WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2016 WAIRC 00713

DELIVERED : THURSDAY 18 AUGUST 2016

FILE NO. : M 172 OF 2015

CLAIMANT

AND

Qantas Ground Services Pty Ltd

Respondent

FILE NO. : M 173 OF 2015

CLAIMANT

AND

Qantas Ground Services Pty Ltd

RESPONDENT

Catchwords : Qantas Ground Services Pty Ltd Ground Handling Agreement 2013 – Alleged failure to pay cargo drivers a higher duties allowance – Whether a higher duty allowance is payable to a cargo driver who works without direct supervision – Whether the claimants performed cargo driving duties without direct supervision – Whether the claims are aimed at reclassification.

Legislation : Fair Work Act 2009

Instruments : Qantas Ground Services Pty Limited Ground Handling Agreement 2013
Qantas Ground Services Pty Limited Ground Handling Agreement 2009

Case(s) referred
to in reasons  : City of Wanneroo v Australian Municipal, Administrative, Clerical
    and Services Union [2006] FCA 813
    Kucks v CSR Limited (1996) 66 IR 182
    Transport Workers’ Union of Australia v Linfox Australia Pty Ltd
    [2014] FCA 829
    Transport Workers’ Union of Australia v Coles Supermarkets
    Australia Pty Ltd [2014] FCAFC 148
    The Australasian Meat Industry Employees Union v Golden
    Cockerel Pty Limited [2014] FWCFB 7447
    Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472

Result : Claims dismissed

Representation:

Claimants : Mr A. Dzieciol (Counsel) of the Transport Workers’ Union of  Australia, West Australian Branch appeared for the claimants

REASONS FOR DECISION

Introduction

1          Mr Noel Hardwick and Mr William McGlue (the claimants) are cargo drivers employed by Qantas Ground Services Pty Ltd (the respondent). Their work involves the driving of a truck and/or cargo tug to transport cargo to and from aircraft at Perth Airport.

2          Their employment relationship with the respondent is governed by an enterprise agreement known as the Qantas Ground Services Pty Limited Ground Handling Agreement 2013 (2013 Agreement). They are classified as Ground Crew 2 (GC2) under that Agreement.

3          The claimants assert that they are entitled to receive a higher duty allowance at Ground Crew 3 (GC3) level for each day worked from 11 June 2014 until 23 June 2015. Although their claim is limited to that period they say that they have in fact been performing higher duties for each day that they have worked under 2013 Agreement. Mr Hardwick claims he is owed higher duties allowance amounting to $2,040.96 and Mr McGlue claims to be owed $1,886.11.

4          The respondent denies the claims on the following grounds:

1. The claimants are not entitled to the payment of a higher duties allowance because they did not perform the work of an employee at GC3 level; and
2. The claimants are impermissibly attempting to reclassify their roles of cargo drivers from GC2 to GC3 in circumstances in which the work they performed has not changed; and
3. The interpretation of the 2013 Agreement advanced by the claimants is contrary to statutory construction principles and cannot result in what the claimants seek; and
4. Further and in any event, even if the claimants are entitled to a higher duties allowance (which is denied) the amounts that they seek are not maintainable.

Jurisdiction

5          The claimants allege that, by failing to pay them a higher duty allowance, the respondent has contravened s 50 of the Fair Work Act 2009 (FW Act).

6          The court has jurisdiction to deal with such a matter because it is an eligible state or territory court within the meaning of s 12 of the FW Act and because s 545(3) of the FW Act provides:

(3) An eligible State or Territory court may order an employer to pay an amount to, or on behalf of, an employee of the employer if the court is satisfied that:

(a)    the employer was required to pay the amount under this Act or a fair work instrument; and

(b)    the employer has contravened a civil remedy provision by failing to pay the amount.

7          Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. That section is expressed to be a civil remedy provision.

