies at an administration desk at the Air Traffic Control Centre in Brisbane. He said he alerted some but not all Cairns TCU employees to the draft being available. He had received various drafts of what became the Published Roster from Airservices’ rostering team but could not recall which of the various drafts that he had received he left for employees to review.
123 That evidence was far from satisfactory. Mr Fitzgerald indicated that the evidence was based on his belief rather than a firm recollection of the events. The evidence was given for the first time in Mr Fitzgerald’s cross-examination, not having been mentioned at all in a detailed affidavit tendered as Mr Fitzgerald’s evidence-in-chief. Civil Air called for the production of the draft roster said to have been left by Mr Fitzgerald for employees to review, but no such documents were found despite a search having been conducted.
124 There is therefore significant doubt in my mind as to the reliability of Mr Fitzgerald’s evidence. Nevertheless, even if I take that evidence into account, I am far from satisfied by that conduct and the other conduct mentioned above that Airservices discharged the obligations imposed by cl 19.14.
125 Before turning in more detail to the evidence, it is necessary to bear in mind that cl 19.14 is concerned with consultations to be undertaken with each of the individual employees in a roster group about the specific shifts that each employee should work in a forthcoming roster period. In other words, the requisite consultation is with an individual about that individual’s forthcoming roster. This is the opportunity, through the individual employee requests envisaged by cl 19.14(a) and through other feedback contemplated by the sub-clause, for an employee to try and persuade Airservices to avoid being asked to work a particular disadvantageous shift. The need for specificity to be provided to effectuate the kind of consultations envisaged by cl 19.14 is underscored by the fact that the clause regards even a change from the generic pattern of shifts by a shift start or finishing time of greater than two hours as a “significant change” which Airservices is required by the sub-clause to highlight to employees. It is in that context, that the very general and largely group base communications relied upon by Airservices can be seen to fall well short of what cl 19.14 required.
126 I would accept that, prior to 17 October 2019, it is likely that the Cairns TCU employees had some idea that their generic pattern of shifts would be altered by the inclusion of some additional evening and night shifts. However, the evidence did not establish that they were informed that all such additional shifts would need to be performed by them in circumstances where, as late as 14 October 2019, Airservices was still giving consideration to some of those shifts being performed by the Capricornia Group. I am therefore not satisfied that the employees were informed of the specific generic pattern of shifts upon which the individual consultations envisaged by cl 19.14 should have been conducted.
127 The evidence established that Airservices did not collect roster inputs from the employees – that is, individual employee requests that particular shifts be or not be allocated to them as cl 19.14(a) requires. Whilst the evidence does demonstrate that a draft of the Published Roster was prepared by Airservices, it was not a draft roster based on the roster inputs of employees as cl 19.14(b) requires.
128 Even if it be accepted, based on Mr Fitzgerald’s evidence that some employees were informed on 16 October 2019 that a draft roster was available for their review, the provision of that draft roster was not a draft roster of the kind envisaged by cl 19.14(c) because it had not been created “based on roster inputs”. In any event, the evidence established that the draft was not made available to all employees let alone made available electronically to all employees as cl 19.14 required. It follows that each of the employees was not given an opportunity to provide feedback on a draft roster of the kind envisaged by cl 19.14(c). Indeed, the evidence establishes that at least some employees had no opportunity to provide feedback on any draft of the Published Roster at all. In my view, the evidence also established that no proper opportunity for feedback of the kind the sub-clause envisages was provided to any of the employees.
129 For those reasons, I am satisfied that Airservices failed to comply with cl 19.14.
Did Airservices fail to comply with cl 8 in relation to rostering?
130 For the reasons earlier given, a prospective change to an employee’s “regular roster” can only engage the second limb of cl 8.3. For reasons I will now explain, the prospective roster change here in question was a change to the “regular roster” of employees. It follows that Civil Air’s case that Airservices failed to comply with cl 8.3(a) of the Enterprise Agreement in relation to the roster changes it made must be rejected.
