Fair Work Act 2009

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 - fly in fly out arrangements for Pilots cancelled in the context of the Covid-19 pandemic and restrictions by governments - whether the Pilots agreed to change their home base for a temporary period - whether arrangements permitted by enterprise agreement - enterprise agreement does not prevent a change where a new genuine contract of employment is established but does not otherwise contemplate temporary changes to home bases - found that no new contracts of employment made given the absence of acceptance of offers - home bases not changed for the purposes of the enterprise agreement - whether external investigation into alleged conduct of senior manager appropriate - found not appropriate in all of the circumstances - determination made - observations and recommendation issued to deal with fall-out of the events leading to this dispute.

• [1] The fallout from the COVID-19 Pandemic that hit Australia in March and April 2020 will be felt for many years to come. The adjustments that governments, businesses, workers and the community had to make at short notice had, and continue to have, consequences. This includes, as a result of the various lockdowns, border restrictions and reductions in airline operations. These events in March and April 2020 largely set the scene for this matter.

• [2] 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).

• [3] The matter was subject to an earlier decision of this arm of the Commission on 17 July 2020[1] (July 2020 decision), which effectively endorsed an agreement between the parties about one aspect of the dispute. Namely, the arrangements to conclude what was a temporary change in the basing arrangements for some of the Pilots. This decision should be read in conjunction with the July 2020 decision.

• [4] Without outlining the entire context of the matter, the background is that some of the Pilots, who are also engaged as Captains (10 Pilots out of total cohort of approximately 56 ABF contract Pilots),[2] were, at the relevant time engaged on what might be best described as Fly in - Fly out (FIFO) arrangements whereby they undertake their flying duties from an airport other than their nominated home port, on an equal time roster, generally on a 21-day on, 21-day off, basis. Until around early April 2020, the FIFO arrangements were generally (but not exclusively) facilitated by Individual Flexibility Agreements (IFAs) entered into in accordance with clause 1.14 of the Enterprise Agreement.

• [5] Cobham SM operates 10 specially modified Dash 8 turbo propeller aircraft from 3 operational 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 to new contract variations to their engagement on the basis that their home port would be other than one of the ABF base ports. In practice this created 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, amongst other transits.

• [6] Although I will discuss the full legal import of these concepts within this Decision, the following notions arise from the terms of the Enterprise Agreement and the FIFO arrangements:

• Home Base - an airport near to where the Pilots reside which represents the point that the Pilots must attend and where Cobham SM will begin their transport (generally using commercial airlines) to the ABF base. The Pilots are also returned by Cobham SM to the home base at the conclusion of a deployment.

• ABF or Operational Base - an airport from where the FIFO Pilots fly their ABF deployments (roster swing). During a deployment, the FIFO Pilots are housed by Cobham SM in accommodation near to the ABF bases.

• [7] I observe that in the case of the (non-FIFO) fixed-base Pilots, their home base and ABF base are generally the same. In all cases, the Pilots may be deployed to fly out of any of the ABF operational bases from time to time.

• [8] In the context of the COVID-19 pandemic and the associated restrictions imposed by various governments, Cobham SM sought to, in effect, physically relocate the relevant FIFO Pilots from their home bases to one of the ABF base ports in order to reduce inter-state travel and for other risk-management purposes. In practical terms, the Pilots cooperated with this arrangement at short notice and temporary understandings, or at least, arrangements were put into place. This involved, in effect, 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. Whether the Pilots agreed to change their home base for the purposes of the Enterprise Agreement is in dispute. Cobham SM also unilaterally terminated the IFAs, something that was not supported by the AFAP or the Pilots. 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 were extended and ultimately concluded on the basis set out in the July 2020 decision.

• [9] The dispute about the process and the legal effect of the change in the basing arrangements during this period is the focus of this decision. In effect, the substance of the dispute is whether the FIFO Pilots had, by agreement, their home bases for the purposes of the Enterprise Agreement changed to one of the ABF bases for the period of the temporary arrangements, or alternatively, were deployed to the ABF bases without a change in home base.

• [10] I also observe at the outset that there is no suggestion that the changes in basing arrangements were intended to permanently change the Pilots' actual home bases. It was expressly a temporary change in the context of the immediate predicted impact of the COVID-19 pandemic including, in particular, the control measures introduced by the Commonwealth, State and Territory governments and associated changes to commercial airline schedules.

• [11] It is common ground that the matter is properly before the Commission and that it is empowered by the terms of the FW Act, and the relevant dispute resolution provisions of the Enterprise Agreement, to determine the dispute about the proper application of that instrument.

• [12] I observe that a subsequent review of the FIFO arrangements has been implemented by Cobham SM and a dispute[3] about this (the 2021 dispute) has been heard by another Member of the Commission. The 2021 dispute, understandably, became the priority for the parties in this matter and this contributed to the delay in conducting the final hearings of this application. The 2021 dispute was ultimately resolved by the parties, with the assistance of the Commission, and a Statement[4] was issued by the Commission, in effect, confirming those arrangements.

• [13] I also observe that, somewhat ironically, hearings associated with this matter have also been impacted and delayed multiple times by various COVID-19 related restrictions and State-based shutdowns from time to time. The parties and their representatives cooperated with each other and the Commission in that regard.

• [14] In this Decision I have, for convenience, referred to the temporary arrangements in question as a "rebasing". The substance of the arrangements remains in dispute and will be examined hereunder.

• [15] The parties have agreed the following question to be determined by the Commission.

"In the case of each relevant Pilot, what was the Pilot's Home Base for the purposes of the Surveillance Australia Pilot and Observer Enterprise Agreement 2016 during the relevant period when normal FIFO arrangements were not operating during 2020?"

• [16] I will for convenience describe this question as the home base question.

• [17] In essence, it is accepted between the parties that if entitlements arise under the Enterprise Agreement as contended by the AFAP and the Pilots, then those entitlements arise as a consequence of the Pilots being deployed away from their home base during the relevant period. The Pilots deny agreeing to change their home bases, including temporarily, during the relevant period and on that basis do not accept that each of their home bases changed for the purposes of the Enterprise Agreement.

• [18] Cobham SM contends that each of the Pilots expressly or impliedly agreed to change their home bases during the relevant periods and that different home bases operated for present purposes. On that approach, no additional entitlements arise.

• [19] The relevant period for present purposes is the period commencing the first day of travel for each Pilot departing their respective (then nominated) home bases to their operating base under what Cobham SM has described as being the "temporary basing" and concluding on the day they arrived from the ABF bases back to their respective home bases. The relevant period for each employee is not in dispute and ranges from around 4 months for most of the Pilots and up to around 6 months for 2 of the Pilots.

• [20] In addition to the home base question, AFAP has sought, in effect, that the Commission determine that:

(a) Cobham SM engage an external agent, with no relationship to it, to conduct a review into the treatment of the Employees by the Cobham SM, Officers and employees of the Cobham SM;

(b) The external agent be agreed with the AFAP; and

(c) The report be made available to the AFAP, the Employees and the Commission.

• [21] I will for convenience describe this aspect as the external investigation claim.

• [22] Cobham SM contended that this asserted 'second limb of the dispute' is not part of the dispute to which these proceedings relate and that the Commission would not have jurisdiction to make a determination of the type sought. It asserts that in any event, these matters are irrelevant to the determination of the agreed home base question.

• [23] I have, in determining the agreed question, had regard to the process and conduct of the parties associated with the temporary basing arrangements. Having done so, and given the nature of these proceedings, I do not consider that it is appropriate to determine that an independent investigation be conducted. I will explain my reasons for this approach at the conclusion of this Decision. As a result, I have not dealt with the issue as to whether the form of outcome sought by the AFAP in connection with the external investigation claim would be within the jurisdiction of the Commission. I also observe that other avenues remain available to the Pilots if sought.

• [24] As to the home base question, I have ultimately determined that in the absence of a new/revised employment contract for each of the Pilots, the home base for present purposes was that specified in the most recent letters of offer (contracts) accepted by each of the Pilots which immediately preceded the rebasing events.

• [25] The basis of my conclusions and the determination of the Commission are set out in the Decision that follows.

3. The immediately relevant terms of the Agreement and typical IFA provisions

• [26] The Enterprise Agreement is a stand-alone instrument and does not rely upon the relevant modern award.[5]

• [27] The most relevant definitions bearing upon this matter are contained in clause 1.2 as follows:

1.2.7 "Base" means the geographical location at which the aircrew member is located in accordance with Employer requirements.

1.2.25 "Deployment" means where an aircraft terminates and/or aircrew complete their rostered duty at a location other than their home base.

1.2.35 "Home Base" means the Base of appointment as identified in an Employee's Letter of Offer once having taken up residence if moving from another location.

1.2.43 "Permanent Transfer'' means the acceptance by an Employee of an offer to transfer from one Home Base to another on a permanent basis.

1.2.55 "Temporary Transfer" means where an Employee is transferred, which is not in relation to a deployment, to a location for the purpose of being temporarily utilised at that location."

• [28] The dispute resolution procedure (DRP) under the Enterprise Agreement is important in terms of the chronology of events and the impact of a dispute raised on behalf of the Pilots during the early stages of the events under consideration in this matter. Clause 1.12 provides as follows:

1.12.1 If a dispute arises in relation to this agreement, the NES (including subsections 65(5) or 76(4)), any associated matters pertaining to this agreement (including a dispute about whether a workplace right has been breached), the parties will, in the first instance, attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant manager, or their respective representatives.

1.12.2 It is a term of this agreement that while the dispute resolution procedure is being conducted work shall continue normally, unless a employee has a reasonable concern about an imminent risk to his or her health or safety, and the subject matter of the dispute shall be preserved so as to maintain the status quo pending the resolution of the dispute.

1.12.3 An Employee who is a party to the dispute may be represented by the union or another representative.

1.12.4 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the Employee or employees and relevant supervisors and/or management.

1.12.5 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the General Manager or nominee for resolution.

1.12.6 If the matter is not resolved by the General Manager, a party to the dispute may refer the matter to the Fair Work Commission (FWC).

1.12.7 Fair Work Australia may deal with the dispute in 2 stages:

1.12.7.1 FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion, making a recommendation; or issuing interim orders; and

1.12.7.2 if FWC is unable to resolve the dispute at the first stage, FWC may then:

(b) make a determination that is binding on the parties.

Note: If FWC arbitrates the dispute, it may also use the powers that are available to it under the Act.

1.12.8 While the parties are trying to resolve the dispute using the procedures in this term:

1.1 2.8.1 an Employee must continue to perform his or her work as he or she would normally, unless he or she has a reasonable concern about an imminent risk to his or her health or safety; and

1.12.8.2 an Employee must comply with a direction given by the Employer to perform other available work at the same workplace, or at another workplace, unless:

(b) applicable occupational health and safety legislation would not permit the work to be performed; or

(c) the work is not appropriate for the Employee to perform; or

(d) there are other reasonable grounds for the Employee to refuse to comply with the direction.

1.12.9 The parties to the dispute agree to be bound by a decision made by FWC in accordance with this term."

• [29] The Enterprise Agreement defines its relationship with contractual terms as follows:

1.6.1 This Agreement, Employer policies and other contractual conditions (where applicable) will apply to an Employee's employment.

1.6.2 If there is any difference between Employer policy and this Agreement, the Agreement will prevail.

• [30] At various time the parties have utilised the Flexibility Provisions of the Enterprise Agreement to enter into the IFAs. Clause 1.14 provides as follows:

1.14.1 The Employer and an Employee covered by this Agreement may agree to make an individual flexibility arrangement (I FA) to vary the effect of terms of the Agreement if:

1.14.1.1 the Agreement deals with 1 or more of the following matters:

1.14.1.2 the arrangement meets the genuine needs of the Employer and Employee in relation to one or more of the matters mentioned in paragraph 1.14.1.1;and

1.14.1.3 the arrangement is genuinely agreed to by the Employer and Employee.

1.14.2 The Employer must ensure that the terms of the individual flexibility arrangement:

1.14.2.1 are about permitted matters under section 1 72 of the Act; and

1.14.2.2 are not unlawful terms under section 1 94 of the Act; and

1.14.2.3 result in the Employee being better off overall than the Employee would be if no arrangement was made.

1.14.3.2 includes the name of the Employer and Employee; and

1.14.3.3 is signed by the Employer and Employee and if the Employee is under 18 years of age, signed by a parent or guardian of the Employee; and

(a) the terms of the Agreement that will be varied by the arrangement; and

(b) how the arrangement will vary the effect of the terms; and

(c) how the Employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

1.14.3.5 states the day on which the arrangement commences.

1.14.4 The Employer must give the Employee a copy of the IFA within 14 days after it is agreed to.

1.14.5 The Employer or Employee may terminate the IF A:

1.14.5.1 by giving no more than 28 days written notice to the other party to the arrangement; or

1.14.5.2 if the Employer and Employee agree in writing - at any time.

1.14.6 Where requested to do so by an Employee subject to an IFA, the Employer must provide copies of the IFA made under this clause to the Employee's Union or other representative."

• [31] The Enterprise Agreement also provides allowances that may inform the determination of the dispute. Some of these allowances are also claimed by AFAP to arise from its view of the proper application of the Enterprise Agreement during the relevant period and include:

Where the Employee is deployed away from the Employee's home base and the Employer has agreed in advance that the Employee will provide his/her own accommodation, the Employee will be paid an Own Accommodation Allowance as prescribed in Schedule 1 of this Agreement in lieu of Employer provided accommodation (clause 7.3) and a Meal and Incidental Allowance (clause 5.6.4). In agreeing to pay this allowance, the Employer will consider the impact of these arrangements on crew coordination, transport and contactability.

Where the Employee is deployed away from the Employee's home base and the Employer is unable to provide the Employee with reasonable accommodation in accordance with clause 7.3 of this Agreement, the Employee will be paid a Lack of Facilities Allowance as prescribed in Schedule 1 of this Agreement. This allowance will be paid in addition to any other allowances that the Employee may be entitled to under this Agreement.

A change to an employee's RDO at the Employee's home base with less than 24 hours' notice will only occur with the agreement of the employee. Where the employee does agree, the Employee will be paid a Callout Allowance as prescribed at Schedule 1 of this Agreement. This allowance is not applied to any Training or Senior Base Allowances as specified in subclause 5.5.1 of this Agreement.

This allowance is not payable during tactical operations away from the Employee's home base or under any circumstances where more than 24 hours' notice is provided.

5.6.4.1 When the Employer deploys an Employee away from home base the Employee will be paid Meal and Incidental Allowances as prescribed in Schedule 1 of this Agreement.

5.6.4.2 A Meal Allowance will be paid if the Employee is deployed away from the Employee's home base and the Employee's deployment falls within the following meal times (rounded to the nearest 15 minutes);

5.6.4.3 The Incidental Allowance applies to each day of travel or part thereof.

5.6.4.4 When temporarily transferred to a location other than the Employee's home base for a period in excess of 28 days the Employee will be provided with accommodation that has cooking facilities and the Employee will be paid the Incidental Allowance as prescribed in Schedule 1 of this Agreement. No Meal Allowances will be payable.

5.6.4.5 Where the Employer provides the Employee with a meal, they will not be entitled to a meal allowance in accordance with clause 5.6.4.1 of this Agreement

5.6.6 Daily Travel Allowance (Pre-Checked to Line)

5.6.6.1 On commencement of employment and where required to deploy away from the Employee's home base, an Employee will be paid a Daily Travel Allowance (Pre-Checked to Line) as prescribed at Schedule 1 of this Agreement for a period of 12 weeks or until being Checked to Line (whichever occurs first). This allowance is paid in lieu of the Meal and Incidental Allowances prescribed at clause 5.6.4 of this Agreement. However, where the training program extends beyond 12 weeks due to an Employee's failure to pass any portion of the training course, the employee will continue to receive the DTA until CTL.

5.6.6.2 Once Checked to Line or after 12 weeks of employment (whichever occurs first), an Employee will receive the full Meal and Incidental Allowances as prescribed at Schedule 1 of this Agreement.

5.6.6.3 The 12 week timeframe described in 5.6.6.1 and 5.6.6.2 does not apply to a "Low Flying Hours Pilot". Employees in this category will continue to receive a Daily Travel Allowance (Pre-Checked to Line) until they have been Checked to Line.

If an Employee does not receive RDOs as prescribed in clause 4.3 of this Agreement, the Employee will be paid an Additional Day Allowance as prescribed at Schedule 1 of this Agreement. This allowance is not applied to any Training or Senior Base Allowances as specified in clause 5.5. 1 of this Agreement."

• [32] One of the issues that arises is whether the Pilots attempted to repay certain payments that were made to them by Cobham SM associated with the status of the basing arrangements during the relevant period. In this regard, Cobham SM relies upon clause 5.8 of the Enterprise Agreement as follows:

5.8.1 In the event that an Employee is overpaid, the Employer must advise the overpayment and discuss re-payment options of the amount owing. The Employer will not seek recovery of any overpayment of either salaries or allowances for periods in excess of six months from the date of detection.

5.8.2 Where it is the intention of the Employer to deduct from pay an overpayment, then the Employer shall provide four weeks' written notice to the Employee and the deduction will not be greater than 10% of Gross Salary in any pay period or a negotiated amount. If an Employee has cause to dispute the Employer's decision or the proposed repayments will cause hardship, the Employee shall inform the Employer in writing within seven days and the Employer shall withhold deduction action until the matter is resolved.

5.8.3 Any overpayment not recovered from the Employee as at the date of the termination of the Employee's employment may be deducted from any other entitlements owed to the Employee.

5.8.4 Where the Employer underpays an Employee the Employer shall correct the underpayment as soon as practicable after being notified of the underpayment."

• [33] The consequences of a "transfer" of Pilots is set out in clause 5.10 in the following terms:

In the event of a permanent transfer from one home base to another, the Employer and the Employee will negotiate the transfer considering the Employee's specific requirements using the following parameters as a guide.

5.10.1 Where transferred from one home base to another at the Employee's request the Employee will be responsible for all expenses associated with the Employee's relocation.

5.10.2 Where transferred from one home base to another in response to a formal Expression of Interest (EOI) the Employee will be responsible for all expenses associated with the Employee's relocation. Hotel accommodation will be provided by the Employer at the Employee's new location for a maximum of 14 days.

5.10.3 In a limited number of circumstances, the Employer may be able to assist with airfares if the Employee is required to deadhead travel for Employer related business at the time of removal (i.e. to attend a training course en-route to the Employee's new home base).

5.10.4 Where an Employee transfers from one home base to another upon the Employer's written direction, the Employer will provide relocation assistance in accordance with clause 5.11."

• [34] Relocation assistance is required in the circumstances contemplated in clause 5.11 of the Enterprise Agreement as follows:

5.11.1 Where the Employer has offered to provide Relocation Assistance as part of either an initial offer of employment or a transfer in accordance with clause 5.10.4 of this Agreement, the Employer will pay reasonable costs in accordance with the value and proportion specified in the Employer's letter of offer to the Employee for the following items;

5.11.1.1 The removal of the Employee's personal effects, household goods and furniture.

5.11.1.2 The removal of one car owned by the Employee or the Employee's dependents.

5.11.1.3 Storage of the Employee's goods and furniture where required for a period of up to 30 days.

5.11.1.4 Removal and storage insurance for the goods noted above for a period of up to 30 days.

5.11.1.5 Economy class airfares for the Employee and the Employee's dependents.

5.11.1.6 Reasonable accommodation and meals for the Employee and the Employee's dependents where the Employee elects to drive the Employee's vehicle (in the Employee's own time) to the new location for a reasonable period of time, taking into account the distance to be travelled.

5.11.1.7 A maximum of 14 days accommodation at the Employee's new location.

5.11.1.8 Connection fees for water, electricity, gas and telephone (landline only).

• [35] Clause 7.2 provides the following with respect to the employment location of the Pilots:

7.2.1 An Employee will initially be employed at the home base nominated in the Employer's letter of offer. An Employee may be required to work in any location in Australia or around the world.

7.2.2 The provisions and conditions applicable to transfers from one home base to another are detailed in clause 5.10 of this Agreement.

7.2.3 An Employee shall not be required to conduct operations into a war zone or any area or location formally declared by the Australian Government as a war like zone, but the Employer may request volunteers for such operations."

• [36] The Enterprise Agreement provides as follows with respect to accommodation:

Where the Employer requires an Employee to deploy away from the Employee's home base the Employer will provide accommodation of a reasonable standard, as determined by the Employer.

• [37] The Enterprise Agreement term facilitating the making of the IFAs, clause 1.14, has been set out above. I observe that s.203 and s.204 of the Act provides the requirements for the inclusion of an IFA type provision within an enterprise agreement in the following terms:

"203 Requirements to be met by a flexibility term

(1) A flexibility term in an enterprise agreement must meet the requirements set out in this section.

(a) set out the terms of the enterprise agreement the effect of which may be varied by an individual flexibility arrangement agreed to under the flexibility term; and

(b) require the employer to ensure that any individual flexibility arrangement agreed to under the flexibility term:

(i) must be about matters that would be permitted matters if the arrangement were an enterprise agreement; and

(ii) must not include a term that would be an unlawful term if the arrangement were an enterprise agreement.