The Facts

8          The facts are not controversial.

9          The parties have agreed the following facts:

1. The Claimants are employed by Qantas Ground Services Pty Limited, and the Qantas Ground Services Pty Ltd Ground Handling Agreement 2013 (2013 Agreement) applies to the Claimants’ employment. The 2013 Agreement took effect from 4 November 2013.
2. The 2013 Agreement replaced the Qantas Ground Services Pty Ltd Ground Handling Agreement 2009 (2009 Agreement).
3. The Claimants are classified under the 2013 Agreement as Ground Crew Level 2, and perform the role of a Cargo Driver. Cargo Drivers were also classified as Ground Crew Level 2 under the 2009 Agreement.
4. The role of a Cargo Driver involves operating equipment and vehicles including tow motors and freight trucks (which are 8 tonne rigid flattop trucks).
5. Cargo Drivers may also be required to operate a stationary FMC Lifter that is located at Bay 703 of the Perth Domestic standoff bay to transfer freight from a freight truck to profiles or vice versa.
6. The Claimants have not been trained to perform the following functions:

(a)    Operation of in-hold systems and associated equipment on aircraft;

(b)    Pushback of aircraft;

(c)    Driving and operating high-lift catering vehicles;

(d)    All Team Leader and related duties for employees classified in GC1; and

(e)    Passenger handling.

Cargo Driver duties during a shift

7. At the start of each shift, Cargo Drivers will swipe their access cards to register their time and attendance using the iRoster program.
8. Cargo Drivers also log into the Qantas Staff Notification Order system (SNO).
9. Cargo Drivers print out a copy of the Port Arrivals Plan (Arrivals/Departures Schedule) to identify the order in which they will be required to perform their duties during a shift.
10. During their shift, the Cargo Drivers pick up freight from the Freight shed using a tow motor and take the freight to the required bay for the particular aircraft.
11. Cargo Drivers will also pick up freight from the aircraft bay and drop it off at the freight to the freight shed.
12. During their shift, the Cargo Drivers will identify an appropriate time to take their meal break. This will generally fall outside the morning and afternoon peak periods.
13. Cargo Drivers become aware of changes to the Arrivals/Departures Schedule by displays on the Flight Information Display Screens (FIDS) located at the Airport (including at aircraft bays, the freight shed, meal room and swipe on / off area).
14. At the end of a shift, the Cargo Driver does not conduct a handover with the incoming Cargo Driver. The incoming Cargo Driver identifies his or her tasks by reference to the updated Arrivals/Departures Schedule that they print out at the start of their shift.

Claimants’ Argument

10       Clause 14(d) of the 2013 Agreement provides that where an employee performs higher duties for any part of the shift or day, then the employee is entitled to be paid for that shift or day at the rate of pay for the higher level.

11       The classification regime set out in cl 13 of the 2013 Agreement provides:

13. Classifications and Duties

(a)                Employees will be classified as either:

(i)                  Trainee

(ii)               Ground Crew 1 (GC1)

(iii)             Ground Crew 2 (GC2)

(iv)              Ground Crew 3 (GC3)

(v)                Ground Crew 3A (GC3A)

(vi)              Ground Crew 3B (GC3B)

(vii)           Ground Crew 4 (GC4)

(b)                The Company has the right to determine the size, composition and duties and other work practices in place at any of its work sites.

(c)                The roles and duties for each classification are provided at Attachment B. Both management and ground crew will work in a flexible and cooperative way to ensure that their responsibilities are met.

(d)                The parties acknowledge that aircraft types and operating requirements will evolve over the life of the Agreement and that the duties relating to the functions identified at Attachment B will change from time to time in meeting those operating requirements.

(e)                The Company will provide training to ensure that the appropriate industry standards are applied and maintained in the handling of aircraft and associated equipment and when dealing with guests and their property.

12       The roles and duties of GC2 and GC3 classification is set out in Attachment B to the 2013 Agreement as follows:

Ground Crew 2 (“GC2”)

All of GC1 +

• Perform “hands-on” activities in all ground crew areas that are directly and indirectly associated with aircraft handling;
• Operate equipment and vehicles including tow motors, small vans, tarmac buses, mobile steps, belts, disabled passenger lift, aerobridges, fork-lift and equipment requiring similar operational skills associated with ramp, cargo, freight, catering, aircraft servicing and general transport operations;
• Undertake basic serviceability and maintenance checks of vehicles and/or equipment, including refuelling, for vehicles operated at this level;
• Undertake store operations, loading and unloading of catering equipment and advanced preparation of foodstuffs;
• “Work down” as required.