131 Airservices contended that the term “regular roster” in cl 8.3(b) meant the “base roster” referred to in cl 19. Civil Air initially disagreed but later in the hearing changed its view and contended that the “regular roster” was the base roster dealt with by cl 19.14. Airservices’ view is somewhat supported by the reference in cl 19.9 to the base roster as the “base/regular” roster. However, I also consider that Civil Air correctly contended that cl 8.3(b) and its partner cl 8.10 were intended to reflect the requirements made by ss 205(1) and 205(1A) of the FW Act. Accordingly, “regular roster” in cl 8.3(b) was, I think, intended to have the meaning it has in s 205(1)(a)(ii).
132 Sections 205(1) and (1A) of the FW Act require that an Enterprise Agreement must include a term which provides for consultation in relation to a change to the “regular roster or ordinary hours of work” of employees. Those provisions engage a prospective change to the quantum of ordinary hours regularly worked by an employee as well as a change to the pattern of working hours regularly worked by an employee.
133 The pattern of working hours regularly worked by an employee may or may not be described in a physical or electronic list called a roster. For many employees, for instance those working in a workplace or a section thereof where all employees work the same standard hours (such as 9 am to 5 pm Monday to Friday), a list called a roster will usually not exist because it is unnecessary to prepare one. For workplaces where employees work non-standard hours, variable hours or shift work, a list setting out the pattern of work of the employees for a particular period will usually be necessary and thus a roster will be prepared and published.
134 I would not construe the requirements made by s 205(1) and (1A) that a term to be included in an enterprise agreement requiring consultation in relation to a change to a “regular roster” as dependent upon the existence of a list called a roster and applicable only to a change to such a list. That would entail the triumph of form over substance and ignore the obvious use of “regular roster” as short-hand to describe the regular pattern of work performed by an employee or particular employees.
135 Reflecting that meaning of “regular roster” in the FW Act, cl 8.3(b) is addressing a prospective change to the regular pattern of work performed by an ATC. For ATCs, their regular pattern of work is a function of the generic pattern of shifts specified for the ATC’s roster group by their base roster and the obligation imposed by cl 19.12 that an employee “will progress through the Base Roster in an orderly way”.
136 The regular pattern of work for an employee will be reflected in the published roster required by cl 19.14 unless a departure from that regular pattern of work is made through the process dealt with by cl 19.13 and 19.14.
137 It is apparent then that a change to the regular roster or regular pattern of work of ATCs may be effectuated by either a change made to the generic pattern of shifts for the ATCs’ roster group or by a change made to the orderly progression of an individual employee through that generic pattern by the roster process dealt with by cl 19.13 and 19.14.
138 In my view, cl 8.3(b) is only dealing with the change of the former kind and not a change of the kind dealt with in cl 19.13 and 19.14. There are two reasons why I have reached that view. First, consultation with employees in relation to a change of the latter kind is the work given to cl 19.14 and I do not think that the same work or function was intended to be duplicated in cl 8.3(b) in circumstances where the requirement for consultation in cl 19.14 encompasses each of the requirements made by cl 8.10. Second, a change of the former kind, that is a change to the generic pattern of shifts, is the subject addressed by cl 19.9 and, unlike cl 19.14, that sub-clause provides that its requirements are “[i]n addition to the provisions” of cl 8. Clause 19.9 and cl 8.3(b) are both operative in relation to a prospective change to the generic pattern of shifts of the roster group in question because each has separate work to do. Clause 19.9 is dealing with consultation about such a change with the LRR whilst cl 8.3(b) is dealing with consultation about the same subject directly with the affected employees.
139 For those reasons, I am of the view that so much of the change made by Airservices through the publication of Published Roster which involved a change to the generic pattern of shifts for the Cairns TCU roster group engaged the consultation obligations in cl 8.3(b) and that Airservices was required to consult about that change in the manner set out by cl 8.10.
140 I am satisfied that the evidence establishes that Airservices failed to so consult in relation to the changes made to the generic pattern of shifts by reason of the inclusion of the SAFRA shifts.
