s.739 - Dispute resolution

Australian Licensed Aircraft Engineers Association, The

Alleged dispute about matters arising under the Regional Express Aircraft Engineers Agreement 2018-2021 re clause 8.1 (Duties), clause 35 (Disciplinary Matters), and clause 36 (Investigating Accidents and/or Incidents) - application dismissed.

[1] An application has been made by the Australian Licensed Aircraft Engineers Association (ALAEA) for the Commission to resolve a dispute under the Regional Express Aircraft Engineers Agreement 2018-2021 (Agreement). The Respondent to the dispute is Regional Express Holdings Ltd (REX).

[2] The dispute concerns the proper construction of clause 35 (Disciplinary Matters), and clause 36 (Investigating Accidents and/or Incidents), by reference to the terms of clause 8.1 of the Agreement.

[3] Permission for each party to be legally represented was not opposed. I granted permission for both parties to be legally represented generally in these proceedings. I did so having had regard to the criteria in s.596 of the Fair Work Act 2009 (Act), specifically noting that the issues in this matter are complex, and that the matter would be conducted more efficiently with the assistance of legal counsel on behalf of the Respondent.

[4] At the hearing, Ms Lucy Saunders of counsel appeared for the ALAEA, instructed by Mr Sean Morgan (ALAEA Industrial/Legal Officer). Mr Dilan Mahendra of counsel, instructed by Clayton Utz lawyers, appeared for the REX.

[5] The parties agree that the Commission may arbitrate the subject matter of this dispute in accordance with the dispute term of the Agreement (clause 43), and s.739 of the Act.

8.1 The overarching responsibility of the Employees is to ensure the safe arrival and departure of aircraft on a daily and regular basis. The parties will work in a flexible and co-operative way to ensure that these responsibilities are met".

35.1 Preliminary meetings with staff may be conducted for the purpose of gathering information regarding potential disciplinary matters with the aim of determining if a formal meeting between an Engineer and representatives of the Company is required. Preliminary meetings do not require formal notification.

35.2 An Engineer who is required to attend a formal meeting with representatives of the Company whose purpose is to determine if disciplinary action should be taken, except as outlined in clause 36 of this Agreement and as promulgated in Company Policies will be provided with written notification of the subject/s of the meeting, including a list of those attending the meeting on behalf of the Company. Such a meeting shall be confined to the subject/s as provided in that notification.

35.3 Any request for postponement of the meeting to allow time for relevant preparation will not be unreasonably refused".

36.1 In the event of an Accident or Incident as defined in clauses 4.1 and 4.25 persons involved are to make a statement without prejudice, as soon as practicable. Such statement may be made in the presence of a friend.

36.2 After receiving the statement, the Employer is entitled to stand the person down, with pay, whilst the report, in total, is considered.

36.3 Should the Employer be satisfied with the report and no further action is required, the person so cleared will be advised to resume normal work.

36.4 Where it is proposed to further interview an Employee in connection with the Employee's alleged involvement in an Accident or Incident which may lead to disciplinary action against the Employee the Employee will be informed by the responsible officer of the Employer:

(b) of the charge against him/her and outline of reasons therefore;

(d) that the Employee has the right to be accompanied and represented by an Employee representative;

(e) the Employee may request reasonable time (not more than 24 hours) to become familiar with matters set out in sub-clause 36.4(b).

36.5 If the Employee elects to be accompanied and/or represented by such accredited representative, the Employee may require that the advice given in sub-clauses 36.4(a), 36.4(b), 36.4(c) and 36.4(d) will be repeated in the presence of such accredited representative.

36.6 If, following such interview, the Employer proposes to dismiss, suspend without pay, or remove the Employee from a supervisory position; the Employee will be informed of that proposed disciplinary action in the presence of an Employee representative.

36.7 In the event that an Employee is dissatisfied with the decision, the matter may be referred to the Fair Work Commission for conciliation and/or arbitration.

36.8 Subject to any appeal rights of the parties, the decision of Fair Work Commission in relation to matters raised under this clause will be final and binding.

36.9 In addition to other provisions of this clause 36, in the prevention or settling of disputes the duly appointed representative or delegate of the Association or Union in the workplace is entitled to such paid time during working hours as is necessary to meet with the Employer or its representative to discuss matters affecting the Employees.

36.10 For the avoidance of doubt, nothing in this clause is intended to confer an entitlement or remedy in relation to a termination of the Employee's employment that is unfair as described in section 194 of the Act".

[9] There is no disagreement between the parties as to the principles that I am required to apply in construing the terms of an enterprise agreement (as set out in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd) (Berri).[1] My determination in this matter applies the principles set out in Berri. Such principles need not be repeated here, but are summarised well by Deputy President Gostencnik in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union v Paper Australia Pty Ltd [2020] FWC 2130 (at [8]):

"In short compass, much like the approach to construing a statute, the construction of a provision in an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in making an enterprise agreement and in which it operates is also relevant".

[10] Noting that clause 8.1 of the Agreement requires REX to "work in a flexible and co-operative way to ensure that" a relevant employee's overarching responsibility "to ensure the safe arrival and departure of aircraft on a daily and regular basis are met", the ALAEA alleges that REX has failed to comply with, or wrongly applied, clauses 35 and/or 36 of the Agreement in relation to an investigation concerning its member, Mr Stephen Hanson (Investigation).

[11] The Investigation concerns Mr Hanson's identification of a rusty (corroded) propeller shaft on a REX aircraft, during his routine line check inspection of that aircraft prior to its first flight one morning (Incident). Mr Hanson considered the corrosion to be a likely defect, and notified his supervisor of same. Mr Hanson then wrote up the defect, and an aircraft swap occurred (so as to determine the extent of the propeller shaft defect). Mr Hanson considered the aircraft swap a "wise decision" given that a REX aircraft (of the same model) lost a propeller in flight on 17 March 2017 as a result of a propeller shaft defect.

[12] Although REX initially considered that it might defer the defect, thus enabling the aircraft to be kept in service, it ultimately replaced the aircraft's propeller gearbox (prior to returning it to service).

[13] REX subsequently commenced an investigation into whether Mr Hanson had acted outside of the scope of his duties by identifying a defect that he should not have seen if he was properly conducting a routine line check inspection. According to REX, "the concern lies with how the defect was detected".[2] If Mr Hanson had been conducting a routine line check inspection properly, he would not have looked down the narrow gap in the engine where he sighted the defect, not seen nor been aware of the defect, not had to report the defect to his supervisor, and the aircraft would not have been grounded (meaning that the aircraft swap would not have needed to occur, and the disruption, delay and costs associated with same would not have arisen). As I understand REX's position, routine line check inspections are general (quick turnaround) aircraft pre-flight condition checks. They are not meant to identify issues or defects that would be identified in a more thorough check. In identifying the defect, according to REX, Mr Hanson might have been checking the aircraft beyond the scope of a routine line check, and in doing so caused REX to have to deal with a potential defect, or an actual defect, when such defect could likely have been left to be identified and rectified during scheduled aircraft servicing (meaning that the aircraft would have been kept in service until such scheduled aircraft servicing).

[14] Whilst the Incident has been the subject of a "formal investigation", REX has taken no disciplinary action against Mr Hanson. However, Mr Hanson's company certification authority, and thus his ability to certify aircraft pursuant to pre-flight line checks, have been suspended. It is not clear, on the evidence, at what point Mr Hanson's company certification authority is to be reinstated.

[15] The parties are in furious agreement that the Investigation does not fall within the scope of clause 36 of the Agreement (given that the Incident is not an "accident" or "incident" as defined by the Agreement).

[16] In summary, the ALAEA submits that the actions taken by REX against Mr Hanson (in relation to the Incident) are 'disciplinary', even though Mr Hanson has only been issued with a file note (as the outcome of the Investigation). Hence, clause 35 of the Agreement applies, and REX, by its conduct in investigating the Incident in the manner that it did, has acted contrary to the terms of clause 35.

[17] REX submits that given no disciplinary action has been, or will be, taken against Mr Hanson in relation to the Incident, clause 35 of the Agreement has no application. REX further submits that it does not need to comply with clauses 35 and/or 36 of the Agreement simply to investigate a matter. In relation to the suspension Mr Hanson's company certification authority, REX essentially says that this decision does not equate to a disciplinary matter, but a requisite response to its operational and regulatory obligations.

[18] I agree with the parties that the Incident the subject of these dispute proceedings is not an "accident" or "incident" falling within the scope of clause 36 of the Agreement. Nothing further need be said on clause 36.

[19] REX, in its relevant file note letter to Mr Hanson (File Note), specifically states "the decision has been made not to impose any disciplinary action [against you]" (emphasis in original).[3] This statement essentially removes any issue as to non-compliance with clause 35.2 of the Agreement. However, I note that the clarity contained in the File Note only comes at the time the file note is issued. In other words, I can understand the ALAEA's, and Mr Hanson's, concerns as to what exactly was occurring prior to that time.

[20] In my view, on the facts and circumstances of this case, and on a proper construction of the terms of clause 35 of the Agreement, the Investigation of the Incident does not fall within the scope of clause 35. The terms of clause 8.1 do not alter my conclusion in this regard.

[21] Despite the real concerns of the ALAEA and Mr Hanson as to the terms of the File Note having been intentionally drafted by REX so as to cast Mr Hanson in an unfavourable light, REX's unequivocal statement that the File Note does not equate to or impose disciplinary action means that the File Note cannot be used as reference point or foundation for future decisions by REX as to disciplinary action against Mr Hanson, and/or the termination of his employment.

[22] The manner in which the Investigation has been conducted, and the contents of the File Note, are to be considered as part of Mr Hanson's separate bullying at work claim against REX (and other individually named respondents) under Part 6-4B of the Act. Whether the suspension of Mr Hanson's company certification authority is indeed a requisite (and reasonable) response by REX to its operational and regulatory obligations will also be considered as part of Mr Hanson's bullying at work claim.

[23] In view of the foregoing reasons, the ALAEA's dispute application is dismissed. An order to this effect will be issued separately to this decision.

[1] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v Berri Pty Ltd [2017] FWCFB 3005 (especially at [114]).

[2] Exhibit A1, Statement of Stephen Hanson,

[3] Exhibit R4, Statement of Png Yeow Tat, Annexure "PYT-43".

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