Ground Crew 3 (“GC3”)

All of GC1 and GC2 +

• Operate all in-hold systems and associated equipment on aircraft;
• Pushback;
• Undertake basic serviceability and maintenance checks of vehicles and/or equipment, including refuelling, for vehicles operated at this level;
• Driving and operating high-lift catering vehicles;
• Compile operational reports and documents using designated systems and equipment;
• Required to work without direct supervision;
• All Team Leader and related duties for employees classified in GC1;
• “Work down” as required; and

• Passenger handling. For an employee employed after the Date of Commencement of this Agreement GC3 Year 2 rate of pay will apply for passenger handling.

13       The claimants assert that the work they do and did during the relevant period falls within the GC3 classification description because they are required to work without direct supervision. They say that they have performed higher duties for at least part of each shift they worked because of the following reasons:

1. In performing their duties as cargo drivers they, to a large extent, have worked autonomously and without direct supervision from a leading hand or from a supervisor; and
2. Working without supervision is a function of the GC3 classification.

14       The claimants contend that the issues for the court to determine are:

1. Whether, during the period which is the subject of the claims, the claimants worked without direct supervision for at least part of their shift; and
2. If they did work without direct supervision for at least part of their shift, whether they performed the duties of a GC3 employee.

15       They say that if both questions are resolved in the affirmative then it will follow that they are entitled to be paid the higher duties allowance pursuant to cl 14(d) of the 2013 Agreement.

16       The claimants contend that the central issue to be determined in these matters is what is meant by the term ‘direct supervision’ in the GC3 classification. They say that term ought to be interpreted as suggested by Flick J in Veolia Transport Sydney Pty Ltd v Mifsud [2012] FCA 1472 [16] - [17] and by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 [184]. In written submissions lodged on 27 April 2016 at [15] they suggest the following principles are distilled from those authorities:

(a)    the construction task begins with considering the ordinary meaning of the words having regard to their context and purpose – ordinary or well-understood words should generally be accorded their ordinary or usual meaning;

(b)    where the language is ambiguous or open to differing interpretations it is permissible to have regard to surrounding circumstances or context to assist in the interpretation of an agreement;

(c)    regard should not be had to the subjective beliefs or understandings of the parties about their rights and liabilities; and

(d)    the meaning of the provision is to be determined with regard to what a reasonable person would have understood it to mean, with this usually requiring consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.

17       Further, at [16] – [21] of their written submissions, they went on to  say:

16.  The concept of “direct supervision” is well known and understood in the employment context. The word “direct” means “without intermediaries or intervention of other factors” (The Australian Oxford Dictionary, 4th Ed.). The word supervision is also well known and understood, and “supervise” means “to observe and direct the execution of a task, project or activity (The Australian Oxford Dictionary, 4th Ed.).
17. In this case the evidence of the claimants clearly shows that they do not work with a person who observes and directs the various tasks that the claimants undertake throughout their shift, the order in which they are to do things, and, when they are to take their meal break. Rather, the evidence shows that the claimants to a large degree work autonomously, and that during a shift the claimants only interact with persons in supervisory roles if there is a problem that they cannot deal with themselves.
18. The reasonable conclusion from the above, is that during each shift that the claimants worked in the relevant time period, there was at least a portion of that shift where the claimants worked without direct supervision, since they did not have a more senior person directing them in their work, to make sure that they were doing what they were supposed to be doing, and that they were doing the work correctly and safely.