141 Clause 8.10(a) required Airservices to provide employees with information about that change. Read with cl 8.1 the requirement was that the affected employees be “fully informed”. For the reasons given earlier in relation to cl 19.14, the evidence established that information about the specific changes to the generic pattern of shifts which were intended by Airservices in order to accommodate the SAFRA shifts was not given or, at the least, not given to all affected employees. Even taking into account Mr Fitzgerald’s evidence that some employees had access to a draft of the Published Roster on 16 October 2019, the evidence demonstrated that even for those employees the kind of opportunity contemplated for employee input by cl 8.10(b) could not have been provided in the short time between when they were informed and when, on the next day, a final decision was made and published. Turning then to cl 8.10(c), I am not able to make a finding as to whether that sub-clause was complied with as there was no evidence that any matters were raised by the affected employees about the specific changes to the generic pattern of shifts. The absence of such evidence is, I would infer, a likely reflection of the fact that employees were not provided with the information or the opportunity to comment upon such a prospective change which cl 8.10(a) and (b) required.
142 Airservices raised the same threshold contention about non-compliance not being “complete” in relation to the operation of cl 8.3(b) and cl 8.10, as it did in relation to cl 19.14. I also reject that contention and largely based on the same reasoning. As to textual considerations, the terms of cl 8.3 and those of cl 8.1 make it apparent that cl 8.3 is engaged by a prospective change and that when engaged the consultation required is to occur before a “final decision” is made to implement the change. It is the making of a final decision in the absence of the requisite consultation obligation being discharged that completes non-compliance with the subclause. The vice cl 8.3(b) is designed to avoid is the making of a final decision without the requisite consultation. It is not necessary to demonstrate some harm or prejudice to employees in order for non-compliance to be established.
143 In support of its contention, Airservices argued that cl 8.3(b) is referring to a roster which is worked and relied on the past tense reference in cl 8.10(b) to “impact of the change”. However, read in the context of the prospective change the sub-clauses are addressing, neither observation is persuasive.
144 The next proposition contended for by Airservices was that cl 8.10 does not import any particular time frame in which the consultation has to take place. Airservices argued that it was therefore entitled to rely upon consultations with employees which occurred after 17 October 2019 when the Published Roster was published. I also reject that contention.
145 The timeframe set by the terms of cl 8.3(b), read in context, is that the requisite consultations must occur before a final decision is made to make the proposed change in question. For the purposes of cl 8, the Published Roster was, in my view, a final decision to make the alterations to the generic pattern of shifts necessary to accommodate the inclusion of the SAFRA shifts.
146 Airservices did seek to suggest that although it published the Published Roster on 17 October 2019, it was not treating it as “published” because Mr Fitzgerald was encouraging employees to talk to him about the Published Roster and suggest changes. The suggestion that may be being made here is that the publication of the Published Roster was not a final decision. In my view, it was. There is no evidence that when made it was portrayed as anything other than final. The fact that on 22 October 2019 and somewhat thereafter Mr Fitzgerald communicated his misgivings about the Published Roster and began to indicate that it was likely to be unworkable and that further roster changes would be required and sought suggestions from employees does not undermine the finality of the decision made on 17 October 2019, just as the reversal of that decision by Airservices’ withdrawal of the Published Roster on or about 28 November 2019 did not alter the final status of the initial decision made on 17 October 2019.
147 For those reasons, I am satisfied that Airservices failed to comply with cl 8.3(b) by not consulting with the Cairns TCU employees in the manner required by cl 8.10.
Did Airservices fail to comply with the dispute resolution procedure?
148 On 24 October 2019, Mr Irvine in his capacity as Civil Air’s Brisbane Centre Delegate wrote to Mr Wells and other Airservices’ management and raised a dispute which was said to be raised consistently with the dispute resolution process in the Enterprise Agreement. Amongst other things, Mr Irvine notified Airservices of a dispute in relation to the publication of the Published Roster by reason of Airservices’ failure to consult in accordance with the Enterprise Agreement and sought that the status quo be immediately restored consistently with cl 10 of the Enterprise Agreement. On or about 7 November 2019, Airservices responded to that communication. In its response, Airservices made a range of comments but in essence the response denied any suggestion that the Published Roster had not been validly made in accordance with the Enterprise Agreement. Mr Irvine’s request that the status quo be maintained was not addressed.
