s.739 - Application to deal with a dispute

Surveillance Australia Pty Ltd T/A Cobham Aviation Services Australia - Special Mission

Surveillance Australia Pilot and Observer Enterprise Agreement 2016

Dispute about matters arising under the enterprise agreement - resolution reached between the parties - outcome endorsed by the Commission under the terms of the enterprise agreement.

[1] The Commission has been dealing with a dispute resolution application made under s.739 of the Fair Work Act 2009 (the Act) by the Australian Federation of Air Pilots (AFAP). The matter concerns Pilots engaged by Surveillance Australia Pty Ltd T/A Cobham Aviation Services Australia - Special Mission (Cobham SM) under the terms of the Surveillance Australia Pilot and Observer Enterprise Agreement 2016 (Enterprise Agreement). The work in question involves the Pilots flying as part of the Cobham SM's surveillance contract with the Australian Border Force (ABF).

[2] Without outlining the entire context of the matter, the background is that some of the Pilots (10 out of total cohort of 109)[1] have been engaged on what might be best described as Fly in - Fly out (FIFO) arrangements whereby they undertake their flying duties from a port other than their nominated home port, generally on a 21-day on, 21-day off, basis. Until relatively recently, the FIFO arrangements were facilitated by Individual Flexibility Agreements (IFAs) entered into in accordance with clause 1.14 of the Enterprise Agreement.

[3] Cobham SM operates aircraft from a number of bases around Australia in support of the ABF contract. These bases are located in Broome, Darwin and Cairns (ABF base ports). Each of the FIFO Pilots was engaged, or had agreed variations to their engagement, on the basis that their home port would be other than one of the ABF base ports. In practice this creates the need for Pilots to travel to and from various ports for the FIFO to operate; respectively: Rockhampton to Darwin, Adelaide to Darwin, Brisbane to Broome, Albury to Broome, Brisbane to Darwin, Bundaberg to Darwin, Brisbane to Darwin and Brisbane to Broome.

[4] In the context of the COVID-19 pandemic and the associated restrictions imposed by various Governments, Cobham SM sought to, in effect, relocate the relevant Pilots from their home ports to the ABF base ports in order to reduce inter-state travel and for other risk-management purposes. Whilst there is a dispute about the process and the legal effect of the change, the Pilots cooperated with this arrangement at short notice and temporary understandings were reached. This involved each of the Pilots being relocated and working from one of the ABF base ports for a 3-month period, subject to extension by agreement. Cobham SM also terminated the IFAs, something that was not supported by AFAP. The temporary arrangements were due to progressively conclude from 27 June 2020; however, as a result of some further agreed interim measures, the temporary arrangements have been extended until 10 July 2020 pending the parties' consideration of a proposed Statement and Recommendations to be issued by the Commission, or the resolution of the immediate issues by the parties.

[5] There are many issues that have arisen in the present circumstances. These include the legal and practical consequences of the temporary arrangements and how they arose, the Pilot's desire to confirm FIFO arrangements as an ongoing mode of engagement, and the necessary prerequisites to return to FIFO operations. Cobham SM have also raised various operational, contractual, risk-management and business constraints impacting upon the present dispute. During the course of the proceedings, it became evident that the stated joint desire of all parties was that the FIFO operations should resume, largely on the same basis as the pre-COVID-19 arrangements, and that this should take place as soon as this can reasonably be done.

[6] Indeed, in light of three conferences conducted by the Commission and (unpublished) Recommendations issued on 22 June 2020 the parties have agreed that the former IFA facilitated arrangements will resume on the basis of the earlier IFAs (with any agreed minor changes). What remained in dispute about this was when those arrangements would commence, and various related issues associated with that timing such as the length of the temporary basing arrangements and whether leave should be taken to, in effect, extend these. At the conclusion of the third conference in this matter conducted on Friday 26 June 2020, the parties sought that the Commission issue formal recommendations under the dispute resolution arrangements of clause 1.12 of the Enterprise Agreement to facilitate a resolution of the immediate issues.

[7] In preparation for that process, the parties each provided comprehensive written submissions, documentation and reply submission in support of their respective positions. The parties also responded to series of questions posed by the Commission that arose from the original written submissions. Further, in the immediate lead up to the issuing of the proposed recommendations and in light of some of the options identified by the above process, the parties held additional discussions with a view to agreeing or narrowing the immediate issues. Ultimately, the parties have now agreed a comprehensive resolution of the immediate issues and have requested that the Commission formally endorse that outcome in accordance with its role under the dispute resolution provisions of the Enterprise Agreement.

[8] Having regard to the circumstances of this matter, the terms of the Enterprise Agreement and the proposed settlement, and the agreement reached between the AFAP, the FIFO Pilots and Cobham SM, I am prepared to endorse the resolution set out below. It is an appropriate, workable and fair approach given all of the relevant considerations.