(2A) If, in accordance with this Part, the enterprise agreement includes terms that would be outworker terms if they were included in a modern award, the flexibility term must not allow the effect of those outworker terms to be varied.

(3) The flexibility term must require that any individual flexibility arrangement is genuinely agreed to by the employer and the employee.

Requirement that the employee be better off overall

(4) The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must result in the employee being better off overall than the employee would have been if no individual flexibility arrangement were agreed to.

Requirement relating to approval or consent of another person

(5) Except as required by subparagraph (7)(a)(ii), the employer must ensure that the flexibility term does not require that any individual flexibility arrangement agreed to by an employer and employee under the term be approved, or consented to, by another person.

Requirement relating to termination of individual flexibility arrangements

(6) The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated:

(a) by either the employee, or the employer, giving written notice of not more than 28 days; or

(b) by the employee and the employer at any time if they agree, in writing, to the termination.

(7) The flexibility term must require the employer to ensure that:

(a) any individual flexibility arrangement agreed to under the term must be in writing and signed:

(i) in all cases - by the employee and the employer; and

(ii) if the employee is under 18 - by a parent or guardian of the employee; and

(b) a copy of any individual flexibility arrangement agreed to under the term must be given to the employee within 14 days after it is agreed to.

204 Effect of arrangement that does not meet requirements of flexibility term

(a) an employee and employer agree to an arrangement that purports to be an individual flexibility arrangement under a flexibility term in an enterprise agreement; and

(b) the arrangement does not meet a requirement set out in section 203.

Note: failure to meet such a requirement may be a contravention of a provision of Part 3‑1 (which deals with general protections).

Arrangement has effect as if it were an individual flexibility arrangement

(2) The arrangement has effect as if it were an individual flexibility arrangement.

Employer contravenes flexibility term in specified circumstances

(3) If section 203 requires the employer to ensure that the arrangement meets the requirement, the employer contravenes the flexibility term of the agreement.

Requirement relating to termination of arrangement

(4) If the arrangement does not provide that the arrangement is able to be terminated:

(a) by either the employee, or the employer, giving written notice of not more than 28 days; or

(b) by the employee and the employer at any time if they agree, in writing, to the termination;

the arrangement is taken to provide that the arrangement is able to be so terminated."

• [38] Although the relevance of the various IFAs is in dispute, an understanding of some of the common terms is important to provide the complete context for the various propositions advanced in this matter.

• [39] Each of the FIFO Pilots were given a letter offering the FIFO position along with, in most cases, the IFA. I will return to the significance of these letters at various points in this Decision.

• [40] The precise terms of some of the IFAs varied; however, each had an introduction setting the context. For example, Captain Smart's IFA, entered into during November 2017, reads in part as follows:

"Further to the company's information sessions around the DHC8 Captain attraction and retention initiatives, I am pleased to confirm our offer of a FIFO position at Full-Time (100% FTE) as Base Relief & Training/Checking Captain with an initial home base of Adelaide SA.

It is noted that you expressed interest in this offer/change in August 2017 and, upon your acceptance of this offer, this change will be effective from 1 September 2017 (commencement of a pay cycle).

In order to effect the nature of this offer, the terms and conditions of the FIFO DHC8 captain attraction and retention initiative will be covered by an Individual Flexibility Arrangement (IFA). The following items are provided for your consideration; with this letter being the IFA should you accept the terms and conditions. Please note, this offer/acceptance will replace any current or previous contract or IFA agreement upon taking effect."

• [41] In addition to specifying the nature of the position and the salary level, the common terms of the IFAs included clauses of the following nature (again using Captain Smart's 2017 IFA as an example):

You will be rostered for flying duties as required and the Company will cover the airfares to position you for blocks of duty, this also applies when attending for SIM activities.

Meal and incidentals in line with the SAPL EA when deploying from a Temporary Home Base during a Duty Cycle or when at the SIM.

Our position is that a designated Home Base needs to be a capital city of your choosing, however, your preference for the Sunshine Coast or Gold Coast in Queensland is acceptable. Initially, you will operate out of Adelaide until such time as we mutually agree on an alternative home base and date for your relocation.

Once determined and agreed, any costs associated with relocating to a different home base from Adelaide will be borne by you. However, the company will assist you, if requested, by approving your access to the salary sacrifice options and repayment via payroll deductions over the agreed period.

The company will also provide up to 14 days hotel accommodation for you and your family at the time of your initial relocation from Adelaide to your new home base.

You have requested and we have agreed that you may request to vary your nominated home base after the initial relocation, however, apart from assistance with salary sacrificing transport costs, the company will not contribute to any other costs associated with your decision to relocate again. The company will not unreasonably refuse to agree a new location as long as it is a capital city and does not result in additional costs or constraints.

You will continue to be employed pursuant to the Surveillance Australia Pilot and Observer Enterprise Agreement 2016 (EA) with the following changes as mutually agreed between you and the Company:

1. To introduce an additional level of flexibility in responding to short notice or temporary operational requirements, and/or base pilot shortages due to leave or attrition;
2. To be assigned to a Base for each Duty Cycle - this may change each rotation.

1. To work as required across all Bases and areas of flight operations as part of the Company's strategy to reduce the pressures on rosters and current line pilots;

1. Assist in filling FO rosters when internal command upgrades occur and the resultant shortage during recruitment periods; and
2. Assist in pilot training and development programs as determined by level of training endorsement held.

1. Rotating 21 night cycles of DUTY and 21 night cycles OFF. This will result in less roster availability and additional guaranteed days off over 17.4 x 21 night roster cycles.
2. FRMS provisions will still apply during the 21 night Duty Cycle, resulting in CA048 days when necessary. No RDOs will be rostered during the Duty Cycle.

1. Duty Cycle can be extended if:
   • due to U/S aircraft;
   • re-tasked on return flight;
   • deployment extended at short notice; or
   • Tactical Operations.

The Additional Day Allowance will be paid in lieu of varying Off Cycle if Duty Cycle Is extended as above.

1. Additionally, for reasons other than described in 3(c) above, a Duty Cycle can be extended as mutually agreed without application of the Additional Day Allowance being paid.
2. If, during your Off Cycle, you agree to our request to attend for duty at a location other than your FIFO home base you will be paid the Additional Day Allowance for each duty day.

1. Under this IFA, you have nominated ADELAIDE as your FIFO Home Base.
2. EA Clause 7.2.1-You will be advised of your Temporary Home Base (designated Base) at the commencement of each duty cycle.

1. Where possible, self-contained accommodation will be provided when at a designated Base, however, this will not preclude the company from providing shared accommodation with other FIFO Captains where such accommodation provides for individual bath/toilet facilities.

1. EA Clause 4.2.1 - rosters will cover rolling 21 night periods with the Duty Cycle roster available prior to commencing that rotation.
2. EA Clauses 4.2.5, 4.3.4, 4.3.5, 4.3.6 & 4.3.9 - there will be no restriction on changes to rosters at short notice during the term of a Duty Cycle. Accordingly, call-outs will not apply. Changes to rostered times during 21 night Duty Cycle cannot be refused unless on reasonable grounds.

1. Duty Cycles may be shown as rostered work or standby to enable availability within constraints of FRMS.

1. Expect deployments from designated Base each Duty Cycle where available.

1. EA Clause 4.3.1 - All RDOs are included in the 21 night Off Cycle.
2. CA048 days will be applied to ensure compliance with maximum duty provisions contained in the FRMS.

1. EA Clause 5.5.3 - No Location Incentive Allowance will be applicable.
2. EA Clause 5.6.4 - You will not be eligible for meal and incidental allowances unless deployed from the designated Base during that Duty Cycle.

1. You will be paid the Daily Travel Allowance of $56.63/day when at the designated Base.

1. On a day that you deploy from the designated Base, either the Daily Travel Allowance (DTA) or meal allowances will be paid, whichever is the higher amount. Both allowance types will not be paid for the same day.
2. Travel into or out of a Duty Cycle is not deemed deployment. However, if the travel does not have a meal provided in-flight (over the designated meal periods described in 5.6.4.2 of the EA) the OTA may be claimed.
3. EA Clause 5.6.8 - Hourly Flying Allowance will not be applicable - offset by the additional days off during the Duty Cycle (CAO 48 days) and additional days over course of 12 months included in the Off Cycles.

1. EA Clause 6.1- Annual Leave is included in the 8.7 x 21 night OFF Cycles each year. It is agreed that two (2) blocks of rostered duty off (6 weeks or 42 calendar days) per annum will be rostered and regarded as paid recreation leave and shown as such on the roster. Where greater than 21 days annual leave is desired, the Company may consider the request on the basis that the additional days greater than 21 will reduce the following Off Duty rotation - approval of any such request will be subject to operational requirements.
2. Any annual leave accrued at the time of commencing this IFA may be cashed-out (as per NES to a minimum of 28 days balance), or used in addition to the Off Cycle days where approved by the Company.

1. EA Clause 6.2 - Personal Leave as per the EA provision.

1. The Company will provide travel from/to ADELAIDE and the designated Base for each Duty Cycle.
2. EA Clause 7.4 - Travel to ADELAIDE at end of Duty Cycle can be rostered on same day as last turn of duty if mutually agreed, otherwise the travel will occur on Day 22. Travel to a designated Base for a Duty Cycle will be included in the first day of duty in that cycle and administrative duties can be completed within that same duty day if required.

1. EA Clause 7.5 - Cabcharge can be used at the designated Base for local flights.

1. Travel to/from place of permanent residence to ADELAIDE Airport (Home Base) is your responsibility.

EA Clauses 4.2.4 & 4.2.5 will not apply. On-line computer training can be completed during an Off Cycle. Face to face training, other than Simulator training and checking, will normally be accomplished during a Duty Cycle.

Recurrent Simulator and theory activities training may occur in the first seven (7) days of an Off Cycle.

This IFA enables you to continue your preferred employment with the Company whilst nominating a home base other than the normal Company operational bases to meet your work/life needs. The Company will pay transport costs to and from designated bases and provide accommodation whilst on a Duty Cycle.

Upon your acceptance of this IFA, it will come into effect in regards to salary from 1 September 2017. In terms of Duty/Off cycles, your current rotations as FIFO will continue unless any change is mutually agreed.

This agreement is between the Company and you and must remain confidential. However, the confidentiality requirement does not preclude you from discussing the content with your industrial representative or other party as required by law."

• [42] I observe that not all of the IFAs operated on the basis of a 21-day cycle with some operating around a 14-day cycle. Nothing of significance flows from this difference.

• [43] As to base location, other IFAs have provided the following, by example:

1. Under this IFA, you have nominated (Brisbane) as your FIFO Home Base.

1. EA Clause 7.2.1 - You will be advised of your Temporary Home Base (designated Base) at the commencement of each duty cycle.

1. Where possible, self-contained accommodation will be provided when at a designated Base, however, this will not preclude the company from providing shared accommodation with other FIFO Captains where such accommodation provides for individual bath/toilet facilities."[6]

• [44] None of the IFAs contained a termination provision and I will also return to this aspect in due course.

• [45] Some of the FIFO Pilots (Captains Dyne, Connolly and Lee) did not have a formalised IFA before the relevant period. These Pilots were "direct entry" employees, who were engaged on the basis of the FIFO arrangements that would operate when they were "checked to line", having passed the necessary checks and approvals. However, they did not, probably by omission, formally enter into an IFA with Cobham SM. Rather, each had letter of offer which, in effect, established their employment contract, directly confirmed the agreed home bases, and referenced the FIFO IFA arrangements. Further, another FIFO Pilot, Captain Andrews, was also a direct entry employee, but was subject to a formal IFA at the relevant time. I will also return to the significance of these circumstances.

• [46] The substance of the AFAP's submissions on the home base question is as follows:

• It is uncontroverted that the Enterprise Agreement provides for home base, operating base, deployments and extended deployments. The only way a temporary home base may be expressly provided for is by way of an express appointment to a temporary home base under, and for the purposes of, the Agreement. For the purposes of the Agreement, the Agreement does not provide for temporary home base.

• The applicable home base of each Employee is not contentious. It is also not contentious that for the purposes of the Agreement a home base may be permanently changed. However, the Agreement does not provide for a temporary change of home base.

• [47] The basis for that position is as follows:

• The combined terms of the IFA and the Agreement not only provide for extended deployments or, as described in the IFAs as duty cycles, but contemplate them to the point that it was, and remains, unnecessary to have terminated the IFAs.

• An employee may be deployed/located (regardless of the terminology) "to work", or otherwise to perform their full range of duties as specified in clause 7.1 of the Agreement (and anywhere else in the Agreement) anywhere in Australia (or overseas), not only without their home base being impacted or required to change, but regardless of where or what their home base is. Returning to, and restating, clause 7.2.1:

"An employee will initially be employed at the home base nominated in the Employee's letter of offer. An employee may be required to work in any location in Australia or around the world."

• An employee's home base may, for example, be Brisbane but the employee may perform work in Broome. It is not the IFA that provides for that scheme. It is the Enterprise Agreement, which operates compatibly with the IFA including on this point. Any representation to the contrary made by the respondent to any or all of the employees was made knowingly as false and was a deliberate misrepresentation. For reasons known only the respondent, it knowingly "threw the baby out with the bath water" and, it did so, with an intended detriment to the employees. The employees now merely seek to recover the price of that detriment.

• This leads to a conclusion that there was no requirement to change home base, notwithstanding there is no provision for temporary transfers from one home base to another home base. The Enterprise Agreement not only contemplates but expressly provides for each of the Employees to maintain their prescribed home bases while operating from another location, or base, as contemplated by a deployment. This means that each of the Employees did not need to be presented with an unreasonable demand to so-called "temporarily transfer" to a "temporary (home) base" as (wrongly and/or improperly) contended by Cobham SM. The provisions of the Enterprise Agreement actually contemplate an employee operating away from home bases for extended periods and prescribes the conditions for doing so, such as clause 1.13.7 in terms of stand down or clause 4.3.9 in terms of the entitlement to days off at home base.

• However, each IFA, at clause 3(d), provides "relief" for Cobham SM in having to meet any costs associated with, for example, the Additional Day Allowance. The respondent wittingly took a calculated risk of believing it would "get away with" forcing the employees off their IFA either permanently, or temporarily, or for the eventual purpose of reinstating them but in considerably lesser standards and terms. The respondent's strategy was to "intimidate the employees into believing their employment was at risk", then terminate IFAs and force the employees onto extended "one-way ticket" (literally) extended deployments, only to be expected to pay for their own fares home, including in circumstances where the respondent deemed them medically unfit to conduct flying duties. It is submitted that the evidence makes good this assertion.

• Cobham SM's Head of Turboprop Operations, Mr Dierickx, accepted under cross-examination that it was not necessary for the FIFO Pilots to be in the operating base at the one time. He acknowledged it was feasible to cover the bases by half the pilots at a time for an agreed period, and then changing over with the other half. None of that required a change in home base. Mr Dierickx also acknowledged under cross-examination that under the clause 3(d) proposal involved any additional cost liability to Cobham SM because the additional day allowance would not be paid as per the IFA, the Pilots do not accrue annual leave and the accrued time off, whether on an equal time roster or not, could still be discharged while still maintaining operational requirements.

• The clear theme of each of the Pilots' evidence, and contrary to the respondent's position, is that the pilots offered to work under extended deployments based on clause 3(d) of the FIFO terms and conditions. Further, given that a dispute was raised by Captain Smart on 29 March 2020, prior to the relevant period commencing for any Pilot and prior to the letter being sent by Mr Russell Dyer, the then Vice President of the respondent on 30 March, the Pilots were entitled to believe that they had travelled into base, with the subject matter of the dispute that was notified days before, subject to the status quo terms on the Enterprise Agreement. In this instance, the status quo is plainly the FIFO operations that existed prior to the dispute, and those operations were based on an equal time roster, rotating from home base to an operating base and returning to home base. In terms of the Pilot's responsibility to continue to perform work normally, they must fulfil those terms of their employment and duty, and for the employer, it must not disturb that arrangement until permitted to do so, if at all, in accordance with the dispute resolution process. The employees must do nothing other than what they normally would do in complying with their obligation to work their 21/21 roster, or 14/14 in the case of Captain Andrews. And in performing their work, they must not do anything that would otherwise constitute non-performance of their normal work.

• The IFAs did not define the relevant home base. That is determined under clause 1.3.35 of the Enterprise Agreement. The scope of provisions able to be addressed in the IFA does not extend to determining the home base.

• Those home bases for each Employee did not change at all during each Employee's relevant period, and entitlements accrue accordingly.

• [48] As to the proper interpretation of the Enterprise Agreement, the AFAP contends that:

• An ambiguity cannot arise by substituting the existing and plain words of the Enterprise Agreement with other words, and/or by inserting new phrases into the Agreement as if those phrases are prescribed terms. The intended purpose of the respondent's strategy is to cynically attempt to change the plain meaning of the existing words and phrases. There is no term "temporary home base", or as relevant "temporary transfer" (other than as referred to herein), or "temporary base/basing" and certainly not in any application to the subject matter of limb three of the dispute.

• The respondent attempts to substitute existing plain words with other words that not only do not exist, but then assert that the substituted words mean the same as the existing words, but they do not. Moreover, in substituting the existing words and inserting new phrases, the respondent takes further liberties and actually re-reads the instrument as if those new words and phrases are the actual words and phrases. That does not create an ambiguity.

• The FWC must, in the first instance, be guided by the plain words of the Enterprise Agreement and in the absence of any ambiguity, the Agreement must be construed according to its plain words. The guiding plain words are those of what is a home base, and how it is defined, and then how is a home base changed and whether those express terms have been satisfied.

• Cobham SM's approach does not successfully overcome clause 7.2.2 of the Enterprise Agreement which prescribes "the provisions and conditions applicable to transfers from one home base to another" by directing the parties to clause 5.10, which expressly makes provision only for "a permanent transfer from one home base to another ...". Further, if there were an intention to provide for temporary transfers the parties would have provided for same, and it would have been an easy exercise of drafting. The parties did not do so and did not over successive years of bargaining and multiple iterations of the Agreement.

• Clause 1.4 of the Agreement confirms that it is a comprehensive Agreement and sets out the full scope of rights, entitlements, and obligations of the parties and this extends to the issue of home base transfers.

• Clause 7.2.1 makes clear, and is reinforced by clause 7.2.2, that while the employee's home base is as determined by the letter of offer, that determined home base neither precludes working in a location (anywhere in Australia or the world) other than that determined home base, nor does it require a change in home base - whether temporary or permanent. The "full scope of the rights, entitlements and obligations of the parties" in relation to clause 7.2.1 are made clear. The employer may have a right to require work in another location; and the employee may be required to do so, but neither has the effect of requiring the employee to change their home base.

• Indeed, the circumstances surrounding the alleged termination of the purported IFAs, and the associated conduct of officers of the respondent was not only the subject of formal disputation under the terms of the Agreement and persistently objected to by the Pilots, it was on admission of the respondent, challenged and strenuously objected to by the Pilots, including refusals to sign any concession sought by the respondent to purportedly forego their home base. Contrary to any proposition or inference otherwise by the respondent each of the Pilots at the relevant time were merely commencing their rostered "tour cycles", while others were at that time already in situ on deployment in their operating base. While the latter were refused the right to return home, the former were subject to one-way airfares/tickets at the whim of the respondent. This issue was vigorously debated in the course of the first limb of the dispute and resolved in the manner it was. If it were not a matter in dispute, but a consent arrangement as disingenuously suggested by the respondent, it would not have required resolution in the manner it was resolved - by intervention of the Commission. Any suggestion of consent to a change of home base is unsustainable. Merely because the respondent refused to address the dispute at the time the dispute was lodged and before the respondent escalated the dispute does not mean it was not subject to a dispute.

• It matters little that there was no need to terminate the IFAs as the respondent did given the express terms of the IFAs (ie clause 3(d)), although it would have avoided all disputation and service delivery would have been assured given the pre-dispute undertakings and offerings of each of the Pilots, the motive does become relevant "including the overtly harsh treatment of each of the Pilots", and that motive was afforded life opportunistically through COVID-19 - the motive to break the promises, guarantees and representations of permanency of FIFO given by the respondent to each Pilot in lieu of the $100,000 financial incentive. That motive was played out in the 2021 dispute. What we are now presented with is the respondent being held accountable for that conduct, and the consequences of the strategy to terminate IFAs which includes the fact that relevant entitlements under the Agreement flow as a result of the home base of each Pilot during the relevant period not being the operating base to which they were deployed on an extended basis.

• [49] The AFAP further contends that none of the Pilots agreed to any change of their home base. This, it posits, is reinforced by the fact that none of the Pilots responded to accept either the first or second written offer made by Cobham SM in that regard. In addition, the AFAP contends that:

• Cobham SM asserts that the process was voluntary, and purported to conduct an EOI process which it could only do pursuant to clause 5.10.2 of the Enterprise Agreement. It was then bound to comply with its own rules of consent and agreement as promulgated by the respondent for the purposes of accepting a change in home base. This required a written acceptance of an offer.