GC3 Duties

19. Some of the duties and responsibilities associated with the GC3 classification in the Ground Handling Agreement are set out in paragraph 7 above. That description of the GC3 role includes a combination of specific jobs, such as the operation of in- hold systems and associated equipment and pushback of aircraft, and also more general requirements, such as working without direct supervision.
20. The evidence of the Claimants shows that an employee who is classified as a GC3 is not required to do, or have the capacity to do all of the tasks that are included in the description of the GC3 classification. For example, a person who does aircraft pushbacks, only pushes back aircraft and does not undertake any of the other duties listed in the GC3 clarification. For example, that person does not, and is not expected to operate in-hold systems and associated equipment.
21. One of the roles of a GC3 employee includes working without direct supervision. Accordingly, where a GC2 employee works without direct supervision for at least a part of their shift, then that employee is performing the duties of a GC3 employee, and, therefore, that GC2 employee is entitled to be paid a higher duties allowance for the whole of that shift, in accordance with cl.14(d) of the Ground Handling Agreement.

The Respondent’s Answer

18       The respondent’s answer to the claimants’ argument is in part contained in [5] to [9] of its written submissions lodged on 23 May 2016 in which it said:

5. In this respect it is noted that the Claimants do not suggest that they performed any substantive GC3 duties (such as operating a High–Lift vehicle; the in- hold systems and associated equipment on an aircraft; or a pushback vehicle.)
6. Rather, the Claimants assert that they should have been paid a Higher Duties Allowance for their work as Cargo Drivers, in reliance on a single indicator within the GC3 classification description, namely, of being “required to work without direct supervision.”
7. The Respondent submits that the Claimant’s interpretation of the classification structure is misconceived, and that being “required to work without direct supervision” does not in and of itself mean that a role falls within the substantive GC3 level. Rather, it is a descriptive indicator of how Level 3 work is carried out, rather than what Level 3 work is.
8. The Respondent further submits that the level of supervision referable to the Cargo Driver role is not determinative of whether or not the Cargo Driver role falls within the GC3 level. On a proper interpretation and application of the classification structure, the Cargo Driver’s substantive role falls squarely within the GC2 classification.
9. In any event, Mr Hardwick and Mr McGlue are subject to layers of supervision by persons and systems in relation to the performance of their work. Such supervision is direct in that there is oversight and direction in relation to the work performed by Mr Hardwick and Mr McGlue.

Review of the Evidence

19       The evidence before me in respect to liability is that derived from the claimants and Mr Brett Robert Hardy (Mr Hardy), Head of the respondent. There is also other evidence before me with respect to quantum but for reasons which follow it will be unnecessary for me to consider the same.

20       The evidence received as to liability gives rise to the following findings.

The Work of Cargo Drivers

21       In the performance of their duties each claimant drives an eight tonne rigid flattop truck and/or cargo tug to and from aircraft. They also operate a pallet lifter to move cargo.

22       When the claimants start their shift they sign on by swiping their staff card on a scanner and log onto the Qantas Staff Notification Order system. They then print off details of the planned aircraft arrivals and departures which will occur during their shift and if working on the international side of the airport, they also print out an off load sheet. From that off load sheet they determine whether there is any perishable cargo on the aircraft. They then plan their work for the shift. They know that cargo has to be delivered to the aircraft one hour before the aircraft’s departure time. Therefore, working from the print-outs, they work out the order in which they have to deliver and pick up cargo during their shift. They also work out when they will take their meal break. All those planning tasks are done without the input of a leading hand or supervisor. 

23       There is no change over procedure between shifts so that if their shift starts just after a plane has arrived they go out to check the bay at which that aircraft is located to ascertain if there is cargo waiting to be transported to the cargo shed.  If there is, they take that cargo to the cargo shed. If there is no cargo waiting they move onto their next task.

24       Whilst at the cargo shed they identify the freight that has to go out to the next plane. They check to ensure that the destination cards on the cargo are correct and the load is properly secured on the profiles awaiting to be towed. If necessary they ensure that the cargo is appropriately covered. They then take the freight to the bay allocated for the particular plane.

25       When working on the international side of the airport they drive a cargo truck to bay 703 where they use a lifter to transfer cargo from the truck to profiles. With respect to incoming cargo they take the cargo profiles to bay 703 where they transfer cargo from profiles to the truck using a lifter. They operate the lifter without supervision.