149 The fact that a dispute was raised under cl 10 of the Enterprise Agreement by Mr Irvine’s correspondence of 24 October 2019 was not in contest. There was no evidence of any attempt made to resolve the dispute raised by Mr Irvine under the dispute resolution process after the 7 November 2019 response from Airservices.
150 Civil Air contended that cl 10.1(h) of the Enterprise Agreement was contravened. Clause 10 is a dispute resolution clause. Section 186(6) of the FW Act requires that an enterprise agreement have a dispute settlement procedure which requires or allows the Fair Work Commission (FWC) or another independent person to settle a dispute arising under the agreement. Clause 10 is such a clause. It provides for a multi-stepped process for the resolution of a dispute commencing with the parties seeking to resolve the dispute at “the workplace level” and if unresolved at a senior management level and then by conciliation or arbitration by the FWC. Clause 10.1(g) and (h) of the Enterprise Agreement then relevantly say this:
In the event of a dispute about a matter arising under this Agreement or in relation to the National Employment Standards between Airservices and an employee or employees whose employment is subject to this Agreement, the procedure to be followed to resolve the matter will be as follows:
…
(g) While a concern or dispute is being dealt with, work will continue as normal being the status quo save for any bona fide safety concerns.
(h) The employer and employees will continue as usual in respect of work arrangements and work performed.
151 Civil Air did not press its pleading of a contravention of cl 10(g), but confined its case to a contravention of cl 10(h). Nevertheless, cl 10(h) needs to be read with cl 10(g) in the context of the whole of cl 10.1. When so read, it provides that whilst a concern or dispute is being dealt with under the dispute resolution process provided for by cl 10.1, Airservices and its employees “will continue as usual in respect of work arrangements and work performed”. I am unsure there is any difference between work arrangements being continued as usual and the status quo in relation to work arrangements being maintained. Neither party suggested a difference, and Civil Air’s contention was that Airservices failed to maintain the status quo in relation to work arrangements. I should add here that the usual reference to the “status quo” in dispute resolution provisions of this kind is actually an intended reference to the status quo ante. That is, the status quo as it existed immediately prior to the happening of the event which caused the dispute to be raised. That is the way in which Civil Air used the term and I did not understand that use to be in contest.
152 The “work arrangements” relied upon by Civil Air (though somewhat ambiguously pleaded) were the rostering arrangements for the Cairns TCU employees for the period commencing 2 December 2019.
153 The first issue in contest was whether a roster can meet the description of a “work arrangement”. Airservices contended that a roster merely notifies staff of the work or work arrangements that will ultimately be required to be done and that until the roster takes effect there is no change to work, work performed or work arrangements, only a proposed or anticipated change. Accordingly, Airservices sought to deny that a roster was a work arrangement. However, in my view the word “arrangement” is a word of broad scope and a roster does, in substance, contain a specification of the arrangements made (in the sense of the work allocative directions given by the employer to its employees) in relation to the work to be performed by employees. In my view, a roster is a “work arrangement” within the meaning of cl 10.1(h) of the Enterprise Agreement. Airservices is wrong to contend that a roster does not come into effect until the first day its period of operation is reached. A roster takes effect when it is made because the allocative directions contained therein are live and effective from that time unless subsequently withdrawn.
154 The next issue in contest is far more problematic for Civil Air. Civil Air contended that the status quo that should have been maintained was the draft roster that was circulated to the Cairns TCU employees on 1 October 2019 as a draft published roster for the period commencing on 2 December 2019. I have earlier referred to that roster as the “draft roster”. Airservices is correct to contend that Civil Air’s claim that Airservices failed to maintain the status quo appears to boil down to the proposition that Airservices should have published the draft roster and withdrawn the Published Roster following the raising of the dispute.