[9] I observe that the broader issues associated with the legal and practical consequences of the temporary arrangements and the long-term status and regulation of the FIFO operations will be subject to the further discussions between the parties and proceedings before the Commission.

[10] The parties have confirmed the following settlement of the immediate issues arising in this dispute:

1. That each of the Pilots will be provided statements from Russell Dyer[2] (to be attached to their agreed IFAs as noted in 4 below) reaffirming their original letters of offer and acceptance of terms of FIFO appointment.

1. The Pilots will return to Home Base in accordance with the (enclosed) schedule and commence their ordinary Off swing. That schedule ensures no ABF flights will be compromised as a consequence of each Pilot's return to Home Base.
2. Pending point 4 below, the Pilots will be deemed to be employed pursuant to their letters of offer providing for FIFO and their IFA as applicable.

1. The IFAs will be consistent with the pilots' original IFA, unless varied by agreement, and having regard to particular prevailing or pre-existing terms or circumstances (including tour cycles) that was in their original IFA, and once confirmed between the AFAP (on instruction from the Pilots) and the Company as being in correct terms, the pilots will sign IFAs before they leave their base on the assumption that the terms have been agreed, or if they have left within 24 hours of agreeing the terms which shall occur as soon as practicable.
2. The swing cycles will be 21 Off/21 On, except where agreed otherwise (eg 14/14).
3. In terms of the next On swing period of 21 days, to ensure the correct roster stagger for the purposes of the Base coverage, the Company may roster RDOs as necessary, or a combination of RDOs and annual leave accrued during the extended deployments to be discharged during that On swing (consistent with practice afforded all other employees). Where annual leave is agreed to be rostered to meet the pattern, the pilot will only be expected to contribute 50% of the days required, with the balance met by the Company.
4. (a) In the event applicable state border restrictions (operating into and out of the operating Bases and the pilots Home Bases) become demonstrably prohibitive (not merely restrictive), or ABF subsequently expressly refuses in writing the travel of the FIFO pilot, the parties will confer and agree alternative arrangements, but will not disturb the pilot's Letter of Offer/IFA/FIFO arrangements, status or terms (unless agreed), and may also include resort to clause 3(d) of the IFA.

(b) The company shall provide the pilots and the AFAP with a copy of the direction not to travel (or the restriction as the case might). This obligation does not extend to including that part of the advice/information, if any, that is commercial in confidence.

(c) At the date of this settlement (10 July 2020) there are no restrictions or prohibitions (state borders/regulations or ABF or otherwise) restricting any relevant travel or FIFO arrangements.

1. The company will fund the cost of each Pilot's airfare from the operating Base to their Home Base. Those pilots who have already paid their own airfare will be refunded those costs by 17 July 2020.
2. While the company operates a FIFO operation, the Pilots shall remain at all times employed on their Letters of Offers/IFA as applicable.

1. Any disputation that may arise in relation to this settlement shall be resolved in accordance with the dispute resolution procedure of the Agreement in the first instance at clause 1.12.5 and if necessary referred to the FWC under case C2020/4069.

1. The remaining issues contained and contemplated in the AFAP's dispute, including but not limited to, the proper remuneration, allowances and other entitlements during the extended/temporary basing and the related complaints made, remain outstanding and unresolved.

1. The parties agree to request the Commission to record this settlement in the terms of a formal Statement of the Commission to which the parties shall be bound pursuant to clause 1.12.9 of the Surveillance Australia Pilot and Observer Enterprise Agreement 2016 (and its successor Agreements).

[11] The agreed schedule of return dates and related information referenced in point 2 of the settlement terms above provides the following for each of the FIFO Pilots:

• The last day of duty at the "temporary" base concerned;

• The date of the flight to the Pilot's home base;

• Any leave and RDO arrangements;

• The start date for the new IFA; and

• The start date for each of the first two On and Off rotations.

[12] Given the personal information disclosed, and the potential security implications of that information, I have not set out the schedule as part of this decision. However, the schedule has been expressly agreed between the parties, provided to the Commission, and forms part of the record of this matter.

[13] I commend the parties and their representatives on reaching a resolution of what was, and is, a complex matter with many competing considerations and priorities associated with the immediate issues.

[14] As outlined earlier, the broader issues associated with the dispute will be subject to further conciliation proceedings before the Commission at a date and time to be set shortly.

[15] General Liberty to apply has also been granted to the parties.

P Ferguson, with D Stephens of Australian Federation of Air Pilots and many of the FIFO pilots concerned for the Applicant.

S Bakewell, with permission, of EMA Consulting, with R Dyer, M Calabro, L Dierickx. T Smallwood and G Erskine for Surveillance Australia Pty Ltd T/A Cobham Aviation Services Australia - Special Mission.

[1] Cobham submissions dated 16 June 2020.

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