26       Cargo drivers usually leave outgoing cargo at the bay allocated to the plane. The ground crew will take the incoming freight off the plane and will leave that cargo in the allocated bay for the cargo driver to collect. They then load the outgoing cargo that had been left in the bay. However, on some occasions, cargo is taken directly to or from the plane. In such cases cargo drivers drive up to the lifter at the plane and place the cargo on the lifter for loading or alternatively take the cargo that has just come off the plane from the lifter onto the truck.

27       Cargo drivers regularly deal with perishable or special cargo which cannot be left on the tarmac. When that is the case, the cargo driver will contact the leading hand in charge of the particular plane to let him know whether the cargo on board should be offloaded directly onto truck, or alternatively profiles.

28       During their shift cargo drivers are involved in a continual process of delivering freight to aircraft and collecting cargo that has been offloaded. Their schedule of work which is determined at the commencement of their shift is subject to change. They need to regularly monitor the arrival and departure screens in order to keep up with changes and adjust their work schedule. Change usually occurs by reason of delay in the arrival or the departure of a flight. Sometimes there is a change in the bay to which an aircraft is sent. That necessitates the cargo driver contacting the Resource Allocation Officer (ROA) to find out where the plane has gone. Changes also occur for other reasons. From time to time one plane may be substituted for another on a particular service. In such cases cargo drivers are required to check for any changes to the registration number of the plane against the flight number.

29       Other than for the purpose of ascertaining the different location of an aircraft the ROA is rarely contacted. Contact will be made with him only in unusual or extraordinary circumstances.

30       For most of every shift cargo drivers work independently. They do not report to a leading hand or supervisor and they are not told what to do. They know the tasks that are required and do them. When things run smoothly they can go through the whole shift without talking to anyone about their work. As they finish a task they simply cross it off the list and move on to the next task.

The Dispute

31       Mr Hardy first became aware of an issue concerning the classification of cargo drivers on 24 June 2013 when he received an email from Mr McGlue complaining that the level of duties and responsibilities of cargo drivers was not reflected in their GC2 classification under the Qantas Ground Services Pty Limited Ground Handling Agreement 2009 (2009 Agreement) which then applied. Mr McGlue asked that cargo drivers be ‘recognised’ as level 3. Mr Hardy responded to his email and advised that the respondent regarded the GC2 classification to be the correct classification for Perth cargo drivers.

32       Subsequent negotiations with respect to the creation of the 2013 Agreement to replace the 2009 Agreement did not lead to a change in the classification of cargo drivers’ position.  The Transport Workers Union of Australia WA Branch (TWU) did not dispute or seek to change the position. The GC2 classification of cargo drivers was not revised. It was agreed that cargo drivers would continue to be employed at level two as had been the case under the 2009 Agreement. I accept Mr Hardy’s evidence in that regard.

33       In about October 2013 Mr McGlue sent an email to Mr Hardy expressing his disappointment that cargo drivers had not been reclassified to a GC3 role as part of the 2013 Agreement negotiations. At that time Mr McGlue did not suggest he should be paid a higher duties allowance but instead maintained that the cargo driver role should be reclassified to a GC3 position.

34       From October 2013 the respondent was engaged in ongoing correspondence, discussions and site inspections with cargo drivers and the TWU concerning the classification of cargo drivers. Those things failed to resolve the classification issue.

35       On 12 March 2015 Mr Hardy received a letter from the TWU notifying the respondent of a dispute. In that letter the respondent was advised for the first time that the TWU on behalf of its members sought payment of a higher duties allowance for GC2 employees who had been performing GC3 duties. It also sought a review of machinery operations, associated tasks and responsibilities applying in the GC3 classification. The higher duties said to have been performed were working unsupervised, undertaking basic serviceability and maintenance checks of vehicles and/or equipment and/or compiling operational reports and documents using designated systems and equipment.

