The applicable award classification
27 By its grounds 5 and 6, Choppair contended generally that the primary judge erred in finding that from February 2010 to 25 October 2013, for the period she was based at Moorabbin, Ms Bobridge's employment was governed by the AP Award. That finding was said to be an error of law because it was reached against the weight of the evidence and contrary to the primary judge's findings of fact. The critical passage was said to be at [341] of the primary judge's reasons where his Honour said, "the vast majority of Ms Bobridge's time was not spent flying but rather in administrative duties". That observation was made in the context of his Honour's determination that Ms Bobridge was not entitled to a uniform allowance because in performing administrative duties, her clothing was unlikely to have been subjected to excessive wear and tear.
28 The primary judge was said by Choppair to have failed to have regard to the definition of a pilot in the AP Award, and to have failed to make any finding as to which classification in the AP Award applied to Ms Bobridge. By reference to Schedule E of the AP Award (which applies to helicopter operations), Choppair said that no classification in the AP Award applied to Ms Bobridge during her employment at Moorabbin.
29 Choppair went on to contend that the "principal purpose" for which Ms Bobridge was employed at Moorabbin was to perform administrative or clerical duties. On this basis, it was said that the most appropriate award classification was a classification under the Airline Operations - Ground Staff Award 2010 ("Ground Staff Award").
30 Before returning to those contentions, it is necessary first to record the issue before the primary judge, the evidence and the unchallenged findings of fact made by the primary judge and then to assess the legal principles or test applied by the primary judge to reach the conclusion that he did.
31 Before the primary judge, Ms Bobridge contended that throughout the course of her employment at Moorabbin she was employed as a pilot. Her claim was that she was entitled to payment as a helicopter pilot in accordance with a salary level specified under "pilots employed on on-shore helicopter operations" in Schedule E of the AP Award ("the helicopter pilot classification").
32 The question before the primary judge was whether over the whole period of Ms Bobridge's employment by Choppair at Moorabbin she was entitled to have been classified as a helicopter pilot and paid as such in accordance with the AP Award. Choppair denied any such entitlement because it contended that Ms Bobridge had been employed to work at Morrabbin in a clerical capacity. No particular clerical award or any particular award classification within such an award was identified by Choppair as being the appropriate classification covering Ms Bobridge's employment.
33 The primary judge rejected Choppair's contention that Ms Bobridge was employed in a clerical capacity (at [321]). His Honour accepted Ms Bobridge's evidence as to the duties she performed (at [323]). Her evidence was that she was told by Choppair that she would be employed as a full time helicopter pilot. As his Honour recounted at [321], Ms Bobridge was employed in the expectation that, with her working as a pilot, Choppair would build up a business of providing scenic flights. That particular initiative "never came to any great fruition". Nevertheless, the primary judge found that Ms Bobridge performed "some measure of flying work" (at [320]) or as later stated (at [325]) "performed a not inconsiderable number of flights".
34 The primary judge held that Ms Bobridge was required to be a pilot (at [330]). Ms Bobridge's evidence was that at all times whilst at Moorabbin she was the holder of a commercial pilot's licence. She was required to hold that licence as part of her job because she was flying helicopters and flying helicopters was her "first priority".
35 As the primary judge recorded (at [25] and [322]) information supplied by Choppair to the Civil Aviation Safety Authority listed Ms Bobridge as employed as part of Choppair's "flight crew". Choppair bore the costs of various activities integral to Ms Bobridge's pilot status, including standard and proficiency flight checks, currency checks, dangerous goods training and safety courses (at [324]). His Honour held that those courses, if not peculiar to a pilot, were applicable to employment of that character.
36 The primary judge also held that Ms Bobridge performed administrative work. The finding that Choppair relied upon at [341] that "the vast majority of Ms Bobridge's time was not spent flying but rather in administrative duties" is, as I have said, a finding made by the primary judge in determining Ms Bobridge's claim to a uniform allowance. Whilst I accept its relevance, it is important to have regard to the primary judge's findings as to the nature of the administrative work performed by Ms Bobridge and the environment in which it was performed. Those matters were regarded by the primary judge as significant. They are significant because, as will become apparent, that the work was administrative work did not necessarily mean that the work was not the work of a pilot.
37 At [323], the primary judge said this:
I accept Ms Bobridge's evidence as to what she did. While she had a large number of administrative duties, these were all duties intimately associated with the aviation business that Choppair ran. The rostering of pilots at Ayers Rock and indeed elsewhere, when they were doing work for DSE and the like, is all work intimately connected with the aviation environment. It is clear, putting the matter shortly, that the aviation environment was the one most closely connected with the work that Ms Bobridge did.