• There was no obligation upon the Pilots to expressly reject the offers, if not accepted - they were rejected.

• Cobham SM made 2 different offers with the second offer replacing the first. To the extent that it is suggested that Captain Cullen responded positively to the first offer, he did not do so formally and he did not respond to the second offer.

• The respondent chose not to apply clause 5.10.4 of the Enterprise Agreement, instead went through the motions of applying clause 5.10.2. But in doing so, it never complied with its own rules of agreement or consent. And this is part of the reason behind the unequivocal obligation on the part of the respondent to ensure that consent is recorded as a formal and express acceptance of an offer issued, and in this instance mandated by the HR department as noted by Mr Dierickx in his evidence. It is beyond both comprehension and common sense that a person's home base, being what it is, family and home, is subject to intermittent change whenever the respondent feels the whim or urge to do so without the employee's formal and express consent or agreement.

• The evidence reflects that rather than travelling in accordance with the revised or rescheduled departure dates, the travel scheduled for each of the FIFO Pilots was in accordance with each of their scheduled cyclical travel dates, that is, their ordinary on-swings. There were already pilots in their operating bases at the time as part of their regular travel, or on the way up as part of their normal cycle. The exceptions to that being Captain Bonthorne, who was required to attend an employment-related medical appointment that coincidentally was scheduled on his regular travel day, and Captain Connelly, who was sick with flu-like symptoms and forced to delay his travel for two to three days. Once both were cleared by their aviation medicals, they travelled with what otherwise had been their normal travel dates.

• The FIFO Pilots attempted to return the payment made to them by Cobham SM, which was apparently provided on the basis of the change of home base, and the fact that the payments were not in fact repaid is not relevant as clause 5.8 of the Enterprise Agreement was not followed.

• [50] Accordingly, the AFAP contends that the home base for each Pilot did not change and as a result, the provisions under the Enterprise Agreement now owing to each Pilot are:

• Clause 5.6.4 - Meal & Incidental Allowance - $129.22 per day prior to 1 July 2020; and then $132.06 per day after 1 July 2020.

• Clause 5.6.5 - In-flight Snack Allowance - $24.58 per flight between April and June (inclusive) 2020 due to non-availability of catering.

• Clause 4.3.9 - Additional Day Allowance for each rostered day off (RDO) at home less than 24 days in an 84 day period - $613.13 per RDO, plus 9.5% superannuation.

• [51] In relation to the external investigation claim, the AFAP contended that more than one FIFO Pilot came forward and filed a complaint, and complaints were made to different people in management, and those complaints were not only shared, but reported to the General Manager, and that at least one of the complainants advised that other Pilots felt the same. Given the level of seniority of the person subject to the complaints, the relative positions of authority of each of the Pilots, and that it was he who had assumed or been the point of responsibility to give effect to the respondent's plan, there should have been a proper investigation.

• [52] Further, it contends that none of the complainants were interviewed and Mr Dierickx was also not interviewed but merely asked for a few emails and was not questioned as to the allegations by Cobham SM's Human Resources staff. As a result, the Commission should determine to require that a proper external investigation now be conducted.

• [53] The AFAP contends that the answer to what was home base for each Pilot during the relevant period is as follows:

• [54] The AFAP led evidence from each of the Pilots concerned.

• [55] The substance of Cobham SM's position in relation to the home base question is as follows:

• The Enterprise Agreement defines 'Home Base' as, in summary, the base of appointment identified in each employee's current letter of offer. The IFAs confirmed the relevant home bases for each Pilot in that context.

• In the circumstances of the emerging COVID-19 pandemic, such that the previous FIFO arrangements were not workable, Cobham SM terminated each Pilot's then existing IFA and offered each Pilot a temporary base transfer agreement on certain terms.

• The termination of the IFAs meant that each Pilot's home base as it had been identified in the IFA no longer applied. Further, each Pilot accepted the temporary base transfer agreement as a result of his or her conduct in working in accordance with that agreement and the terms of that agreement as they were provided to each Pilot in a 'Temporary Base Transfer' letter provided to each Pilot. Those terms included an express statement as to the Pilot's home base during the relevant period.

• As a result, during the relevant period each Pilot's home base was the home base expressly identified in the 'Temporary Base Transfer' letters provided to each Pilot. The nomination of the home base during the relevant period was a contractual agreement made between the parties.

• Further, even if the Commission were to conclude that some or all of the Pilots had not accepted the temporary base transfer on the terms that were provided to each Pilot, in circumstances where the IFAs had been terminated the Pilot's letter of offer during the relevant period, for the purposes of identifying their home base identified in their letter of offer, must be the letter of offer that preceded each Pilot's entry into his or her IFA. In many instances that leads to the same home base as was identified in the letter that governed each Pilot's temporary base transfer agreement.

• There is nothing in the Enterprise Agreement that prohibits a temporary change (or transfer) of a Pilot's home base, and (if it be correct) the fact that the Agreement does not expressly provide for a temporary transfer of home base is not determinative of the home base question.

• [56] The submitted basis for the position advanced by Cobham SM is as follows:

• In order to deal with the circumstances that existed in the second half of March 2020, including the pending or actual closure of State borders, it sought expressions of interest (EOIs) from each of the Pilots to a temporary base arrangement, expressly stated as involving a transfer 'to a new home base'. All of the Pilots responded positively to that EOI.

• After each of the Pilots replied to indicate their willingness to participate in the temporary base arrangement, and to identify their preferred new home base, the respondent then issued a letter to each Pilot providing written notice of the termination of the Pilot's IFA; and issued a letter to each Pilot headed 'Temporary Base Transfer' that set out the terms of the base transfer and identified each Pilot's new home base - as has already been described, most of the Pilot's received such a letter on or around 29 March 2020 and then received a replacement letter in very similar terms dated 8 April 2020.

• The IFAs were no longer in force so as to constitute each Pilot's current letter of offer and identify each Pilot's home base for the purposes of the Agreement.

• Each of the Pilots should be taken as having accepted the letter (or letters) headed 'Temporary Base Transfer' as binding and as replacing any previous letter of offer or contract while the temporary base arrangement remained in place, and as a result, the March and April 2020 letters specified the relevant home base.

• • Other than Captain Sorrell-Saunders (and arguably Captain Cullen, who emailed his thanks to Mr Dierickx after receiving his temporary basing arrangement), none of the Pilots responded in writing to those letters. Captain Sorrell-Saunders responded to the temporary basing arrangement on 2 April 2020, expressly agreeing to the arrangement. However, parties can accept offers by conduct. Where a party performs under the conditions of an offer, and that party was aware of the offer, the performance is evidence of acceptance. The principle has been applied to an employee commencing work after receipt of an offer, even if the employee has not expressly assented to the terms of the employer's offer.[7]

• Consideration existed for the temporary base agreements, as ultimately offered to the Pilots by means of the 'Temporary Base Transfer' letters. Each of the Pilots accepted an ex-gratia payment, and (with the exception of Captain Carty, who was already in Cairns) the Respondent provided accommodation at the temporary base and paid for transport to and from the temporary base for each of the Pilots. Additionally, the Pilots had been informed that the alternatives to continuing performing work under the temporary base arrangement and on the terms offered by the respondent were to take paid leave or likely be stood down without pay due to a stoppage of work beyond the respondent's control. None of the Pilots indicated that they wanted those alternatives. By continuing to perform work rather than taking those alternatives, the Pilots avoided a 'very substantial practical disbenefit' and therefore also constituted real consideration.

• • The law makes it clear that acceptance of an offer can be done in various ways, and in this case, some pilots express agreement was made in the circumstances, and in other cases the acceptance can be taken as occurring by way of the conduct of the parties. Where a party performs work under the conditions of an offer, and that party was aware of the offer, the performance is evidence of acceptance. Further, in these circumstances, there may be a duty to communicate rejection of the offer.[8] There is nothing in the Enterprise Agreement that suggests only the written acceptance of a Pilot can constitute an offer of acceptance and there is no basis for the contentions advanced by the AFAP in that context.

• While Captain Smart raised a dispute on 29 March 2020, proximate to the first 'Temporary Base Transfer' letters being provided to most of the Pilots (before some and after others), this cannot be taken to constitute a rejection of the terms set out in those letters (nor can it be a rejection of the second 'Temporary Base Transfer' letters). The notification of a dispute by Captain Smart on 29 March 2020 was expressly a dispute about 'the lack of consultation regarding proposed changes to workplace hours and conditions for pilots on the a [sic] FIFO IFA'. The nature of that dispute did not extend to the implications of the temporary home base arrangement and does not amount to a rejection of the offer. Further, the status quo at the time that the dispute was raised on the 29th, there was a clear intention pursuant to the Agreement by each pilot that they accepted the positive interest in the EOI for the letter of offer to follow. That's what the status quo was, and the issuing of those letters of offer was completely consistent with what was the status quo at that time.

• To the extent that some of the Pilots claim in their witness statements that they proceeded to work in accordance with clause 1.12.2 of the Agreement (ie, maintaining the status quo), with some clarifying that they were specifically working on an extended duty cycle under their individual flexibility arrangements, this must also be rejected. First, it is not a claim that any of the Pilots made at the time. In any event, the IFAs had been terminated, and it was made clear to the Pilots that there was a stoppage of FIFO work due to border restrictions, and that absent a temporary base agreement, each Pilot would have to take leave or be stood down. Further, under the IFAs (cl 3), other than in certain circumstances that are not relevant to any of the Pilots who travelled to their new home base after the temporary home base arrangement was put in place, an extended duty cycle must be mutually agreed; and there was no such agreement. The fact that the IFAs were no longer in effect (and therefore the unavailability of extending duty cycles) was expressly put to the pilots by the Respondent. Again, the only offer put to the Pilots to work on a base during the relevant period was the offer of a temporary base arrangement. Further, the only available conclusion on the evidence is that by this point the Pilots were aware that they were not going to be continuing to work under their IFA or their existing FIFO terms, and in particular were not working pursuant to any extended duty cycle or 'extended deployment' under clause 3(c) or (d) of the former IFAs. In evidence, the majority of the Pilots acknowledged that EOI processes were not used for extended deployments. Additionally, Captain Bonthorne acknowledged that it was 'highly unlikely' that an extended deployment could extend to three months. The communications from Mr Dierickx, the letters headed 'Temporary Base Transfer', and the letters terminating the IFAs had made it clear to each Pilot that the proposal was for a temporary home base, and that they would not be working under their IFAs of their existing FIFO terms. That was then reinforced by the letter to each Pilot from Mr Dyer on 30 March 2020.

• The options of Pilots taking leave or being stood down were both legitimate and lawful. Therefore, in accordance with the principles applicable to contracts being vitiated by duress, even if any of the Pilots felt that he or she had no real choice other than to accept the temporary basing arrangements because of their individual financial or personal circumstances, there was no duress that would render invalid the Pilot's acceptance of the 'Temporary Base Transfer' letters.

• The overall evidence shows that the Pilots were all willing, and even keen, to proceed on the temporary basing arrangement. They were all aware it was going to be (as was expected at the time) for a three-month period and had made arrangements with their families on that basis. None of the Pilots took up the alternatives of taking leave or remaining at home and potentially being stood down.

• There is nothing in the Enterprise Agreement that prohibits a temporary transfer of home base, or a change of home base for a limited period, or that means that such a change of home base would be inconsistent with the Agreement and thus invalid. The position is analogous to the non-contentious proposition that parties to a 'permanent' (or ongoing) employment contract are able to agree to vary terms of the employment contract on a temporary or fixed-term basis, provided such a variation is not expressly forbidden by the relevant industrial instrument or by statute. Clause 7.2.2 of the Enterprise Agreement when combined with clause 5.10 does not mean that any change of home base is deemed to be a permanent transfer of home base, or can only be done as a permanent transfer. Rather, clause 5.10 sets out certain parameters or entitlements for the purpose of negotiating the terms of a permanent transfer of home base, and clause 7.2.2 arguably extends those matters to any transfer from one home base to another. The interpretation that avoids inconvenience and injustice is that the Enterprise Agreement does not prohibit the parties making an agreement to change a Pilot's home base for a finite period.

• The accepted principle, in private law, is that everything which is not forbidden is allowed.[9] Consistent with that principle, it is uncontroversial at common law that, absent a statute (or statutory instrument) restricting parties' rights to do so, it is open for parties to agree to arrangements on a temporary basis. To that end, clause 1.4 of the Enterprise Agreement (consistent with its heading which states that it is concerned with the relationship of the Agreement with other awards and agreements) does not operate to prevent persons covered by the Agreement from making individual contract variations.[10]

• • Some of the Pilots communicated about the possibility of returning the ex-gratia payments, although no Pilot ultimately took that step. In these circumstances, it was for the Pilots to make plain that their conduct amounted only to taking advantage of the proposal but not to submitting to the disadvantages if that was its position.[11] This was not done.

• [57] Cobham SM also contends that the principles of estoppel are similar to the principles of equity, good conscience and the substantive merits of a matter and relevant to s.587 of the Act. In that regard, Cobham SM posits that the Pilots induced it to assume that they had accepted the terms of the temporary home base arrangement put to them, and the Respondent has acted on that basis by continuing to engage them and have them work at the temporary home base. In all the circumstances, the principles of equitable estoppel would be met in this case, estopping the Pilots from denying that either: (a) they accepted the temporary base transfer on the terms on which it was offered; or (b) that their representations made through communication and conduct were not an acceptance of the temporary base transfer on the terms on which it was offered.

• [58] In relation to the remaining propositions advanced by the AFAP, Cobham SM contends that:

• There is nothing in the Enterprise Agreement that means that the IFAs did not properly specify the home base for the FIFO Pilots in that context and the termination of those agreements meant that they, and the nominated home base, no longer applied.

• The second letter of offer sent to the Pilots was, as set out in the evidence, provided to clarify the terms of the first letter. It was not a second nor a separate offer to the Pilots.

• There is no basis to suggest that the absence of signed acceptance of the offers following the EOI process means that the Pilots have not agreed to the rebasing. The Enterprise Agreement does not expressly or impliedly require this formality, there is no evidence of any policies requiring this step, and there is no basis to imply such into the process. The formation of a contract is to be tested objectively.

• The complaints of alleged intimidation by Mr Dierickx are unfounded and completely irrelevant to determining the answer to the home base question. They were investigated, including by interviewing Mr Dierickx, and found to be unsubstantiated.

• The AFAP has contended that the Pilots each proceeded to a base in accordance with their ordinary on-swing. This is inconsistent with the Applicant's own submissions where it reveals that the only Pilots who travelled on their regular on-swing day was Captain Cullen and Captain Mattey. Therefore, each of the eight other Pilots travelled on a day other than their ordinary travel day for their on-swing. In these circumstances, even where the travel dates coincided with what would have been their ordinary rosters, the Pilots' travel can only be viewed as conduct in accordance with, and therefore acceptance of, the temporary base agreements.

• The Pilots were given a genuine choice and there is no substance in submissions made by the AFAP about the alleged implications of refusing duty.

• There was, given the particular circumstances, an obligation upon the Pilots to expressly reject the offer and the absence of this means that they are estopped from now arguing the absence of an agreement.

• As to the potential to utilise clause 3(d) of the IFAs as an alternative, this is a distraction. The undisputed fact is that the IFAs were terminated, and none of the Pilots can have been under any misapprehension that they were transferring to or remaining at their temporary home base pursuant to extended duty cycle under clause 3(d) of the IFA. Further, clause 3(d) was not intended by the parties to allow for a long- term extension of some three months as this is entirely inconsistent with the purpose of the IFA itself and the purpose of duty cycle extensions. Even had the parties agreed to do an extension contrary to the intention of the IFA, there would have been numerous operational issues. This includes the scheduling of time off to maintain the general 'equal time' nature of the IFAs. This would have required rostering other pilots to fill those extended periods at operational bases upon the pilots return to their fly-in, fly-out arrangements. This is because the IFA terms are inconsistent with working a fixed-base roster, and that working a fixed- base roster is entirely inconsistent with the purpose and intention of the IFAs, the Respondent submits that the terms of the IFA could not continue to apply during the relevant period. Additionally, the Respondent submits that an arrangement under clause 3(d) of the IFAs would not have relieved the pilots of their dissatisfaction. A number of pilots made it clear that the issues they had experienced were largely to do with the time they had spent away from their families.

• [59] As a result, Cobham SM submits that, for the purposes of the Enterprise Agreement, each Pilot's home base during the relevant period was set out in the temporary base transfer letters as follows.

• [60] In the alternative, Cobham SM contends that in circumstances where the IFAs have been terminated, if the Commission were to find that the 'Temporary Base Transfer' letters did not constitute each Pilot's current letter of offer for the purposes of the definition of 'home base' in the Agreement, it would then be necessary to go back to the letter of offer preceding the IFAs, which would in those circumstances effectively be 'revived'. For Captains Carty, Cullen, and Sorrell-Saunders, that leads to the same home base as was identified in the letter that governed each Pilot's temporary base transfer arrangement. Further, the only option open to the Commission for the other Pilots would be to use the home base from which those Pilots actually lived and worked during the relevant period.

• [61] In relation to the external investigation claim, Cobham SM contends that the Commission should ignore the references to the alleged 'persistent intimidation, harassment and torment of the employees at the hands of the respondent'. It suggests that submissions of that nature are merely sweeping generalisations without reference to any particular evidence and fail to have regard to the unprecedented and rapidly evolving circumstances in which it and the Pilots found themselves in during the second half of March 2020. Such submissions also fail to have regard to the ways in which the Respondent had regard to the circumstances of the individual pilots.

• [62] Cobham SM led evidence from the following of its senior employees:

• Ludo Dierickx Head of Turboprop Operations;
• Tom Smallwood Chief Pilot;
• Anthony Davis Head of Pilot Training; and
• Julianne van Kessel (Former) Human Resources Business Partner.

• [63] All of the witnesses were required for cross-examination and I consider that each of them genuinely tried to assist the Commission.

• [64] However, there are some factual disputes about the discussions and process leading to the termination of the IFAs and the new basing arrangements. These disputes are influenced in part by the subjective views of the witnesses including certain assumptions that they have made about the intention of the other party. Further, I consider that some of the evidence, perhaps not unsurprisingly, conflates events that took place in a limited timeframe under considerable external and internal pressures. I have resolved these matters on an objective basis having regard to the detail of the evidence, the overall probability of the events within the surrounding circumstances, and the impression that I have formed about the recall of each witness.

• [65] In relation to the direct conflict between Captain Smart and Mr Dierickx about an initial telephone discussion, on balance I generally prefer the evidence of Captain Smart. I have, however, allowed for the fact that some conflation of later events may have impacted their recall.

• [66] In terms of the direct dispute between Captain Lee and Mr Dierickx about an alleged conversation on 27 March 2020 about the express rejection of the rebasing offer, the objective evidence is more consistent with the position of Mr Dierickx and Captain Lee's recall of the context and remainder of the alleged conversation was not clear. As a result, on balance, I prefer the evidence of Mr Dierickx on that point.

• [67] To the extent that any of the witnesses expressed views about the proper application of the Enterprise Agreement to the dispute or the effect of the facts that they depose to, these are matters for the Commission itself to determine and I have treated that material as submissions.

• [68] As part of the closing submissions, the AFAP provided some additional documents related to the earlier evidence before the Commission. This involves three emails from Captains Andrews, Cullen and Mattey respectively with Cobham SM regarding the alleged "overpayment" of an allowance related to the deployment. The admission of these documents was disputed by Cobham SM on various grounds including the prejudice said to arise because they had not been put to the respondent's witnesses. I observe that there is no suggestion that the documents are not genuine and some of the Pilot witnesses did give evidence about communicating with the respondent on the issue. As a result, and despite the very late provision of these documents, I have had regard to them. However, given the circumstances, I place little weight upon these documents, and I observe that nothing in particular turns upon this aspect for reasons discussed later.

• [69] Further, in closing submissions the AFAP also referred to some apparently associated proceedings[12] conducted by another Member of the Commission. There was little evidence to provide the factual context for this dispute and given that it was apparently resolved, and no findings or determination were made by the Commission, I have placed no weight upon those submissions.

7. Findings about the process leading to the "rebasing" during the relevant period

• [70] As outlined earlier, in the lead up to the relevant period Cobham SM operated with a mixture of FIFO and other (fixed roster - permanently based at an ABF base) Pilots and flight crew. At the time, the majority of the Cobham SM Pilots were permanently based at one of the ABF bases.

• [71] FIFO was introduced by Cobham SM as part of a Pilot recruitment and retention strategy and sought to make the positions more attractive, particularly from a lifestyle point of view whereby the Pilots could live in a location of their choice and transit to and from the ABF base as required. In 2017, the Pilots were, in effect, given the option of a retention allowance or the FIFO model.[13]

• [72] As part of discussions leading to the implementation of the FIFO arrangements and the IFAs, a number of Pilots sought clarification about the life (permanency) of such arrangements. Cobham SM stated at the time that the FIFO IFA "represents a discrete contract between the employee and the company. The contract is perpetual and will not have a cease date."[14] It also provided certain additional assurances including for example (drawn from Captain Smart's FIFO invitation letter in November 2017):

Upon your acceptance of this IFA, it will come into effect in regards to salary from 1 September 2017. In terms of Duty/Off cycles, your current rotations as FIFO will continue unless any change is mutually agreed."[15]

• [73] In the case of Captain Dyne, this commitment was expressed in the following terms on 15 September 2017:

"The company fully commits to the IFA FIFO arrangement on an ongoing basis (with Brisbane as your nominated location) unless mutually agreed otherwise".[16]

• [74] When Cobham SM was seeking to engage FIFO Pilots, or fill other specific roles, from within its own cohort of Pilots, it would generally call for EOIs. As outlined earlier, most of the FIFO Pilots transferred to that role from existing employment as a Pilot with Cobham SM. The other FIFO (direct entry) Pilots were specifically engaged on the basis of the FIFO arrangements and were not subject to an internal EOI process.

• [75] When all the relevant Pilots were appointed to FIFO arrangements, they were given a letter of engagement, in effect, nominating the agreed home base - an airport near where the Pilot resides. Upon acceptance, this represented the contracts of employment. In addition, Cobham SM and the FIFO Pilots would generally enter into an IFA confirming the terms of the FIFO arrangement. As outlined earlier, some direct entry FIFO Pilots did not enter into a formal IFA. However, in most cases, the general parameters of the arrangements were still provided in writing to these Pilots despite the absence of a formal FIFO instrument. It is not necessary for present purposes that I deal with the legal impact of the absence of a formal IFA for the direct entry Pilots concerned. In all cases, each of the FIFO Pilots had a letter confirming the basis of their arrangements including the nomination of their home base.

• [76] FIFO Pilots could, at least in general terms, be assigned (deployed) on a "swing" to any of the ABF bases. Under the FIFO arrangements, Cobham SM would be responsible for having the Pilots transit to and from the home base and ABF base, and accommodate them near to the ABF base whilst on that swing. This transit to and from the home bases regularly, but not universally, involved the Pilots travelling across State and Territory borders. Scheduled commercial airline routes were generally used for the transits.

• [77] The FIFO arrangements generally involved 21-day (or in at least 1 case 14-day) swings according to rosters. However, the roster once set, and the length of the swing involved, could be altered by agreement from time to time between Cobham SM and the Pilot. This was generally undertaken informally with Cobham's Operations Planner, or the Pilot, making contact and seeking a variation. This was done on a reasonably regular basis to accommodate training needs (such as simulator time and accreditation sign-off), operational contingencies and personal circumstances. The EOI process was not utilised for changes of this nature. Clause 3(d) of the common IFA appears to contemplate such arrangements.

• [78] In mid-2019, there was a change in the senior management at Cobham SM and in November 2019, Mr Dierickx announced a review of the FIFO arrangements, put the recruitment of new FIFO Pilots on hold, and indicated that in order to retain the FIFO option, suggestions from the Pilots about how to improve "the productivity and construction of the FIFO arrangements" was sought.[17] Concerns about this were raised by the FIFO Pilots, particularly given the basis of their engagement and certain assurances that were given to them by Cobham SM about the retention of the FIFO arrangements. These concerns were expressed by Captain Smart of behalf of the FIFO Pilots' group in the following terms:

"With regards to the structure of the FIFO agreement, all of us have arranged our lives on the basis of the company's original offer and any change would have a negative impact. Each of us gave up another job or employment basis in good faith to accept this offer on the terms presented, including a commitment that the arrangement would remain in its original form unless mutually agreed otherwise. As a group, we are collectively satisfied with the current arrangement and we hope that the company will honour its written commitment in this regard."[18]

• [79] There were no outcomes from the FIFO review at that time and Cobham SM acknowledged the concerns of the FIFO Pilots but did not accept that they were well founded. It is evident that the FIFO Pilots as a group understood that Cobham SM was looking to end the FIFO arrangements, a position denied by the employer. There is little doubt that this understanding impacted upon the responses of the Pilots to the subsequent events as they unfolded. I deal later with the impact upon Cobham SM's decision to terminate the FIFO arrangements.

7.2 The impact of the pandemic upon the operations of Cobham SM

• [80] Throughout the development of COVID-19 pandemic from early 2020, Cobham SM continually assessed the potential impact and risks to its operations. This included instituting a dedicated COVID-19 business continuity planning meeting, which eventually became a daily occurrence. A risk register with a business continuity plan was developed, and mitigations were considered on an ongoing basis to manage the issues.

• [81] Cobham SM initially viewed the potential for infection of workers at the ABF bases as the primary risk, however by mid­March 2020, the impact on FIFO Pilots moving in and out of the ABF bases across State and Territory borders on a continuing basis became increasingly important.

• [82] On 19 March 2020, Qantas announced that it would be suspending approximately 60 per cent of domestic flights.

• [83] On Friday 20 March 2020, the Australian Government announced that from 9 pm that day, borders would be closed to international visitors and that there would be a 14-day quarantine for anyone entering the country.

• [84] On Sunday 22 March 2020, Australian Governments announced various closures, including restaurants, hotels, gyms, etc. On this same day, the South Australia Government introduced a 14-day quarantine requirement for all people entering South Australia, to have effect from Tuesday 24 March 2020. By Wednesday 25 March 2020, Tasmania, the Northern Territory, Queensland, as well as South Australia, had all announced border closures and self-isolation requirements.

• [85] On Monday 23 March 2020, following a business continuity planning meeting, Cobham SM reviewed all travel of its employees and sought to stop all non-essential travel.

• [86] Cobham SM assessed that travel for its recurrent simulator training program was problematic and relief (some latitude on when this training was to be conducted) was sought and received from the Civil Aviation Safety Authority. The decision was then made to completely suspend the simulator training program. Also, four trainees, who were undergoing initial training, were apparently stood down and their training ceased immediately.

• [87] Cobham SM also developed a plan designed to ensure that the FIFO pilots would not be unwittingly stranded either in an ABF base, or at their home base, in the event that borders became fully closed, or where domestic flights ceased. The plan conceived that the Pilots would be offered a move to a "temporary basing" at an ABF base, take extended leave, on full or part pay, or take leave without pay (which Cobham SM understood to be effectively being a "stand-down" and this language was used in some exchanges with the Pilots).

• [88] I find that at the time that these decisions were made, the prospect of hard border closures, that is with no broad exemptions, was a real prospect, and that this could have had the impact that almost all commercial plane flights would be suspended. I observe that ultimately, the border restrictions varied both from State/Territory to State/Territory and from time to time. However, they did not generally prevent the Pilots travelling as they were for the most part considered to be essential workers and/or were able to obtain exemptions. However, at times, this led to the very real prospect of delays and considerable uncertainty. Further, plane flights to and from the various airports were maintained, albeit at much reduced levels and with cancellations and rescheduling, and this would have led to some significant mutual flexibility being required if the FIFO arrangements had been maintained during the relevant period.

• [89] It is also reasonable to infer that the nature and location of the ABF work meant that there was considerable pressure upon Cobham SM to ensure its capacity to have sufficient Pilots, with ready access to the ABF ports, available at all times.

• [90] In hindsight, the response at the time to immediately change the location of the FIFO Pilots for 3 months was probably an overreaction. Ultimately, the border restrictions and flight constraints were real but not insurmountable. I will also return to the cancellation of the IFAs. However, at that point that the decision was being made by Cobham SM, there was considerable uncertainty, a contractual imperative to support a key public security service, and significant community concerns, including about individuals travelling within Australia. The change in the location of the Pilots itself, was a reasonable business risk management decision at that time.

7.3 The chronology of events associated with the "re-basing"

• [91] For reasons outlined above, by mid-March 2019, it was apparent to both Cobham SM and some of the FIFO Pilots that there may be some disruptions or delays associated with travel required for the FIFO operations as a result of potential Government responses to the COVID-19 Pandemic. I find for example that on 23 and 24 March 2020, Captain Smart approached the local base management in Darwin, and subsequently Mr Dierickx, and offered to extend his duty cycle beyond the planned completion on 9 April 2020. Captain Smart had in mind the kind of flexibility provided for in clause 3(d) of his IFA. Mr Dierickx would have reasonably understood that Captain Smart was, in effect, making contact on behalf of the FIFO Pilots more generally. I also find on the balance of probabilities that Mr Dierickx advised Captain Smart that this would not be possible, that the FIFO arrangements were, in effect, not tenable and that an EOI would be issued for temporary transfers to Broome or Darwin. I also find that Mr Dierickx advised that not all Pilots may be offered a transfer and that the alternatives would be to be stood down or to take paid leave. Much of this was confirmed in later emails issued by Cobham SM.

• [92] I observe that Captain Smart later enquired about the capacity to take annual leave during the "stand down" period and was advised on 26 March 2020 by Mr Dierickx that this would not prevent the termination of his IFA. Captain Smart subsequently confirmed that he was not intending to take any leave.

• [93] Captain Andrews also contacted Mr Dierickx on 22 March 2020 raising concerns about the impact of border closures and seeking some update.[19]

• [94] In addition, on 24 March 2020, Mr Dierickx called each of the FIFO Pilots (other than Captain Carty who was undergoing retraining at the time) to explain the proposed "temporary base" arrangement, which would require each pilot to both "reside" in and work from a base in either Darwin or Broome for an extended but unknown period. In general terms, I find that each of the Pilots was advised that the transfer was being sought on a voluntary basis and that they were able to take (any accrued) paid leave whilst COVID-19 travel restrictions were in place, and further advised that if they chose not to take leave and were unable to travel to an operational base due to circumstance outside of the Respondent's control, there was a risk that they would be stood down for the period that they were unable to travel. Mr Dierickx advised of the need to move quickly given the changing circumstances and that an email EOI would be issued. During these discussions, the Pilots were also advised that in the view of Cobham SM the normal FIFO model would not work. It is apparent that at least some of the Pilots[20] considered that what was being proposed was an extended duty cycle under clause 3(d) of the IFAs although this was not expressly raised by them. For reasons outlined above, I have found that some additional elements were discussed with Captain Smart.

• [95] Later on 24 March, Mr Dierickx sent an email to the FIFO Pilots in the following terms:

Subject: URGENT - EXPRESSION OF INTEREST - TEMPORARY BASINGS

Expressions of Interest are being called for DHC-8 Captains on the Border Force contract, for temporary basing in Darwin and Broome. These temporary basings are being sought as a result of the impact of the COVID-19 pandemic on our operations.

Only checked to line Captains are eligible to apply. The duration of the temporary basing is expected to be for 3 months although the changing situation may mean an extension or reduction to this term. The broad terms of the offer are;

• Transfers are temporary to a new home base, being Darwin or Broome. A preference for one or both should be stated.
• Only voluntary transfers are being sought.
• The company will assist by providing accommodation for the first 14 days in the FIFO company housing or similar. For those pilots who do not intend to set up a permanent residence in the home base, the company will continue to provide accommodation assistance in company housing after the first 14 days.
• Meal and incidentals will not be payable unless deployed from the home base.
• Relocation assistance is not available, however, an ex-gratia payment equivalent to the Daily Travel Allowance will be paid for the first 14 days. After the first 14 days, the appropriate Broome or Darwin incentive allowance will be payable for the remaining period of the basing.
• The company will arrange transport to and from the temporary base at the beginning and end of the basing only. The appropriate Broome or Darwin incentive allowance will be payable after 14 days, for the period of the basing.
• Pilots should expect a period of self-isolation at the beginning of the basing.
• During the term of the basing, pilots are expected to maintain distancing to ensure they remain fit for duty, and therefore minimal non-essential contact with all persons especially when off-duty.

Applications close 2300 CSST on Wednesday 25 March 2020.

Please send applications directly to Ludo Dierickx ... ..."[21]

• [96] On 25 March 2020, at 7.23 pm, a further email from Mr Dierickx with some additional clarification regarding the proposed temporary arrangements was sent to each of the Pilots. That email expressly stated that the "IFAs are not tenable at the moment", and stated in effect, that the intention was to re-offer the IFAs as soon as conditions permitted. Mr Dierickx also advised that he was "not sure that all FIFO Captains can be accommodated on a temporary basing - I'll do my best". [22]

• [97] I observe that the above process also included a number of follow-up emails and phone calls to certain FIFO Pilots seeking responses to the EOI request. This added to the pressure felt by the Pilots to make an election in a time of considerable uncertainty with potentially significant consequences for their employment and their family. In some cases, the Pilots also had to take into account the consequences of the "rebasing" upon caring responsibilities. I will return to these elements shortly.

• [98] On 25 March 2020, each of the FIFO Pilots responded to Mr Dierickx in relation to the proposed arrangement and nominated either or both Darwin and Broome as their preferred temporary base. The exception to this was Captain Cullen, who also emailed Mr Dierickx on 26 March 2020. The nature of the initial response in each case was as follows:

• • Captain Andrews - "I am happy to help the company out and remain flexible in this time of crisis. I can go to Darwin or Broome with my preference being Darwin. When the crisis subsides I would expect that you will respect the conditions of my current FIFO agreement."[23]

• • Captain Bonthorne - "Please accept my expression of interest in a Temporary Base transfer. My preference would be at the Darwin Base for the duration of the 3 month transfer. However, at this present time I would be unable to relocate at short notice. I am currently dealing with a medical issue ... ... My expectation is that I will need a couple of weeks to ensure AvMed are satisfied with the results to reissue my certificate."[24]

• • Captain Carty - "I am happy to do a temporary transfer to any base while the company deals with the COVID-19 crisis. (I have previously been based at all of the current operating bases and am willing to take a temporary transfer to any base, or indeed move between them as the situation evolves). I am also willing to be flexible with regards to accommodation options- can source my own if required. I am currently in Cairns as it seemed a better idea to be at an operating base before the borders were closed and further cuts made to RPT flights. I have sorted things out as best I can at home so can avoid having to return to NSW for an extended period. Hopefully our flexibility to service the Border Force contract and any potential additional flying during this time will place us in a good position for contract renewal."[25] Later on 2 April 2020, Captain Carty communicated as follows - "... Thanks for your email and follow up call. I've just had a read through my emails. I find this situation very stressful, and I really do not understand the legal implications of this process. Are you referring to organising paperwork for a cancellation of my IFA? (Which seems to be the main point of dispute in the letter to Tom Smallwood, to which you refer). I do not seem to have been included in the teleconference referenced in the email sent to Tom, can this be changed? I would be hesitant to sign any paperwork which is the subject of a dispute. Is it necessary that I do so to continue employment? At this stage, if possible, I would really like to focus on passing my line check, and then worry about paperwork etc after that. I would like to reiterate that I am committed to the ongoing success of Cobham Special Mission, and I wish to support the company through this difficult time, (and be part of the ongoing success of the company for the foreseeable future). Also to restate; I am very happy to accept a temporary base transfer to Cairns while the company deals with the Covid-19 crisis. I am also happy to provide my own accommodation and transport to facilitate this. I do not expect to be paid the Daily Travel Allowance or the Additional Day rate (as would apply to extended FIFO deployments), during this temporary basing. I am also willing to be flexible with rostering and to accept short notice roster changes, and re-location to other bases as the situation evolves. I am also happy to take on any additional duties for which I may be qualified, to assist the company work through this."[26]

• • Captain Connolly - "I would like to apply for one of the temporary basings as advised. I'm not sure how much amplification you were hoping for, but I think I am known for having a very solid work ethic and professional standards, and for bringing value to the company (including taking on a Supervisory role, mentoring one of our cadets, and generally doing my best to contribute to a positive workplace). If you would like more supporting material please let me know. If I am offered a position, if at all possible I would prefer to be based in Darwin for better access to home should the worst arise. ... ... (private circumstances are) ... ... a serious concern and being able to get home - if at all possible - would be very important for me."[27]

• • Captain Cullen - "I am prepared to help out where I can would accept a temporary base transfer with Darwin as my preference but not to concerned with basing. As the matter of admin I would also expect that my current IFA will be reinstated when the temporary basing is no longer required. Could you confirm this is likely to be when the Travel and Quarantine restrictions are lifted?"[28] After an indication from Mr Dierickx that the company intended to revert to FIFO arrangements, Captain Cullen indicated on 26 March 2020 that - "Understood, thanks for you correspondence and I would like to express interest in temporary base transfers with Darwin as a preference."[29]

• • Captain Dyne - "I wish to express an interest in a temporary base. Darwin would be my first preference."[30]

• • Captain Lee - "I am happy to help out in this time of need. I can go to Broome or Darwin but Broome would be my preference. When the crisis subsides I would expect that you respect the conditions of my current FIFO agreement."[31]

• Captain Mattey - "I would be satisfied to progress to a temporary basing in either Darwin or Broome and would intend to use the company provided accommodation for the full term. Of importance is that I will be unable to travel until Thursday 2nd April due to my current isolation status (No symptoms but returned from New Zealand on Wednesday 18th March).

1. In regards to 'FIFO company housing or similar' if there is no space in the FIFO housing after 14 days and you were allocated to the 'similar accommodation' is there any further assistance in place?

2. When you say 'accommodation assistance' in dot point 3, after 14 days does this mean accommodation will be provided at no charge in the FIFO apartments or will we be paying a subsidized rent out of our salary?

3. I'd like to confirm the FIFO team will have the normal vehicles provided for the purpose of going to and from work.

4. There will be no accrual of leave during the temporary basing period.

5. We'll return to our current IFA as soon as things 'normalize' and that a clause in the newest contract will include details in that regard?"[32]

• • Captain Smart - "I would like to express my interest in the temporary Dash 8 Captain basing as per your EOI from earlier today. My first preference would be for a Darwin base but falling that Broome would be acceptable." [33]

• Captain Sorrell-Saunders - "As per our previous discussion I am happy to relocate temporally to Broome in my capacity as SBP. Could you please confirm that this is a temporary arrangement and effectively suspends the FIFO IFA for the period stated in the above email? If domestic travel restrictions are relaxed, is there scope for travel to visit family during this period? Will leave entitlements be accrued during this period?

Is access to company vehicles available during the relocation?"[34]

• [99] As is clear from the above, there were communications between Mr Dierickx and various Pilots at this time regarding their individual circumstances with some of these expressing significant concerns about the termination of the IFAs, the impact of this upon their status, and the strong desire to have the IFAs re-established in the same terms. I also observe that in the case of some Pilots, the timing and nature of the travel arrangements made reflected their personal circumstances.

• [100] Between 27 and 29 March 2020, each of the Pilots, other than Captain Bonthorne and Captain Carty, received a letter from the Respondent (dated 27 or 28 March 2020) headed 'Temporary Base Transfer'. Captain Bonthorne received this letter on 2 April 2020. The letter provided as follows (with the nominated location and in some cases the commencement date varying as relevant):

Thank you for your response to the Request for Expressions of Interest calling for Temporary Base transfers. The purpose of this letter is to provide the terms of the base transfer and for your acceptance of those terms. Your temporary base will Broome. This will be your home base for the period. This offer is conditional upon the company being able to arrange transport to the base. Commencement date will be 09 April 2020.

• This is a temporary transfer to a Broome home base.
• Employment is full-time and entitlements are as per the EA.
• The company will assist by providing accommodation for the first 14 days in the FIFO company housing or similar. If you do not intend to set up a permanent residence in the home base, the company will continue to provide accommodation assistance in company housing after the first 14 days. Please advise if you require that (the expectation is that you will continue to require Company provide).
• Meal and incidentals will only be payable if deployed from home base.
• Relocation assistance is not available. However, an ex-gratia payment equivalent to the Daily Travel Allowance will be paid for the first 14 days.
• The Company will organise and pay for your travel to and from your temporary base at the commencement and cessation of the temporary transfer period.
• The appropriate Broome or Darwin incentive allowance will be payable for the period of the temporary basing
• The company will notify you of the date of the temporary base transfer once rosters are adjusted and travel to the temporary base can be arranged.
• The duration of the temporary basing is expected to be for 3 months although the changing situation may mean a reduction to this term (at the Company's discretion), or an extension (by mutual agreement).
• Company vehicles at each base are provided for work use (to/from). Without restricting that, occasional personal use is permitted, in conjunction with Base Manager approval.

I appreciate your flexibility in this matter. As the situation continues to evolve the Company will work to ensure the best outcomes both for its employees and for the future of the Company.

• [101] At the same time, each of the Pilots received a letter providing written notice of the termination of his or her IFA. I understand that this also applied to the direct entry Pilots who did not have an IFA.

• [102] Captain Bonthorne received a letter in similar terms dated 2 April 2020.

• [103] Captain Carty had a slightly different arrangement and received her letters on 20 April 2020 due to her unique circumstances. However, Captain Carty's arrangement still involved the termination of her IFA and each of the above elements.

• [104] I observe that Captain Smart notified a dispute to Cobham SM on behalf of the FIFO Pilots on 29 March 2020. I will return to the significance of this aspect shortly.

• [105] On 30 March 2020, Mr Dyer sent an email with a letter attached to each of the Pilots in which he advised the Pilots that the Cobham SM intended to reinstate FIFO conditions as soon as restrictions allowed.

• [106] On 31 March 2020, Mr Smallwood emailed the FIFO pilots seeking a consolidated list of concerns and questions regarding the "temporary basings". The apparent purpose of this was to enable a teleconference between the Adelaide-based management and the FIFO pilot group that had been arranged for later that week.

• [107] Captain Smart responded by email on 2 April 2020 with the collated list of concerns and questions on behalf of the FIFO pilots in the following terms:

Thank you for the opportunity of the teleconference to address the concerns underpinning the current dispute. We appreciate that the dispute is drawing time and attention from other management issues. We are wanting to bring the dispute to close as soon as possible, but at the same time are adamant that our workplace rights are protected.

We have supplied a list of questions as requested. This list is not exhaustive. We expect FIFO Captains will raise further questions both during and after the teleconference. We will send these to the company in due course.

We ask as a condition to the meeting the company agree to supply a written position to each of these questions. We ask that the supplied responses are clear, concise and avoid caveats. Should the company require more time to prepare for the meeting, the FIFO Captains are happy to reschedule the meeting for a later date.

Can the company advise if they will be taking minutes for this meeting? We request a copy of these meeting minutes for review and acceptance before COB Friday 3rd April 2020.

We have grouped questions into related topics. We consider all questions important but believe the Dispute Process questions must be resolved before moving forward onto any

The company has stated that the FIFO IFA needed to be cancelled, because suspension of the FIFO IFA was not an option in providing the desired response to COVID-19.

FIFO Terms and Conditions permit an extension to a rotation without additional payment if mutually agreed. Why could this facility not be used to achieve the temporary basing's required?

The FIFO Captains raised a workplace dispute in accordance with the EA, the dispute was first sent to relevant managers. Why were IFAs continuing to be cancelled after the dispute was raised?

Can the company advise which stage the company believes the dispute is in? Can this position reference an EA clause?

Will the company respect the status quo from the =me the dispute was raised until resolution?

Why was the EOI published with key details missing?

Why was the EOI open for only open for several hours?

Please show where a "Temporary Basing" is detailed (not defined) in the EA.

The company basing offer is based on clause 5.10.2 which pertains to Permanent Basing.

The FIFO Captain's position is that a Permanent Basing is NOT the same as a Temporary Basing. Why did the company use this clause for the EOI Offer?

The HTO explained to numerous pilots that the options were: Temporary Basing, Acquit Leave Balances, LWOP. Why were these options never published crew?

Given that Cobham Special Mission has no reduction in workload or revenue, and that keeping all FIFO captains online provides additional reserves and capability.

We have been formally advised that there are not sufficient positions to accommodate all the FIFO captains.

How many are being stood down? What justification is there for these stand downs and what trigger as defined in the EA has been reached to enable stand downs to be considered.

Numerous FIFO Captains have expressed concern at the level of coercion used during the above processes. Examples include:

+ Short time frames for decision making and application

Is this the first dispute raised by CSM pilots against the company?

Will the company provide written assurance that it will in the future negotiate in good faith, and not leverage position over its dealings with FIFO Captains?"[36]

• [108] Later on 2 April 2020, Mr Smallwood sent an email to the FIFO pilot group[37] cancelling the planned teleconference and stated that the teleconference would be rescheduled to a future date to be determined. This teleconference was not subsequently held.

• [109] During this period, Cobham SM continued to send out letters cancelling the FIFO Pilot IFAs. On 3 April 2020, Captain Smart telephoned Mr Smallwood, and voiced concerns about this in light of the DRP in the Enterprise Agreement requiring that work continue as normal until the dispute was resolved.

• [110] On 6 April 2020, Mr Smallwood sent an email to Captain Smart with an attached response to the collated list of questions provided on behalf of the FIFO pilot group on 2 April 2020. The response was as follows:

Thank you for your patience whilst we formed a response to your queries.

In regard to your email of the 29th March regarding the raising of a dispute under clause 1.12 of your Employment Agreement, we provide the following response.

We note that you have escalated the issue of termination of the IFA as a dispute under the terms of the EA. There have been multiple calls and correspondence about this issue, including assurances about future FIFO arrangements. The company notes the following in relation to the issues you have raised;

1. That the consultation clause of the EA does apply. However, in this case it consists of two elements. The first is limited to what could be done in order to deal with the quarantine restrictions that were imposed upon us and the requirement to change to a non FIFO model to enable us to operate. The second relates to the impact of that, and your current requirement to be based in Darwin and to eventually return to a FIFO model.

2. The fact of a dispute being formalised means that we are both obliged to deal with your concerns as a dispute under the terms of the EA, and we are now doing that.

3. That the right of either the pilot, or the company, to enter into or to terminate an IFA is not subject to the dispute resolution or consultation provisions.

What this means is that we now have a dispute about consultation surrounding the current situation. The basis of the dispute in summary is that you argue that the company could have continued to effectively operate under the terms of the IFA that applied to you. In order to progress that further we propose to take the following steps.

1. That you send to us written details of how, under the terms of your IFA we could operate to provide the current level of service and overcome the restrictions that are in place.

2. How your situation differs from those FIFO pilots who have willingly accepted the temporary changes to operations and their IFA, and what specific detriments are applying to you that you want us to consider.

3. A commitment by us to discuss 1 and 2 with you within 5 working days of receipt, allowing us time to consider in detail your views.

In summary, we commit to the above to resolve the dispute as soon as practicable.

In regard to your email of the 2nd April seeking feedback and clarification and subsequent emails in the same vein, in no particular order, below are our responses in red. (Italics used in this decision)

Why was the EOI published with key details missing?

The EOI was sent out and the key details where the pilots needed further clarification, were detailed in the "Temporary Base Letter" to follow.

Why was the EOI open for only open for several hours?

Due to the rapid changing of restrictions and quarantine regulations across our borders, we needed to act as quickly as possible.

Please show where a "Temporary Basing" is detailed (not defined) in the EA. The company basing offer is based on clause 5.10.2 which pertains to Permanent Basing.

There is no temporary basing provision in the EA. The intention of including reference to clause 5.10.2 was to detail that we will provide an allowance equivalent to the 14 days of the Daily Travel Allowance (which is more favourable than what the EA currently offers) to offset some set-up costs, and is not reflected in any other section of the EA. This was due to the extenuating circumstances and unprecedented events that were unfolding.

The FIFO Captain's position is that a Permanent Basing is NOT the same as a Temporary Basing. Why did the company use this clause for the EOI Offer?

That view is correct. This will be removed from the updated "Temporary Basing letter" to avoid confusion.

The HTO explained to numerous pilots that the options were: Temporary Basing, Acquit Leave Balances, LWOP. Why were these options never published crew?

These options were outlined to each pilot in the initial telephone call. Only one pilot expressed a desire to explore the leave option and the information requested was provided to that person.

The options are still available and we can discuss this with each individual. Annual leave and Long Service leave can be utilised as per the current Enterprise Agreement.

Given that Cobham Special Mission has no reduction in workload or revenue, and that keeping all FIFO captains online provides additional reserves and capability.

We have been formally advised that there are not sufficient positions to accommodate all the FIFO captains.

The initial statement was "I am unsure if we can accommodate all the Captains on a temporary basing". We have been able to offer the temporary transfer to all Captains who have expressed an interest.

How many are being stood down? What justification is there for these stand downs and what trigger as defined in the EA has been reached to enable stand downs to be considered.

The business is continually working through the changes as a result of the COVID19 impacts. At this time, no FIFO Captains are being stood down as we have been able to offer the temporary transfer to all Captains. However, we need to continue to monitor the operation and assess people impacts (if any) accordingly.

Numerous FIFO Captains have expressed concern at the level of coercion used during the above processes. Examples include:

+ Short time frames for decision making and application

We acknowledge your concerns and we are investigating this through our internal processes.

Is this the first dispute raised by CSM pilots against the company?

Will the company provide written assurance that it will in the future negotiate in good faith, and not leverage position over its dealings with FIFO Captains?

As indicated in Russell Dyer's, VP - Special Mission, memo dated 30th March 2020, the Company has committed to enter into good faith negotiation to reinstate the FIFO model as soon as we practically can.

To provide additional clarification, the company will re-issue all of the temporary letters of offer with the following included:

1. The company undertakes to reinstate FIFO arrangements when all domestic travel restrictions associated with COVID-19 are lifted.

2. That the FIFO agreement will include the following fundamental conditions:

1. Your FIFO rotation durations will be retained from your recently cancelled IFA unless you wish to change to a 14-day rotation;
2. Domiciles, per your previous IFA, will be honoured; and

1. Your basic pay will remain in accordance with the EA schedule, including years of service increments, as appropriate, or previously agreed.

Daryl, there is some due process to be followed in regard to the dispute that you have raised. However, in regard to the other matters, I regard this response as being final. It addresses the concerns raised in your list of questions and the concerns raised to me during my phone calls with various other pilots. Having said that, we do recognise that other questions will arise as you all settle into your temporary bases.

• [111] Captain Smart subsequently responded to Mr Smallwood and Ms Van Kessel via email[39] indicating that clauses 1.9 Consultation and 1.12 Dispute Resolution Process of the Enterprise Agreement applied to the IFAs. No reply was provided to that contention at the time.

• [112] On or around 8 April 2020, each of the Pilots, other than Captain Carty, received a further letter from Cobham SM headed 'Temporary Base Transfer'. The letter stated (again with some personal variations on locations and dates) as follows:

Thank you for your response to the Request for Expressions of Interest calling for Temporary Base transfers. The purpose of this letter is to provide the terms of the base transfer and for your acceptance of those terms. Your temporary base will Darwin. This will be your home base for the period. This offer is conditional upon the company being able to arrange transport to the base. Commencement date will be 10 April 2020.

• This is a temporary transfer to a Darwin home base.
• Employment is full-time and entitlements are in accordance with the Surveillance Australia Pilot and Observer Enterprise Agreement 2016 (EA).
• The company will provide self-contained accommodation in the FIFO company housing or similar for the duration of the temporary transfer. Meal and incidentals will only be payable if deployed away from the home base.
• Relocation assistance is not available. However, an ex-gratia payment of $825.02 will be paid in the next available pay run to offset some set-up costs. (this is equivalent to 14 days of the Daily Travel Allowance)
• The Company will organise and pay for your travel to and from your temporary base at the commencement and cessation of the temporary transfer period.
• The appropriate Broome or Darwin incentive allowance will be payable after 14 days, for the remaining period of the temporary basing.
• The Company will notify you of the date of the temporary base transfer once rosters are adjusted and travel to the temporary base can be arranged (unless already advised).
• The duration of the temporary basing is expected to be for 3 months although the changing situation may mean a reduction to this term (at the Company's discretion), or an extension (by mutual agreement).
• Company vehicles at each base are provided for work use (to/from). Without restricting that, occasional personal use is permitted, in conjunction with Base Manager approval.

As advised in a general communication to the FIFO Captains from Russell Dyer (30th March), the FIFO model is considered to be an integral part of our future and the Company undertakes to;

1. Reinstate FIFO arrangements when all domestic travel and quarantine restrictions associated with COVID-19 are lifted.

2. Ensure your future agreement includes the following fundamental conditions:

1. FIFO rotation durations will be the same as your recently cancelled IFA, unless you wish to change to a 14-day rotation;

b. Domiciles, per your previous IFA, will be honoured; and

1. Your basic pay will remain in accordance with the EA schedule, including years of service increments, as appropriate, or previously agreed.

I appreciate your flexibility in this matter. As the situation continues to evolve the Company will work to ensure the best outcomes both for its employees and for the future of the Company.

• [113] In practical terms, the 8 April 2020 'Temporary Base Transfer' letters replaced the earlier letters that were sent to the Pilots. The letters provided some additional clarification, and in the case of Captain Andrews and Captain Connolly, their letters also had updated commencement dates to reflect their varied travel arrangements. The second version of the transfer letters was designed to deal with a number of the Pilot concerns, described by the employer as misgivings, that Cobham SM was aware of at the time. I will return to these letters when dealing with the impact of all of the events in the context of the Enterprise Agreement and the competing contentions.

• [114] Captain Carty had, on her own volition, travelled to (or remained in) Cairns so she was, in effect, already at an ABF base. After ongoing discussions with Mr Dierickx on 1 and 2 April 2020, Captain Carty received a similar rebasing letter dated 20 April 2020.

• [115] None of the Pilots signed and returned the 'Temporary Base Transfer' letters. Other than Captain Andrews, Captain Cullen, and Captain Sorrell-Saunders, the Pilots did not reply in any form to indicate that they accepted, or rejected, those letters. Captain Andrews indirectly responded to the terms of his first Temporary Base Transfer letter by seeking some latitude as to the commencement date and this was accommodated by Cobham SM.[41]

• [116] Captain Cullen responded to his Temporary Base Transfer letter on 28 March 2020 in the following terms:

"Thank you for the good news.... Is it ok to finalise the agreement on Monday as I will be travelling to Darwin then and will need to tie up a few loose ends with the previous IFA regards to days owed with planning as well as have a discussion with HR once they are contactable? I don't believe this will have any operational impact. Hope yous are fairing well down south."[42]

• [117] Captain Sorrell-Saunders responded to the terms of his first Temporary Base Transfer letter on 2 April 2020 in the following terms:

"Thank you for your offer, I am happy to help with the temporary transfer as previously discussed."[43]

• [118] On 9 April 2020, Captain Smart responded by email to Mr Smallwood's email of 6 April with the FIFO Pilots' proposal as to how they could meet the company's requirements during the COVID-19 restrictions in the following terms:

Thank you for your letter dated the 6th April 2020. I would like to clarify a few points before moving to propose a solution to the current dispute. As per previous communications, the FIFO Captains are willing to work with the company to ensure continued operations.

All communications in relation to this dispute are being sent on behalf of affected FIFO Captains in my (Daryl Smart) capacity of WCG FIFO Pilot Representative. I request that all future correspondence refers to the affected group as a whole.

While the EA states by default that any IFA can be cancelled with 28 days' notice, in the case of the FIFO IFA the company has committed not to do so without mutual agreement of the employees concerned. In the case of Direct Entry FIFO Captains, this assurance was given in their initial employment Letters of Offer, signed by themselves and the relevant company representative and thereby constituting a common law contract. In the case of the remaining Captains who were previously based but elected the FIFO option rather than the Retention Incentive, in informing that decision the company undertook that "A FIFO IFA represents a discrete contract between the individual and the company. The contract is perpetual and does not have a cease date." (see the attached Memo from GM Special Mission dated 15 August 2017).

The FIFO captains have made it clear that we do not wish to have our ongoing work arrangements taken from us, and that we are completely willing to do whatever is needed to maintain operations during the COVID crisis under the provisions of that current arrangement. We therefore ask that the temporary changes needed to our working conditions be managed using the provisions of our original FIFO IFA.

The company position of offering a temporary base is a breach of the EA. As per your email dated the 6th April 2020 you provide the following definitive answer, "There is no temporary basing provision in the EA". We maintain it is not possible to employ Sentinel aircrew on different conditions to those contained in the EA.

EA clause 1.4 states, "This Agreement is a comprehensive Agreement and sets the full scope of the rights, entitlements and obligations of the parties". Therefore, if a condition of employment is not contained in the EA, any alternative arrangement must be an agreed IFA as detailed under clause 1.14 Flexibility Provisions. The Flexibility Provisions of the EA include a number of tests, including a no disadvantage test in favour of the employee, and genuine agreement to the new arrangements.

The FIFO Captains are wanting to progress the discussion, however at the moment it appears the company has many EA interpretive differences to its employees. We therefore suggest the following, that if offered in their entirety, would bring the dispute to a close at no additional cost to the company.

1. Immediate reissue of the FIFO IFA to all affected Captains on exactly the same terms and conditions as before the cancellation.

2. Inclusion of the following statement in all reissued FIFO IFA, "The company fully commits to the IFA FIFO Arrangement on an ongoing basis (with as your nominated location) unless mutually agreed otherwise".

3. In respect to paragraph 3.d) of the FIFO Terms and Conditions, mutual agreement that remaining in a base meets the definition of an extension to a Duty Cycle.

4. In respect to paragraph 3.d) of the FIFO Terms and Conditions, mutual agreement that the Additional Day Allowance (currently $633.13 per day) is not required to be paid during this extension to our Duty Cycle.

5. In respect to the current extension to the Duty Cycle, the company will continue to pay the DTA (currently $58.93 per day) for all days away from our respective home domiciles. Where a pilot is deployed away from their nominated base, full allowances as per the EA are payable.

6. FIFO Captains will return to their normal FIFO rotations as soon as practicable, but no later than the 9th July 2020 (3 months) unless mutually agreed. For clarity - normal FIFO Rotations are agreed as being those the individual would have been subject to had the FIFO rotations continued uninterrupted. This means that some individuals will remain in base beyond the 9th July 2020 to meet the obligations of their rostered rotations.

The FIFO Captains believe that the above solution is legally compliant with all aspects of the current enterprise agreement. It removes doubt regarding our ongoing employment conditions and gives Cobham the certainty it needs in coming months. These terms will give us certainty that the terms of employment will only be changed in future by mutual consent. Finally, these conditions also remove considerable concern surrounding company practices that have been described as coercive.

Our modelling of the above arrangement is also cheaper than the temporary basing proposal when annual leave and location incentives are taken into account. We will be able to provide basic costings if the company is so interested.

• [119] On 17 April 2020, Mr Smallwood responded to the above in the following terms:

"Thank you for your letter dated 9th April 2020. We refer you to our letter dated 6th April 2020 in which we acknowledged that you had raised a dispute about the consultation surrounding the current removal of your Individual Flexibility Arrangement (IFA). Specifically, you argued that the Company could have continued to effectively operate under the term of the IFA that applied to you.

Given the above we suggested that in order to help resolve that dispute you undertake the following:

1. That you send to us written details of how, under the terms of your IFA we could operate to provide the current level of service and overcome the restrictions that are in place.

2. How your situation differs from those FIFO pilots who have willingly accepted the temporary changes to operations and their IFA, and what specific detriments are applying to you that you want us to consider.

Upon receipt of the above we committed to discussing these with you within five workings days. In your letter dated 9th April 2020 you did not provide a response to points 1 and 2 above.

Rather, you made additional claims about the IFA being a contractual term and that the company had no right to terminate the IFA. Your solution was to reinstate the IFA.

Firstly, we disagree with your assertions made throughout the letter dated 9th April 2020 and again reiterate that the dispute, as originally put to us, was about lack of consultation regarding the responses to the various COVID 19 restrictions. The company was willing and remains willing to discuss these issues with you. Further, although not a matter relating to the IFA or your enterprise agreement, we disagree that a contractual term was created that removed the right of the parties to end the IFA under the provisions of the enterprise agreement.

However, a dispute about whether or not your IFA can or cannot be terminated is a different thing. On that point the company has already made various undertakings to you and the FIFO pilots regarding their concerns that the IFA be reinstated when the current restrictions are lifted and operations return to normal.

However, we wish to be clear that absent any clear benefit for both parties to continue with the IFAs during the restrictions, they will not be reinstated at this point. I cannot be clearer about this. The Company has committed to enter into a process to reinstate the FIFO model as soon as we practically can. To provide further reassurance we re-issued all of the temporary letters of offer on the 8th April 2020 noting this genuine intention and the fundamental conditions that would form part of any future FIFO arrangements.

If you are not satisfied with my response, you may of course escalate the matter to the Russell Dyer under the terms of the dispute resolution procedure in your enterprise agreement. If you choose to do so, I highly recommend that you address the questions that were previously put to you.

• [120] Each of the FIFO Pilots commenced, or continued, working at the ABF bases generally in accordance with the practical arrangements contemplated in the "temporary base transfer", including by travelling to (or in a few instances remaining at) and working from the relevant ABF base. However, in some cases specific arrangements were negotiated or changed due to flight availability and for other Pilots the initial travel of the Pilots reflected the normal (pre-existing/planned) swing. This is not unexpected given the nature of the FIFO arrangements that had the relevant Pilots away from their ABF base at the time of the critical events. None of the Pilots elected to take paid leave or to remain at (or return to) their "original" home base as an alternative to the "rebasing" option.

• [121] During the relevant period of the temporary arrangement, the Pilots did not return to their usual homes as they would have under their FIFO rosters. I find that their rosters during this period were not their standard FIFO rosters, but rather, each worked, in effect, the equivalent of a 'fixed base' roster.

• [122] Further, during this period Cobham SM cancelled various arrangements relating to Pilot training including check and training allowances paid to some of the Pilots.

• [123] In recounting the exchanges leading to the rebasing of the FIFO Pilots, I observe that there was also considerable pressure upon the Pilots to provide a response within very tight timeframes. That pressure included the limited alternatives, the stated prospect that if they did not immediately accept the rebasing the option may not be available as not all Pilots may be able to be accommodated, the tight timeframes and regular email and telephone follow-ups for responses, the absence of an opportunity to collectively discuss their concerns with the Chief Pilot, and the timing and nature of the response to the dispute notification that I turn to below. In addition, some of the FIFO Pilots were undertaking flying duties for parts of the period during which the exchanges were taking place and some others were dealing with significant health concerns or caring responsibility issues.

• [124] As outlined above, on 2 April 2020 Captain Smart formally raised an allegation of "bullying" in relation to Mr Dierickx' conduct during the period discussed. I observe that a similar complaint had earlier been raised informally by Captain Connolly to Ms Van Kessell. I will return to the investigation conducted by Cobham SM.

• [125] I will deal with the implications of the above in reaching my conclusions on the existence, and import, of any agreement relating to the "temporary rebasing".

7.4 The scope and timing of the dispute notification

• [126] On 29 March 2020, Captain Smart notified a dispute to Cobham SM, copied to the FIFO Pilots, and framed that dispute in the following terms:

"As the WCG rep for the FIFO pilot group, I am raising a dispute under clause 1.12 of the Cobham Special Mission EA. Due to lack of consultation regarding proposed changes to workplace hours and conditions for pilots on the (sic) a FIFO IFA."[46]

• [127] Given Captain Smart's position as a Pilot representative and noting that Mr Dierickx understood that Captain Smart was speaking on behalf of the FIFO Pilots in the 23 and 24 March 2020 conversations, Cobham SM would reasonably have understood that this was a dispute being raised under clause 1.1.12 of the Enterprise Agreement on behalf of the FIFO Pilots.

• [128] This dispute notification was provided after the EOI requests, the initial responses from the Pilots and, in most cases, the provision of the rebasing letters. It was also immediately after the termination of the IFAs was advised but before the first of the departures to the ABF bases, except for Captains Smart, Dyne and Lee, who were already on the relevant ABF base.

• [129] I have set out earlier the full terms of the DRP and the consultation provisions of the Enterprise Agreement.

"1.12.2 It is a term of this agreement that while the dispute resolution procedure is being conducted work shall continue normally, unless a employee has a reasonable concern about an imminent risk to his or her health or safety, and the subject matter of the dispute shall be preserved so as to maintain the status quo pending the resolution of the dispute."

• [131] I observe that the concerns raised by the Pilots about the continuation of the rebasing arrangements in light of the dispute were met with a mixture of responses including that the termination of the IFAs was not covered by the DRP.[47] This response was unhelpful at best, given that the IFAs were made under and subject to the Enterprise Agreement and the scope of the DRP (clause 1.12.1) in that Agreement is very broad and certainly sufficient to include any of the IFA associated arrangements including their termination or the alteration of the FIFO arrangements themselves.

• [132] AFAP contends that the consequences of the initiation of the dispute included that clause 1.12.2 imposed two obligations - one on the Pilot(s) and the one on Cobham SM. Although tempered by clause 1.2.8, the employee(s) are required to continue to perform work normally. Cobham SM, on the other hand, must preserve the subject matter of the dispute and maintain the status quo pending the resolution of the dispute. In that regard, the AFAP further contends that:

• The Pilots conformed to their obligation to continue to perform work normally, at least in relation to the duties prescribed under clause 7.1. Each Pilot on being deployed was deployed consistent with the scheduled timing of what was otherwise their "next" on-swing. Where there were delays, they were insignificant or a result of absence due to personal leave.

• The respondent was obliged to ensure the status quo and preservation of the subject matter of the dispute. The status quo represented the terms and conditions of employment constituted by each IFA and/or Letters of Offer as they prevailed at the time of the dispute notification. The cancellation of those terms and conditions and subsequent issuing of so-called temporary bases by the respondent, which it later characterised as temporary home bases, and the forced deployments on the terms imposed by the respondent should not have occurred.

• [133] Cobham SM contends that any claim by a Pilot that they had proceeded on their roster merely to maintain the 'status quo' must be rejected, as this was never made plain (or even implied) by any of the Pilots at the relevant time. Further, and in any event, Cobham SM contends as follows in relation to the status quo in the context of circumstances operating at the time of the dispute notification:

• The 'status quo' at the time of the dispute was that there was great uncertainty as to whether travel restrictions and the need to ensure that the COVID-19 virus was not introduced into any operational base meant that the FIFO arrangements were feasible. The uncertainty at the time was acknowledged by several of the pilots themselves, including that they may end up stranded or unable to work.

• The Pilots had already each expressed interest in a temporary home base transfer in order to ensure that they could continue to work and had been told that the Respondent did not consider their existing FIFO arrangements to be tenable in the circumstances. Further, Cobham SM was simply giving effect to those expressions of interest and taking steps to ensure, as the Pilots wanted to do, that they could continue to work. Therefore, its actions were consistent with the status quo.

• [134] Cobham SM further contends that the dispute could have arisen for present purposes only when it had been notified, and not earlier as contended by the AFAP, and that the dispute concerned the alleged absence of consultation rather than the substance of what was occurring at the time.

• [135] What does the requirement to maintain the status quo mean in the present context?

• [136] Cobham SM relied upon the of analysis by Ryan J in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd ("AMWU v Ardmona").[48] The provision in that case stated:[49]

"In order to allow for the peaceful resolution of grievances the parties will continue with normal operations while this process is being followed and the - status quo as existed immediately before the dispute will remain while the dispute is being resolved."

• [137] The matter in AMWU v Ardmona involved an employee who ordinarily worked afternoon shifts being directed to work on a day shift due to other employees' unavailability. The employee refused and his union representative commenced a dispute with the employer about this direction. Counsel for the AMWU submitted that, having raised the dispute, the employer's ability to implement shift changes had been frozen because of the 'status quo' provisions in the relevant instrument.

• [138] His Honour observed that the key term in this provision was 'normal operations', which signified that work would continue 'without any exceptional or unusual action on either side'. His Honour found that there was nothing exceptional or unusual about an employer's ability to direct employees to work different shifts (in accordance with the applicable instruments), and that the direction was therefore within 'normal operations'.[50]

• [139] The obligation in this case is for work to "continue normally", subject to a caveat that is not relevant here, and the "subject matter of the dispute shall be preserved so as to maintain the status quo pending the resolution of the dispute". This is broadly akin to that considered in AMWU v Ardmona, but in the case of clause 1.12.2 of the Enterprise Agreement, the purpose of the provision is also expressly stated.

• [140] At least in the sense of continuing to proceed with the cancellation of the FIFO arrangements and the implementation of its purported change of home bases, I do not consider that Cobham SM preserved the status quo. That is, unlike the employer in AMWU v Ardmona, Cobham SM was not seeking to utilise existing arrangements under the terms of the Enterprise Agreement or the IFAs. Rather, it was continuing with a significant purported change in the employment arrangements of the FIFO Pilots, including the cancellation of those arrangements and the associated IFAs. However, I observe that to the extent that the changed basing arrangements were, in fact, only a change in operational base (not the home base), this would in my view have been consistent with the preservation of the status quo given the circumstances evident at that time. This was not the subjective intention of Cobham SM; however, I will return to this notion as part of the resolution of the home base question.

• [141] Although the Pilots travelled to the ABF bases, and this was partly consistent with the normal rotations, it was evident that in practice this occurred in the context of the changes being implemented by Cobham SM and the practical cooperation of the FIFO Pilots given the exceptional circumstances involved. As a result, I do not consider that the travel by the Pilots as it relates to the dispute notification can be relied upon by either party in terms of compliance or otherwise with the status quo. I will return to the implications of this for the existence of any agreement to change home bases.

• [142] I also observe that any doubt about the full nature of the dispute being raised by the FIFO Pilots was removed by very early April 2020 when the full range of concerns were confirmed by Captain Smart when he provided details ahead of what was expected to be a tele-conference between them and the Chief Piot, Mr Smallwood.

• [143] The consultation obligations include clause 1.9 of the Agreement which prescribes Cobham SM's obligations to consult where the company is:

"seeking to implement workplace changes that are likely to have a significant effect on an employee or employees, the company will consult with the affected employees and their representatives/unions on the effects of the likely changes" (clause 1.9.1.1): or

proposes to introduce a change to the regular roster or ordinary hours of work of employees." (clause 1.9.1.2)

• [144] Clauses 1.9.2 to 1.9.7 outline the minimum procedural requirements expected of Cobham SM in conforming to its obligations under the Agreement. Moreover, clause 1.9.8, complements clause 1.9.1.2 and states:

"Where the change is to the regular roster or ordinary of work for Employees, the Company will adhere to the process above and additionally invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities."

• [145] I recognise the difficult circumstances facing Cobham SM with the prospect of significant border closures and the decline in commercial air transport. However, it is evident that the employer did not consult about the changes to the FIFO arrangements as contemplated by the Enterprise Agreement. It advised of the changes, implemented them and gave the Pilots an option to participate in the "rebasing" within the context outlined earlier in this Decision. This was, in effect, acknowledged in submissions by Cobham SM.[51]

• [146] I will return to the implications of these findings when considering my conclusions.

7.5 The circumstances of the non-IFA FIFO (direct entry) Pilots

• [147] Although the parties have made or foreshadowed submissions about the broader impact of those direct entry Pilots that did not have formal IFAs at the relevant time, it is not necessary for me to determine those matters. Indeed, issues about alleged non-compliance with the Enterprise Agreement for these Pilots are beyond the scope of the present dispute[52] and does not form part of the determination of the Commission.

• [148] It is sufficient for present purposes to observe that all of the Pilots had letters appointing them to various home bases as part of their FIFO arrangements. The purported termination of their IFAs meant that Cobham SM was, in effect, advising them of the cessation of the FIFO arrangements and the requirement to "rebase" at one of the 2 relevant ABF bases (or take leave). For reasons that I will come to, I do not consider that the purported cancellation of the non-existent IFAs for the direct entry Pilots cancelled the underpinning contracts of employment.

• [149] The AFAP did not contend any additional implications (beyond the circumstances applying to the other Pilots) arising from the absence of a formal IFA for the direct entry Pilots and I have dealt with this matter on that basis.

• [150] It is evident that the circumstances facing the FIFO Pilots at the time of these developments were difficult. This involved making a difficult professional and personal choice in the context of considerable uncertainty. The FIFO Pilots also fully cooperated with Cobham SM to attend and remain at the ABF bases notwithstanding these elements and the concerns about that process and the subsequent termination of the IFAs. In this latter regard, I observe that the cancellation of the IFAs was particularly problematic for the Pilots, given the assurances given to them upon appointment and the practical implications for them and their families if their FIFO arrangements were not to continue. Further, the nature of the Pilots initial response to cooperate with the practical rebasing at short notice to assist the company, rather than an agreement to formally change their contractual arrangements at that point, is apparent from the nature of the responses to the EOI set out earlier in this decision.

• [151] The FIFO Pilots worked extended swings away from their (actual) homes and families. In most cases this occurred at very short notice. I accept that this was distressing and undesirable.

7.7 Was the termination of the IFAs required or reasonable?

• [152] This issue arises only indirectly in this matter and assists in establishing the context. There can be little doubt that despite the written assurances given to the FIFO Pilots when initially engaged on that work, Cobham SM had the legal right to terminate the IFAs. This was accepted by the AFAP. Clause 1.14.5. of the Enterprise Agreement required that the IFA permit that it be capable of termination by not more than 28 days' written notice, other than by written agreement at any time. This is consistent with the approval requirements of s.203(6) of the Act. Although the IFAs did not contain any termination provision, Cobham SM purported to terminate the IFAs by reference to clause 1.14.5.1 - the "not more than 28 days written notice" provision. In that regard, I note that s.204(4) of the Act provides as follows:

"204 Effect of arrangement that does not meet requirements of flexibility term

(4) If the arrangement does not provide that the arrangement is able to be terminated:

(a) by either the employee, or the employer, giving written notice of not more than 28 days; or

(b) by the employee and the employer at any time if they agree, in writing, to the termination;

the arrangement is taken to provide that the arrangement is able to be so terminated."

• [153] This would suggest that the IFAs were capable of, and were, validly terminated by the notice provided in each case to the FIFO Pilots.

• [154] The actual notice provided to each of the Pilots ranged from 1 day in the case of Captain Carty (notified on 20 April and terminated with effect from 21 April 2020),[53] 2 days in the case of Captain Cullen (notified 27 March and terminated with effect 29 March 2020)[54] and Captain Smart (notified 27 March and terminated with effect from 29 March 2020),[55] 4 days notice in the case of Captain Mattey (notified 28 March and terminated with effect from 1 April 2020),[56] 7 days in the case of Captain Bonthorne (notified 1 April and terminated with effect from 8 April 2020),[57] and 9 days in the case of Captain Andrews, Connolly, Dyne and Sorrell-Saunders (notified 28 March and terminated with effect from 5 April 2020).[58]

• [155] Using Captain Smart as an example, and noting that only the dates were changed from Pilot to Pilot, the termination was communicated in the following terms:

You will be aware of the impact on COVID 19 pandemic, and its effects on our operations and on the aviation industry as a whole. The FIFO model is currently not workable, given the current travel restrictions and the increased risk of transmitting the virus by the movement of people.

As a result, in accordance with clause 1.14.5.1 of the Surveillance Australia Pilot and Observer Enterprise Agreement 2016 (EA), we are providing you with written notice to terminate the agreed IFA. The IFA will therefore terminate on Sunday 29th March 2020, after which time the employment conditions of the EA will apply.

We will review the FIFO model as the situation progresses and will remain in touch with you throughout.

• [156] With the exception of Captain Lee, all of the Pilots had their FIFO arrangements cancelled, or were in situ, prior to travelling to the ABF base. Captain Lee's IFA was cancelled with effect from 29 March 2020, and he travelled on 27 March 2020.

• [157] I do not consider that anything flows from this timing in terms of whether an agreement was made between Cobham SM and the respective Pilots, beyond that set out earlier arising from the dispute notification.

• [158] AFAP contends that it was not necessary or appropriate to terminate the IFAs. This is based, in part, on the original assurances given to the Pilots and upon what it contends was the capacity to extend the swings of the FIFO Pilots to deal with the concerns arising from the COVID-19 related restrictions. The second proposition is based upon the following by reference to clauses 3(c) and 3(d) of the IFAs:

• Clause 3(c) of the IFAs expands the circumstances under which a duty cycle (on-swing) may be extended and provides that a duty cycle can be extended if:
  • Due to unserviceable aircraft;
  • Re-tasked on return flight;
  • Deployment extended at short notice; or
  • Tactical Operations.

• • Under a clause 3(c) duty cycle extension, the Additional Day Allowance (ADA)[60] will be paid in lieu of varying the Off Cycle.

• A deployment extended at short notice is extremely relevant to any pilot who at or about the relevant time, or even in circumstances of a relevant critical event, such as an absolute border closure or the imposition of a demonstrably restrictive border, or the cessation of commercial flights, or a demonstrably restrictive reduction of commercial flights, the respondent had at all times this provision available to it in relation to any pilot who was at the relevant time located in an operating base. The company consciously elected to not exercise what, by the terms of the IFA, appears to be a unilateral right. Had they done so, however, they would have been obliged to apply the full extent of clause 3(c) and pay the ADA and acknowledge the ongoing legitimacy of the IFA FIFO arrangement.

• Under clause 3(d), a Duty Cycle can also be extended as mutually agreed without the application of the ADA. The Pilots, especially Captain Smart acting as "representative" of the cohort and the FIFO member of the Workplace Consultative Group (WCG) established pursuant to clause 1.8 of the Agreement, offered to effect clause 3(d). This would have comprehended any fatigue and other regulatory requirements, allowed half of the Pilots to be on base and the other half off base, with sufficient flexibility to extend if required, and there would have been no annual leave accrual or liability arising from the invoking of clause 3(d) on each pilot's return to their home base.

• [159] In this respect, Cobham SM contends as follows:

• The entire purpose and intention of the IFA was to give effect to a FIFO arrangement. The IFA provided for an equal time roster and, to give effect to that equal time roster, varied the effect of various terms of the Agreement to the pilots, such as various allowances and the application of rostered days off.

• Because of this, the terms of the IFA were inherently inconsistent with the working of a fixed-base roster. By practical example, had the temporary base arrangements been entered into without terminating the IFAs, the result would have been that the Pilot's 'home base' changed, but their operational FIFO base, equal time roster, additional entitlements, forgone entitlements, and all other terms and conditions under the IFA would have remained.

• Given that these IFA terms are inconsistent with working a fixed-base roster, and that working a fixed- base roster is entirely inconsistent with the purpose and intention of the IFAs, the respondent submits that the terms of the IFA could not continue to apply during the relevant period.

• Accordingly, the IFAs needed to be terminated during the relevant period. For completeness, the respondent notes that, as expressly stated to the FIFO Pilots by the Vice President of the respondent by letter on 30 March 2020, and on other occasions it always intended to reinstate the FIFO arrangements once conditions allowed it to do so.

• [160] Mr Dierickx also indicated in evidence[61] that he held concerns about the capacity to house all of the FIFO Pilots in the local accommodation and I observe that objectively this contributed to the sense of having to obtain responses from the FIFO Pilots as a matter of urgency.

• [161] There is substance in both parties' propositions in terms of the cancellation of the IFAs. I accept, at least in general terms, AFAP's proposition that the FIFO model could have been applied in the circumstances facing the Cobham SM in March 2020. Provided that each of the FIFO Pilots agreed to extended deployments under clause 3(d) for a significant period, and there was no attempt made to change the home base of these Pilots, that arrangement would work with the FIFO Pilots rotating from the ABF bases with each other. It is also a reasonable inference that the FIFO Pilots would have agreed to do so, particularly as this was offered on behalf of the Pilot group. Under this arrangement, there should have been no accommodation issues in the locations associated with the ABF bases, there would have been no issues with accrued annual leave, [62] and the ADA would not have been payable.[63] From that perspective, the IFAs could have been left in place.

• [162] However, the continuation of the FIFO arrangements in this manner would have meant that the Pilots, albeit on a much-reduced basis, would need to have transited across State and Territory borders and been reliant, generally, on the availability of commercial airlines. For reasons set out earlier, in hindsight, this would have been feasible, but still requiring considerable flexibility from the Pilots. At the time this decision was being made by the parties, this was not at all clear. Further, there was always likely to be considerable sensitivity with travel to Broome in particular, given its location in Western Australia and the nature of the local community.

• [163] Conversely, I would also accept that it was not an available option to completely cease the FIFO arrangements for the relevant period as intended by Cobham SM and leave the IFAs in place. The IFA was incompatible with the (full non-rotational) basis for operating that Cobham SM had envisaged during the relevant period and there was no apparent basis to validly suspend the operation of the IFAs.

• [164] I find that Cobham SM was very quick to terminate the IFAs and did not properly consult the FIFO Pilots or genuinely consider the clause 3(d) option. On balance, this was the result of concerns about the prospect of significant border restrictions and the limited commercial airline options, and the strong desire to reduce or eliminate travel. Whilst probably a background factor, I am not persuaded that the underlying concerns held by some in management about the FIFO arrangements themselves played a determinative role in that decision at the time.

8.1 The approach to be adopted to the construction of the enterprise agreement

• [165] A number of Full Benches of the Commission have outlined the approach that should be adopted in considering the construction and meaning of an enterprise agreement. The most recent statement of the principles was set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited[64] (AMWU v Berri) in the following terms:

"[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:

1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:

(ii) the disputed provision's place and arrangement in the agreement;

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

2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.

3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.

4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligations.

5. The FW Act does not speak in terms of the 'parties' to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are 'covered by' such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement 'with the employees who are employed at the time the agreement is made and who will be covered by the agreement'. Section 182(1) provides that an agreement is 'made' if the employees to be covered by the agreement 'have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement'. This is so because an enterprise agreement is 'made' when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.

6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.

7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.

8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.

9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.

11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.

12. Evidence of objective background facts will include:

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

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

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

13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.

14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties' intention or purpose was.

15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding."

• [166] This is a non-exhaustive statement of the principles to be adopted[65] and I have applied this approach in determining this dispute.

• [167] In Geo A Bond & Co Ltd (In Liq) v McKenzie,[66] (Geo A Bond) Street J said:

"...it must be remembered that awards are made for the various industries in the light of the customs and working conditions of each industry, and they frequently result ... from an agreement between the parties, couched in terms intelligible to themselves but often framed without that careful attention to form and draughtsmanship which one expects to find in an Act of Parliament. I think, therefore, in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award."

• [168] In Re Aurora Energy Enterprise Partnership Agreement 2002 - 2005 Lacy SDP observed that:

"It is a widely accepted principle of statutory interpretation that the rules of construction are rules of common sense. Where the choice is between an interpretation that will result in inconvenience, injustice or absurdity and another which avoids such a result, then the latter ought to be adopted."[67]

• [169] The importance of context was emphasised by Burchett J in Short v Hercus Pty Ltd[68] in the following terms:

"No one doubts you must read any expression in its context. And if, for example, an expression was first created by a particularly respected draftsman for the purpose of stating the substance of a suggested term of an award, was then adopted in a number of subsequent clauses of awards dealing with the same general subject, and finally was adopted as a clause dealing with that same general subject in the award to be construed, the circumstances of the origin and use of the clause are plainly relevant to an understanding of what is likely to have been intended by its use. It is in those circumstances that the author of the award has inserted this particular clause into it, and they may fairly be regarded as having shaped his decision to do so. The rules of construction, Mason and Wilson JJ. said in Cooper Brookes (Wollongong) Proprietary Limited v. The Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320, are really rules of common sense. Common sense would be much offended by a refusal to look at the facts I have summarized. As Isaacs J. said in Australian Agricultural Company v. Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 272, citing Lord Halsbury L.C.: "The time when, and the circumstances under which, an instrument is made, supply the best and surest mode of expounding it.

That much is fairly clear. Where there is seen to be a difficulty, the court can often go to the history of the matter. A number of illustrations will be found in Nurses (South Australia) Award (Interpretation) Case (ubi supra). But an ambiguity or obscurity may not be immediately seen on the face of a document. Both the problem and its solution may appear only when the wider context from which an expression first sprang is brought to notice. Is the court then forbidden to look past the document itself that is before it? The respondent says the instant award is clear, and we must shut our eyes to what went before. I think there are two answers to this argument. On the one hand, I do not accept that the award is clear on its face. The fact that I have given it a meaning by a process of construction (as it happens, contrary to the respondent's contention) cannot disguise the possibility of understanding the language, as the learned judge understood it, differently. (Cf. Pickard v. John Heine and Son Limited [1924] HCA 38; (1924) 35 CLR 1 at 9, per Isaacs A.C.J.) That is certainly sufficient to justify a reference to its source. Where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form, only a kind of wilful judicial blindness could lead the court to deny itself the light of that history, and to prefer to peer unaided at some obscurity in the language. "Sometimes", McHugh J. said in Saraswati v. R [1991] HCA 21; (1991) 172 CLR 1 at 21, the purpose of legislation "can be discerned only by reference to the history of the legislation and the state of the law when it was enacted". Awards must be in the same position."[69]

• [170] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia[70] in the following terms:

"[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission's view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited:

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

• [171] Sections 577 and 578 of the Act provide as follows:

The FWC must perform its functions and exercise its powers in a manner that:

(b) is quick, informal and avoids unnecessary technicalities; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin."

• [172] In relation to the reliance placed on s.577 and s.578 of the Act by both parties, I observe that these govern the performance of the Commission's powers but do not, for reasons set out in the authorities above, permit the Commission to apply a fair or just outcome that is not consistent with the actual terms of the Enterprise Agreement. As outlined earlier, Cobham SM has argued that the concept of equitable estoppel is applicable in this case and relevant to the approach required by s.587 of the Act. I will deal with this aspect shortly.

• [173] It is well established that terms are not easily implied into enterprise agreements.[71] This is reinforced by the approach adopted in AMWU v Berri, and the implications of s.739(5) of the Act that prevents the Commission from making a determination that is inconsistent with the terms of the approved enterprise agreement and the scheme of the legislation that permits variations only in certain defined circumstances. Implied terms must also satisfy a number of prerequisites.[72]

• [174] In the end, my present task is to ascertain the objective intention of the Enterprise Agreement based upon the language and terms of the Agreement, when read as a whole, and considered having regard to its context and purpose. References to common intention of the parties are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement.

• [175] For completeness, I observe that the Commission is not empowered to grant some form of declaratory relief.[73] Rather, the Commission is determining the proper application of the Enterprise Agreement in order to determine the dispute between the parties about that instrument and the consequences of the "rebasing" events under the terms of the agreed dispute resolution procedure.[74]

8.2 The history of the Enterprise Agreement provisions

• [176] Each of clauses 1.2.35, 6 1.2.55, 7 5.10, and 7.2.2 have been consistent throughout each of the previous enterprise agreements, being the Cobham Special Mission Pilot and Observer Enterprise Agreement 2010 and the Cobham Special Mission Pilot and Observer Enterprise Agreement 2012. The Enterprise Agreement and its predecessors have been negotiated and approved in the context of a number of awards, including the Air Pilots Award 2010[75] (Modern Award) and its pre-modern Award iteration - the General Aviation Pilots Award (GA Award).

• [177] Clause 1.4 of the Enterprise Agreement provides, in effect, that it replaces all previous Agreements and operates to the exclusion of the Award. On that basis, the terms of the Modern Award are not imported into the Enterprise Agreement and do not directly inform its proper application.

• [178] However, as the award safety net against which the Enterprise Agreement was negotiated and approved, the Modern Award does set some of the broader context for the consideration of the Enterprise Agreement. To that end, I observe that it defines home base in a different manner than the Enterprise Agreement; being "the base at which a pilot from time to time is permanently assigned or awarded",[76] and defines a "permanent transfer [as] the transfer of a pilot from home base to a new home base for a period of 180 days".[77] This is to be contrasted with the Enterprise Agreement which references[78] the acceptance of an offer to transfer and the absence of any definition of a permanent transfer.

8.3 The proper construction of the Enterprise Agreement

• [179] Cobham SM relies upon the notion of an agreement with each of the relevant Pilots to the temporary change in home base. It does so on the basis of a contractual agreement. As such, it contends that clauses 5.10 and 7.2.2 are not a source of power to agree to or direct a change of home base of the kind that took place here. However, it posits that clauses 5.10 and 7.2.2 of the Agreement do not limit the employer and a Pilot agreeing to change a Pilot's home base on a temporary basis. The AFAP contends that the Enterprise Agreement does not permit a change in home base other than is expressly contemplated by its terms and a temporary change in home base is not contemplated.

• [180] In that light, it is necessary to consider the proper construction and import of the Enterprise Agreement in this context.

What generally sets the home base for each Pilot?

• [181] Clause 1.2.35 defines home base in the following terms:

"Home Base" means the Base of appointment as identified in an Employee's Letter of Offer once having taken up residence if moving from another location.

• [182] When read in context of the other definitions and the provisions of the Enterprise Agreement more generally, it is evident that the home base in intended to be the base at which the Pilot (and generally their immediate family) actually lives. This is reinforced by the definitions of deployment, permanent transfer and temporary transfer and the specific provisions associated with the employment location (clause 7.2), the provisions associated with a transfer (clause 5.10), and the approach evident to the provision of relocation assistance (clause 5.11) and accommodation (clause 7.3). Further, there is a difference between the home base, which is designed to be moved through specific processes, and operational bases that are relevant to deployments and may be subject to direction from time to time. In that regard, although the term is not used elsewhere in the Enterprise Agreement, the definition of temporary transfer contemplates a transfer, which is not a deployment, to a location for the purposes of being temporarily utilised at the other location. In the absence of any operative provision using this definition, I do not consider that this means the Enterprise Agreement contemplates a temporary transfer of home base. This would not sit conformably with the other definitions and the scheme of the Enterprise Agreement more generally. This includes the notion that the Pilots may be required to work at various bases without necessitating a change in home base.

• [183] In my view, care must be taken in the approach to the definition of home base in clause 1.2.35, which must be applied in the full context of the Agreement and having regard to its evident purpose. That is, it cannot sensibly mean that the home base is only ever that identified in the (original) letter of offer. The home base must be capable of being changed, to deal with changes in operational and personal circumstances. This is informed by the recognition that a home base may be changed by reference to the transfer provisions in clause 5.10. This references a "permanent" change in home base location and unlike the Modern Award, the Enterprise Agreement does not define what this notion contemplates. Further clause 5.10 establishes guidelines to deal with these circumstances, rather than detailed specific obligations and entitlements.

• [184] On face value, the Enterprise Agreement only contemplates that changes to the home base are as specified in clause 5.10. This is the import of clause 7.2.2. Although leading to "guidelines", the nature of circumstances for a permanent change in home base are contemplated in clause 5.2 and appear to be comprehensive and include a transfer at the initiative of the Pilot (clause 5.10.1), where the transfer eventuates from an EOI process (clause 5.10.2), or by direction of the employer (clause 5.10.4).

• [185] As a result, and leaving aside the present controversy, each Pilot's home base for the purposes of the Enterprise Agreement is the base or geographical location that is identified as the employee's home base in his or her letter of offer that applied immediately leading to their current contract applying at a relevant date.

• [186] Does this mean that the Enterprise Agreement prevents a temporary change in home base? Cobham SM contends, in effect, that if an instrument does not expressly prevent an action, it is permissible. This is contended in the context of a contractual capacity to agree a change in home base.

• [187] I accept that in interpreting an industrial agreement, the Commission is entitled to prefer an interpretation that contributes to a sensible industrial outcome, and to strain for a meaning that would avoid inconvenience or injustice.[79] Cobham SM posits that unless this approach was applied here, the Enterprise Agreement could prohibit it and a Pilot from making an agreement to change that Pilot's home base for a finite period, even where such was to suit the personal circumstances of a Pilot. The AFAP contends that it is not necessary or appropriate to adopt this approach given the terms of the Enterprise Agreement. Given that clause 5.10.2 relates only to "permanent" changes in home base and there is no provision within the Enterprise Agreement contemplating a temporary change in home base, there is considerable substance in this submission.

• [188] Cobham SM also relies upon the approach adopted the Federal Court in Qube v MUA.[80] In that case, the MUA argued that the following clauses of an enterprise agreement operated to supersede and thus exclude an earlier contractual agreement to recognise employee's prior service. This agreement included a provision[81] stating that the Agreement, including any appendix attached thereto, shall:

"5.1 Provide a complete and final resolution of all matters relating to the Company's stevedoring.

5.5 Supersede any other Award, any agreement whether certified or not, (save and except the Stevedoring Industry Retirement and Redundancy Agreement as provided for in cl 33.1 of this Agreement), memorandum of understanding, exchange of correspondence, work practice(s), arrangement(s), written or unwritten which applied prior to the introduction of this Agreement and which regulated the terms and conductions of employment of employees covered by this Agreement.

• [189] Cobham SM cites White J, with whom Mortimer and Bromwich JJ agreed, who stated in response to the MUA's argument (emphasis added to reflect the respondent's contentions):

... it would be contrary to principle to hold that an enterprise agreement made under Pt VIB of the WR Act superseded, in the sense that it displaced, the contract of employment altogether and, for that matter, all of the terms, express or implied, in a contract of employment. The true position is that the relationship of employer and employee depends upon there being a contract of employment between them; that an industrial award or certified agreement has application only when a contract of employment (or has been) in place; and the award or certified agreement binds the parties only in relation to the matters with which it deals; and that there will invariably be aspects of the relationship which are not governed by the award or enterprise agreement. So much is orthodox principle: Amalgamated Colleries of WA Ltd v True [1938] HCA 19; (1937) 59 CLR 417 at 423; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 421-2; Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 287; Visscher v Giudice [2009] HCA 34, (2009) 239 CLR 361 at [13] (Gummow J), [71] Heydon, Crennan, Kiefel and Bell JJ). It is reasonable to construe cl 5.5 on the basis that those responsible for its drafting were conscious of these basic principles and did not intend that cl 5.5 should infringe them. That understanding provides a ready explanation for cl 5.5 not referring to contracts of employment."[82]

• [190] Cobham SM also relies upon Workpac v Rossato[83] where White J noted (at [639]) that an enterprise agreement clause, similar to clause 1.4 of the Enterprise Agreement, does not have the effect of excluding or negating the effect of the terms in the parties' underlying contract of employment, only terms located in an Award or in an Agreement.

• [191] I accept Cobham SM's proposition at least to the extent reflected in the authorities. However, this requires a proper understanding of the intention of the Enterprise Agreement and the extent to which it seeks to deal with an issue. Further, any underlying or new/varied contract of employment must itself be consistent with the terms of the Enterprise Agreement.

• [192] In broad terms, I do not consider that the Enterprise Agreement attempts to regulate circumstances where Cobham SM and a Pilot might agree to a new/revised contract of employment that involves a new home base. Further, and not without some hesitation, I consider that this might also extend to a home base applying for a designated period and observe that, subject to the caveat below, this approach remains consistent with the definition of home base within the Enterprise Agreement as discussed above. However, any such agreement would need to be genuine and validly made, and involve a bona fide new home base on a different contractual basis, with all that this means; rather than the specification of a new home base in name only. If this caveat was not applied, the terms of the Enterprise Agreement would be of little value and the provisions regulating the transfer of Pilots and the specification of home bases would be largely nugatory. Such an outcome would not be consistent with the terms of the Enterprise Agreement or with the required approach to the construction of an instrument of this kind.

• [193] The above is the construction of the Enterprise Agreement which informs the assessment of what occurred in this matter. I do observe however, that should the above approach to permit a subsequent contract not be correct, there is no provision of the Enterprise Agreement that permitted the changing of the Pilots' home bases on a temporary basis as Cobham SM has contended.

• [194] I emphasise that Cobham SM did not purport to utilise the transfer provisions of clause 5.10. In any event, what occurred was not a permanent transfer, whatever the boundaries of that notion within the Enterprise Agreement might entail. That is, what occurred was always intended to be temporary.

• [195] Applying the above, I turn to the agreed question for determination.

• [196] In essence, the home base question is what was the home base for each of the Pilots during the relevant period?

• [197] Given how I consider that the Enterprise Agreement is to be applied, the question becomes whether the Pilots genuinely agreed to a new/revised employment contract establishing the ABF base as their home base for the duration of the relevant period. This involves consideration of both the effect of the exchanges that took place and whether what was implemented was, in reality, a change in home base within the meaning of the Enterprise Agreement.

• [198] I commence with the first element. Put another way, did each Pilot agree to a new/revised employment contract?

• [199] I have earlier set out the sequence of events in some detail. Cobham SM undertook a very truncated EOI process. This followed the earlier exchanges and responses, including the initial indication that each of the FIFO Pilots were willing to cooperate with temporary arrangements and a positive response was made to the EOI. However, the IFAs were subsequently terminated, the FIFO Pilots had commenced a dispute, and each now contends that they did not agree to the rebasing offer involving a change to their home base for various reasons. It is common ground that none of the Pilots signed and returned either of the 2 rebasing offers formally made by Cobham SM. There was also some other potentially relevant developments. As a result, it is necessary to consider the impact of the process that unfolded, and the various grounds relied upon by each party to support or counter the suggestion that an agreement (a new/revised employment contract) was entered into for each FIFO Pilot.

• [200] Before doing so, I briefly touch upon the elements of a contract. In Advanced Australian Workplace Solutions Pty Ltd v Kangan Batman TAFE[84] the Full Bench of the AIRC set out the elements of a contract as follows:

"The elements of a contract are stated in Macken, McCarry and Sappideen's "The Law of Employment" (4th edition, 1997 by the Hon James Macken, Paul O'Grady and Carolyn Sappideen) (Macken, McCarry and Sappideen), a text to which reference was made both before Simmonds C and us, as follows (p.74):

"The law holds that before any simple contract is enforceable it must be formed so as to contain various elements. These are:

1. There must be an 'intention' between the parties to create a legal relationship, the terms of which are enforceable.

2. There must be an offer by one party and its acceptance by the other.

3. The contract must be supported by valuable consideration.

4. The parties must be legally capable of making a contract.

5. The parties must genuinely consent to the terms of the contract.

6. The contract must not be entered into for any purpose which is illegal."

"In relation to the first of these elements, the learned authors say (p. 74):

"The first element essential to the existence of any contract is the requirement that the parties have a mutual intention to create a legally enforceable bargain."

• [201] The application of these principles was further considered by the Federal Court in Damevski v Giudice[85] which observed as follows:

"82 Although contracts are not to be implied lightly, the Court may find exceptions to the general rule concerning express intentions. The Court may imply a contract by concluding that the parties intended to create contractual relations after examining extrinsic evidence, including what the parties said and did: see Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) NSWLR 309; Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 3 All ER 25 at 31 per Bingham LJ and Orion Insurance Co Plc v Sphere Drake Insurance Plc [1990] 1 Lloyd's Rep 465 at 492-4 per Hirst J.

83 Prerequisites for an enforceable contract were set out by Grainger C and are reproduced at [40] above. However, as discussed in the relevant chapter of The Law of Employment, which was the source for the list of prerequisites, those elements of contract are to be applied subject to the various nuances of contract law. In relation to the second element listed, offer and acceptance, it is pointed out in Cheshire, Fifoot & Furmston's Law of Contract, 14th ed, (M P Furmston), (2001), England, Butterworths LexisNexis, at p.33 that:

"These complementary ideas present a convenient method of analysing a situation, provided that they are not applied too literally and that the facts are not sacrificed to phrases."

Lord Wilberforce's judgment in New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd [1974] UKPC 1; [1975] AC 154 at 167 is quoted and reference is made to cases where the courts have held that there is a contract despite the difficulty or impossibility of analysing the transaction in terms of offer and acceptance. Below the relevant passage from the decision of Lord Wilberforce in New Zealand Shipping is set out more fully:

"It is only the precise analysis of this complex of relations into the classical offer and acceptance, with identifiable consideration, that seems to present difficulty, but this same difficulty exists in many situations of daily life, e.g., sales at auction; supermarket purchases; boarding an omnibus; purchasing a train ticket; tenders for the supply of goods; offers of rewards; acceptance by post; warranties of authority by agents; manufacturers' guarantees; gratuitous bailments; bankers' commercial credits. These are all examples which show that English law, having committed itself to a rather technical and schematic doctrine of contract, in application takes a practical approach, often at the cost of forcing the facts to fit uneasily into the marked slots of offer, acceptance and consideration."[86]

• [202] In Damevski v Giudice, the Federal Court also confirmed that although intention is a necessary ingredient in the formation of a contractual relationship, the test of intention is objective, not subjective; and intention may be inferred from conduct.[87]

• [203] In this case, of the necessary ingredients for the formation of any new employment contracts, it is the contended acceptance of the offers that is the focus of the resolution of this dispute.

The impact of the EOI process and conduct of the parties

• [204] I turn now to consider the various factors relied upon by the parties. This involves the import of the EOI process and the impact, if any, of the Pilots not signing the formal offers. Further, the AFAP contends that any purported agreements were not genuine. For its part, Cobham SM contends that each of the Pilots agreed to the new contracts based upon their response to the initial EOI and the fact that they travelled to the ABF base as part of the new arrangements. In addition, Cobham SM contends that there was, given the particular circumstances, an obligation upon the Pilots to expressly reject the offer and the absence of this means that they are estopped from now arguing the absence of an agreement.

• [205] I have earlier set out the detailed chronology of events leading to the rebasing. Without repeating that detail, this involved an initial contact with the Pilots, the issuing of an EOI with positive responses from the Pilots, and the provision of a formal written offer, updated a few days later by Cobham SM, which was not expressly accepted or rejected by any of the Pilots. In practical terms, most of the Pilots travelled to the ABF base, partly in accordance with their normal swing and the new basing arrangements; remained at the ABF base for some months in a manner more consistent with a fixed-based arrangement; but had earlier lodged a dispute about the changes and some had questioned a payment made by Cobham SM which was paid consistently with the temporary rebasing proposal.

• [206] I commence with the impact of the EOI process. In some senses, the AFAP seeks to elevate the EOI process to a formal contractual system that it contends must be completely followed by Cobham SM. I do not accept this approach. Although it is referenced in clause 5.10.2, there is no specification of the actual EOI process within the Enterprise Agreement. Further, although this provision was mentioned in some of the exchanges, such as on 6 April 2020 by Mr Smallwood[88] in response to a question raised by Captain Smart about that provision, this does not mean that that clause 5.10.2 was factually or legally applied. As a result, it is the substance of the exchanges and what the documentation itself required that matters, rather than compliance or otherwise with how earlier EOI processes have been conducted.

• [207] As would be clear, there were 3 different, but related steps established by Cobham SM. Firstly, some initial conversations alerting the Pilots to the need to be located and work in one of the ABF bases, that the transfer would be on a voluntary basis, and that the alternative would be to take paid leave or be "stood down". Secondly, an expression of interest to participate in a temporary basing in Darwin and/or Broome. I observe that although the "home base" is used in two points in the EOI, the consequences of this are somewhat opaque in that document. Later that day, Cobham SM confirmed its view that the IFAs were untenable but that they would be offered again as soon as conditions permitted. The Pilots responded positively to the EOI and indicated in effect that they would cooperate with the rebasing to provide the ABF service and retain their work. The third stage was the formal offer of positions by Cobham SM having regard to the responses provided by the Pilots to the EOI. According to its own terms, this required that the Pilots sign the formal offer to indicate acceptance. The same applied to the updated offer. I also observe that these offers made the concept of the purported change in home base much more express.

• [208] As outlined earlier, none of the Pilots signed the offers or otherwise indicated acceptance, with the possible exceptions of Captain Cullen and Captain Sorrell-Saunders. I will return their specific circumstances in due course. It is therefore necessary to consider whether the Pilots impliedly accepted the offer or are otherwise now estopped from rejecting that notion. This involves the assessment of the various factors relied upon by the parties, noting that it is all of the circumstances that must be taken into account.

• [209] APAF additionally contends that the EOI process, without confirmed acceptance, did not lead to agreement. That is, an EOI is just that, an expression of interest but is not a statement of intent, let alone an acceptance of an offer. There was no acceptance, and none can be construed, because consent in this case required an "unequivocal, affirmative act."[89] Further, according to the AFAP, the fact that Cobham SM improved the original rebasing offer to deal with Pilots' concerns confirms that the Pilots had not accepted the earlier proposals. As a result, there was no new agreement (contract) reached between the parties to change the home bases.