36       It suffices to say that prior to that date the claimants had not made a claim for the payment of a higher duties allowance. In order to receive payment of a higher duties allowance at Perth Airport an employee is required to complete a form for approval by their manager. The claimants’ claim form for the payment of a higher duties allowance for the period 11 June 2014 to 23 June 2015 was not submitted until on or about 7 June 2016, which was after the commencement of these proceedings.

Determination

37       The claimants submit that the pivotal issues I need to determine is whether they worked without direct supervision for at least part of their shift and if so whether they performed the duties of a GC3 employee.

38       The respondent on the other hand, suggests that the court should assess the claims for what they are, being an impermissible attempt to reclassify the claimants positions. If that is found to be the case the claims are fundamentally flawed. In any event, there is no basis for the construction proposed by the claimants and further that the evidence does not support the claimants’ contention that they work without supervision.

39       In my view these claims, properly characterised, constitute a reclassification claim. The role or function of each claimant has not changed since they first commenced in the role to the present. The claimants were classified as GC2 employees under the 2009 Agreement and such classification did not change in the 2013 Agreement.

40       Both claimants have been quite candid that they believe that they should have been paid at the GC3 level throughout. It is obvious that their claims relate to the desire and preference to receive a higher rate of pay for their role as cargo driver.

41       The claimants are prevented from advancing a reclassification dispute because of cl 5.1 and cl 30 of the 2013 Agreement which provide:

5.1  Comprehensive Agreement

 This Agreement is a comprehensive agreement and replaces all other awards, orders of industrial commissions or industrial agreements that would otherwise apply to employees.

30. No Extra Claims

 The parties bound and employees covered by this Agreement will not pursue any claims relating to any matter or employment condition during the life of this Agreement.

42       It is important to observe that no claim for a higher duties allowance was made week by week as the duties were performed. Rather, a period has been chosen. The period does not have any particularly identifying features. Indeed the claims could have related to any period of the claimants’ employment under the 2013 Agreement. The claims are broad and non-specific. When properly analysed the claims are an attempt to reclassify. The allegation of underpayment has been used as a vehicle to achieve that which would otherwise have been impermissible.

43       Relevantly cl 14(d) of the 2013 Agreement states:

Higher Duties

An employee will complete all duties at or below the employee’s classification level as required by the Company. Where an employee works higher duties for any part of the shift or day, the employee will be paid for that shift or day at the rate for the higher level.

44       The performance of higher duties necessarily involves doing work which is different to the work which is usually done by that employee.  It requires the doing of something which in most instances will be more demanding or complex than the characteristic of the employee’s normal function or role. It is obvious however that during the material period the claimants did no more than to carry out the primary functions of GC2 employees.

45       Whereas, this court has jurisdiction to deal with an alleged underpayment claim (see s 545(3) of the FW Act) it certainly does not have jurisdiction to deal with reclassification.

46       Even if the claims could be characterised as genuine underpayment claims, the claims cannot succeed in any event because there is no basis for the construction the claimants contend.

47       The claimants contend that in performing their functional role as cargo drivers they, at all times, performed at a higher level and therefore ought to have received a higher duties allowance. They rely on a single descriptor in the GC3 classification of the 2013 Agreement.

48       In City of Wanneroo v Australian Municipal, Administrative, Clerical Services Union [2006] FCA 813. His Honour French J (as he then was) said:

53. The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument….

57. It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities – City of Wanneroo v Holmes (1989) 30 IR 362 at 378–379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned – see eg George A Bond & Co Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503–504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

Awards, whether made by consent or otherwise, should be make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.

49       In Kucks v CSR Limited (1996) 66 IR 182 Madgwick J set out the legal principles applicable to the interpretation of industrial instruments. He said at page 184:

Legal Principles

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framers(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as arbitral body does, what might fairly be put into an award. So, for example, ordinary or well- understood words are in general to be accorded their ordinary or usual meaning.

50       Each of the aforementioned decisions make it clear that it is important in seeking to understand the operation which is intended by the framers of the document, that regard is to be had to industrial realities and the consideration of the meaning not be divorced from that.