155 Airservices was also correct to contend that at the time the dispute was notified (or more correctly, at the time the event that raised the dispute occurred, being the time of the publication of the Published Roster on 17 October 2019, there was no published roster in place. The draft roster circulated on 1 October 2019 was no more than that. It was a draft that had not been published. It contained no operative work allocation directions. It had not come to effect as a roster. The status quo was that no roster existed for the period commencing 2 December 2019 and thus there was no work arrangement capable of being “continued as usual”. As the draft roster never constituted the status quo, both of the alleged breaches of cl 10.1(h), including that a further breach occurred when the Published Roster was withdrawn, must be rejected.
156 For those reasons, I reject Civil Air’s case that Airservices failed to comply with cl 10.1(h) of the Enterprise Agreement. I should add that, as there was no evidence that the dispute raised by Mr Irvine was being “dealt with” under the dispute resolution process after 7 November 2019, any failure to abide by cl 10.1(h) could not have extended beyond that date.
Leave to amend pleadings
157 During the hearing, each of the parties sought leave to amend its pleading. I have determined to grant each application for leave and these reasons are based upon the anticipatory reliance made by the parties on their pleadings as amended. To regularise the Court’s record, Civil Air should now file and serve its Further Amended Statement of Claim and Airservices its Further Amended Defence.
158 Leave was granted to file the Further Amended Statement of Claim as the amendment to [41] of the Amended Statement of Claim sought to correct a fairly obvious error where, read in context, a reference made to the base roster should have been a reference to the Published Roster. That error should have been readily identified by Airservices and no misunderstanding or prejudice should have arisen and none is suggested or relied upon.
159 Leave was granted to allow an amendment to [30] of the Amended Defence. By that amendment Airservices sought to rely on commitments said to have been made after the publication of a Published Roster that there would be further consultation with affected employees and the fact of further consultations with those employees. Airservices contended that the amendment brought its pleading into conformity with the evidence it had served and filed prior to the hearing. It also relied upon its written outline which referred to its reliance upon evidence of consultation with employees after the publication of the Published Roster.
160 Whilst the making of this amendment had the potential of taking Civil Air by surprise as a matter it may not reasonably have anticipated, Civil Air did not contend that it would in fact be prejudiced if leave were granted. As there is no suggestion of prejudice to Civil Air, I considered that it was in the interests of justice for leave to be granted.
Conclusion
161 Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement.
162 I have found that in making the SAFRA Implementation decision and thereby determining to deploy the Cairns TCU employees to provide an overnight SAFRA service for the Rockhampton/Mackay sector from 31 October 2019, Airservices failed to consult with the affected employees in the manner provided for by cl 8.5 as required by cl 8.3(a) of the Enterprise Agreement. It follows that Airservices contravened s 50 of the FW Act. A declaration will be made to that effect.
163 I have also found that in effecting changes to base roster arrangements for the Cairns TCU roster group, in order to enable the inclusion of rostered shifts for the provision on an overnight SAFRA service for the Rockhampton/Mackay sector, Airservices failed to consult and discharge the other requirements imposed by cl 19.9 of the Enterprise Agreement.
164 Further, in publishing the Published Roster, Airservices failed to comply with the consultation and other requirements required by cl 19.14 of the Enterprise Agreement.
165 Furthermore, I have also found that in changing the base roster arrangements for the Cairns TCU roster group and thereby changing the regular roster of the Cairns TCU employees without consultation in the manner provided for by cl 8.10 of the Enterprise Agreement, Airservices failed to comply with cl 8.3(b) of the Enterprise Agreement.
166 It was not in contest and I accept that each of the three last mentioned contraventions of the Enterprise Agreement were contraventions committed by the same person and arose out of a course of conduct by that person. Consequently, and by reason of s 557(1) of the FW Act, those contraventions are to be taken to constitute a single contravention of s 50 of the FW Act. A declaration will be made to that effect.
167 Within 14 days of the publication of these reasons, the parties should file minutes of proposed orders addressing the steps that need to be taken to effectuate the hearing of Civil Air’s application for the imposition of pecuniary penalties. Should the parties not be agreed as to the orders that should be made, each party should file and serve, together with its proposed orders, a short submission in support thereof. The Court will then resolve any issue in dispute on the papers. I will make directions to that effect.
I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Bromberg. |
Associate:
