C2014/1571, Transcript of Proceedings [2014] FWCTrans 794 (15 December 2014)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1051090-1

Deputy President Hamilton

C2014/1571

s.739 - Application to deal with a dispute

Australian Federation of Air Pilots
and
HNZ Global [Helicopters (Australia)] Pty Ltd
(C2014/1571)
HNZ Australia Pty Ltd (Helicopter Pilots - Australian Operations) Enterprise Agreement 2013

(ODN AG2014/6249)
[AE408463 Print PR551438]]




Melbourne

10.17AM, TUESDAY, 2 DECEMBER 2014

Continued from 27/10/2014

Reserved for Decision

PN737

THE DEPUTY PRESIDENT: I'll take appearances, please.

PN738

MR R. REITANO: If it please the commission, my name is Reitano. I seek permission to appear for the Australian Federation of Air Pilots.

PN739

MR R. WADE: Your Honour, Wade. I seek permission to appear on behalf of the respondent.

PN740

THE DEPUTY PRESIDENT: Any opposition to permission?

PN741

MR WADE: No, your Honour.

PN742

MR REITANO: No, your Honour.

PN743

THE DEPUTY PRESIDENT: I assume it's based on the complexity of the matter.

PN744

MR REITANO: I don't think there's any other basis. Probably there is a basis of fairness, as well.

PN745

THE DEPUTY PRESIDENT: Is that a yes?

PN746

MR REITANO: Yes.

PN747

THE DEPUTY PRESIDENT: Well done. On the basis of the complexity of the matter, pursuant to section 596, I grant permission to appear in each case. Submissions have been filed in accordance with directions. A very substantial body of evidence has been filed, a lot of which seems to be not necessarily relevant except as background. I take it that the witness statements filed are essentially evidence-in-chief.

PN748

MR REITANO: Could I deal with that, your Honour, and perhaps not quite as shortly as your Honour might want me to.

PN749

THE DEPUTY PRESIDENT: You're not able to say yes?

PN750

MR REITANO: No, I can't, sorry.

PN751

THE DEPUTY PRESIDENT: Why is that?

PN752

MR REITANO: Because it's not quite so simple, because there are a few variations in what your Honour said that your Honour probably isn't aware of. Firstly, the two witness statements filed by my learned friend's client will not be relied on. He has indicated to us that he doesn't intend to rely on those two statements that he has filed.

PN753

THE DEPUTY PRESIDENT: So there's no evidence from the employer. Is that what you're saying?

PN754

MR REITANO: Yes, your Honour. That's correct.

PN755

THE DEPUTY PRESIDENT: Okay.

PN756

MR REITANO: Secondly, in terms of the applicant's evidence, there are the statements of the five individuals and Mr Gardiner. That is not only the evidence-in-chief, but it is the evidence, because my learned friend doesn't require anyone for cross-examination.

PN757

THE DEPUTY PRESIDENT: Okay. Well, that's good.

PN758

MR REITANO: Indeed.

PN759

THE DEPUTY PRESIDENT: As I said I think in the opening, at the directions hearing, it looked to me like it was possible this matter could almost be determined on the papers. I'm obviously open to persuasion on that, but the facts - what do you think?

PN760

MR REITANO: We want to address your Honour orally on our written submissions, given that we're here.

PN761

THE DEPUTY PRESIDENT: I have no difficulty with that whatsoever, Mr Reitano.

PN762

MR REITANO: Yes.

PN763

THE DEPUTY PRESIDENT: Sorry, I wasn't precluding submissions on the interpretation of the agreement and the NES, and the contracts.

PN764

MR REITANO: Yes.

PN765

THE DEPUTY PRESIDENT: It's just the evidence, I was talking about.

PN766

MR REITANO: Yes. It will be on the papers. There is no oral evidence to be brought.

PN767

THE DEPUTY PRESIDENT: Right. I think we're all on all-fours then essentially.

PN768

MR REITANO: I need to deal with, thirdly - - -

PN769

THE DEPUTY PRESIDENT: Yes.

PN770

MR REITANO: That's why I said there were some qualifications to what your Honour said and I need to deal with it in fairness to my learned friend.

PN771

THE DEPUTY PRESIDENT: Yes.

PN772

MR REITANO: He has some objections to parts of the evidence. What he intended to do and, after discussion with him, what we agreed to do, is for him to, at the point at which your Honour receives the evidence - that is at the point at which I tender it - he will hand up a schedule, if you like, of his objections, and we are happy for your Honour then to rule on those objections as is necessary after hearing argument about the whole of the case. That is, not deal with the objections one by one at that point.

PN773

THE DEPUTY PRESIDENT: I take your point. The general approach I take to those issues is that it goes to weight rather than the civility - - -

PN774

MR REITANO: Yes.

PN775

THE DEPUTY PRESIDENT: And clearly evidence which is irrelevant is not going to be given weight, for example, or evidence which is not direct may not be given much weight.

PN776

MR REITANO: Yes. I will have some things to say about the objections that - it will probably come down to two propositions and I'll deal with them when I come to them, but one of them is precisely what your Honour said; that a lot of the material that's objected to is contextual. It's to give your Honour the context.

PN777

THE DEPUTY PRESIDENT: Well, it's all very interesting. I can read a book, if I want, of contextual material sometimes. Thank you very much for that. You've obviously done a lot of work to focus the case on what we need to do, so I thank the parties for doing that. All right. I've got a few questions to ask, if I could, and then perhaps we can admit the witness statements that are going to be admitted, look at the schedule and admit the schedule. Is that the way to proceed? First of all, my questions then deal with the evidence. Would that be right or do you have a better suggestion?

PN778

MR REITANO: I don't have a better suggestion. I have a slightly different suggestion, but I'm really in your Honour's hands. One of the things that I wanted to do before I got to what your Honour has just proposed - I'm not going to put a time limit on it, but it wasn't going to be a long thing - I wanted to briefly open by taking your Honour to the provisions of the enterprise agreement that are relevant to the task that your Honour is to perform. I know your Honour dealt with it at the directions hearing, but, simply as it were, to remind your Honour as to what the issues are.

PN779

There is one enormous issue between the parties at the outset which I wanted to deal with, but also to deal with what the issues are that your Honour is required to determine. That's the only variation to what your Honour has proposed. I am happy to deal with it any other way that anyone else thinks is appropriate.

PN780

THE DEPUTY PRESIDENT: All right. Perhaps I'll ask the employer some questions and you some questions. I'll be very brief and then you can make your opening, perhaps, if that's okay.

PN781

MR REITANO: Yes, your Honour.

PN782

MR WADE: Yes.

PN783

THE DEPUTY PRESIDENT: Thanks very much for that. I appreciate it. Thanks, Mr Wade. I just have three questions, if I could. There is jurisdiction under the dispute settlement procedure to make the orders sought, is there?

PN784

MR WADE: The declarations, your Honour?

PN785

THE DEPUTY PRESIDENT: Sorry. I'm exercising power under the dispute settlement procedure in the agreement.

PN786

MR WADE: Yes.

PN787

THE DEPUTY PRESIDENT: There is no jurisdictional objection to the power being exercised under the disputes procedure.

PN788

MR WADE: No.

PN789

THE DEPUTY PRESIDENT: That's agreed, isn't it?

PN790

MR WADE: That's correct, your Honour. That was agreed at a previous hearing, as well.

PN791

THE DEPUTY PRESIDENT: Indeed. It's important to get this on transcript.

PN792

MR WADE: Yes.

PN793

THE DEPUTY PRESIDENT: Thank you. Secondly, the union - paragraphs 6 to 10 of its written outline of submissions - describes what it says are the employer directions. Is that a correct description? Have they got that right in their summary? Perhaps you'd like to come back to it. There may be a sentence or something you don't want.

PN794

MR WADE: Your Honour, I recall this as being a fairly accurate summary of the evidence; what was required.

PN795

THE DEPUTY PRESIDENT: Sure.

PN796

MR WADE: We have, in our submissions, submitted that not all those questions need to be answered, but that's a different question, I think.

PN797

THE DEPUTY PRESIDENT: Indeed. I just wanted for the facts, are those the employer directions?

PN798

MR WADE: Your Honour, I'll come back to you on that, but at the moment I'm happy that that's an accurate summary of the essence of what is required in respect of the flight pilots.

PN799

THE DEPUTY PRESIDENT: Okay. Following on from that answer you gave, in paragraph 4 they set out the order or determination, whatever it is, under the disputes procedure they're seeking. Which is it, by the way? What is the disputes procedure? Does it talk about a determination? Does it talk about an arbitration? We might as well get the description of it right, shall we? What clause it?

PN800

MR WADE: It's an arbitration.

PN801

THE DEPUTY PRESIDENT: It's an arbitration, is it? What clause is the - - -

PN802

MR WADE: Clause 21.2, your Honour.

PN803

THE DEPUTY PRESIDENT: 21.2.

PN804

MR REITANO: 21.4.3 is the actual power, if you like.

PN805

THE DEPUTY PRESIDENT: Determination of the dispute.

PN806

MR REITANO: It's one of the matters I was going to take your Honour to. It's also to be read with 21.3.

PN807

THE DEPUTY PRESIDENT: Whatever it is, it's something; an arbitration, a determination or a resolution or a - whatever - direction. I don't know. It's something. Is any of that not needed now? You just said that some of the orders aren't needed.

PN808

MR WADE: Your Honour, we say some of the questions that you're asked to determine don't need to be determined.

PN809

THE DEPUTY PRESIDENT: One of those is consultation, is it?

PN810

MR WADE: That's correct, your Honour.

PN811

THE DEPUTY PRESIDENT: You haven't conceded it, but you sort of half concede it.

PN812

MR WADE: For the purposes of these proceedings and for the purposes of these five pilots - - -

PN813

THE DEPUTY PRESIDENT: It's not in issue?

PN814

MR WADE: It's not an issue and we undertake to give effect to the clause in the future.

PN815

THE DEPUTY PRESIDENT: Yes, I understand.

PN816

MR WADE: But of course much turns on your Honour's decision on whether consent is required. If it is required, the rest of this matter becomes, I think - - -

PN817

THE DEPUTY PRESIDENT: That's the crucial issue, isn't it: is consent required for the directions that you've given?

PN818

MR WADE: That's correct.

PN819

THE DEPUTY PRESIDENT: What is the source of the employer right to issue directions, you say? Is it implicit in the requirement of consultation?

PN820

MR WADE: It's a combination, your Honour, of an amendment to the enterprise agreement allowing a new duty cycle as a type of cycle.

PN821

THE DEPUTY PRESIDENT: I've got the agreement in front of me.

PN822

MR WADE: Yes.

PN823

THE DEPUTY PRESIDENT: Where do you get the right to direct from this agreement? I've got the document dated 9 June 20 - something or other. It doesn't seem to say - (2014) FWCA 3707. Is that the one?

PN824

MR WADE: That's correct, your Honour. If you turn then to clause 14.1.

PN825

THE DEPUTY PRESIDENT: 14.1, yes.

PN826

MR WADE: That deals with the category of pilot referred to an LOS pilot - live on site pilot - your Honour.

PN827

THE DEPUTY PRESIDENT: Yes.

PN828

MR WADE: That makes provision for a type of duty cycle at 14.1.4.

PN829

THE DEPUTY PRESIDENT: Yes.

PN830

MR WADE: And what the evidence will show is that those pilots are not working a duty cycle that is consistent with that particular clause for various reasons, and those reasons are explained in the evidence.

PN831

THE DEPUTY PRESIDENT: Okay.

PN832

MR WADE: As far as touring pilots are concerned, three of the applicant's members are touring pilots. Your Honour will notice, under 14.2.1, there's a reference to, "A tour will be on the basis of either" - this is what's referred to as duty cycles and there are two alternatives.

PN833

THE DEPUTY PRESIDENT: Yes.

PN834

MR WADE: (b) was an alternative introduced in this enterprise agreement. In other words, it didn't appear in the last. It's a new type of working or new method of working.

PN835

THE DEPUTY PRESIDENT: So (b) is new?

PN836

MR WADE: (b) is new. If your Honour then takes all of that together with clause 22.6 which regulates the procedure to be adopted for present purposes in effecting change to a regular roster - this is in broad summary, your Honour.

PN837

THE DEPUTY PRESIDENT: Yes. 22.6, yes.

PN838

MR WADE: The power is implicit.

PN839

THE DEPUTY PRESIDENT: So if consent was required, there would be no express provision for consultation - - -

PN840

MR WADE: That's part of the argument, your Honour.

PN841

THE DEPUTY PRESIDENT: - - - because you would be doubling up. Is that what you're saying? Unnecessary.

PN842

MR WADE: Well, we say it's two mutually destructive requirements. You can't comply with both.

PN843

THE DEPUTY PRESIDENT: Right. Okay. So that, in essence, is the summary.

PN844

MR WADE: Very much in essence, your Honour.

PN845

THE DEPUTY PRESIDENT: Of course.

PN846

MR WADE: Yes.

PN847

THE DEPUTY PRESIDENT: Thank you very much. I appreciate that.

PN848

MR WADE: I owe you an apology for the late submission of the amended submissions which replaced the old. They were filed outside of the time limits prescribed in your directions, as extended. That has been explained with reference to the fact that we were instructed at a late stage and Mr Uphill is now assisting me. I could do no better than explain it in that manner.

PN849

THE DEPUTY PRESIDENT: All right. Thank you very much.

PN850

MR WADE: As it pleases you.

PN851

THE DEPUTY PRESIDENT: Shall we deal with the evidence now then, Mr Reitano?

PN852

MR REITANO: Could I briefly open, as I suggested I wanted to, your Honour?

PN853

THE DEPUTY PRESIDENT: Please go ahead.

PN854

MR REITANO: Or if your Honour would prefer to do it the other way - - -

PN855

THE DEPUTY PRESIDENT: No. I'm in your hands. I've laid down the law enough, I think, so go ahead.

PN856

MR REITANO: The sole purpose of opening is I want to take your Honour to the provisions of the enterprise agreement. I don't want to go much near the evidence and the Acts at the moment.

PN857

THE DEPUTY PRESIDENT: Yes.

PN858

MR REITANO: But could I, firstly, take your Honour to clause 21, which is the power of the jurisdiction that your Honour is exercising. Your Honour will see - and there is a reason why I need to remind your Honour about this - in 21.1.1 it is, if you like, the kick-off point of the dispute resolution procedure:

PN859

In the event of a disagreement regarding the interpretation or application of the terms of this agreement, the NES or any other matter pertaining to the employer-employee relationship, that the following disputes resolution process be followed.

PN860

It's interpretation or application of the terms of the agreement, NES or any other matter pertaining to the employer-employee relationship.

PN861

THE DEPUTY PRESIDENT: It brings in the contract - - -

PN862

MR REITANO: Well, if there is any doubt about that, your Honour, I think that's what brings it in. The contract of employment must be a matter that pertains to the relationship. We can't think of anything more fundamental.

PN863

THE DEPUTY PRESIDENT: I recall an argument being put in some full bench decision that, notwithstanding that, contracts aren't relevant to the section 739 power. Do you recall?

PN864

MR REITANO: No, I don't, your Honour.

PN865

THE DEPUTY PRESIDENT: All right. I'll just have to find it myself.

PN866

MR REITANO: I don't know that it's going to matter a great deal.

PN867

THE DEPUTY PRESIDENT: Okay.

PN868

MR REITANO: But I simply flag it for now.

PN869

THE DEPUTY PRESIDENT: Okay. Thank you.

PN870

MR REITANO: If I could ask your Honour then to go to 21.2.1:

PN871

If a dispute arises about this agreement, the NES -

PN872

and then there's a reference to a couple of subsections in particular -

PN873

or any other work-related matter, including a dispute about whether a workplace right has been breached, the parties to the dispute will attempt to resolve the dispute at the workplace level.

PN874

It's a virtual reiteration in different words of 21.1.1. Over the page, 21.3, at the top is the binding force of the decision of Fair Work Australia. I think we can assume that's meant to be a reference to the Fair Work Commission. In 21.4, there are the wide powers the commission has in resolving the dispute:

PN875

The parties agree that Fair Work Australia shall have the power to do all such things as are necessary for the just resolution of the dispute. Fair Work Australia shall be provided -

PN876

with access to various things. 21.4.3:

PN877

The parties agree that Fair Work Australia may give all such directions and do all such things as are necessary for the just resolution and determination of the dispute. This includes, but is not limited to, mediation or conciliation or arbitration.

PN878

I think we can safely say we are in the last of those at the moment. Then your Honour will see 21.5 gives a nice, neat mechanism for enforcement of any determination:

PN879

The parties agree that to the extent that any decision of Fair Work Australia alters the rights and responsibilities of any of the parties to the agreement, that those rights are so altered and are enforceable in a court of competent jurisdiction.

PN880

This contemplates, and the reason why I wanted to take your Honour to it, the very circumstance where your Honour might - and I'm not saying that this will happen in this case - create rights as a result of the arbitration that are different from those in the agreement. At the directions hearing, I think your Honour raised it. It might have been Mr Stephens, but I think it was your Honour raised that it's not, strictly speaking, a question of legal interpretation that your Honour embarks upon, but harshness of the application of the agreement might be a reason why there would be a determination that departs from the very terms of the agreement.

PN881

THE DEPUTY PRESIDENT: I'm not sure it would have been me. Nevertheless, thank you for that.

PN882

MR REITANO: There is some laughter over here and I would appreciate it if I could be heard in silence.

PN883

THE DEPUTY PRESIDENT: I didn't hear the laughter, I'm sorry. I didn't hear that.

PN884

MR REITANO: If it please your Honour. Both sides make their submissions, my learned friend's with, I think, a bit more vigour and force. He says that legally your Honour is interpreting the agreement and is required to come to a view as to the meaning of the various provisions applying principles of interpretation that have been developed from the cases. He refers to those cases. It is possible, in resolving a dispute about the application of the agreement, that the commission might come to the view that legally the rights of the parties achieve a particular result, but that that result - applying the agreement as a matter of dispute resolution in that way - would not be appropriate.

PN885

To resolve the dispute, some other course would be appropriate and some other right needs to be created. This agreement contemplates that. The reason I raise it is simply to highlight the possibility that in this case it may not be a matter of strict application of legal rights. The very last matter that I want to take your Honour to in my opening will demonstrate why I say that and I'll come to it in due course.

PN886

Could I then go to the clauses that are in dispute. If I could ask your Honour to go to clause 8.6. Clause 8.6 brings into play, I think, effectively paragraph 8 of our written submissions. Your Honour asked my learned friend whether those matters summarise the issues that arise. This isn't addressed in the respondent's submissions. It was abandoned, I think, in their first set of submissions, but those submissions in due course were abandoned.

PN887

In their current submissions, this isn't addressed. It is part of the dispute. That is, that the respondent here is telling pilots - in particular, Mr Quayle, that he will not be paid overtime until he works more than 230 days in a year. Our position is that clause 8.6 requires overtime to be paid irrespective of the number of days you work in a year. 8.6 provides, "A pilot who is called out to work on a rostered day off - - -"

PN888

THE DEPUTY PRESIDENT: This is paragraph (ii) of the determination you see, is it? Paragraph 4(ii), "To be compensated for work - - -"

PN889

MR REITANO: Yes.

PN890

THE DEPUTY PRESIDENT: It is?

PN891

MR REITANO: Yes.

PN892

THE DEPUTY PRESIDENT: Okay. So you seek that with respect to Mr Quayle?

PN893

MR REITANO: I think it applies ultimately to Mr Casparis, as well, but certainly in respect to Mr Quayle.

PN894

THE DEPUTY PRESIDENT: Quayle and Casparis, okay.

PN895

MR REITANO: There is an issue about Mr Casparis that we will need to return to.

PN896

THE DEPUTY PRESIDENT: Just to make the dispute more complicated than it already is.

PN897

MR REITANO: I won't go to it now. I'll deal with it when I come to Mr Casparis's evidence. It is the issue that's identified in paragraph 8 in respect of Mr Quayle and it's the resolution, if you like, or the determination we seek in paragraph 4.2. It arises out of 8.6. We say 8.6 is plain on its face that it has nothing to do with the number of days that a pilot works in order for them to be paid under that clause.

PN898

The next clause I need to come to is clause 13.1. Your Honour will see, firstly, that the clause refers to the NES right in the heading:

PN899

Annual leave is provided for in the NES. This clause provides occupational specific data.

PN900

We don't need to trouble ourselves with 13.1.1 because, in respect of this aspect of the case, LOS or resident pilots are not relevant. It's only the touring pilots, Duncombe, Saunders and Gorlin, that are relevant to this aspect of the case. 31.1.2 provides:

PN901

A touring pilot is entitled to 42 days off per annum, which shall include (a) 28 days' annual leave inclusive of Saturdays, Sundays and public holidays on full salary for each completed 12 months of continuous service. A touring pilot will take annual leave in one 28-day block immediately after one block of 13 touring days, being a total of 41 continuous days off duty; (b) one additional day of annual leave will accrue for each completed year of service and, so as not to upset the normal touring cycle, may be acquitted in exceptional circumstances -

PN902

and there are some referred to -

PN903

upon application to and consent by the company or, if not taken as annual leave during the course of the pilot's employment, the accrued days will be paid out in full upon termination of employment.

PN904

THE DEPUTY PRESIDENT: So it's six weeks' leave. 28 days is a four-week block, yes?

PN905

MR REITANO: Yes, your Honour.

PN906

THE DEPUTY PRESIDENT: Which is the requirement of - and any NES-related concession, I guess.

PN907

MR REITANO: Yes. Four weeks' paid annual leave.

PN908

THE DEPUTY PRESIDENT: Yes.

PN909

MR REITANO: Then your Honour will see a series of subclauses that, if you like, condition various aspects of the annual leave. We deal with these exhaustively in the written submissions, which I'll leave for the moment, but could I just ask your Honour to have regard to, firstly, 13.1.4:

PN910

Touring pilots may apply and leave may be granted at the company's discretion, provided the leave is accrued at any time within the year. However, a leave embargo may be held over the months of June/July and over the Christmas holiday period for the purpose of rostering alternate Christmas tour breaks. To facilitate this -

PN911

and so on. 13.1.5:

PN912

Leave applications should be made using the appropriate form. Once the pilot has submitted their leave application, the company will respond to their request within five working days. The pilot will receive notification of approved leave prior to the requested leave and are not authorised to take the leave until they have received approval.

PN913

Then there is a provision as to urgency. The pilot makes the application for leave; the company approves that application. 13.1.6:

PN914

Once granted, annual leave shall not be altered except by mutual agreement or, in the case of a pilot's change of status, equipment or base, the company is unable to crew existing schedules, in which case amended leave shall be mutually agreed between the company and the pilot.

PN915

THE DEPUTY PRESIDENT: What is the relevance of all that to the dispute?

PN916

MR REITANO: All of this goes to effectively the proposition that under the agreement in respect of annual leave, it is the pilot's decision to initiate the taking of leave. You will see that this fits neat, tidily and readily into the scheme of the NES and, to the extent that it's relevant when I come to it, clause 14.2.1(b), which is at the heart of the dispute. Your Honour will see it in a moment. I simply need to ask your Honour to be aware of 13.1.12, which is the cashing out provision.

PN917

Pilots must apply to use their annual leave to ensure that they should not have more than -

PN918

THE DEPUTY PRESIDENT: Same point. They apply, yes.

PN919

MR REITANO: Yes, okay.

PN920

THE DEPUTY PRESIDENT: No, I get the point.

PN921

MR REITANO: The next clause I need to go to is 14.1. For present purposes when I talk about LOS pilots, I will include Casparis, but there's an issue about it which I need to just flag with your Honour. Quayle and Casparis would technically, absent anything else - and there is something else, but absent anything else, would come under 14.1 because they are LOS pilots.

PN922

THE DEPUTY PRESIDENT: Is that agreed? No, the way I may not know that - I need to know what the state of the argument is. If you're aware of it, tell me. If you're not, I'm sure your colleague next to you will have a word to say.

PN923

MR REITANO: I think what is agreed - can I just park Casparis for a moment?

PN924

THE DEPUTY PRESIDENT: All right.

PN925

MR REITANO: It is agreed that Quayle is as LOS pilot.

PN926

THE DEPUTY PRESIDENT: Yes.

PN927

MR REITANO: The complicating factor is that he's an LOS pilot that works a touring roster.

PN928

THE DEPUTY PRESIDENT: You've mentioned a third category. Well done.

PN929

MR REITANO: No, well, I'll go to the third category.

PN930

THE DEPUTY PRESIDENT: Not you. The parties generally have invented a third category.

PN931

MR REITANO: Recognised by the agreement.

PN932

THE DEPUTY PRESIDENT: Sure. Okay.

PN933

MR REITANO: It's a third category recognised by the agreement.

PN934

THE DEPUTY PRESIDENT: Understood. Okay, good.

PN935

MR REITANO: Could I ask your Honour to look at 14.1. I only want to take your Honour to 14.1.3 presently:

PN936

Notwithstanding clause 14.1.1, rosters may be altered by the company -

PN937

and could I just ask your Honour to bear that in mind. Notwithstanding 14.1, which is the rosters that will be compiled, the rosters may be altered by the company. There is nothing you will find in 14.1.1 that directly speaks of the company having the right to do whatever it likes with rosters, other than 14.1.3 -

PN938

may be altered by the company to meet the operational requirements of the business.

PN939

This, too, will become relevant in due course because it is said in some of the material that there is an operational requirement imposed by the Civil Aviation Authority, which we say is not so. 14.1.4:

PN940

A pilot will be rostered for a minimum of four days free from all duties in every 14-day period.

PN941

The notion or the type of roster that an LOS pilot has, absent anything else - and I keep saying that because I'm going to come to something else - is you get four days off as a minimum in every 14-day period. You work 10, you get a minimum of four off. Could I just then not go to 14.2 and ask your Honour to turn over to 14.3. This how we get to the Quayle situation of being an LOS pilot working a touring roster. 14.3.1:

PN942

Nothing in this agreement shall preclude the parties agreeing to alternate arrangements for hours of work or rosters to meet the operational requirements of the company, provided that the company's approved flight and duty system is adhered to.

PN943

What you have in Quayle's situation is an alternative agreement. In his case the company agreed with him and, in turn or at some later time, Mr Casparis - both of them, even though they were at that time LOS pilots, would work a 15/13 roster. That is, they would work 15 days and have 13 days off.

PN944

THE DEPUTY PRESIDENT: This is Quayle, is it?

PN945

MR REITANO: That's Quayle and Casparis at the time the agreement was made. That is not recognised by 14.1. 14.1, which talks about LOS pilots, doesn't recognise such an arrangement because it only recognises minimum of four off in every 14-day period and here we've got 15/13.

PN946

THE DEPUTY PRESIDENT: So it's an exception?

PN947

MR REITANO: Well, created by 14.3.1. You're entitled to come to, agree to, an alternate arrangements for hours of work or rosters and that's exactly what Mr Quayle and Mr Casparis did. That's the agreement they came to. That's the agreement they're under. That's the agreement they're entitled to work, in our respectful submission. As I say, I'll come back to the curiosity in Casparis's case when I come to his evidence.

PN948

In 14.2, we have what I might call the Duncombe and Saunders position. I'm going to have to complicate things again. Ms Gorlin is slightly different. She is a touring pilot, but she is different because she's on a flexibility agreement that I'll deal with in a minute. The Duncombe and Saunders position is covered by 14.2.1(a). Will your Honour note that there is nothing in 14.2.1 that gives the employer the option to determine which of the two bases of the tour will be. It will be one or the other, but there is no right created in the employer to determine what it is.

PN949

Would your Honour also note that the predecessor to this agreement - and it's in the evidence - did not contain 14.2.1(b). It only contained the first part and that is that:

PN950

A tour will be on the basis of … 13 28-day cycles per year, each cycle consisting of 15 days or part thereof on duty and 13 days off duty, with the 13th cycle being annual leave.

PN951

That's redolent of what I've said to your Honour about Mr Quayle; that is, that he works a touring cycle even though he's an LOS pilot. This is the cycle that we say Duncombe and Saunders work.

PN952

THE DEPUTY PRESIDENT: The (b) cycle or the (a)?

PN953

MR REITANO: The (a) cycle.

PN954

THE DEPUTY PRESIDENT: Right. Is anybody working the (b) cycle?

PN955

MR REITANO: Not anybody relevant to this dispute.

PN956

THE DEPUTY PRESIDENT: Okay. Thank you.

PN957

MR REITANO: Now I need to deal with (b) and say something about that, because this is the change that the company wants to bring about. It wants to force by its various directions in particular Mr Saunders and Mr Duncombe, but also ultimately we think Ms Gorlin, to work under a (b) cycle. It's known as an equal time roster. I'll read the provision:

PN958

A tour will be on the basis of either … an equal time roster in which annual leave is taken during the year as part of the touring days off. Additional days' annual leave will be provided so that pilots on an equal time roster are on par with 15/13 pilots.

PN959

I think the second sentence is fairly irrelevant. It's really the first sentence that is at the heart of the dispute.

PN960

THE DEPUTY PRESIDENT: What does an equal time roster mean?

PN961

MR REITANO: You work 21 days, you get 21 days off.

PN962

THE DEPUTY PRESIDENT: Right, 21/21.

PN963

MR REITANO: It could be anything, but in this case it is 21/21.

PN964

THE DEPUTY PRESIDENT: As long as it's equal, that's what it means.

PN965

MR REITANO: But it's not quite equal, because - - -

PN966

THE DEPUTY PRESIDENT: No. There will be a leap year-type thing.

PN967

MR REITANO: No, it's not quite equal in the sense that you work 21 days, you get 18.3 days off as effectively days off or rostered days off and the other 2.7 - "I'll take your annual leave, thank you very much." That is what is at the heart of the dispute, that 2.7 days.

PN968

THE DEPUTY PRESIDENT: So you say the 21 is in fact 21/18.7?

PN969

MR REITANO: 18.3.

PN970

THE DEPUTY PRESIDENT: 18.3, plus 2.7 - 1.7, is it? 2.7 annual leave. That's what you say it is, is it?

PN971

MR REITANO: Yes. I don't think there's any dispute about that whatsoever.

PN972

THE DEPUTY PRESIDENT: Okay. Got it.

PN973

MR REITANO: I was going to come to Ms Gorlin's equal time roster. At the moment, she's on a 28-day roster. Your Honour asked what an equal time roster was. I'll come to her peculiar circumstances because, as I say, she's on a flexibility agreement. For present purposes, going back to an equal time rostering in which annual leave is taken during the year as part of the touring days off, one thing that we're not in dispute about is that they are dipping into the pilots' annual leave in order to effect that.

PN974

They are doing so, in this case, in circumstances where each and every one of the pilots - Saunders, Duncombe, and Ms Gorlin if she's put in this roster - do not consent. They have made no application for annual leave and, let me make it very clear, they intend to make no application for annual leave for 2.7 days every three weeks.

PN975

THE DEPUTY PRESIDENT: Under the 2.7 days being used for this, does that still leave a block of annual leave of 28 days?

PN976

MR REITANO: No.

PN977

THE DEPUTY PRESIDENT: It leaves a block of something?

PN978

MR REITANO: It leaves nothing. The only thing it would leave is the peanuts in the second sentence of (b).

PN979

THE DEPUTY PRESIDENT: Well, there are 42 days of annual leave, aren't there?

PN980

MR REITANO: There are 28 days of annual leave. The 42 days are the - what I think your Honour is referring to is the 13 rostered days off that precede it. It's 41. If your Honour goes back to 13.1.2 - - -

PN981

THE DEPUTY PRESIDENT: Yes.

PN982

MR REITANO: - - - you'll see there the second sentence:

PN983

A touring pilot will take annual leave in one 28-day block immediately after one block of 13 touring days.

PN984

THE DEPUTY PRESIDENT: So the 42 days off per annum - - -

PN985

MR REITANO: 41.

PN986

THE DEPUTY PRESIDENT: 13.1.2 says:

PN987

A touring pilot is entitled to 42 days off per annum.

PN988

MR REITANO: I see, yes.

PN989

THE DEPUTY PRESIDENT: Now, that consists of 28 days' annual leave - so that's 42 days' annual leave, is it?

PN990

MR REITANO: No, your Honour. If your Honour goes into the clause in (a) and looks at the second sentence:

PN991

A touring pilot will take annual leave in one 28-day block immediately after one block of 13 touring days.

PN992

THE DEPUTY PRESIDENT: Yes.

PN993

MR REITANO: So that's your 13 rostered days off.

PN994

THE DEPUTY PRESIDENT: Right.

PN995

MR REITANO: So you're getting the benefit of having 41 days. Then if your Honour goes to the next clause, this is how it's made up to 42:

PN996

One additional day of annual leave will accrue for each completed year of service and, so as not to upset the normal touring cycle -

PN997

so that makes you up to 42. You get the 13 touring days off, the 28 days' annual leave and one additional day, giving you 42 days off in a row, but only 29 of them are annual leave days.

PN998

THE DEPUTY PRESIDENT: So the annual leave component is 28 days, is it?

PN999

MR REITANO: No. Sorry, your Honour. It's 28 plus one.

PN1000

THE DEPUTY PRESIDENT: Yes, okay. So it's 29 days.

PN1001

MR REITANO: Yes.

PN1002

THE DEPUTY PRESIDENT: And the residue is what? What are the days off - - -

PN1003

MR REITANO: The residue is RDOs.

PN1004

THE DEPUTY PRESIDENT: RDOs?

PN1005

MR REITANO: Or 13 touring days off. If you're working a 15/13 roster, which these people are - - -

PN1006

THE DEPUTY PRESIDENT: I see. So 13 touring days off is RDO, is it?

PN1007

MR REITANO: Rostered days off, yes.

PN1008

THE DEPUTY PRESIDENT: Okay. Thank you. That's defined somewhere, is it?

PN1009

MR REITANO: Again, I don't think there's any issue about it.

PN1010

THE DEPUTY PRESIDENT: Thank you for that. Sorry I interrupted your flow. Back to where we were.

PN1011

MR REITANO: Your Honour asked me about the "defined". Could I just go back to 14.2.1. If your Honour goes to (a):

PN1012

13 28-day cycles per year, each cycle consisting of 15 days … on duty and 13 days off duty.

PN1013

THE DEPUTY PRESIDENT: Sorry, 14.2.1(a). Yes, I see it.

PN1014

MR REITANO: That's where you get the 13 days RDOs or off duty.

PN1015

THE DEPUTY PRESIDENT: So that's the RDOs there.

PN1016

MR REITANO: Yes.

PN1017

THE DEPUTY PRESIDENT: Okay. Thanks for that.

PN1018

MR REITANO: Could I then go back to where I was, 14.2.1(b):

PN1019

An equal time roster in which annual leave is taken during the year as part of the touring days off.

PN1020

Your Honour asked the question would you get any annual leave in a block and the answer I gave is no. That might not be, strictly speaking. You might get one or two days because of -

PN1021

additional days annual leave will be provided so that pilots on an equal time roster are on par with 15/13 pilots.

PN1022

So you might pick up a day or two or three from that. If you do the maths, I think it's 4.5 days.

PN1023

THE DEPUTY PRESIDENT: You get 4.5 days left after the 2.7 days are taken.

PN1024

MR REITANO: Yes.

PN1025

THE DEPUTY PRESIDENT: Okay. This agreement has provided for that, has it?

PN1026

MR REITANO: For?

PN1027

THE DEPUTY PRESIDENT: Such a result. It has provided for an equal time roster.

PN1028

MR REITANO: It has provided for -

PN1029

an equal time roster in which annual leave is taken during the year as part of the touring days -

PN1030

as being one of the bases upon which - - -

PN1031

THE DEPUTY PRESIDENT: So the agreement has authorised some form of equal days roster, whatever that is.

PN1032

MR REITANO: The agreement permits it. Your Honour said "authorised". I'm not sure if we're much different.

PN1033

THE DEPUTY PRESIDENT: The NES refers to agreements being able to do certain things.

PN1034

MR REITANO: Yes.

PN1035

THE DEPUTY PRESIDENT: With annual leave. The question is has this agreement validly done that within the NES, pursuant to the NES, or not? Has it failed to do that?

PN1036

MR REITANO: There are two issues under the NES. The first is under the NES - - -

PN1037

THE DEPUTY PRESIDENT: It has got to be reasonable, doesn't it?

PN1038

MR REITANO: That's the second issue.

PN1039

THE DEPUTY PRESIDENT: Okay. The first issue?

PN1040

MR REITANO: You get to the second issue very quickly after the first one. The first issue is under the NES, you can only take annual leave - putting aside the second issue - at times that are mutually agreed. There is no mutual agreement in this clause. No-one is mutually agreeing to anything. The clause, we say, presumes or provides that you can do this if someone does mutually agree. If a pilot says, "I consent to taking 2.7 days' annual leave - - -"

PN1041

THE DEPUTY PRESIDENT: That's mutually agreed?

PN1042

MR REITANO: That's agreed and, "Off you go. Knock yourself out. Work your equal time roster." Our position is that this clause facilitates the working of such a roster where someone does mutually agree. You couldn't otherwise achieve it under the agreement. You couldn't otherwise do a roster in this way without this provision that facilitates that. What you don't find in this clause is a requirement - to use the word that the Act uses, the second issue, there is no requirement in terms of section 93(3) of the NES within the ordinary, grammatical, natural meaning of the words on an employee.

PN1043

There's no term in the enterprise agreement that requires an employee or allows for an employee to be required to take paid annual leave. This clause does not do that. It does not say the employer may require an employee to take annual leave so that the employer can implement an equal time roster.

PN1044

THE DEPUTY PRESIDENT: Are you saying it allows it or it doesn't require it?

PN1045

MR REITANO: It permits an employee to say, "I will take annual leave," and then permits the implementation of the equal time roster.

PN1046

THE DEPUTY PRESIDENT: Thanks.

PN1047

MR REITANO: This is why I say you couldn't otherwise achieve that under the agreement, because, if your Honour remembers, under the annual leave provision an employee must submit their application for annual leave. This is predicated on the basis - at least in legal theory, if you like - that an employee has agreed to submit their application for annual leave so as to get on the equal time roster.

PN1048

THE DEPUTY PRESIDENT: Okay. Thank you.

PN1049

MR REITANO: I've taken your Honour to 14.1. I've taken your Honour to 14.2 and 14.3. I need to briefly just say something about the consultation provision. Your Honour will note in 14.1.3. The clause says:

PN1050

Notwithstanding clause 14.1.1, rosters may be altered by the company -

PN1051

So it creates a right in the company to alter rosters. Then if your Honour goes to 14.2.3, you will see:

PN1052

The normal roster cycle may be altered by mutual consent.

PN1053

Then there is the second sentence:

PN1054

The chief pilot may alter the roster over the Christmas/New Year break to ensure duties over the festive season are shared.

PN1055

There are two rates within the rostering clause that give the company the power to alter rosters. If your Honour goes to the consultation provision, which is found in clause 22 - and this is used against us, apparently - you will see in 22.6:

PN1056

Change to regular roster or ordinary hours of work.

PN1057

Your Honour will see the word "regular" appears in the preamble: "For a change regular roster," and I think it means "to" a regular roster, "or ordinary hours of work" there must be notification and then there must be consultation in accordance with the provision. Now, there are two problems with the argument that's put against us. One is that the rostering provisions of the agreement give the company two particular rates to change the roster that I've referred to. There is no reason why you would presume from the consultation provision that the references to changing the regular roster or ordinary hours of work are creating a right that the company doesn't otherwise have. Rather, you would presume it's referable to the rights created by 14.1.3 and 14.2.3.

PN1058

Just put that to one side for the moment. The fact of consultation under the agreement to achieve changes doesn't create rights itself. It may be that you consult with a view to achieving agreement or it may be that you consult with a view to having a dispute resolved under clause 21 of the agreement. Simply because you are required to consult about changes to rosters, doesn't mean that you have the right to change those rosters. Indeed, if you look at the scheme of the agreement in relation to dispute resolution, consultation and flexibility agreements, clauses 21, 22 and 23, they are not clauses about creating rights or anything like that. They are clauses that are designed to avoid disputation between the parties.

PN1059

Finally, I need to just alert your Honour to clause 23, because it relates to Ms Gorlin. Ms Gorlin was on a flexibility agreement under clause 23 until it was recently terminated. Her equal time roster under the flexibility agreement was a 28/28 equal time, with four days of annual leave taken within the 28 days off. There are curious circumstances in respect of Ms Gorlin's position. One is that she is ordinarily a resident, I think, of London or the United Kingdom, and she travels to Karratha every 28 days to go to work. That's not different to my reaction. She does volunteer work in the 28 days off and other things that are dealt with in her evidence, and I'll come to it. The enterprise flexibility agreement of a 28/28 roster was particularly attractive to her in her circumstances.

PN1060

When the company decided to bring about these changes - the things that we're talking about here that led to the dispute - Ms Gorlin indicated that she wished to stay on her flexibility agreement and would be no part of any changes. The company's action then was to terminate her flexibility agreement on four weeks' notice, which it was entitled to do. When one reads the provisions, you will see that they were entitled to do that; but the important thing about terminating that agreement was that it had to be done in a way that did not create disadvantage for Ms Gorlin, which is in the flexibility agreement.

PN1061

THE DEPUTY PRESIDENT: Well, there's no determination you seek on that matter, is there?

PN1062

MR REITANO: I think there is, your Honour.

PN1063

THE DEPUTY PRESIDENT: "Maintain the current rostering arrangements and associated rights," number 4 - number 3. Number 3 is relevant to - - -

PN1064

MR REITANO: Yes. If your Honour goes to - - -

PN1065

THE DEPUTY PRESIDENT: Is that a yes?

PN1066

MR REITANO: Yes.

PN1067

THE DEPUTY PRESIDENT: Okay. The first determination relates to who? You've said "Q and C", Quayle and Casparis, number 2. Gorler [sic], is it, number 3? Number 1, who is it? We might as well make up the list.

PN1068

MR REITANO: I think, your Honour, number 3 applies to everyone.

PN1069

THE DEPUTY PRESIDENT: Everyone, okay. Gorler and everyone, yes.

PN1070

MR REITANO: Gorlin; G-o-r-l-i-n. Number 2 applies to Quayle and potentially Casparis, which I'll come to.

PN1071

THE DEPUTY PRESIDENT: Yes. Number 1?

PN1072

MR REITANO: Number 1 applies to Saunders and Duncombe.

PN1073

THE DEPUTY PRESIDENT: Okay.

PN1074

MR REITANO: And maybe Casparis, depending on - - -

PN1075

THE DEPUTY PRESIDENT: Mr Casparis, question mark.

PN1076

MR REITANO: Yes.

PN1077

THE DEPUTY PRESIDENT: So Casparis is two question marks.

PN1078

MR REITANO: Could I ask your Honour just to note paragraph 153 of the submissions, which contains the determinations we seek. Your Honour will see there that in respect of each of the five pilots - - -

PN1079

THE DEPUTY PRESIDENT: Yes. Sorry. I seem to confuse that with paragraph 4. Thank you for pointing that out again. So you're seeking 4 and 153. Is that right?

PN1080

MR REITANO: I think 153 reflects in the particular circumstances of each pilot what 4 is. It's more particular to each pilot than 4 is.

PN1081

THE DEPUTY PRESIDENT: All right.

PN1082

MR REITANO: Having taken your Honour to the agreement, could I reiterate that at the heart of the three issues is the question - in respect of Saunders, Duncombe and Ms Gorlin - of whether a pilot can be directed or required to take paid annual leave at the rate of 2.7 days per rostered cycle. At the heart of the dispute with Quayle and perhaps Casparis, is the question about whether they must work 230 days before they're entitled to overtime payments.

PN1083

Thirdly, at the heart of the dispute is whether the company can reduce the number of rostered days off that each pilot has in the circumstances where, for LOS pilots, there are alternative agreements under 14.3 and, for touring pilots, there are circumstances where they have elected not to apply for annual leave such that would facilitate them being put on an equal time roster. Those are the three things that it comes down to, in our submission.

PN1084

THE DEPUTY PRESIDENT: Thanks. Are you happy to deal with your evidence now?

PN1085

MR REITANO: Having done that, I can deal with the evidence.

PN1086

THE DEPUTY PRESIDENT: All right. I'll mark all the witness statements one by one. First of all, I'll mark the written submissions. They will be exhibit AFAP1, the written submissions.

EXHIBIT #AFAP1 APPLICANT'S WRITTEN SUBMISSIONS

PN1087

THE DEPUTY PRESIDENT: The witness statement of Mr Greg Duncombe will be AFAP2.

EXHIBIT #AFAP2 STATEMENT OF GREG DUNCOMBE

PN1088

THE DEPUTY PRESIDENT: The witness statement of Ivana Gorlin will be AFAP3.

EXHIBIT #AFAP3 STATEMENT OF IVANA GORLIN

PN1089

THE DEPUTY PRESIDENT: The witness statement of Mark Quayle will be AFAP4.

EXHIBIT #AFPA4 STATEMENT OF MARK QUAYLE

PN1090

THE DEPUTY PRESIDENT: The witness statement of Nigel Saunders will be AFAP5.

EXHIBIT #AFAP5 STATEMENT OF NIGEL SAUNDERS

PN1091

THE DEPUTY PRESIDENT: The witness statement of Richard Casparis will be AFAP6.

EXHIBIT #AFAP6 STATEMENT OF RICHARD CASPARIS

PN1092

THE DEPUTY PRESIDENT: The witness statement of Peter Gardiner will be AFAP7.

EXHIBIT #AFAP7 STATEMENT OF PETER GARDINER

PN1093

THE DEPUTY PRESIDENT: That's it?

PN1094

MR REITANO: That's correct, your Honour.

PN1095

THE DEPUTY PRESIDENT: And, while I'm doing it, I'll mark the written submissions of the employer. Exhibit H1. It's HNZ Helicopters, isn't it? Yes, right.

EXHIBIT #H1 EMPLOYER'S WRITTEN SUBMISSIONS

PN1096

THE DEPUTY PRESIDENT: So that's all the material I need to mark, is it?

PN1097

MR REITANO: My learned friend wants to tender his schedule, I think.

PN1098

THE DEPUTY PRESIDENT: Indeed.

PN1099

MR REITANO: That's all our material.

PN1100

THE DEPUTY PRESIDENT: Thanks for that.

PN1101

MR WADE: May it please your Honour, if I could beg leave just to hand up the schedule. The agreement is, your Honour, to the extent that we need to address this, we'll do that in my argument.

PN1102

THE DEPUTY PRESIDENT: Do that in?

PN1103

MR WADE: In closing argument.

PN1104

THE DEPUTY PRESIDENT: Okay. Thanks. I think we're nearly at closing argument. That will be exhibit H2; the respondent's lists of objection to evidence.

EXHIBIT #H2 RESPONDENT'S LISTS OF OBJECTION TO EVIDENCE

PN1105

THE DEPUTY PRESIDENT: Could I remind the parties - I know I've already mentioned it - in the past it's the case that many members of the commission have usually dealt with these issues about evidence on the basis of weight, which is originally the purpose of the Rules of Evidence if you trace back the history, but, there you go. Returning to the original days.

PN1106

MR REITANO: Could I make a suggestion about the evidence? I don't know if your Honour would be with me or not. I wonder whether rather than trawling through the evidence every time we need to refer to it, if I could tender a copy of the EBA separately so that we can just refer to that as an exhibit.

PN1107

THE DEPUTY PRESIDENT: Sorry, tender the EBA?

PN1108

MR REITANO: Yes.

PN1109

THE DEPUTY PRESIDENT: Yes, okay, if you wish to. I have no difficulty with that, if it would help. Anything to help. That will be exhibit AFAP8. It will be the agreement (2014) FWCA 3707 HNZ Australia Pty Ltd (Helicopter Pilots - Australian Operations) Enterprise Agreement 2013.

EXHIBIT #AFAP8 (2014) FWCA 3707 HNZ AUSTRALIA PTY LTD (HELICOPTER PILOTS - AUSTRALIAN OPERATIONS) ENTERPRISE AGREEMENT 2013

PN1110

MR REITANO: That's the end of that, your Honour.

PN1111

MR WADE: Your Honour, as outlined, there's no cross-examination.

PN1112

THE DEPUTY PRESIDENT: Thank you very much. I think Mr Reitano has made a pretty comprehensive submission. Perhaps you'd like to respond to it.

PN1113

MR WADE: I've got a whole range of issues I want to deal with at once. Some of those submissions he has made contradict the submissions already advanced in the submissions. I prefer, with your leave, to deal with it in closing.

PN1114

THE DEPUTY PRESIDENT: Okay. All right. We'll hear the remainder of Mr Reitano's submissions then. Is now a good time to take a break, Mr Reitano?

PN1115

MR REITANO: It might be a convenient time, your Honour. Could I just let your Honour know where I'm going to go?

PN1116

THE DEPUTY PRESIDENT: Yes, please.

PN1117

MR REITANO: I need to go to each of the witness statements to indicate to your Honour where each of the pilots specifically fit in terms of - your Honour will recall, for example, Mr Casparis - I kept, sort of, qualifying his position. Mr Quayle, I need to explain to your Honour from his evidence where he fits in. That's the first step.

PN1118

THE DEPUTY PRESIDENT: That's almost another schedule document, isn't it?

PN1119

MR REITANO: I don't have one.

PN1120

THE DEPUTY PRESIDENT: No, that's fine.

PN1121

MR REITANO: Ms Gorlin, I'd obviously need to deal with her curious circumstance under the flexibility agreement.

PN1122

THE DEPUTY PRESIDENT: Very briefly, I'm sure.

PN1123

MR REITANO: It won't take a long time.

PN1124

THE DEPUTY PRESIDENT: Just refer me to the paragraph of the witness statement and I'll go to it conscientiously.

PN1125

MR REITANO: There are a few where I want to actually show your Honour the provision, but generally that's where I intend to go.

PN1126

THE DEPUTY PRESIDENT: And then summing up.

PN1127

MR REITANO: Yes, basically. I've already said much of what I want to say about what - - -

PN1128

THE DEPUTY PRESIDENT: I think you made a fairly comprehensive submission. No criticism; quite the reserve. Thank you very much. We'll adjourn for five minutes.

<SHORT ADJOURNMENT [11.19AM]
<RESUMED [11.27AM]

PN1129

MR REITANO: Could I firstly take your Honour to Mr Quayle's witness statement, which is AFAP4. I'm not going to deal with the formal matters, but Mr Quayle deals at some length in his witness statement with the history of his employment with the company and the way in which rosters have been developed and arrived at from paragraph 5 through to, importantly, paragraph 14. Your Honour will see in paragraph 8, he says:

PN1130

It has been company practice for as long as I have been employed -

PN1131

and he was employed since 2002 -

PN1132

that rostering arrangements - in particular, changes to rostering arrangements - have been by consent and mutual agreement. This applied also for touring pilots employed under the AWA - which my AWA included at clause 10 - where, for example, extension of tours may be covered by mutual agreement -

PN1133

and so on. Then after he has finished dealing with the AWAs in paragraph 13, he goes to the 2010 agreement:

PN1134

A replacement agreement of the 2006 agreement was negotiated as the 2010 agreement and it similarly provided for the practice of consent to roster change. Attached and marked MQ3 is a copy of the 2000 agreement. For example, 14.1 regarding LOS pilots, continued to reflect the practice of previous agreements while 14.2, in particular 14.2.3, in relation to touring pilots is condensed from its predecessor to say the normal roster cycle may be altered by mutual consent.

PN1135

The chief pilot may alter the roster over Christmas and New Year to ensure duties over the festive season are shared. 14.3 which applies to both LOS and touring pilots was retained in full from each predecessor agreement.

PN1136

That's the clause I took your Honour to that entitles the company to agree with pilots to alternate arrangements in relation to hours of work or rosters to meet the operational requirements of the company. That's the clause that is relevant to Mr Quayle and to Mr Casparis. They both, in their respective cases, have an agreement to alternative arrangements for hours work or rosters, which I'll show your Honour in a moment because it's annexed to Mr Quayle's statement. Your Honour will then see the 2014 agreement retains all the previous provisions, except that it has a further option of an equal time touring roster; the one that I took your Honour to.

PN1137

Importantly, as I promised, in paragraph 15, Mr Quayle says when he first commenced, he was employed on a nominal roster sequence of four days on, two days off, followed by three days on, three days off, and variants of that. Then he says in 16:

PN1138

On 15 September 2011, I entered into a formal agreement with the respondent -

PN1139

and that's attached at MQ4. He says:

PN1140

In addition to the 15/13 touring roster, my conditions were that of an LOS pilot other than annual leave which aligned to a touring roster Those LOS conditions included an entitlement to overtime in accordance with clause 8.6 of the agreement.

PN1141

THE DEPUTY PRESIDENT: The employer says in its submission that none of the contracts provide a requirement for agreement before change to the roster. Is that correct or false?

PN1142

MR REITANO: None of the contracts? I can't give your Honour yes or no. I apologise.

PN1143

THE DEPUTY PRESIDENT: No, that's - - -

PN1144

MR REITANO: I think Mr Quayle is a bit different, but the contracts generally provide for where there is significant change, it must be agreed in writing. There are some words before that, that I don't want to tell your Honour about - - -

PN1145

THE DEPUTY PRESIDENT: So there is at least one that may do, you think?

PN1146

MR REITANO: There are three.

PN1147

THE DEPUTY PRESIDENT: Three?

PN1148

MR REITANO: I think there are at least three that say that. I will take your Honour to them.

PN1149

THE DEPUTY PRESIDENT: Sure.

PN1150

MR REITANO: Could I go presently to Mr Quayle's written agreement in respect of what we say is a 14.3 agreement. If your Honour goes to MQ4 - it's numbered in the top right-hand corner. The pages aren't numbered, but it's about, I don't know, a dozen pages from the back of the statement.

PN1151

THE DEPUTY PRESIDENT: I've got something that's called MQ4, but I'm not sure that it is.

PN1152

MR REITANO: It should be dated 15 September 2011.

PN1153

THE DEPUTY PRESIDENT: No, I think it's out of order. Just bear with me for a second. MQ4, did you say?

PN1154

MR REITANO: Yes, your Honour.

PN1155

THE DEPUTY PRESIDENT: MQ4 and 5. Yes, I have it.

PN1156

MR REITANO: Is it a letter dated 15 September 2011 to Mr Quayle?

PN1157

THE DEPUTY PRESIDENT: Yes, I have it.

PN1158

MR REITANO: Thank you. Your Honour will see:

PN1159

Dear Mark, In terms of discussions back in June 2011 between yourself and Lyle Mudford, operations manager, whereby you agreed to transfer from the Karratha base live on site roster to the touring pilot roster, this letter details how this transfer will amend your current conditions of employment with regard to rosters, work hours and annual leave entitlements. No further concessions are applicable, such as daily travel allowance, touring accommodation and touring pilot extensions to tours on duties.

PN1160

You then see the heading:

PN1161

Rosters and work hours. You will normally work a 15 days on, 13 days off roster. As this is a 24-hour operation, your actual hours will vary depending on the roster and client requirements, with due consideration for fatigue management guidelines. At all times a minimum of one person shall be on call during non-scheduled operations and you will be required to participate.

PN1162

THE DEPUTY PRESIDENT: Why are you reading this out? What is the purpose of this?

PN1163

MR REITANO: This is, in effect, what I call the 14.3 agreement. These are the alternate arrangements in respect of hours that Mr Quayle and HNZ have agreed on in respect of his hours of work, in place of the 14.1 terms that would otherwise apply to him. That's the only reason I want to read it to your Honour; so that it accurately records what the actual terms of his alternate arrangements in respect of hours were.

PN1164

Your Honour will see under the heading "Annual leave entitlements", there's a reference to how he gets annual leave, which is the discussion that your Honour and I had under the agreement; the 42 days and how it's made up. He not only goes onto the touring roster as an LOS pilot, but he also obtains the benefit of effectively the 42 days off, 29 days annual leave, 13 days rostered days off. In the second last paragraph:

PN1165

All other conditions of your employment shall be those applicable to a Pilbara LOS pilot under the 2010 agreement.

PN1166

That includes 8.6 in relation to the payment of overtime.

PN1167

THE DEPUTY PRESIDENT: Okay. That's that.

PN1168

MR REITANO: If I could just return to the statement. I won't read it to your Honour, but, in 16, Mr Quayle effectively deals with what I told your Honour about the letter. In 17, he says:

PN1169

On 13 June, Mr Mudford emailed me and advised me that the company had decided to alter my entitlement to overtime and also intended to reduce my days off from 13 in each 28 days to four in each 14 days.

PN1170

Can I just freeze there for a moment. When your Honour listens to my learned friend's submissions, your Honour will get the impression that this dispute has something to do with - and it does - rosters beyond what I've been telling your Honour about. Your Honour will recall that the three things I focused on are the power to direct annual leave, the power to withdraw overtime and the power to reduce the number of rostered days off.

PN1171

My friend goes further than that in his submissions, but you will see there that Mr Quayle starkly refers to the fact that his days off are being reduced from 13 in 28 days, to four in each 14. He recites the part of the email that deals with, in effect, the overtime component:

PN1172

In addition, pilots have been claiming overtime for days worked over and above an equal time roster. Effective immediately, LOS pilots will not receive overtime payments until they've worked in excess of 228 days. Future rosters will be constructed such that LOS pilots work in accordance with the requirement to work 228 days.

PN1173

Well, there is just no such requirement.

PN1174

THE DEPUTY PRESIDENT: All right. There's no real need to read it all out. You can just give me a sentence of what it says. I will read it all again, unfortunately, with great detail, unfortunately.

PN1175

MR REITANO: You will see that Mr Quayle goes on in paragraph 20 to say that he does not agree to the changes.

PN1176

THE DEPUTY PRESIDENT: Okay. He rejects the rosters, right.

PN1177

MR REITANO: He says, in paragraph 21, that there was subsequently a clarification that the overtime payment would be on the basis of 230 days, not 220 days. The company changed its position on that. He then deals with the problems he has. The reason why we say this evidence is relevant, contrary to what my learned friend says, from about paragraph 24 through to the end of the statement, he tells your Honour what his particular concerns are about having rosters that are not predictable, that don't offer him any certainty of when he's working. He talks about the effects on his health and I think the effects on his family.

PN1178

THE DEPUTY PRESIDENT: Thanks.

PN1179

MR REITANO: That is summarised in paragraph 28. Could I then go to Mr Casparis, because he is the other - which is exhibit AFAP6. Your Honour will recall that I kept qualifying Mr Casparis's position. Could I summarise or paraphrase why I kept doing that, in hopefully simple terms. Mr Casparis was a live on site pilot employed at Karratha on the same conditions, if you like, as Mr Quayle. That is, he was on a 15/13 touring roster, so he had what I've called in my submissions and what I've called in my address to your Honour, a 14.3 agreement, as well. I'll show your Honour where that is in a minute. I won't read it to your Honour, but I'll show your Honour where that is in the material.

PN1180

Shortly before the issues that are debated here arose, Mr Casparis's wife - who worked for Rio Tinto - was transferred from Karratha to Perth. Mr Casparis thought it might be a good idea if he lived with his wife and sought from the company the capacity to move from Karratha to Perth to effectively become a touring pilot in Perth. That is, move from being a live on site Karratha pilot working a touring roster out of Karratha, to moving to Perth to work as a touring pilot out of Perth.

PN1181

We say that was all but agreed until the issues that affected these proceedings arose and that's why his position is slightly different. Once these issues arose, the capacity all of a sudden, in effect, in substance - the capacity to make a position for a touring pilot touring out of Perth, disappeared. That's what makes Mr Casparis's position, as I say, slightly different. Could I ask your Honour to turn to Mr Casparis's first annexure, RC1, which is his offer of employment.

PN1182

THE DEPUTY PRESIDENT: Yes.

PN1183

MR REITANO: Because your Honour asked me this question, I think a little while ago. Your Honour asked me a question about changes. If your Honour goes to the last page of the contract - it's page 7. It's not the last page. It's page 7 of 11, numbered right down the bottom.

PN1184

THE DEPUTY PRESIDENT: Variation.

PN1185

MR REITANO: Yes.

PN1186

This contract may only be significantly varied by written agreement between you and the company.

PN1187

THE DEPUTY PRESIDENT: And you say a roster change is a significant variation?

PN1188

MR REITANO: Well, a roster change of the magnitude contemplated in this case is a significant variation in circumstances where it has the effect of not only massively changing the numbers of rostered days off - - -

PN1189

THE DEPUTY PRESIDENT: Page 3, Roster and Work Hours, it says:

PN1190

You will work a live on site roster which is to be determined by your base manager.

PN1191

MR REITANO: Yes. Could I ask your Honour to go to RC2. Your Honour is a bit ahead of me in that respect.

PN1192

THE DEPUTY PRESIDENT: Sorry. I have it.

PN1193

MR REITANO: You will see there - if your Honour will accept that "Mark" who is referred to in the first sentence is Mark Quayle:

PN1194

I have spoken with Mark in detail about various rosters. We both agree and would like to continue the 15/13 roster that Mark is currently on.

PN1195

That's what they were working as at 23 January 2014, and agreed in writing to continue working. That was ultimately accepted by the company. There was nothing to the contrary about that. That's referred to in paragraph 15 of his statement.

PN1196

THE DEPUTY PRESIDENT: Okay. That's Mr Casparis.

PN1197

MR REITANO: I just needed to give your Honour the paragraphs that deal with what I summarised as the move from Karratha to Perth. I'm just trying to identify where it starts.

PN1198

THE DEPUTY PRESIDENT: Sure.

PN1199

MR REITANO: I think it starts at about paragraph - - -

PN1200

THE DEPUTY PRESIDENT: 11?

PN1201

MR REITANO: Well, that's one of them. That's where he makes the request and then there are a series of paragraphs that deal with that, through to about - beyond 34.

PN1202

THE DEPUTY PRESIDENT: As is the way with these things, it's very detailed given the series of events; but it's in there. I've seen it.

PN1203

MR REITANO: At 30, he's told that if he moved to Perth, he'll have to work a 21/21 roster. Then through to the end of the statement, effectively he's told that he can't work in Perth on a 15/30 or touring roster.

PN1204

THE DEPUTY PRESIDENT: There must be a better way to deal with these issues than these sorts of proceedings, really.

PN1205

MR REITANO: Unfortunately, there's not. That's why we're here. Could I just ask your Honour to have a look at paragraph 38:

PN1206

At the time of executing this statement, I was still rostered to commence touring from Perth from 8 January 2015.

PN1207

This is despite the fact that he has been told that no position is available for him - - -

PN1208

THE DEPUTY PRESIDENT: So he's working from Perth now, is he?

PN1209

MR REITANO: No. He's due to start in Perth at the beginning of, I think, next year.

PN1210

THE DEPUTY PRESIDENT: 8 January 2015.

PN1211

MR REITANO: Yes.

PN1212

THE DEPUTY PRESIDENT: I see. All right. Is that a good thing? That's what he wants, isn't it?

PN1213

MR REITANO: No, because he has been told that he can't work a 15/13 roster out of Perth; that he must work an equal time roster and he must work a roster that requires him to spend 2.7 days of his annual leave against his - - -

PN1214

THE DEPUTY PRESIDENT: Every 21 days or 28 days, or whatever it is.

PN1215

MR REITANO: Yes.

PN1216

THE DEPUTY PRESIDENT: Leaving him with a residue of five days or something.

PN1217

MR REITANO: I think 4.5, your Honour, was the calculation.

PN1218

THE DEPUTY PRESIDENT: Is that consistent with the purpose of annual leave? I do recall various full bench statements about blocks of annual leave. I'm sure we can spend another day on that sort of material. I don't want to, because it's all there in writing, but I think in summary the full bench decisions are protective of blocks of annual leave, aren't they? Is that a fair summary or - - -

PN1219

MR REITANO: I don't want to mislead your Honour. I think so, but I don't want to commit myself to the answer. The decision I was going to give your Honour a reference to was the decision in Canavan Building Pty Ltd, which deals with a very different issue. That is, whether you can load up a wage rate to pay out the annual leave as you go along the way and not give payment for annual leave.

PN1220

THE DEPUTY PRESIDENT: You pay it instead of taking it, yes.

PN1221

MR REITANO: You pay it as you go.

PN1222

THE DEPUTY PRESIDENT: Instead of taking it, yes. Instead of taking it as annual leave in a block or whatever - - -

PN1223

MR REITANO: No. You get annual leave.

PN1224

THE DEPUTY PRESIDENT: Yes.

PN1225

MR REITANO: You just don't get paid for it at the time you take annual leave.

PN1226

THE DEPUTY PRESIDENT: I see. You get it paid in advance or something.

PN1227

MR REITANO: What you do is you work out what four weeks' annual leave costs the employer.

PN1228

THE DEPUTY PRESIDENT: You load it up to the rate.

PN1229

MR REITANO: You divide it by 52.14, as I understand it.

PN1230

THE DEPUTY PRESIDENT: You go on leave without any pay because you've already been paid.

PN1231

MR REITANO: Correct.

PN1232

THE DEPUTY PRESIDENT: I see.

PN1233

MR REITANO: One of the points in Canavan is the point that your Honour made: is that consistent with the purpose of annual leave? It certainly was one of the points in the argument. I was there. It was certainly one of the points in the argument. It's probably not as strong in the decision, but it's there. One of the points before I sat down that I was going to make - and I don't need to deal with it when I sit down now - is that this arrangement in respect of annual leave is probably at odds with the whole notion of annual leave, because annual leave is something generally that people will take in blocks annually.

PN1234

They might take it in two blocks of three and one, or two and two, or four weeks in one go, but generally it's not something you'd take as your rostered day off or something like a rostered day off. That's one of the things that militates against a reading of clause 14.2(b) that would suggest that the employer can force the employee to take annual leave or paid annual leave.

PN1235

THE DEPUTY PRESIDENT: Well, the employer may be able to force the employee to take rosters, but whether the employer can also force the employee to take annual leave is perhaps another question additional to that. I don't know.

PN1236

MR REITANO: And at the heart of this dispute, again - I think I've said it five times now - our dispute is not about forcing people to take rosters. Our dispute is about forcing people to take annual leave and not paying people overtime, and reducing people's rostered days off.

PN1237

THE DEPUTY PRESIDENT: Well, they can reconfigure their rosters to avoid those alleged defects, can't they?

PN1238

MR REITANO: That might give rise to another dispute about whether or not they can do that. I don't know. The difficulty is that this dispute is about - - -

PN1239

THE DEPUTY PRESIDENT: Well, the clause has to be given effect. I mean, the clause exists, so we have to give it effect. It's not a nullity, I presume. Presumably they can establish equal time rosters which don't require you to take annual leave.

PN1240

MR REITANO: No. The difficulty - - -

PN1241

THE DEPUTY PRESIDENT: Is that impossible, is it?

PN1242

MR REITANO: I might let my learned friend answer it, but I think he's going to say, yes, it's impossible.

PN1243

THE DEPUTY PRESIDENT: Because?

PN1244

MR REITANO: Because the agreement doesn't allow it. The agreement permits an equal time roster where you do take annual leave. It may be that you could come up with a 14.3 agreement. That is, another agreement between the parties that involved equal time rosters and not taking annual leave, but you couldn't do it under 14.2(b) because that clause is equal time rosters that include a period of annual leave.

PN1245

THE DEPUTY PRESIDENT: All right. Thank you.

PN1246

MR REITANO: Because I was going to give your Honour the reference, I may as well just finish it now. The reference to Canavan and the purpose of annual leave is (2014) FWCFB 3202.

PN1247

THE DEPUTY PRESIDENT: Thanks.

PN1248

MR REITANO: I've left the two easy ones to last. Could I then deal with Ms Gorlin's situation, which is found in exhibit AFAP3. Ms Gorlin deals, at paragraphs 5 through to - well, at paragraph 5, she says that while she was employed or was offered employment under the 2010 agreement, it was detailed to her during the interview that she would be made an offer on the process of an individual flexibility agreement which modified the roster to a 28/28 cycle comprising of 28 days on, 24 days off and four days' annual leave.

PN1249

You will see in paragraph 6, her home is London. She travels overseas during her days off, including for international volunteer work and that suited her, and she was assured that should the flexibility agreement be terminated by the company, that any replacement roster would not disadvantage her. She refers to the history of the regulation or, more accurately, the Civil Aviation Order that I'll come to in a moment when I deal with Mr Gardiner's evidence - hopefully very quickly - and its relevance. In paragraph 12 and following, she deals with the history of the matter that led to the proposed introduction of these changes and ultimately the termination of her flexibility agreement.

PN1250

Could I refer your Honour to the paragraphs at 26 and 27 that deal with the impact of the roster changes on Ms Gorlin and how she is disadvantaged. Your Honour will see in the annexures - again similar to the previous statement that I took your Honour to - at IG1 is a copy of the - - -

PN1251

THE DEPUTY PRESIDENT: The same thing? The same letter?

PN1252

MR REITANO: It's effectively the same letter.

PN1253

THE DEPUTY PRESIDENT: I presume they're all the same, just about, with minor variations. Starting with name and date.

PN1254

MR REITANO: One of the "not variations" is also found on page 8 this time. I don't know why the page number has changed. They've slipped something in.

PN1255

THE DEPUTY PRESIDENT: Yes. They've slipped something in, you think?

PN1256

MR REITANO: Probably.

PN1257

THE DEPUTY PRESIDENT: Is that the suggestion? Okay.

PN1258

MR REITANO: Your Honour will see under Variation:

PN1259

The contract may only be significantly varied by written agreement between you and the company.

PN1260

Your Honour will see, on page 3, one of the differences that is important is under Roster and Work Hours:

PN1261

You will nominally work a 15-day on, 13-day off roster.

PN1262

This wasn't to be set by the base manager. This was set by the contract. Shortly afterwards, as Ms Gorlin says in her statement, she entered into a flexibility agreement which you will find at G2. I'm not going to - - -

PN1263

THE DEPUTY PRESIDENT: No. Thanks for that.

PN1264

MR REITANO: - - - take your Honour through that, other than to - - -

PN1265

THE DEPUTY PRESIDENT: That's that one. What are we left with? Mr Saunders, is it?

PN1266

MR REITANO: I'm sorry, your Honour?

PN1267

THE DEPUTY PRESIDENT: Yes. Sorry, go on. I interrupted you.

PN1268

MR REITANO: I need to tell you 5.2 of the flexibility agreement. I'm sorry.

PN1269

THE DEPUTY PRESIDENT: No, if we need to go to it, we need to go to it.

PN1270

MR REITANO: I know I've referred to it in my submissions, but I need to give your Honour the reference. It says:

PN1271

Where the individual flexibility agreement is terminated by either party given notice, the replaced award provisions will apply to the exclusion of the agreed terms provided that where the arrangement is terminated by the employer, it will ensure that you are not disadvantaged on an overall basis.

PN1272

This brings into play - and I think I said it at the time - when I took your Honour to the provision of the enterprise agreement about resolving disputes over the application of the agreement. We say that your Honour is entitled to not necessarily be confined to the strict legal rights of the parties, but is able to have regard to provisions like this one and say, "Well, Ms Gorlin is being disadvantaged and the way that I will determine this dispute to ensure she is not disadvantaged, is to achieve a just result and make an order of the kind that is contemplated in paragraph 153(5). That is, that she continue on her 28/28 roster until you come up with an agreement that ensures she is not disadvantaged."

PN1273

THE DEPUTY PRESIDENT: Thank you.

PN1274

MR REITANO: Finally, your Honour, the only other document I need to take you to here is G3. This is the relevance of Civil Aviation Order 48. I'm not going to read it. The company says that the basis for the changes that it wants to introduce relate to changes made to the Civil Aviation Orders. In particular, 48. It actively promotes this in a number of documents. This is just one that is in the evidence or one that's presently available.

PN1275

I can tell your Honour that I don't intend to read Mr Gardiner's statement to your Honour, which is AFAP7, but Mr Gardiner comprehensively - as an expert in the industry - disabuses any suggestion that the Civil Aviation Order and the modifications to it in 2016 in any way affect the need to move to the types of rosters that the company is talking about.

PN1276

THE DEPUTY PRESIDENT: Okay. Thanks for that.

PN1277

MR REITANO: Finally, Mr Saunders and Mr Duncombe. I can deal with both of them reasonably quickly. I don't need to tell your Honour anything about their statement other than, in Mr Saunders' statement at paragraphs 21 to 26, he deals with the impact of the changes on him that have been proposed. In annexure NS1 - - -

PN1278

THE DEPUTY PRESIDENT: That's the same contract.

PN1279

MR REITANO: Would your Honour pardon me a moment. I may have omitted to alert your Honour to - yes, in the other contracts, I didn't take your Honour - and I think it's because I changed the order in which I was going to deal with these; to leave the easy ones until last. Could I take your Honour to NS1, because it relates specifically to a question that your Honour asked me right at the outset. In paragraph 2 - this paragraph is in the other letters, as well:

PN1280

Set out in this letter are the specific terms and conditions of your employment. The company reserves the right to change these terms, conditions, remunerations and benefits from time to time as the company's policies, procedures and circumstances are changed. You will be advised of any changes as they occur. In order for these terms and conditions to be significantly varied or for any waiver of any rights to be effective, a variation or waiver must be made in writing and must be signed by the company and you.

PN1281

That is redolent of the last clause that I've taken your Honour to in relation to - - -

PN1282

THE DEPUTY PRESIDENT: "Significantly varied", yes.

PN1283

MR REITANO: Yes. Mr Saunders, on page 2, has recorded there the alternate agreement that - sorry, the fact that he's on a 15-day/13-day roster and I don't need to trouble your Honour any further, I don't think, with his statement. Mr Duncombe, who is AFAP2, likewise, has the same contract at GD1. He deals with the impact of the roster changes at paragraphs 17, 18 and 19. He also deals in his statement with the fact that he doesn't want to go to an equal time roster and he doesn't consent to the changes, at paragraphs 10 to 16.

PN1284

Before I say anything else and while I've presently got it in front of me, your Honour will see - and it's relevant to something that I've said a number of times in the course of my submissions - in the application to have the Fair Work Commission deal with the dispute, at paragraph 4, the question is posed, "What is the dispute about?" and what is said is:

PN1285

The dispute relates to the acquittal of employees' annual leave, compensation for employees working overtime and reduction in employees' rostered days off.

PN1286

The dispute is not fairly characterised by saying this is about changes to rosters and whether there needs to be agreement for changed rosters. The dispute is about the three things that we identify and they are, importantly, different from a simple dispute about changes to rosters. I'm not going to spend a great deal of time - - -

PN1287

THE DEPUTY PRESIDENT: Well, what is the significance of that?

PN1288

MR REITANO: One of the things that my learned friend's submissions do is they seek to cast the dispute in a different light that ignores what we say is at the heart of the dispute.

PN1289

THE DEPUTY PRESIDENT: I don't think we can ignore annual leave or those other issues. If what they say is right, we can't ignore those issues, because they're part of the roster changes. I mean, you've pointed it out to me several times.

PN1290

MR REITANO: I understand why your Honour puts that back to me. I understand that. The dispute does not have the length, width and breadth that my learned friend gives it about us simply turning up and saying that we oppose roster changes. Absent the three components that I've identified, your Honour - - -

PN1291

THE DEPUTY PRESIDENT: You wouldn't object?

PN1292

MR REITANO: Well, we probably would, but we would probably have a different dispute. The three bases on which we say that they cannot do this and they say they can, are annual leave, overtime and reducing the number of rostered days off.

PN1293

THE DEPUTY PRESIDENT: So you'd like me to deal with those three issues and then leave a further dispute to be generated to deal with the different roster?

PN1294

MR REITANO: Well, indeed, yes, is the answer, because you can't deal with the question of roster changes in a vacuum without knowing what's proposed and what it might or might not raise.

PN1295

THE DEPUTY PRESIDENT: I have to say when you're construing a dispute, you look at all the surrounding circumstances. Embedded in the surrounding circumstances is a roster dispute.

PN1296

MR REITANO: It would be very dangerous, in my submission, for anyone to venture in terms of this agreement into the world of how a roster might be developed that could be introduced - - -

PN1297

THE DEPUTY PRESIDENT: I can assure you, you will not be getting advice from the commission as to how to develop a roster. I'm not into speculation and advice, if that's the point you're making.

PN1298

MR REITANO: All I'm saying is that we say there are three reasons why we are here.

PN1299

THE DEPUTY PRESIDENT: I understand.

PN1300

MR REITANO: And those three reasons, they disagree with. That is the nub of the dispute.

PN1301

THE DEPUTY PRESIDENT: Thank you very much. Thank you for your very helpful submissions.

PN1302

MR REITANO: There are some things that I want to say in - - -

PN1303

THE DEPUTY PRESIDENT: Further things? Right.

PN1304

MR REITANO: No, in reply. I'm happy to deal with them after my learned friend has finished.

PN1305

THE DEPUTY PRESIDENT: Okay. Thank you.

PN1306

MR WADE: Your Honour, I'm not familiar with that case you alluded to that could dispute the issue of jurisdictional power premised on contractual interpretation. I can make no concessions on that front. If I may, in opening, just address five very brief issues in relation to my learned friend's opening. The first is, your Honour, if you are moved to adopt their interpretation of clause 21.5 which allows you to, in a sense, re-cast rights on the basis of broader considerations of equity and fairness, firstly, we don't read that clause as imparting that power.

PN1307

THE DEPUTY PRESIDENT: I would have thought it's essentially a protected clause, isn't it?

PN1308

MR WADE: That's my understanding.

PN1309

THE DEPUTY PRESIDENT: So the issue isn't really litigated in a court.

PN1310

MR WADE: Your Honour, that's my reading of it.

PN1311

THE DEPUTY PRESIDENT: I might be wrong, but that's what I thought when first saw it.

PN1312

MR WADE: If you're inclined upon reflection to go that way, I would think possibly what would be required would be an opportunity for the parties to comment on any proposed variation of strict legal rights. To the extent that they vary the terms of the agreement, it may have knock-on effects, your Honour, which aren't apparent from the agreement itself.

PN1313

THE DEPUTY PRESIDENT: Right. If I took the somewhat adventurous route of making an assessment consistent with equity and fairness, then I'd need to, as a matter of natural justice, put proposals to yourselves and the other side. Is that right?

PN1314

MR WADE: Your Honour, I make that submission only on the basis that that type of determination may have unintended consequences or unanticipated consequences, yes.

PN1315

THE DEPUTY PRESIDENT: Okay. Thanks.

PN1316

MR WADE: My learned friend also, in opening, suggested that without the provisions of clause 14.2.1(b) - that's the clause that imparts the new variation of duty cycle - he suggested to you in submission that without that clause, it wouldn't be open to the respondent to implement a 21/21 duty cycle or any other duty cycle. Your Honour, that's not a correct submission, with respect. The power which would allow the parties to reach such a conclusion, absent that particular clause, is 14.3.1. That's the power that allows the parties to agree a variation and reads:

PN1317

Nothing in this agreement shall preclude the parties agreeing to alternate arrangements for hours of work or rosters.

PN1318

That's a broad power, your Honour, and it's there for a particular reason. It is there to accommodate the situation where parties want to agree on something different to what is recorded by way of duty cycles and to avoid the consequence that if you do that without this empowering provision, you have breached the enterprise agreement and, in spite of your agreement, you may be subject to the imposition of penalties. That's the purpose, we say, behind clause 14.3.1.

PN1319

My learned friend then, also in opening, made the point, your Honour - and we say this is a double-edged sword - that with reference to LOS pilots, clause 14.1.3 affords the employer a power to alter duty cycles. He made the point that it creates a right that the company has to alter them and for that reason you mustn't read 22.6 as giving rise to that right. That's my understanding of his submission. If I'm wrong in that understanding, your Honour - if I could just point out to you what the submission is in the outline of submissions filed, at paragraph 106. The submission advanced in the outline of submissions, contrary to my understanding - - -

PN1320

THE DEPUTY PRESIDENT: Sorry, 106, did you say?

PN1321

MR WADE: Yes, your Honour.

PN1322

THE DEPUTY PRESIDENT: I don't seem to have 106.

PN1323

MR WADE: Sorry, it's paragraph 106 of the applicant's outline of submissions.

PN1324

THE DEPUTY PRESIDENT: The applicant's? I was going to yours. Yes, okay, 106 of the applicant's. Right.

PN1325

MR WADE: So between 106 to 108 is the applicant, I suppose, interpreting what is on the face of it a disadvantageous clause; ie, a clause which on the face of it suggests that you can alter rosters without consent. The submission advanced here is that that reference in 14.1.3 to altering rosters is a reference to the roster which records the duty cycle. In other words, the dynamics of how that duty cycle will work at a particular day. That is in fact a submission which we in our response agree with.

PN1326

We don't look at 14.1.3 as giving us the power, properly construed, to alter a duty cycle without consent. It would be anomalous, your Honour, if it was otherwise, because that would mean you could do that in respect of LOS pilots, but you couldn't do it in respect of touring pilots. What 14.1.3 is, is it's an ability to alter the roster which dictates how a duty cycle is actually performed in a given cycle. Read the other way, if my learned friend wants it that way, what it means is there's no impediment, with respect - subject to your concerns about acquitting leave or whatever the case may be, there's no impediment at all to changing a roster cycle provided only that you consult; and we've undertaken to do that.

PN1327

The fourth point I need briefly address, your Honour, my learned friend says that at the heart of the dispute at some point was whether we could increase the days of LOS pilots up to 220 days per annum and only pay overtime beyond that. Well, all of these consequences are consequences which flow from the primary question and that is whether we can alter rosters in the first place. Now, the 14/4 roster contemplated in respect of LOS pilots, in fact worked that way, gives you 218 days per annum. If you were in your wisdom to decide ultimately that provided 22.6 is complied with, the LOS pilots - that's Quayle and Casparis - their rosters could be altered to the roster contemplated by 14.1.4 or a variation of that, that will result in an increase of days.

PN1328

We say, your Honour, you don't have to answer the question now whether overtime must be paid or not, because, if it is implemented and overtime is not paid correctly in terms of the enterprise agreement, well, then that will be dealt with in the ordinary course as a breach of the enterprise agreement. You may find, your Honour, that in the course of the consultation leading up to the implementation of a revised duty cycle, those issues are addressed and dealt with. We say a lot of the consequences and the adverse consequences anticipated by the implementation are matters which could and should be addressed during the course of the consultation process.

PN1329

The last point with reference to the opening, your Honour, Mr Quayle in his affidavit goes to some length to refer to company past practices. We have in the objections noted various objections. I accept your Honour's approach that it's all about the weight. Of course what you'll see upon analysis of what Mr Quayle actually says is whenever they changed rosters or duty cycles in the past, they had to get the employee's consent for one simple reason; there wasn't a choice.

PN1330

You had no variant. There was one roster which was prescribed for touring pilots and one roster for LOS pilots. The duty to consult has now been imported because there is a choice. 14.1.3 dictates that if you wanted to change it beyond what the enterprise agreement contemplates, then obviously you need consent because if, you don't get consent, you're then in breach of the enterprise agreement on both sides, respectfully.

PN1331

Your Honour, just a consequence, I don't understand the argument to be that an equal time duty cycle is per se contrary to the provisions of the Fair Work Act or, necessarily, contrary to the provisions of the contracts or contrary on its own to the provisions of the enterprise agreement. The enterprise agreement provides for it in respect of touring pilots. Of course Ms Gorlin is on it and she is on it in terms of an arrangement where she acquits leave at a higher rate of pay, admittedly. I think she acquits leave at the rate of four days every 28-day duty cycle.

PN1332

I make this point only from this perspective, your Honour: if the acquittal of leave can't be accomplished for some other reason - and I don't believe Canavan inhibits it at the level of principal, but, if it does, well, then Gorlin's roster can't stand as it is for the same reason.

PN1333

THE DEPUTY PRESIDENT: I mean, is it possible to configure an equal time roster which leaves a block of leave?

PN1334

MR WADE: Yes, your Honour.

PN1335

THE DEPUTY PRESIDENT: Say two weeks? I haven't done any of the arithmetic, but presumably it could be a deduction of one day's leave for each cycle and that would leave a block of two weeks or something, which is compatible arguably with the purpose of annual leave as construed by a full bench.

PN1336

MR WADE: Your Honour, if I could make a few points.

PN1337

THE DEPUTY PRESIDENT: Yes.

PN1338

MR WADE: I admit to no particular experience in these matters, in the sense that I haven't viewed 150 different enterprise agreements. My understanding is that equal time rosters and the acquittal of leave on a proportionate basis are a regular feature of enterprise agreements in the maritime industry and in the mining industry. Let me take that no further than it may be an example of many errors perpetrated by many parties to enterprise agreements. They may all be affected, so that takes the matter no further. We don't see any contradiction between the NES and the process of acquitting leave where you have a 21-day on duty and 21-day off duty, duty cycle.

PN1339

THE DEPUTY PRESIDENT: It has to be seen in context, doesn't it, which is a substantial block of some type of leave.

PN1340

MR WADE: That's correct. To answer your question, your Honour, about arranging that in such a way, we say if you find a defensive that you're directed to take leave at the rate of 2.7 - which we say doesn't offend the NES, but, if it does - there's nothing then stopping the employer saying, "Well, you've got in a year 13 blocks of duty cycles. You choose which block you want to take your 21 days' annual leave for the first part and choose another seven days in another duty cycle, and you tell us what that is. We'll look at it and we'll arrange all your rosters in such a way that it's back to back and there is no gap in the rosters running as if one ends, the other starts."

PN1341

THE DEPUTY PRESIDENT: I see.

PN1342

MR WADE: With respect, that is something which - if your Honour decides there's no legal impediment to imposing a 21 roster - can be thrashed out in the consultations which we say clause 22.6 envisages. I don't see how my learned friend can confine this dispute and say answer only those three questions; for us to be back before you, your Honour, in six months' time arguing the next round about, oh, well, does this offend the NES, is this fair or is this less fair or more fair?

PN1343

THE DEPUTY PRESIDENT: We could keep it going for two years, couldn't we, Mr Wade?

PN1344

MR WADE: We could, your Honour, to everybody's detriment, including your own.

PN1345

THE DEPUTY PRESIDENT: I have no interest in such a process. I can give you that firm assurance.

PN1346

MR WADE: So the irony, your Honour, when you look at the enterprise agreement, is you can't on the one hand say we're giving you the right or the election to implement a variant of a roster which gives you flexibility, but on the other hand we're taking it away because the agreement says you have to get our consent. You need only to reflect on that practically, your Honour, for a moment to recognise that that is not the way that agreement can be constructed. I'm going to demonstrate to your Honour, with respect, that there are three fundamental impediments to that construction; three major inconsistencies which arise if you approach this matter the way my learned friend approaches it.

PN1347

We say leave aside the argument about whether you can acquit 2.7 or whether you can insist on identifying a 21-day block when you want your annual leave. We say that the 21-day variant which obviously provides for flexibility, is read with clause 22.6, and provided there are no other contraventions of the NES or the enterprise agreement, it's a right in trust or given to the employer on condition that they are compliant with certain prerequisites, one of them being the need to consult.

PN1348

Of course, your Honour, this enterprise agreement doesn't stand in isolation. You will read it mindful of its predecessors. What you will find is all the clauses my learned friend relies upon to say that's an indication that consent is a requirement, they are old clauses. They are cut and paste clauses, but they're clauses that come from a time, your Honour, when there was no choice given to the employer. In other words, they're not there to obviate or negate choice, because there wasn't a choice. There was only one roster.

PN1349

What those clauses are there to do is to allow the parties to agree another system which doesn't accord with the enterprise agreement, without bringing them to the position where they're actually breaching the enterprise agreement. It gives them that flexibility and that's the context in which you will view, we say, Mr Quayle's evidence of past custom and practice as it's referred to. The second important change of course historically, your Honour, is the introduction of the consultation clause itself. It needs to be given work to do. On my learned friend's construction, it has no work to do. Notionally at least, on that construction, you could breach the enterprise agreement in spite of the fact that you reached agreement.

PN1350

In other words, you might set about for two weeks trying to persuade a pilot to go onto an equal time roster and eventually you succeed, but what you've forgotten about is the consultation clause which requires you to notify the union the moment you take the decision. Your Honour, there are all sorts of absurdities, with respect, and complications which arise if you view the enterprise agreement in the way my learned friend does - or, rather, the way my learned friend argues you should.

PN1351

The applicant's construction of the agreement and how it hangs together, respectfully, affords the respondent no flexibility at all. It says you can have this flexible equal time roster, but whether or not you can actually have it depends on whether we agree to it. With respect, your Honour, that again leaves the consultation clause with no work to do or not the intended work, with respect.

PN1352

Could I take you briefly to clause 14.3. That's the clause which has received much attention in supporting the argument that consent is actually required before you alter a roster. I have of course made the point, your Honour, that the clause comes from the 2006 to the 2010 agreements where there was no choice and we've made the point to you, I think more than once, that it's there to provide the flexibility to avoid the breach of the agreement.

PN1353

Could I take you also, your Honour, to clause 14.2.3(c). Now, in the submissions this clause also features prominently as a clause supporting the argument that the enterprise agreement itself, apart from the contracts, requires as a precondition to a changed duty cycle the consent of the affected employees. It says, "The normal roster cycle may be altered by mutual consent." Now, this clause, too, is an historical clause and has been carried over from a time when there was no choice given to the employer.

PN1354

I want to emphasise the word, respectfully, your Honour, "normal". What "normal" refers to in both this agreement and its predecessors are the duty cycles recognised by the agreement itself. In other words, if you want to agree a roster cycle which is not already contained in this document, then you need consent, but we in our submissions even pare it back further, your Honour. We say this clause actually has nothing to do with duty cycles at all. It's about the changes to the document which says how your duty cycle will be worked. The physical roster; the thing that's pinned up on the noticeboard.

PN1355

That's what it's about, because, if it's not about that, then you have two clauses: you have 14.2.3(c) and 14.3.1 doing exactly the same thing, both requiring consent in respect of an altered duty cycle. Your Honour, that is an interpretation which hangs together, it's not an interpretation which gives work to 22.6. It's an inconsistent interpretation in the sense that it's carried over from a time when there was no choice and there was only one normal cycle.

PN1356

I just want to conceptualise the issues that we say you should determine, in spite of what my learned friend wants to limit this to. If consent is required, which is one of the arguments advanced, well, that's the end of the inquiry. We've been told that consent will not be forthcoming and we will need to look for other ways to address our operational requirements. If your Honour is to decide in time that on a proper interpretation consent is not a requirement, then we say because we've conceded that we will confer and consult under 22.6, the issue that then needs to be determined, I suppose, as a matter of law, is does the 2.7-day acquittal offend the provisions of the NES?

PN1357

If it does, obviously it can't be implemented, but I need to emphasise, your Honour, that's no comment on whether the equal time duty cycle can be implemented. If that is your Honour's conclusion, well, then another solution needs to be found. If that solution is the one that I proposed where you require the identification of a 21-day and a seven-day block of leave and you coordinate those as is required or as is anticipated to everybody's satisfaction, well, then so be it, and perhaps that's something that can be resolved in the course of the consultation process; how this leave will be acquitted.

PN1358

The 2.7 days, your Honour, with respect, it's very much notional because it's not any particular 2.7 days. You take the 21-day off cycle and somewhere in that 21-day off cycle is the 2.7 days. It's a way of actually recognising that leave is accruing and been given without giving it a date and a time. Respectfully, if there's an advantage in the employees saying, "Well, I want that 21 days off as annual leave," quite frankly, that advantage is illusionary. You're going to get it off, anyway, whether you term it annual leave or a down cycle.

PN1359

Your Honour, I suppose one of the difficulties in deciding whether or not consent is a requirement - and I'm not going to repeat the submissions that I've made in the written submissions - is that none of these clauses are defined. You won't see a definition of "duty cycle", you won't see a definition of "roster" or "roster cycle" or any other of the variants that are used. 22.6, for example, refers to a roster when clearly what it's referring to is not the piece of paper only, but it's also referring to the duty cycle; so there's no consistency.

PN1360

It's necessary then to read everything quite sensibly and carefully to see what is actually being sought to be achieved, as I say and as I have said, to allow the entire agreement to give every clause meaning, not to duplicate meaning and not to give contradictory meanings. In adopting that approach, your Honour, 14.3.1 and 14.2.3(c) cannot possibly be vetoes, because, if they're vetoes, they negate choice and then you might as well take a line and draw it through the variant of the duty cycle and say to the employer, "That's a variant you can only impose at your will on a new employee that joins this company after the enterprise agreement has become effective."

PN1361

There would of course, your Honour, be no reason in logic to insert a new duty cycle for touring pilots, make consent a necessary prerequisite, when, on my learned friend's construction, consent in any event is a prerequisite under clauses 14.2.3(c) and 14.3.1. In other words, why do you need to mention a specific type of duty cycle which you say requires consent when you've got two other clauses which say you can consent to any alternative, anyway?

PN1362

Just in summary, your Honour, what we say is this: the new duty cycle is something that the employer can avail itself of on condition that it consults. The clauses which give effect or which tend to suggest that there can be consensus in respect of duty cycles, are all in respect of duty cycles which the agreement doesn't contemplate. If you have regard to the LOS pilots Quayle and Casparis, the argument is exactly the same. They are on a different duty cycle at the moment. They are on a 15/13 touring cycle. There's nothing which says you can't now consult them to get them back to the very cycle contemplated by clause 14.1.4, because clause 14.1.4 says:

PN1363

A pilot will be rostered for a minimum of four days free from all duties in every 14-day period.

PN1364

Your Honour, what has happened here is this, with respect: operational needs directed that Quayle and Casparis work a 15/13. That was to dovetail with the touring pilots, so their consent was sought because the 15/13 is not a type of roster which the employer is allowed to implement under 14.1; so we had to get their consent. We got their consent. Now we want to take away that roster because it no longer suits our operational requirements and Quayle and Casparis use the very agreement which informed their first consent to say, "No, no, no. Now you can't do that without our consent." With respect, your Honour, that flies in the face of the construction of this enterprise agreement. It offends relevant provisions of it.

PN1365

THE DEPUTY PRESIDENT: So the cycle you want Quayle and Casparis to work is what?

PN1366

MR WADE: Well, it's what they term a 14/4, so you get four days off, your Honour, in every 14. There are ways to construct that in different configurations. You can have a 5/2 or a 4/10, as I understand it. That, we say, will be the subject of consultation.

PN1367

THE DEPUTY PRESIDENT: Thanks, yes.

PN1368

MR WADE: If I can summarise, we say if you read the contracts, there are no rights. I am going to explain that to you very briefly. All the contracts are fairly standard. We say there are no contractual rights as a matter of fact. You can read it, you won't find it. We say if you find there is one, it competes then directly and offends and contradicts the enterprise agreement. We say the enterprise agreement must get precedence.

PN1369

THE DEPUTY PRESIDENT: Overrides it, yes.

PN1370

MR WADE: Yes, because the people who agreed to the enterprise agreement are the people who are now asserting contractual rights. In fact you can't say to your employer, "I'm going to vote this up as an agreement and in exchange for X, Y and Z, I want a bigger package on this front and I want more generous benefits there," and when the whole agreement is signed and sealed, you then turn around and say, "No, but, hang on, that concession we granted you which enables you as an employer to be flexible in your operations and the arrangement of duty cycles, we want that back, because our contract says it's a non-variation clause."

PN1371

If I can just touch briefly on the contracts, your Honour. I won't dwell on this for long, but if you go to Mr Quayle - it's dealt with in our submissions at page 15. If I could just summarise it. Mr Quayle is on an irregular roster in the sense that, by agreement, he converted to a 15/13 roster. He previously had an Australian workplace agreement. Perhaps, your Honour, if I could just take you to that as a starting point. Mr Quayle is exhibit AFAP4.

PN1372

THE DEPUTY PRESIDENT: I've got his agreement. It is a public document, is it?

PN1373

MR WADE: That's correct.

PN1374

THE DEPUTY PRESIDENT: An AWA now. I think they used to be private, didn't they, except with the agreement of the parties.

PN1375

MR WADE: That document, your Honour, doesn't confer a right to work a 15/13 roster. Self-evidently not, because at that time that wasn't an option available to LOS pilots. It certainly doesn't confer on Mr Quayle a right to work a 15/13, absent his consent to change to any other roster. It provides quite differently, your Honour, for - - -

PN1376

THE DEPUTY PRESIDENT: Isn't your primary submission, in any event, that the agreement overrides any contract?

PN1377

MR WADE: It is, your Honour, but that's not something my learned friend addressed. I don't want to leave the rest - - -

PN1378

THE DEPUTY PRESIDENT: I see. All right. No, fair enough.

PN1379

MR WADE: But his contract provides in fact, your Honour - sorry, the AWA - - -

PN1380

THE DEPUTY PRESIDENT: Is it a contract or an AWA?

PN1381

MR WADE: AWA. In clause 14 - - -

PN1382

THE DEPUTY PRESIDENT: It's still in force, is it?

PN1383

MR WADE: In my understanding it is, subject to the variation that subsequently arose, your Honour, although - - -

PN1384

THE DEPUTY PRESIDENT: I don't know what the status of an AWA is now. I spend a lot of time terminating them by agreement. That's all I know. I spend a lot of time issuing termination orders by agreement of AWAs, but I don't know other than that - - -

PN1385

MR WADE: Your Honour, for what it's worth, whether these are historical rights or current rights, if the AWA doesn't assist Mr Quayle - if it's allowed to assist him, it doesn't. If you look at clause 14, with respect, it includes that clause:

PN1386

Notwithstanding clause 14.1.1, rosters may be altered by the company to meet the operational requirements of the business.

PN1387

THE DEPUTY PRESIDENT: Sorry, this is MQ1, is it? That's the AWA.

PN1388

MR WADE: That is correct, your Honour - it is MQ3.

PN1389

THE DEPUTY PRESIDENT: MQ3.

PN1390

MR WADE: Paragraph 14, in particular. Sorry, your Honour, that's the 2010 enterprise agreement. I apologise.

PN1391

THE DEPUTY PRESIDENT: Yes.

PN1392

MR WADE: The AWA is the first annexure.

PN1393

THE DEPUTY PRESIDENT: Yes, I have 14.

PN1394

MR WADE: If you could turn to clause 12, rather.

PN1395

THE DEPUTY PRESIDENT: Clause 12.

PN1396

MR WADE: 12.1, your Honour. You'll find that same formulation of the variation clause that you find in the enterprise agreement.

PN1397

THE DEPUTY PRESIDENT: My 12.1 is Pilot Indemnity. I think I'm looking at the wrong document.

PN1398

MR WADE: The AWA is - - -

PN1399

THE DEPUTY PRESIDENT: I see. You're talking about the AWA. Yes, okay.

PN1400

MR WADE: It's MQ1.

PN1401

THE DEPUTY PRESIDENT: Yes, I see it.

PN1402

Nothing in the AWA shall preclude the parties making alternative arrangements.

PN1403

MR WADE: It's that same formulation which allows the parties to then regulate matters, we say, which are unusual and which aren't otherwise provided for in the AWA itself.

PN1404

THE DEPUTY PRESIDENT: Is each of these employees subject to a current AWA?

PN1405

MR WADE: No, your Honour. It is only Mr Quayle.

PN1406

THE DEPUTY PRESIDENT: Right. What is the provision for inconsistency between an enterprise agreement and a current AWA?

PN1407

MR WADE: Your Honour, I'm guessing. I don't profess to make this as a submission informed by any case law, but I'm guessing it's the same as the contradiction between a contract and an enterprise agreement.

PN1408

THE DEPUTY PRESIDENT: I don't think that's right. I think, unfortunately - - -

PN1409

MR WADE: Then I stand corrected.

PN1410

THE DEPUTY PRESIDENT: - - - or fortunately, an AWA overrides a current enterprise agreement. A contract doesn't.

PN1411

MR REITANO: The AWA has expired, your Honour.

PN1412

THE DEPUTY PRESIDENT: I beg your pardon?

PN1413

MR REITANO: The AWA in this case has expired long ago. It has ceased.

PN1414

THE DEPUTY PRESIDENT: But does it continue on in force until cancelled by order?

PN1415

MR REITANO: No.

PN1416

THE DEPUTY PRESIDENT: It doesn't?

PN1417

MR REITANO: The provisions of one of the Fair Work (Transitional Provisions) Amendments Act killed them off forever.

PN1418

THE DEPUTY PRESIDENT: No, I - - -

PN1419

MR REITANO: There was a sunset clause that said they died when they expired.

PN1420

THE DEPUTY PRESIDENT: Perhaps someone could provide me with that. Thank you very much. I'm sorry to place the burden on you, but - - -

PN1421

MR WADE: Well, your Honour - - -

PN1422

THE DEPUTY PRESIDENT: Okay. So it has expired, has it?

PN1423

MR WADE: Then we're left with MQ4.

PN1424

THE DEPUTY PRESIDENT: Yes.

PN1425

MR WADE: Which then is the sole source of not only the right to work and continue to work a 15/13, but it's the source also of the apparent obligation that this roster can't be changed without Mr Quayle's consent. If I could just highlight to your Honour under roster and work hours for touring employees, you will notice the word "nominal" appears. That same word appears in all the other touring pilot contracts.

PN1426

We say the ordinary meaning to the term "nominal" is such that you cannot ever import that as a contractual provision which admits of no variation without consent. In its nature, I think synonyms referred to in the submissions are things like "pretended, notional", et cetera. It's not the type of clause, your Honour, which admits of the argument my learned friend proposes you accept as giving rise to a contractual right to refuse.

PN1427

THE DEPUTY PRESIDENT: I have to say - look, I indicate the time - that I will probably be breaking at quarter to 1, unless you have a short period of further final submissions.

PN1428

MR WADE: If you don't mind, your Honour, I'd rather continue after if my learned friend is going to be afforded a right of reply. If he is not - - -

PN1429

THE DEPUTY PRESIDENT: Of course. I have no difficulty with adjourning at quarter to, and we can resume your submissions at 2.15, if that would be of assistance.

PN1430

MR WADE: That's suitable to me.

PN1431

THE DEPUTY PRESIDENT: Do you have much longer though?

PN1432

MR WADE: No, your Honour. About half an hour - - -

PN1433

THE DEPUTY PRESIDENT: Well, could we finish it in the next five minutes?

PN1434

MR WADE: No, I think a bit longer than that, your Honour.

PN1435

THE DEPUTY PRESIDENT: All right. We will finish this afternoon easily though, won't we, I would have thought. That's a question to both of you.

PN1436

MR REITANO: Sorry, I was waiting for - - -

PN1437

MR WADE: From our side, yes.

PN1438

THE DEPUTY PRESIDENT: You've got 10 minutes and you have whatever you need.

PN1439

MR REITANO: Probably the same. 20 minutes maybe.

PN1440

THE DEPUTY PRESIDENT: All right. Thanks very much. We'll adjourn until 2.15.

<LUNCHEON ADJOURNMENT [12.44PM]

<RESUMED [2.17PM]

PN1441

MR WADE: Your Honour, if I could be permitted just one back-track.

PN1442

THE DEPUTY PRESIDENT: There's no need to repeat yourself.

PN1443

MR WADE: I already submitted to you that the normal roster means a recognised roster. The point I wish to make is I would ask you to contrast that with the terms used in clause 22.6 where reference is made to a regular roster. The distinction, we say, is that's the roster which you are actually working as opposed to a roster sanctioned under the agreement itself. Just to revert briefly, your Honour, to the individuals. I've dealt with Quayle. As far as Mr Casparis is concerned, we submit there's no variation of Mr Casparis's contract which allows him to suggest that he is now a touring pilot operating out of Perth. He was of course employed as a live on site pilot. His contract says as much.

PN1444

You are of course familiar, your Honour, with the clause which says no variation otherwise than in writing. There is no such variation, but, in any event, the high water mark of the suggestion that somehow there has been an agreement that he is now a touring pilot operating on a 15/13 roster, are paragraphs 12 and 31; and, read together, they do no such thing, with respect. A proposal is made. The difference is the respondent is happy to accommodate Mr Casparis as a touring pilot. In other words, change his status, as it were, but on condition that he agree to a different equal time roster, which he's not prepared to accept.

PN1445

Just one other point before I move off Casparis, your Honour, just to highlight to you with reference to annexure RC2 to his witness statement the fact that under his original letter of offer, which has never been varied in the sense contemplated by the contract itself, on the third page of that contract - 3 of 11 - there is of course the reference that he will work a live on site roster "to be determined by your base manager." The other important point made under that same heading is the last sentence of that same clause - - -

PN1446

THE DEPUTY PRESIDENT: What page?

PN1447

MR WADE: Page 3 of 11, your Honour.

PN1448

THE DEPUTY PRESIDENT: Yes, I see it.

PN1449

MR WADE: The last sentence, of course, refers to the commitment or the undertaking or contractual obligation to work 221 days per year. That was referred to by my learned friend and that's what the respondent wants to go back to, consistent of course with the roster envisaged by the enterprise agreement which is a 14/four or 10/four; four days off in every 14. In effect, we say that what Mr Casparis seeks is a disclarator [sic] your Honour, that you vary his contract in a way that the contract doesn't envisage it be varied.

PN1450

As far as Duncombe and Saunders are concerned, they are similarly circumstanced. They are subject to the standard letter of offer which includes not only the waiver provision at the commencement of the contract, but at the end they also specifically incorporate the agreement as part of its term. If I could just refer you, your Honour, to AFAP2. That's the statement of Duncombe. In particular, annexure GD1. On the seventh page of his 11-page contract is a clause headed Entire Agreement. This is dealt with in the submissions. It records that:

PN1451

This contract and the agreement forms the entire agreement between you.

PN1452

We say, in short, that if the agreement allows the respondent to impose a flexible duty cycle provided it consults, the contract can't alter it. Again in respect of both these individuals, your Honour, the contractual right relied upon by the applicant resorts in the fact that the contract refers to each individual "working nominally a 15-day on, 13-day off roster", which we say imports no sense of permanence or non-variation.