51       In Transport Workers’ Union v Linfox Australia Pty Ltd [2014] FCA 829 his Honour Tracey J rejected a literal construction of the relevant clause provisions relating to the provision of crib time. He said:

95. This review supports the conclusion that, between the advent of the 1983 Award and, in particular, since the introduction into it in 1987 of the shift work provisions, and March 2012, the parties had, by their conduct, demonstrated that they held a common understanding that the provisions relating to crib time applied only to shift workers and that the large majority of workers who were treated as “day workers” were not “day shift” workers within the meaning of the award. In such circumstances the literal construction of Clause 26 must give way to the common understanding, over almost a quarter of a century, of the parties whose conduct it regulated.

52       In Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, his Honours Siopis, Buchanan and Flick JJ said:

45.     In the search for an objective intention arising from the language used in an instrument of the present kind (i.e. 2008 EBA and 2011 EBA) it is relevant to bear in mind the context in which the instrument came into existence. In some cases that context might show that a particular construction or operation was unlikely to have been intended.

53       In The Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited [2014] FWCFB 7447 Ross P, Gostencnik DP and Johns C after reviewing a number of authorities relating to the construction of enterprise agreements said:

From the foregoing, the following principles may be distilled:

1. The AI Act does not apply to the construction of an enterprise agreement made under the Act.
2. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:

(a)  evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;

(b)  notorious facts of which knowledge is to be presumed;

(c)  evidence of matters in common contemplation and constituting a common assumption.

7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:

(a)  the text of the agreement viewed as a whole;

(b)  the disputed provision’s place and arrangement in the agreement;

(c)  the legislative context under which the agreement was made and in which it operates.

9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties [41].

54       The authorities referred to above support the respondent’s construction which involves looking at the whole of the provisions of the 2013 Agreement, the broad functions of each classification level and the parties’ understanding of how the classifications operate. In that regard I agree with the respondent’ written submissions at [7].

55       Clause 13 of the 2013 Agreement provides:

13. Classifications and Duties
    1.               Employees will be classified as either:
       1. Trainee
       2. Ground Crew 1 (GC1)
       3. Ground Crew 2 (GC2)
       4. Ground Crew 3 (GC3)
       5. Ground Crew 3A (GC3A)
       6. Ground Crew 3B (GC3B)
       7. Ground Crew 4 (GC4)
    2. The Company has the right to determine the size, composition and duties and other work practices in place at any of its work sites.
    3. The roles and duties for each classification are provided at Attachment B. Both management and ground crew will work in a flexible cooperative way to ensure that their responsibilities are met.
    4. The parties acknowledge that aircraft types and operating requirements will evolve over the life of the Agreement and that the duties relating to the functions identified at Attachment B will change from time to time in meeting those operational requirements.
    5. The Company will provide training to ensure that the appropriate industry standards are applied and maintained in the handling of aircraft and associated equipment and when dealing with guests and their property.

56       The issue which remains is whether the claimants, in carrying out their functions, did the duties described in the GC3 classification. If it is established that they worked without direct supervision for at least part of their shifts during the material period, does it follow that they did the work ascribed to GC3 employees? The answer to that question can only be resolved by determining the requirements for GC3 classification.

57       I agree with the respondent’s contentions at [8] of its written submissions.

58       The resolution of the disputed construction of the GC3 classification description in the 2013 Agreement will turn on the language used in that clause having regard to its context and purpose. Its context appears from the text of the clause and the classification structure in Attachment B to the 2013 Agreement viewed as a whole. When such is considered, it is self-evident that the classifications are hierarchical. The classifications are dependent upon the level of skill and responsibility required to do the job. In turn each classification must be read as a whole.  The various descriptors within the classification cannot be isolated or divorced from each other. They must be read together in order to make the classification work within the established hierarchical structure.

59       It is clear that the classifications within the 2013 Agreement are based on functional roles. There are however ancillary descriptors within each classification. The role and ancillary descriptor must be read together. The isolation of the ancillary descriptor undermines the description of the classification.