• [210] For its part, Cobham SM contends that the Pilots, by virtue of their words and conduct, led Cobham SM to the reasonable objective belief that they had accepted the rebasing offers. As outlined earlier, Cobham SM puts an additional submission that the Pilots were required to express reject the rebasing proposal. That submission is concisely put in the following terms:

"Here, each of the Pilots were told prior to the offers of the temporary basing arrangement that the only circumstances in which they would be able to work was in accordance with the temporary basing arrangement - the other options put to them were taking leave or being stood down. In light of these communications and after reasonable consideration of their options, each of the Pilots took deliberate steps to positively express their interest, and then subsequently to travel to and commence working at the temporary home base consistently with the temporary basing arrangements. They were aware at all times of the Respondent's intentions and the terms on which an extended period of working from an operational base was being offered, and each Pilot acted in a way to receive the very real benefit of those offers. ... ...."[90]

• [211] Cobham SM relied upon Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd[91] (Empirnall) and other similar authorities, and further denies that the dispute notified on behalf of the Pilots constituted rejection.

• [212] In Empirnall, McHugh JA (with whom Samuels JA agreed) stated,[92] in effect, that in some circumstances, an offeree may be under a duty to communicate rejection of the offer, and that a failure to do so will bind them to the contract because, "knowing the terms of the offer and the offeror's intention to enter into a contract, [the offeree] has exercised a choice and taken the benefit of the offer".

• [213] Each of the Pilots had expressed interest in the rebasing proposal and the first base transfer letter had been provided to each Pilot, with the exception of Captain Carty, prior to them travelling or staying on the ABF base beyond the normal swings. However, as found earlier, the Pilots initial response was to cooperate with the practical rebasing at short notice to assist the company and did not represent an agreement to formally change their contractual arrangements at that point. The dispute was raised prior to the travel, except in the case of Captain Lee. In all cases, Cobham SM was aware of continuing concerns from the Pilots about the rebasing proposal, and indeed this led them to providing an updated rebasing proposal. In practical terms, the Pilots stayed at the ABF bases on arrangements that were consistent with fixed base rosters; however, they had little choice at that point given the realities of the situation and the joint commitment of all parties not to put the ABF work at risk. Further, the dispute that was being heard by the Commission for much of the relevant period included the notion on behalf of the Pilots that the FIFO arrangements should not have been terminated and should be resumed as soon as possible, and that the temporary arrangements were not consistent with the Enterprise Agreement.

• [214] In that light, although each of the Pilots did not expressly reject the formal proposal for the new contract, they did not accept it. This included that despite the requirement set out on each proposal that the Pilots sign "to indicate your acceptance", no contracts were signed. Further, and in any event, the Pilots did not stay silent, and given the notified dispute, related exchanges and other elements set out in the chronology, I do not consider that by their actions or inactions, including by travelling or staying at the ABF bases, any of them accepted the rebasing contract on the terms proposed by Cobham SM. In reality, the Pilots responded to the EOI and cooperated at very short notice with practical rebasing in the best interests of Cobham SM and themselves. However, they did not accept the new employment contracts.

• [215] The Pilots received a payment (described as being ex-gratia and based upon 14 days of daily travel allowance) from Cobham SM that was consistent with the rebasing proposal, but not with their entitlements under previous arrangements. In mid-May 2020, some of the Pilots advised Cobham SM payroll that they had been "overpaid" the allowance.

• [216] Captain Smart subsequently received the following response:

"Given the cancellation of the Individual Flexibility Agreements (IFAs) and your previous expression of interest in the Temporary Base Transfer, the subsequent term and conditions of the new base transfers were outlined in the letter dated 8 April 2020. This included the exgratia payment of $825.02 which indicated it will be paid in the next available pay run being the pay of 14 April 2020.

Should you wish to forego the ex-gratia payment of $825.02 as part of the letter dated 8 April 2020 and revoke this being paid in the future can you please confirm this so we can organise repayment in the next pay run.

If you have any further questions please let me know."[93]

• [217] There is no evidence that any of the Pilots repaid or forewent the payment. Clause 5.8 of the Enterprise Agreement as relied upon by Cobham SM is not directed to the circumstances where an employee considers that they have been overpaid and is irrelevant for present purposes. The fact of the payment confirms that Cobham SM considered that the new arrangements were in place. The fact that the Pilots considered that they were being "overpaid" indicates that they did not have the same view. The subjective views of the parties are not relevant. The absence of the return of the payment is marginally indicative of the fact that the new arrangements were operative. However, for reasons largely set out above, and the fact that the payment was expressed to be an "ex-gratia" payment, little attaches to this aspect.

• [218] The AFAP contends that the Pilots were coerced into the rebasing arrangements. For reasons set out above, I do not need to finally determine this aspect. However, it is relevant to the external investigation claim.

• [219] Whilst there are many definitions of the concept, the following appears to be apposite at least in the sense that it may be relied upon as a basis to potentially void an agreement made.

• [220] Historically, to "coerce" required wrongful, illegitimate or illegal action or, at least, the negation of choice.[94] The decision of the Full Federal Court in Schanka v Employment National (Administration) Pty Ltd [95]("Schanka") provides some authoritative guidance, although it related to the meaning of the word "duress" in s 170WG under the Workplace Relations Act 1996 (Cth).

• [221] The Full Court in Schanka also cited, with apparent approval, a passage from the judgment of McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation[96] ("Crescendo") which included the following:

"Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress."

• [222] The decision in Crescendo also cited with approval a passage from the advice of Lord Wilberforce and Lord Simon of Glaisdale in Barton v Armstrong[97] which included:

"...in life, including the life of commerce and finance, many acts are done under pressure, sometimes overwhelming pressure, so that one can say that the actor had no choice but to act. Absence of choice in this sense does not negate the consent in law: for this the pressure must be one of a kind which the law does not regard as legitimate. Thus, out of the various means by which consent may be obtained - advice, persuasion, influence, inducement, representation, commercial pressure - the law has come to select some which it will not accept as a reason for voluntary action: fraud, abuse of relation of confidence, undue influence, duress or coercion."[98]

• [223] The chronology of events and the circumstances of both Cobham SM and the FIFO Pilots leading to the "rebasing" illustrate that these were difficult times with immediate time and logistical pressures. There is no doubt that the Pilots felt pressured to make important decisions at very short notice and, at least in terms of travelling to the ABF bases, did so without a full knowledge of the formal arrangements intended by Cobham SM. I have also found that Cobham SM did not consult about the changes as contemplated by the Enterprise Agreement and that the status quo under the DRP was not respected in the manner that would have been expected. I observe that this was likely to be the product of the perceived urgency that existed at that time rather than any deliberate strategy. As discussed earlier, hindsight would suggest that some of this urgency was unwarranted but a realistic understanding of the events and circumstances at the time is informative.

• [224] However, I do not consider that the Pilots were coerced into travelling or staying at the ABF bases as part of these events so as to void any agreement that might otherwise have been made. The fear of being stood down (having to take leave without pay), being the only practical alternative for most of the Pilots and referred to by some,[99] does not represent operative coercion or duress. The implied pressure to cooperate in the circumstances and to avoid any potential for sanction, lead to the same conclusion. These aspects, and the other elements relied upon by the AFAP, do not mean that the Pilots were denied a choice in a relevant legal sense.

• [225] I observe that the AFAP also contended that "no Pilot was required to agree a change of home base at the end of the so-called temporary basings. That is, there were no EOIs issued to unchange any purported temporary change of home base, i.e., to change to a permanent home base. All that happened in terms of recommencing FIFO was the reissue of the IFA. The cover letter that provides for the agreement to change home base was excised from the package, properly so, leaving only the IFA."[100] This, it contended, meant that there was no agreement in the first place. The difficulty with this submission is that the return to the earlier arrangements was part of a comprehensive agreement reached between the parties and noted in the July 2020 Decision. The fact that the reinstated IFAs would be offered (and accepted) to confirm the arrangements was a fundamental part of that resolution. As a result, I do not consider that anything turns on how this was arranged.

• [226] In summary, primarily as a result of the absence of acceptance of the rebasing offer, I do not consider that the Pilots agreed to, or entered into a new/revised contract of employment with Cobham SM for, the new "home base". The case for Captain Andrews, Captain Cullen and Captain Sorrell-Saunders is marginally less clear given that at least some initial response was made to the rebasing offers. Captain Andrews simply sought some latitude in terms of the travel (commencement) date.[101] Captain Cullen thanked Mr Dierickx for the good news and sought to finalise the agreement in the following week.[102] Captain Sorrell-Saunders also expressed thanks for the offer and indicated that he was happy to help with the temporary transfer as previously discussed.[103] However, these responses are not an express acceptance of the actual contract and each was, in effect, also party to the dispute notified by Captain Smart and most of the other considerations apply. As a result, on balance, I consider that the same findings also follow in their case.

• [227] Given these findings, it is not necessary for the Commission to further deal with Cobham SM's contention in relation to estoppel. That is, the Pilots did not elect to enter into the new contracts and then seek to resile from them.[104] In addition, for reasons outlined above, the circumstances of the "rebasing" and the subsequent offers did not mean that a binding agreement was made as a result of any failure to communicate a rejection of the offer. As a result, the basis upon which Cobham SM contends that an estoppel could operate, has not been established.

• [228] I turn now to the second issue; namely whether if an agreement had been made, was this a change in home base within the meaning of the Enterprise Agreement. Given the above findings, it is also not necessary that I make a conclusive finding on this aspect; however, some observations may be relevant.

• [229] I have earlier found that Cobham SM and a Pilot can agree to change home base through a new/revised employment contract. However, although the term "home base" was used in the offers, the actual change that was contemplated was not, in my view, a change to the home base of the Pilots in the sense contemplated by the Enterprise Agreement. That is, despite some reference in the original offer[105] to the Pilots potentially setting up a "permanent residence" in the new "home base", this was not reflected in the second offer and there was never any real suggestion that the home base of the Pilots would actually change for the period of the temporary rebasing. That is, there was no real sense in any of the arrangements communicated to the Pilots in which they would be relocating their homes and this was never objectively intended. Rather, it was a change to require the Pilots to temporarily remain at a location associated with the ABF base - albeit for good reason at the time. This was the substance of the arrangement and this is much more consistent with working on an extended deployment as contemplated by the terms of the Enterprise Agreement discussed earlier in this Decision.

• [230] As a result, even if there were new contracts made, which I do not accept, I doubt that they would have established new home bases for the Pilots within the meaning of the Enterprise Agreement.

• [231] Given that the process did not lead to an agreed change to the home bases, but the IFAs and FIFO arrangements were cancelled, what then was the Pilots' home base during the relevant period?

• The home base specified in the most recent letters preceding the rebasing events, engaging the Pilots on the FIFO arrangements; or

• The home bases applying prior to the most recent appointments on the FIFO arrangements that preceded the rebasing events.

• [233] For reasons set out earlier, I do not consider that the original offers of employment for the Pilots are determinative of the home base for present purposes, unless they were in connection with the most recent employment contract - such as for the direct entry Pilots.

• [234] I consider that in the absence of a new contract, the home base for present purposes was that specified in the most recent letters (offers of employment/variation) that were accepted by each of the Pilots and which immediately preceding the rebasing events. For the Pilots, these letters also engaged them in connection with the FIFO arrangements. Whilst these contracts underpinned the FIFO arrangements, more relevantly, they also represented the basis of the Pilots' employment and their employment contracts for the purposes of the Enterprise Agreement. The IFAs were made in that context but did not by themselves determine the home base or replace the employment contract. As a result, in my view the termination of the IFAs did not, in the absence of a subsequent contrary contract between the relevant parties, mean that those underpinning contracts and their specification of the home base for each Pilot became irrelevant. The same must apply for the direct entry Pilots, including those without any formal IFA.

• [235] Accordingly, in the case of the direct entry Pilots, the home base for the relevant period was:

• Captain Lee, Brisbane as specified in his letter of offer on being Checked to Line.

• Captain Dyne, Brisbane as specified in his letter of offer on being Checked to Line.

• Captain Connolly, Bundaberg as specified in his letter of offer on being Checked to Line.

• Captain Andrews, Brisbane as specified in his letter of offer on being Checked to Line (and noted in the IFA he operated under prior to the relevant period).

• [236] In the case of the other Pilots, the home base for the relevant period was:

• [237] AFAP's fundamental submission on this aspect is that serious complaints were raised by many of the FIFO Pilots about the alleged conduct of Mr Dierickx associated with the events canvassed in this Decision. Given his seniority, AFAP contends that there should have been a proper investigation.

• [238] Further, AFAP contends that none of the complainants were interviewed and that Mr Dierickx was also not interviewed but merely asked for a few emails and was not questioned as to the allegations by HR. As a result, it posits that the Commission should determine to require that a proper external investigation now be conducted.

• [239] Amongst other matters, Cobham SM contends that there was an investigation conducted which found that the complaints were unsubstantiated.

• [240] The evidence[106] indicates that Cobham SM requested that Mr Dierickx provide some documents and that he was questioned over the phone about some aspects of the complaints as part of the internal investigation. However, the Pilots making the complaints were not interviewed and other than the confirmation of the outcome, there was no information provided to the Pilots as to the basis of the findings. I have reservations as to whether what occurred was a thorough and independent investigation of the kind that was warranted at the time.

• [241] However, as would be clear, I have in determining the agreed question, had regard to the process and conduct of the parties associated with the temporary basing arrangements. This included the conduct of, and role played by, Mr Dierickx. Having done so, and given the nature of these proceedings, I do not consider that it is appropriate to determine that an independent investigation now be conducted. Amongst my reasons for this approach is that the events that led to the complaints are now many months ago and occurred in a particular, difficult and unique context. I observe that just as in the case of the Pilots and the impact of their immediate cooperation with the "rebasing" changes, the conduct of Cobham SM and Mr Dierickx, must be fairly assessed in the practical context in which it occurred. Further, I have not found that the Pilots' were coerced and although with the benefit of hindsight, mistakes were made by Cobham SM including what would have appeared to have been a lack of understanding about their individual circumstances and this impacted upon Pilots, I do not consider that it is the interests of the parties that these matters now be the subject of a further investigation. I also observe that as a result of subsequent developments, the FIFO arrangements have ceased and some of the FIFO Pilots have left the employment of Cobham SM.[107]

• [242] Given this conclusion, I have not dealt with the issue as to whether the form of outcome sought by the AFAP in connection with the external investigation claim would be within the jurisdiction of the Commission in this particular matter. I also observe that other avenues remain available to the Pilots should the necessary grounds exist.[108]

• [243] I do recognise that the events dealt with in this Decision have done damage to working relationships between the remaining (former) FIFO Pilots and some members of senior management. Given the nature of the work undertaken by the Pilots and the regulatory and professional environment in which it takes place, this is not helpful and should be addressed. I RECOMMEND that the parties recognise the impact upon these relationships and that they take steps to rebuild them. This might involve mediation between the relevant employees and/or a reset of how operational change decisions/disputes are handled, such as accessing joint interest-based dispute resolution training of the kind offered under the Commission's Cooperative Workplaces jurisdiction.

• [244] The parties have agreed the following question to be determined by the Commission.

"In the case of each relevant Pilot, what was the Pilot's Home Base for the purposes of the Surveillance Australia Pilot and Observer Enterprise Agreement 2016 during the relevant period when normal FIFO arrangements were not operating during 2020?"

• [245] For reasons set out above, I consider that the home base for present purposes was that specified in the most recent letters (contracts of employment) immediately preceding the rebasing events. The details are set out at [235] and [236] above.

• [246] I will leave to the parties the implementation of the consequences of this determination in relation to any payments due to each of the relevant Pilots, including whether there should be a set off for the ex-gratia (daily travel allowance payments). Liberty is granted to either party to apply to the Commission if these consequences cannot be resolved.

• [247] For reasons outlined earlier, I do not consider that the external investigation claim should be accepted. I have recommended that steps be taken by the parties to rebuild the senior relationships that have been damaged by the events considered in this Decision.

D Stephens of the Australian Federation of Air Pilots with D Smart for the AFAP, the Applicant.

S Bakewell and M Eleftheriou of EMA Consulting, with permission, with K Zeidler for Surveillance Australia Pty Ltd T/A Cobham Aviation Services Australia - Special Mission, the Respondent.

[1] [2020] FWC 3367.

[2] Statement of Mr Erskine - exhibit R1 Cobham SM employed a total of some 98 Pilots, including on other contracts, at the time. Another FIFO Pilot was the eleventh FIFO Pilot but by that time he had tendered his resignation.

[3] C2020/8478 - a further application made under s.739 of the Act.

[4] PR729995 - issued on 19 May 2021 by Anderson DP.

[5] Clause 1.4 of the Enterprise Agreement.

[7] Relying upon Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523.

[9] Charles Samford, 'Law, Institutions and the Public/Private Divide' (1991) 20 Federal Law Review 185, 201; Bruce Dyer and Mark Aronson, Judicial Review of Administrative Action (5th ed, Lawbook Co, 2013) [6.290]. See also Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78, 85.

[10] Relying upon Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72 ("Qube v MUA") and Workpac v Rossato (2020) 278 FCR 174; [2020] FCAFC 84.

[11] Relying upon Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ("Brambles").

[13] Smart - exhibit A1 at pars 5 to 8.

[14] Supplementary questions and answers document issued 15 August 2017 - DS-2.

[16] ND-09. Reference to the capacity to terminate IFAs was also removed around this time from the FIFO terms and conditions document issued by Cobham SM.

[20] For example Captain Dyne original statement - exhibit A18 at 26.

[48] [2006] FCA 1039.

[51] Final written submissions at 142 to 144.

[52] These issues have not been the subject of any discussions as required under the DRP of the Enterprise Agreement and is not referenced in the agreed question to be determined. See Seo v Bindaree Food Group Pty Ltd [2021] FWCFB 2691 at [66].

[60] The ADA is provided for at clauses 4.3.6-4.39 of the Enterprise Agreement.

[62] Acknowledged by Mr Dierickx - transcript PN3374 to PN3380.

[64] [2017] FWCFB 3005.

[65] See also Paper Australia Pty Ltd t/a Australian Paper v Australian Manufacturing Workers' Union [2017] FWCFB 1621 at [21].

[66] [1929] AR (NSW) 498 at 503; See also City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 (at 378-379) and Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2].

[67] Re Aurora Energy Enterprise Partnership Agreement 2002 - 2005, [2008] AIRC 1074, at para 17; See also National Union of Workers v Plexicor Australia [2008] AIRC 1134.

[69] This decision must be applied having regard to the fact that the instrument in that matter was an award of the Commission rather than an enterprise agreement made between the employer and a majority of the employees at the time of approval. See also AWU v Pasminco Australia Ltd and ors [2003] NSWIRComm 365; (2003) 131 IR 1 for the caution required in this regard.

[70] [2013] FWCFB 8557.

[71] "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Skilled Engineering Ltd [2003] FCA 260, [18].

[72] BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 cited by the High Court in Byrne & Frew v Australian Airlines Ltd [1995] HCA 24 at paragraphs 12 -13.

[73] AB v Tabcorp Holdings Limited [2015] FWCFB 523 at [11].

[74] See Construction Forestry Mining and Energy Union v The Australian Industrial Relations Commission and Another [2001] HCA 16; (2001) 203 CLR 645, Kentz (Australia) Pty Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FWCFB 2019 and Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82.

[78] Clause 1.2.43 of the Enterprise Agreement.

[79] Shop Distributive and Allied Employees Association v Woolworths SA Pty Ltd [2011] FCAFC 67 [16], relying on Amcor v Construction, Forestry, Mining and Energy Union (2005) 224 CLR 241, [96].

[80] [2018] FCAFC 72.

[83] (2020) 278 FCR 179; [2020] FCAFC 84. This particular aspect does not appear to have been contradicted by the High Court in WorkPac Pty Ltd v Rossato [2021] HCA 23.

[90] Cobham SM final written submissions at 87.

[91] (1988) 14 NSWLR 523.

[93] Response from Mr Calabro, 17 April 2020.

[94] National Workforce v AMWU (No 2) (1997) 76 IR 200 at 221; Allen v Flood [1897] UKLawRpAC 56; [1898] AC 1 at 98, 128-9; Hodges v Webb [1920] 2 Ch 70 at 86-7; White v Riley [1921] 1 Ch 1; and Goddard v Osborne (1978) 35 FLR 122).

[95] [2000] FCA 202; (2000) 170 ALR 42.

[96] (1988) 19 NSWLR 40 at 46.

[97] [1973] 2 NSWLR 598 at 633.

[98] See also Gibbons v Wright [1954] HCA 17, 91 CLR 423 and the caution expressed as to the finding of economic duress by Finn J in Australasian Meat Industry Employees Union v Peerless Holdings Pty Ltd [2000] FCA 1047 at par 54.

[99] Transcript PN570 (M Bonthorne); transcript PN1522 (M Connolly); transcript. PN294-295 (D Smart).

[100] AFAP final submissions at PN3673

[104] See the discussion of the concept of approbation and reprobation in Fried v National Australia Bank Ltd [2000] FCA 910 at [30] to [31].

[107] Confirmed in [2021] FWC 2880 at [37].

[108] Such as an application under s.789FC of the Act.

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