PN1453

The only issue in respect of Gorlin, your Honour, she's on the same arrangement, but she entered an individual flexibility agreement subsequent to the standard contract. It appears to be accepted by my learned friend that proper notice has been given in relation to the termination of IFA. The only quibble appears to be the fact that where the notice is given by the employer, the IFA provides that you are not disadvantaged on an overall basis. We've dealt with that in our submissions. We say that's not a veto of convenience. There's no disadvantage inherent in a 21/21 roster as opposed to a 28/28 roster and that test doesn't avail Ms Gorlin at the level of the appropriateness of the termination of the IFA.

PN1454

Leave acquittal I've touched on, your Honour. Can I just make one other point in respect of leave acquittal and if I could ask you to turn to AFAP8, the enterprise agreement.

PN1455

THE DEPUTY PRESIDENT: Yes.

PN1456

MR WADE: In particular, the annual leave provisions at clause 13, your Honour. This is the 28-day block leave argument and I only wish to make two points in respect of clause 13. The first is that this clause 2 comes from earlier enterprise agreements, at a time where there wasn't a choice as to what touring pilots could be required to work by way of a duty cycle. The second point is that 13.1.2 and all the clauses under this clause dealing with the right to apply for leave and so on and so forth, are only applicable to a touring pilot who is working a 15/13 roster. Of course it says it in its terms, because 13.1.2(a) states in the second sentence:

PN1457

A touring pilot will take annual leave in one 28-day block immediately after one block of 13 touring days off.

PN1458

The long and the short of it is then that as far as we are focused on touring pilots on a different duty cycle, that's a self-contained provision and that's one that says leave is acquitted on a periodic basis. Just lastly on this point, your Honour, if the second portion of the clause which authorises an equal time roster isn't workable or offends the NES, then, with respect, you don't throw the baby out with the bath water. You maintain the consensus that the parties wanted to achieve, which is to provide flexibility. You provide that the acquittal provisions don't apply and what must then be sought are acquittal provisions which satisfy the requirements of the NES.

PN1459

I've made my submissions in the written submissions and earlier to you about why we say there's nothing in the provision as it stands that offends the NES. That's a reference, your Honour, to clause 14.2.1(b).

PN1460

THE DEPUTY PRESIDENT: Yes.

PN1461

MR WADE: The cashing out of leave, your Honour, is a matter focused on in the written heads. It's not something addressed by my learned friend. I don't intend making any submissions in relation to it. In any event, that again may or may not be a consequence of a revised duty cycle which would follow that consultation process. If it offends either the NES or the enterprise agreement itself, well, there are remedies applicable to the applicants should any particular roster in fact be implemented following the consultation process.

PN1462

The same comments we say, your Honour, apply in respect of overtime. If the respondent is entitled to direct that live on site pilots change to a duty cycle envisaged by the enterprise agreement without their consent, provided only that they consult, then obviously as the law directs the respondent is required to pay overtime as provided for in the enterprise agreement. If they don't, well, again there are remedies that the applicants are able to take.

PN1463

Two last points, your Honour. As far as the evidence of Mr Gardiner is concerned, the so-called expert, with respect, the rationale for any proposed changes - and the rationale may have changed between when the interim orders were granted and whenever the consultations do take place - will be subject to a consultation process under clause 22.6. Even if you find that the old rationale was not a valid one, of course that's no impediment to taking the process further and having a rationale which is adequate or acceptable, and meets the requirements such as thy are.

PN1464

We say in conclusion, your Honour, that the applicant is not entitled to the declaratives that they seek. We say, further, that if the leave acquittal provision is unlawful in any respect, the applicants would be entitled to that determination and it is guidance also for the respondent going forward that they must find an alternative way of acquitting leave. If you find, your Honour, that the applicants are entitled to a 28-day block of leave regardless of the wording of the enterprise agreement, even if they're on an equal time roster, well, then they're entitled to that determination. That's not an inhibitor to them implementing the equal time roster. It's a problem that must be overcome to implement that roster.

PN1465

Lastly, we say, your Honour, if on your consideration of the various clauses the respondent is entitled to implement an equal time roster, they are entitled for the sake of certainty and to bring an end to this particular dispute, to a declaration or a determination to that effect which they can then act on if and when they consider it necessary.

PN1466

THE DEPUTY PRESIDENT: Thanks very much. I may finish a decision before Christmas, but I may not. I just make that point.

PN1467

MR WADE: I do understand that.

PN1468

THE DEPUTY PRESIDENT: Which may require some issue of the stay order. I don't know. We have exactly two weeks - or is it three? I can't recall - three. I may do it. Anyway, I just raise the point. Go ahead.

PN1469

MR REITANO: Given that your Honour has raised that, could I deal with that? That again was something I was going to ask your Honour about. In the event that your Honour does not furnish a decision by 24 December - I think that's when the stay orders expire - we would make application that your Honour at least extend those stay orders until - - -

PN1470

THE DEPUTY PRESIDENT: The end of January.

PN1471

MR REITANO: The end of January or further order.

PN1472

THE DEPUTY PRESIDENT: Until the end of January, yes, or further order.

PN1473

MR WADE: Your Honour, we have no objection at this time to that arrangement.

PN1474

THE DEPUTY PRESIDENT: Okay.

PN1475

MR WADE: I think we need the certainty as much as the applicant needs it.

PN1476

THE DEPUTY PRESIDENT: Thank you very much for that. That is that issue dealt with, by consent.

PN1477

MR REITANO: Could I deal in reply with - I think I've got about half a dozen points. It might be slightly more than that.

PN1478

THE DEPUTY PRESIDENT: I'm sure they're not going to reiterate what you've said before, so - - -

PN1479

MR REITANO: Well, one of the things I do want to do is give your Honour some references to the parts of the written submissions that I didn't give your Honour references to, because they're squarely raised by some of the things that my learned friend said about the NES. I don't want to take your Honour to them, but I want to remind your Honour about what the provisions say. It is fundamentally important to our case that at the core of the case in relation to the question of annual leave is that the NES creates, in effect, inviolable rights that cannot be infringed by agreement, award or otherwise.

PN1480

THE DEPUTY PRESIDENT: It's a charter of rights, is it?

PN1481

MR REITANO: In respect of the things with which they deal, the Act makes it very clear that only in very limited circumstances can there be any intrusion into those rights. In respect of annual leave, if I could give an example that's relevant to this case - - -

PN1482

THE DEPUTY PRESIDENT: You've made your point. Please move on.

PN1483

MR REITANO: Well, it is important for our case and it's an important thing that the respondent overlooks in its case, that those rights must not be infringed.

PN1484

THE DEPUTY PRESIDENT: No-one suggests the Act is going to be infringed, Mr Reitano. I certainly hope not.

PN1485

MR REITANO: Could I give your Honour the references? I need to refer your Honour in particular to sections 87, 88, 92, 93 and in particular 93(3) of the Act. I'd ask your Honour to have regard, in looking at 93(3), to our submissions in particular at paragraph 101 which deals with the question of what a reasonable requirement might be. We say it doesn't arise here because there is no requirement imposed by the enterprise agreement in respect of the taking of annual leave. The only other two sections I need to refer to are sections 55 and 56, which support the submission I just made.

PN1486

THE DEPUTY PRESIDENT: Thanks.

PN1487

MR REITANO: Secondly, can I just give your Honour a reference to Byrne and Frew v Australian Airlines. The reason I do that is because of the submission that was made to the effect that somehow the agreement overrides the contract. That might be so if questions of asserted inconsistency could be made out, but otherwise the two subsist together. The reference is (1995) 185 CLR 411.

PN1488

Thirdly, can I deal with the submission that says, well, if we're in breach of the overtime provision, let it go to the Federal Court or let it go to enforcement proceedings. We chose this remedy and this tribunal where we have rights to have disputes determined. We're entitled to do that. Secondly, part of the very reason for the existence of these things is so that such disputes can be resolved by the commission and, as it were, nipped in the bud before they get to that stage.

PN1489

That applies both in respect of - I said the overtime provision. It also applies in respect of the question of the annual leave provision and it also applies to what my learned friend pejoratively refers to as Ms Gorlin's quibble about being disadvantaged by the changes that are being imposed on her, which she is protected against in the flexibility agreement she entered into.

PN1490

Fourthly, I think in argument at least both with me and I think with my learned friend - I think it was more my learned friend meeting my submissions, but in argument at least it was suggested that somehow an equal time roster could be entered into under the enterprise agreement. I thought I had made it very clear, but, if I haven't, I need to correct it, that of course an equal time roster could be entered into under clause 14.3.1 of the enterprise agreement. I don't run away from that. I thought I made that clear. That would be an alternate arrangement for hours of work all rosters; an alternate to what is provided for by 14.1 and 14.2.

PN1491

It may be that as part of that equal time roster, which is an alternate arrangement, an employee could offer their consent to take annual leave in something other than one block, 28 days, and that they could offer their consent to take it in seven-day or 14-day or 21-day periods as part of that equal time roster that is agreed. Clause 14.2.1(b) does not contemplate entering into an equal time roster of that kind because it requires - and there is none here - the employee's consent. The consent, as I said - and my friend I think took it further than I took it - to taking annual leave is not forthcoming from any of the employees in this case. It leaves the employer, on our argument, with the only option of implementing rosters for touring pilots as 14.2(a).

PN1492

Your Honour asked a question about, well, perhaps you could have an equal time roster that left a block of annual leave. There would be nothing in this agreement - absent a 14.3 agreement - that would permit it. Can I give an absurd example to illustrate the point: six months on and six months off. We're talking about touring pilots here. It certainly doesn't fall within 14.2.1(a). It doesn't fall within 14.2.1(b) either, because annual leave is taken during the year as part of the touring days off. It's not that either.

PN1493

It's fairly difficult to envisage, other than under 14.3, how you could have an equal time roster that allowed for blocks of annual leave. 14.2.1(a) makes it very clear, we say, that you need the consent of an employee. Once you get that consent, you can do it in a multiplicity of ways. No doubt you can do it on the 21/21 basis or some other basis. If you opt for an agreement under 14.3, likewise, you can come to many, many different arrangements; such as, I think, Ms Gorlin's 28/24/4 roster that she entered into, which would be permitted also under an EFA.

PN1494

The last point that I needed to deal with was the one that your Honour raised and that is about the extensions of the stay order. If it please your Honour, those are the submissions we make.

PN1495

THE DEPUTY PRESIDENT: Thanks very much for that.

PN1496

MR REITANO: Sorry, your Honour asked a question before the adjournment.

PN1497

THE DEPUTY PRESIDENT: Yes.

PN1498

MR REITANO: I should have dealt with it immediately when I stood up. Your Honour asked a question about the AWA and Mr Quayle's case. I was wrong. You won't hear that very often. It doesn't expire automatically. It wasn't caught by the sunset provision in the relevant Act. A lot of other things were, but it wasn't. The effect of the transitional provisions of the Fair Work Transitional blah Act, if I can call it that, was that AWAs continued until terminated.

PN1499

THE DEPUTY PRESIDENT: I thought that was the case.

PN1500

MR REITANO: And they could be terminated - - -

PN1501

THE DEPUTY PRESIDENT: Items 17 and 19 of the Transitional blah Act, to use the eloquent and appropriate - - -

PN1502

MR REITANO: It might be 17, 18 and 19, but your Honour is in the right territory.

PN1503

THE DEPUTY PRESIDENT: Yes. I spent a lot of my time cancelling those documents pursuant to that item.

PN1504

MR REITANO: And this is the difficulty that we're under. We're undertaking some inquiries presently to ascertain whether in fact Mr Quayle's AWA was - - -

PN1505

THE DEPUTY PRESIDENT: I suspect it's in force; that it overrides the agreement; and that you may need to put a submission by way of letter in a week's time on that. Is that the way to go?

PN1506

MR REITANO: I'm happy to put a submission in a week's time.

PN1507

THE DEPUTY PRESIDENT: Sorry, I interrupted your train of thought.

PN1508

MR REITANO: I was going to say that we suspect it may have been cancelled, because all you had to do under one of those sections that your Honour mentioned after the nominal expiry date is file a document. One person could do it. You didn't need agreement.

PN1509

THE DEPUTY PRESIDENT: No, you need agreement. I spent a lot of time doing this. I think you need agreement.

PN1510

MR REITANO: Would your Honour pardon me a moment?

PN1511

THE DEPUTY PRESIDENT: Sure. Items 17 or 19 of the Transitional Act.

PN1512

MR REITANO: My recollection is - and I could be wrong, your Honour - it depended at what point in time you were at. If you had already passed the nominal expiry date.

PN1513

THE DEPUTY PRESIDENT: 17 is "Individual agreement-based transitional instruments: termination by agreement."

PN1514

MR REITANO: Yes.

PN1515

THE DEPUTY PRESIDENT: And 19 is "Unilateral termination with the FWC's approval."

PN1516

MR REITANO: Yes. So you file the document unilaterally - that is, employee or employer files it - and then the commission approves it.

PN1517

THE DEPUTY PRESIDENT: You've got to give notice - "terminates on the 90th day after the day on which the FWC makes the approval decision." It looks like a three-month notice period.

PN1518

MR REITANO: I'd have to look at it more closely, but it looks like that, your Honour.

PN1519

THE DEPUTY PRESIDENT: It's kind of messy, anyway.

PN1520

MR REITANO: Can we make two sets of inquiries in the next week. One is as to whether it ever was cancelled and, secondly, perhaps provide your Honour and my learned friend with a short notice to what we say applies if it wasn't.

PN1521

THE DEPUTY PRESIDENT: All right. Within a week or - - -

PN1522

MR REITANO: Yes.

PN1523

THE DEPUTY PRESIDENT: By Friday? Is Friday too much? Too soon?

PN1524

MR REITANO: We just don't know who we need to talk to, to find out. It might take a little longer than that. That's why I asked for a week.

PN1525

THE DEPUTY PRESIDENT: Sure. A week is fine.

PN1526

MR REITANO: Tuesday.

PN1527

THE DEPUTY PRESIDENT: Tuesday; close of business Tuesday. Both sides are free to write a note on this, if they wish to. Presumably you can write a joint note. It's not a policy issue. It's just technical. All right. Thank you very much for those submissions. I'll reserve my decision. It will be issued as soon as possible.

<ADJOURNED INDEFINITELY [2.42PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AFAP1 APPLICANT'S WRITTEN SUBMISSIONS PN1087
EXHIBIT #AFAP2 STATEMENT OF GREG DUNCOMBE PN1088
EXHIBIT #AFAP3 STATEMENT OF IVANA GORLIN PN1089
EXHIBIT #AFPA4 STATEMENT OF MARK QUAYLE PN1090
EXHIBIT #AFAP5 STATEMENT OF NIGEL SAUNDERS PN1091
EXHIBIT #AFAP6 STATEMENT OF RICHARD CASPARIS PN1092
EXHIBIT #AFAP7 STATEMENT OF PETER GARDINER PN1093
EXHIBIT #H1 EMPLOYER'S WRITTEN SUBMISSIONS PN1096
EXHIBIT #H2 RESPONDENT'S LISTS OF OBJECTION TO EVIDENCE PN1105
EXHIBIT #AFAP8 (2014) FWCA 3707 HNZ AUSTRALIA PTY LTD (HELICOPTER PILOTS - AUSTRALIAN OPERATIONS) ENTERPRISE AGREEMENT 2013 PN1110