60       I accept the respondent’s submission that the descriptors in GC2 such as, ‘required to work without direct supervision’, ‘undertake basic serviceability and maintenance checks on vehicles and or equipment including refuelling for vehicles operated at this level’ and ‘work down as required’, makes no sense at all if treated in isolation. A literal construction of such a provision may potentially lead to a low classification employee saying ‘I do that in relation to my vehicles on my level and therefore should receive a higher duties allowance’, notwithstanding such a duty is ancillary to his or her primary function.

61       In the end it is the primary role descriptor which is of particular significance in determining the hierarchy of classifications. In the GC3 classification the primary function descriptors are those of the operation of in-hold systems on aircraft, the driving of pushback vehicles and the operation of highlift catering equipment. Other descriptions such as ‘compile operational reports and documents using designated systems and equipment’ are ancillary and cannot be read in isolation because that descriptor may apply to any number of employees at differing levels whether or not that particular descriptor is expressed in the classification description. The approach that the claimants suggest can lead to absurd results. For example, the requirement for an employee to provide a report in any context could lead to a claim for a higher duties allowance.

62       I accept Mr Hardy’s evidence that GC3 employees have been trained to a higher level than GC2 employees and their classification levels are directly commensurate to their level of training and workplace abilities. To be classified in the GC3 role at Perth Airport, an employee must operate the in-hold systems of an aircraft, act as a pushback driver, or operate a highlift vehicle. That requires extra training and involves the operation of more complex vehicles and/or machinery than that applicable to the GC2 classification. The actual performance of such roles is an essential ingredient required to come within the GC3 classification.

63       In those circumstances even if it could be said that the claimants are required to work without direct supervision that alone cannot pull them up into a higher classification level. That is because they do not perform the tasks that GC3 employees perform in their primary roles.

64       In so far as the claimants rely on the operation of the lift at bay 703 which involves a similar task to that of GC3 employees at the aircraft, I observe that the level of responsibility attached to what they do is considerably less. GC3 employees need to ensure that lifts are operated in such a way that the aircraft is not damaged by its use, whereas the claimants, when operating the lifter at bay 703, are well away from aircraft and therefore cannot potentially damage the aircraft in their use of the lifter.  Consequently, the level of skill and responsibility attached to what they do is considerably less.

65       For the sake of completeness I will move now to consider whether the claimants have established that during the material period they worked without direct supervision.

66       The respondent’s employees even at the lowest classification level are not, when working, under constant direct supervision. The amount of direct supervision they require is dependent upon the task being performed.  Some tasks do not require extensive supervision. Some GC1 and GC2 employees by the very nature of what they do perform tasks with minimal intervention. I accept Mr Hardy’s evidence in that regard. 

67       Cargo drivers’ functions are consistent. That is, they perform the same day-to-day role week- by-week. Mr Hardy described their functions as being static. That description appears to be apt. The claimants do their work according to the chronology and departures indicated by their employer. That chronology may vary by virtue of changes to arrivals, departures and aircraft used. It is true that they are not instructed task by task and that they carry the responsibility to change their work schedule according to the prevailing circumstances, however that is limited within the context of designated tasks within a schedule. For example, they do not have any autonomy to decide not to load or unload a particular plane or otherwise not conform to the arrivals and departures schedules as varied from time to time.

68       It is clear that there is a degree of control and direction in what the claimants do. When cross examined Mr Hardwick accepted that if two aircraft arrived close together and he could not get to the second aircraft to unload, he would contact the ROA to deal with it. He would then follow that officer’s direction. Mr McGlue gave similar evidence. It is obvious that they do not rely entirely on their own devices in what they do. They are, to the extent required, directly supervised and controlled.  Given the static nature of what they do the need for specific instruction and overview for each separate task is not required. Although level of supervisory intervention required may be minimal it does not mean that they are not directly supervised. In the event that I am wrong with respect to other issues I conclude that the claimants cannot succeed in any event because it has not been established that they worked without direct supervision.

Conclusion

69       The claimants have not proven that they are entitled to a higher duties allowance. It follows that it will be unnecessary to address the issue of quantum.

G. CICCHINI

INDUSTRIAL MAGISTRATE