38 And at [326]:
Although Mr Van der Zypp sought to play down or explain away the force of it, there is, in the ultimate, in my view, no effective challenge to Ms Bobridge's assertion at paragraph 161 of her second affidavit (sworn and filed on 4 March 2016) that she arranged flight crew rosters, maintained records of pilots' licences, ratings and route qualifications, maintained a system to record flight crew duty and flight times, compiled loading documents including passenger and cargo manifests, assisted Mr Van der Zypp to maintain training records maintained a complete and up-to-date reference library of operational documents as required by CASA, and allocated appropriate aircraft.
39 The evidence there referred to was evidence of the functions of the Chief Pilot which had been delegated to Ms Bobridge and was performed by her. Furthermore, the administrative duties performed by Ms Bobridge included supervising the work of other pilots. At [333] the primary judge said this:
… Ms Bobridge clearly had a position involving some measure of authority, amounting in my view to supervision, over pilots at Ayers Rock, Kings Creek, and DSE and Telstra contracts. She was herself a pilot at all times. She was therefore a supervisory pilot …
40 The primary judge was satisfied that throughout her employment at Moorabbin, Ms Bobridge was employed by Choppair "as a pilot" and by reference to her claim that she was entitled to have been paid in accordance with the rate of pay provided for a helicopter pilot under Schedule E of the AP Award, his Honour concluded that Ms Bobridge was entitled to the $27,719.09 that she had claimed (at [331]).
41 The AP Award is a "modern award" made under Part 2-3 of the FW Act. Modern awards set minimum terms and conditions for employees in particular industries or occupations. There are several clauses in the AP Award of particular relevance. Clause 4.1 of the Award provides that it covers air pilots and their employers. The term "pilot" is defined in cl 3.1 as follows:
pilot means a person who is the holder of a commercial pilot's licence or airline transport pilot's licence and is employed under the provisions of the award, including pilots operating overseas from a base within Australia on behalf of the operator. The term pilot includes a check pilot, training pilot, first officer and second officer.
42 That clause also contains a definition for "chief pilot" as follows:
chief pilot means the pilot appointed by the employer and who is approved by CASA to perform the duties and responsibilities of the chief pilot.
43 Clause 11.1 provides that pilots "will be employed" in one of three categories which are specified as full time, part-time or casual. Clause 14 is headed "Classifications". It provides all employees covered by the award must be classified according to the applicable structure "as set out in the relevant schedule" and then relevantly identifies "[h]elicopter operations" as being dealt with by Schedule E.
44 Clause 14.3 states:
The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.
45 The Schedules to the AP Award do not contain a skills based classification structure or provide detailed criteria for particular classifications. What seems to have been meant by a "classification" in cl 14 is a designation such as "Chief Pilot" or "Co-Pilot" or "Training Pilot" or a pilot designation based upon the size or kind of aircraft flown. In Schedule E, dealing with helicopter operations, years of service and the type of helicopter flown are the principal criteria for the classifications there specified.
46 There are two other clauses in the AP Award to which reference should be made. Clause 24 of the AP Award deals with hours of work, days off and rest periods. In regulating "[p]eriods free of duty", cl 24.7(r) specifies that for the purposes of clause 24 "duties associated with a pilot's employment include … administrative duties …".
47 Lastly, cl 4.6 provides:
4.6 Subject to clause 4.1 where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
48 The primary judge had regard to cl 4.6 of the AP Award. As indicated already, his Honour used the terms of cl 4.6 to resolve that the AP Award was the applicable award. At [329]-[330] the primary judge concluded that:
[329] While clearly, at one level of analysis, many of the duties that the applicant performed could be said to be administrative or clerical in their character, it is a matter, as the Air Pilots Award makes clear, of which award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.
[330] The aviation industry is a highly specialised one, with a large amount, it would appear, of statutory overview and controls. It is not clerical or administrative in the ordinary sense of things. Ms Bobridge was required to be a pilot. In all the circumstances, it is clear that the Air Pilots Award is the applicable award to her employment.
49 Clause 4.6 seems to be a standard clause for modern awards. A clause in substantially identical terms appears as cl 4.7 of the Clerks - Private Sector Award 2010 ("Clerks Award") and cl 4.7 of the Ground Staff Award.
50 Clause 4.6 of the AP Award applies where the employer "is covered by more than one award" and provides that the most appropriate award classification contained in the competing awards which cover that employer is to be applied to the employee. Appropriateness is to be assessed by reference to the work performed by the employee and the environment in which that work is normally performed.
51 Although this was not a matter raised by the parties, one of the difficulties I have with the approach of the primary judge is that his Honour made no finding that a second award covered Choppair. Rather, it seems to me that the primary judge proceeded on an assumption that a clerical award covered Choppair in relation to the performance by its employees of clerical work. Choppair was not legally represented before the primary judge and did not specify any particular clerical award or any classification within such an award which it contended was the classification that covered the work of Ms Bobridge. It appears that in giving consideration to the most appropriate classification, on the one hand the primary judge had the helicopter pilot classification in mind and on the other hand an unspecified clerical or administrative classification in an unspecified clerical award.
52 Choppair did not challenge the primary judge's approach on the basis that his Honour should not have applied cl 4.6 without first identifying a competing clerical classification. That may be so because if Choppair sought to argue that another award classification was appropriate it was for Choppair to identify it. Choppair did say that the primary judge failed to identify the relevant classification in the AP Award in making the comparison that he made. But as I have said, although not done expressly it is clear that the primary judge had in mind the helicopter pilot classification.
53 On the appeal, Choppair specified the Ground Staff Award as the applicable award. It contended that level 8 at clause B.2.8 of Schedule B to the "Clerical, Administrative and Support Stream" was the applicable classification for Ms Bobridge's employment at Moorabbin.
54 As specified by cl 4.1, the Ground Staff Award covers employers throughout Australia in the airline operations industry with respect to their employees in the classifications listed in Schedule B to the Award. As I said earlier, this award contains a provision in substantially identical terms to that of cl 4.6 of the AP Award.
55 The "Clerical, Administrative and Support Stream" set out at cl B.2 provides a skill-based classification structure. Level 8 (at cl B.2.8) is the highest level in the classification structure and, in broad terms, is applicable to an employee who is a supervisor with advanced supervisory skills and who has responsibility for the assignment of work and for the discipline and counselling of other employees.
56 On the appeal, Choppair also referred to the Clerks Award. That award covers employers in the private sector throughout Australia with respect to employees engaged wholly or principally in clerical work including administrative duties of a clerical nature. However, the coverage of the award is subject to various exclusions including, relevantly, employers covered by another modern award that contains clerical classifications, such as the Ground Staff Award. For that reason, Choppair primarily relied on the Ground Staff Award as the applicable award.
57 The applicability of the Ground Staff Award raised a new argument, not run at first instance by Choppair. It was accepted that the grant of leave to rely upon the new argument would be dependent upon the real possibility of whether that argument might have been met by Ms Bobridge calling additional or different evidence below: Suttor v Gundowda (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ); Coulton v Holcombe (1986) 162 CLR 1 at 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate (2015) 240 FCR 578 at [30]-[38] (North and Bromberg JJ). The approach is consistent with a long line of authority which emphasises the elementary importance of a party being bound on appeal to the case that it ran at trial (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68 at 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ)); an importance founded in the finality of litigation: Coulton v Holcombe at 8-9 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
58 Ms Bobridge resisted the grant of leave on the basis that she would in fact have relied upon additional evidence to meet the argument. In particular, Ms Bobridge pointed to potential evidence relating to whether Choppair was "in the airline industry" (a threshold condition to the application of the Ground Staff Award), and evidence tailored to the identification of the appropriate classification in the Ground Staff Award.
59 In relation to the first of those points, clause 4.1 of the Ground Staff Award provides that the award covers employers "in the airline operations industry". There was some argument around the nature of Choppair's operations and whether they fell within the Ground Staff Award's definition of "airline operations industry". What was really being tested was whether Choppair's operations could fall outside the definition. For the purposes of the grant of leave what is relevant is whether there exists any controversy capable of being resolved by additional evidence.
60 Clause 3.1 defines "airline operations industry" as follows (emphasis added):
airline operations industry means:
(a) operating; and/or
(b) ancillary on-airport servicing of,
aircraft used for the purposes of providing commercial passenger or freight air transport services (whether scheduled or non-scheduled) and private business and instructional flying in, and from a base in, Australia.
61 Ms Bobridge contended that that definition was to be read in the light of its industrial history and context, including by reference to an inconsistent definition found in the AP Award. Specifically, Ms Bobridge sought to contend that the qualifying words commencing with "aircraft" and ending with "Australia" applied only to paragraph (b) of the definition and that, insofar as the definition related to flight operations, "airline operations" should, or at least could, despite the presence of the emphasised text, be understood to exclude non-scheduled charter air services such as that operated by Choppair. In that context it was said that additional evidence may have been adduced at trial to support the contention that the definition, and therefore the scope of the Ground Staff Award, were not wide enough to include Choppair's operations. I am not persuaded that the definition in cl 3.1 should be read in the way contended for by Ms Bobridge or that it otherwise leaves any room for doubt.
62 I am more persuaded by Ms Bobridge's argument that she could have, by additional evidence, met a case that her employment at Moorabbin was more appropriately covered by the Ground Staff Award, or alternatively, raised a case that she was underpaid under the Ground Staff Award during this period. Those questions are heavily fact-dependent and might easily have been addressed by additional or different evidence. Ms Bobridge fought her case and won in the absence of any suggestion that the Ground Staff Award could apply to her. It is difficult to speculate as to the forensic choices that would have been made by Ms Bobridge or the case she might have run had the alternative arguments been put by Choppair at trial. While the precise nature of her case in response to the submission cannot be known with any degree of certainty, the prospect that Ms Bobridge might have resisted the argument on the basis of additional evidence is real and not fanciful. In all the circumstances, having regard to the fact-sensitive nature of the argument and the high bar to leave being granted, I would refuse Choppair leave to rely upon the argument that Ms Bobridge's employment at Moorabbin was most appropriately classified under the Ground Staff Award. I do not accept the submission of Choppair that its reference at first instance to the "clerical award" or "clerks award" was non-specific and capable of including the Ground Staff Award such that leave is not strictly required.
63 Whilst I hold reservations about the approach taken by the primary judge and in particular the reliance placed on cl 4.6 of the AP Award, what is implicit in the primary judge's conclusion that the AP Award is the most appropriate award is that the AP Award, or more particularly the helicopter classification, is an appropriate classification for the work which Ms Bobridge performed at Moorabbin.
64 Historically, the question whether a particular award classification is appropriate and thus applicable to the work performed by an employee has been resolved by the application of the principle of "major and substantial employment".
65 Logan J discussed and summarised the principle in Construction, Forestry, Mining and Energy Union v Anglo Coal (Callide Management) Pty Ltd [2015] FCA 696 at [38]-[39] as follows (emphasis added):
[38] More recently, in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 68-73 (Logan v Otis Elevator) Moore J collected and discussed many of the plethora of cases in which courts or the industrial commission have had to confront the phenomenon of an employee whose position required the undertaking of multiple duties only some of which were mentioned in a particular classification in an industrial instrument or, as the case may be, were disparately stated in different industrial instruments. Like Moore J in that case, I consider that a judgement given by Sheldon J in Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18 offers assistance. Also like Moore J, I do not consider that the observations made by Sheldon J are to be confined just to a case where it is necessary to choose as between which of two industrial instruments applies to particular employment. That circumstance merely provided the context in which observations of pervasive relevance came to be made by Sheldon J. What Sheldon J observed was this (as set out in Logan v Otis Elevator at 68):
The finding of the Chief Industrial Magistrate raises two questions: Firstly, whether this is a case to be determined on the principle of major and substantial employment; and, secondly, if it is, whether the evidence justified his finding as to what the major and substantial employment of the complainant was.
It seems to me that this is clearly a case to which this principle is applicable. This principle is almost as old as industrial arbitration and it makes a practical approach to determining the application of awards where duties are of a mixed character and contain elements which have taken alone would be covered by more than one award. This is not an appropriate occasion on which to discuss the method by which this test should be applied except to say that it is not merely a matter of quantifying the time spent on the various elements of work performed by a complainant; the quality of the different types of work done is also a relevant consideration.
[39] A pithy way of putting the same proposition is that both quality and quantity are relevant when it comes to employee classification, subject always to the language employed in the particular industrial instrument.
66 Although this interpretive principal is often applied to determine which of two competing classifications in two competing awards is the appropriate or applicable classification, as Moore J stated in Logan v Otis Elevator Company Pty Ltd [1997] IRCA 200 at 67 the principle is also applied in determining whether a particular award classification regulates employment of a particular character. To that authority may be added Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 where at [27] Besanko J said this:
… Where the particular issue is whether an employee is engaged in a particular classification or class of work, then the Court takes a practical approach and will consider the aspect of the employee's employment which is the principal or major or substantial aspect (Ware v O'Donnell Griffin (Television Services) Pty Ltd [1971] AR (NSW) 18; Director of The Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No 7) [2013] FCCA 1097 at [77]).
67 The following reference to Federated Engine Drivers and Firemen's Association of Australasia v Maffra Co-operative Milk Products Co Ltd (1940) 42 CAR 836 (O'Mara J) made by Logan J at [35] of Anglo Coal is pertinent to the resolution of the present appeal (emphasis added):
[35] A statement made by O'Mara J of the former Commonwealth Court of Conciliation and Arbitration in Federated Engine Drivers and Firemen's Association of Australasia v Maffra Co-operative Milk Products Co Ltd (1940) 42 CAR 836 at 837 (FEDFA v Maffra) remains as true today as it did in 1940:
The question of the award to be applied to an employee who is partly on work covered by one award and partly on work covered by another has been the subject of discussion in a number of cases … [These] generally are to the effect that if a person's employment involves performing work covered by more than one award he is deemed to be covered by the award which applies to the major and substantial part of his employment. This, however, is a rule of construction only and must give way to the clear language of an award … .
In the circumstances of that case, which necessarily included the way in which the award concerned was cast, O'Mara J held that the award applicable to engine drivers and thus the rates of pay it prescribed for engine drivers applied to an employee who only occasionally undertook engine driving work (for which he needed to and did hold a certificate of competency) but otherwise worked as a labourer. Influential in his Honour's conclusion were clauses in the engine drivers award which indicated that it was intended to apply even when persons bound by it were undertaking work other than the usual work of their calling.
68 In Maffra, the employee in question was employed to perform mixed duties: predominantly labouring, and only for about two hours every day driving an engine. However in order to perform the work of an engine driver, the employee was required to hold a certificate of competency to drive an engine. While O'Mara J observed that the major and substantial "portion of his time" was spent doing work other than engine driving, his Honour nevertheless held the applicable award to be the Engine Drivers Award.
69 Quantitatively, the major part of Ms Bobridge's work was not that of flying helicopters. But she was engaged as a pilot and was required to be a pilot. That is, she was required to fly helicopters as and when Choppair required her to do so. She was recorded as and regarded to be a member of Choppair's flight crew. She was required to hold a commercial pilot's licence and undergo proficiency and currency checks as well as pilot related training. The holding of a commercial pilot's licence is a critical element of the definition of pilot in the AP Award. As Ms Bobridge's "first priority", flying was integral to her employment. Those matters together with the highly specialised nature of the work of a pilot strongly support the conclusion that, qualitatively, flying helicopters was a major part of Ms Bobridge's work.
70 Additionally, as cl 24.7(r) demonstrates, the AP Award contemplates that the work of a pilot includes administrative work. Much of the administrative work performed by Ms Bobridge was the work of a pilot. The work that the Chief Pilot delegated to her was clearly in that category and her administrative work in supervising other pilots is apt to be regarded as pilot's work or work very closely connected thereto. Other administrative work performed by Ms Bobridge may not have constituted pilot work. The extent of that work is not particularly clear.
71 Ms Bobridge's work of actually flying helicopters, together with the requirement that she be available to fly as and when required and the other pilot's work or work closely connected thereto must be regarded as substantial. Taking into account the quality of that work, given the importance of it relative to other duties performed, as well as the high level of skill involved and weighting that appropriately, the better view is that pilot work was the major or substantial aspect of Ms Bobridge's work. In those circumstances, although the primary judge took a different approach, his Honour's conclusion that the helicopter pilot classification in Schedule E of the AP Award was appropriate and applicable should not be disturbed.
72 I should add that if I had allowed Choppair on rely on the Ground Staff Award, I would have arrived at the same conclusion as to the applicable award classification. In that instance, the question would have been which of the helicopter classification in Schedule E of the AP Award or the level 8 classification at cl B.2.8 of the Ground Staff Award was "most appropriate" to the work performed by Ms Bobridge and to the environment in which she normally performed that work. All of the reasons given in support of my conclusion that the AP Award classification is the appropriate classification, support the conclusion that that classification is more appropriate. That the bulk of Ms Bobridge's work was administrative tends to the opposite conclusion but not very strongly, including because much of the administrative work was pilot's work or closely connected thereto. In addition, whilst the AP Award classification contemplates the performance of administrative work, the performance of flying duties is entirely foreign to the Ground Staff Award. That is so in circumstances where flying duties require specific regulation of the kind provided for by the AP Award. The AP Award provides for various pilots specific arrangements including maximum flying hours, hours of work, days off and rest periods (cl 24) and travel entitlements specific to pilot work (Schedule E.3) and also provides for a pilot indemnity (cl 22.12).
73 Grounds 5, 6(a) and 6(c) of the SNOA must be dismissed. I regard ground 6(b) as not pressed. The ground was repeated without further explication in Choppair's written outline, but was not raised at all during the hearing of the appeal. Moreover, Choppair submitted at the hearing that two awards could not apply to the same employment. I consider that concession to have been correctly made. For that reason I will also dismiss Choppair's ground 6(b).