Civil Air Operations Officers' Association Of Australia v Airservices Australia

REASONS FOR JUDGMENT 1 There is before the Court an application by Civil Air Operations Officers' Association of Australia ("Civil Air") for the imposition pursuant to s 178 of the Workplace Relations Act 1996 ("the Act") of penalties on the respondent, Airservices Australia ("Airservices"), for breaches of the Airservices Australia Enterprise Agreement 1998-2001 ("the 1998 Agreement"). 2 Clause 12 of the 1998 Agreement provided; "12.1 Airservices shall ensure that all selections for recruitment, promotion and transfer will be determined by merit and relative efficiency. This means fair and open competition involving consideration of the best available field of candidates taking account of the advantages of developing and progressing Airservices Australia employees. 12.2 Selection criteria and decisions will be based on the requirements of the position with no discrimination on the grounds of political affiliation; race, colour or ethnic origin; religion; sex; sexual preference; marital status; pregnancy; physical or mental disability; union membership or activities; family responsibilities; permanent part-time status; or any other unjustified discrimination. 12.3 Employees may request a review of a selection decision in accordance with the Review of Decisions provisions of this Agreement." 12.4 The arrangements contained in and regarding the Letter of Agreement concerning Staffing Principles referred to in Clause 18.12.1 of Schedule B are re-affirmed. In the context of Business Transformation, the Staffing Principles will be the subject of ongoing review and negotiations, and would only be changed by agreement of the parties." 3 It will be recalled that on 12 October 2001 I published reasons for giving an affirmative answer to the following question which was ordered pursuant to O 29 r 2 of the Rules of this Court to be resolved separately and before any other question in the proceeding; "Whether the effect of cl 12.4 of the 1998 Agreement is that the terms of the document described in that clause as 'The Letter of Agreement concerning Staffing Principles referred to in clause 18.12.1 of Schedule B' are incorporated as terms of the Agreement." The present reasons should be read in conjunction with those earlier reasons and, unless otherwise indicated, expressions used in these reasons will have the same meaning as they had when used in the earlier reasons. 4 There was some reference in the earlier reasons to the Letter of Agreement which I there held to be have been incorporated by reference in the 1998 Agreement. Clause 3 of the Letter of Agreement was in these terms; " Training opportunities a. Training opportunities /vacancies for each unit, based on forecast staffing requirements, shall be managed by the establishment of a training pool. Applications will be sought at least once per year. b. To accommodate the competing commitments on access to training opportunities, each training pool shall be segmented to some or all of the following, as appropriate, in priority order: (1) potentially surplus staff; (2) new recruit (in-stream) trainees; (3) ex-GAAP/ Outstation staff, nearing the end of the 12 month notification period (see Clause 5); (4) cross-stream applicants who were employed as operational ATCs on ratification of the 1992 ATC EBA, and have been continually employed as ATCs since (see Clause 4.e.(1)); Note: This priority will only apply to an applicant's first cross‑stream transfer: any subsequent transfer will attract the same priority as post September 1992 employees. (5) in-stream applicants from outside the locality (see Clause 2.b.); and (6) cross-stream applicants who became employees after September 1992 (see Clause 4.e.(1)). c. Priority for training within each segment of the pool shall be based on seniority, except for between ab initio trainees (for whom course graduation position will be used) and GAAP/ Outstation. transferees (which shall be based on the order of receipt of the request for transfer (see Clause 5.c.(1)). d. From the total pool a shorter-training list, still segmented, shall be developed, which will be frozen; that is, subsequent entrants to the pool will not disadvantage those already on the frozen list for training. Subsequent training lists will be developed from the pool. A guide to the construct of the pool is at Attachment 3. e. The training list will reflect the forecast training requirement. However, if the list includes new recruit trainees but excludes pre‑September 1992 cross-stream applicants in the pool, the list shall be expanded by adjusting the cut-off line downwards to include up to the same number of pre-September 1992 applicants as there are new recruit trainees above the cut-off line. (1) Where adjustingthe cut‑off line downwards also captures additional higher priority applicants, those applicants shall retain their priority. f. Training opportunities shall be advertised within a District first and then, if there are insufficient suitable applicants, nationally. (1) Vacancies for permanent Team Leader positions shall be advertised nationally only via the Airservices Bulletin Board in the first instance. (2) Vacancies in SAR shall be advertised nationally in the first instance, and externally only if necessary." 5 Clause 5 of the Letter of Agreement to which reference was made in cl 3(b)(3) provided; 5. GAAP/Outstations (including CS/CB/CG) a. GAAP/Outstation and CS/CB/W controllers, whether on permanent transfer or term transfer, will have the right to elect to transfer to their parent major centre or major unit within their District, after having served at least two years at the GAAP/Outstation or CS/CB/W location. They will have the right to state a stream preference. b. If vacancies are not available in their preferred stream, controllers may instead elect to transfer to the parent major centre or a major unit within their District and train for vacancies in another stream. However, placement will ultimately be at management discretion, based on overall staffing needs, and may be subject to the transferee completing an agreed merit selection process for assessing the likelihood of them successfully completing the required training programs for that stream. c. An election for transfer under this Clause is to be effected within 12 months of the relevant Operational Resources Manager receiving written notice of the transfer request. These arrangements, and specific dates, will be determined by the parties in consultation. (1) If several staff at one unit seek transfers within a similar time frame, a program of staggered departures may need to be implemented to ensure the operational integrity of the unit. This program may extend beyond 12 months, and will be based on the order of request for transfer. d. Successful applicants will be required to agree to remain at the new location for a minimum of two years. e. GAAP and outstation controllers will be given opportunities for familiarisation with operations at major centres/units so they can maintain awareness of changes taking place across the whole ATS system. (1) Each District shall establish a familiarisation program with appropriate budgetary provision from FY 1997/98, consistent with operational needs." 6 The circumstances giving rise to the alleged breaches by Airservices of the 1998 Agreement centred on one of its air traffic controllers, Mr Valkenburg, who had been stationed since about March 1998 at Archerfield Airport in Queensland. He there worked in the "Tower" stream of air traffic controllers. It is common ground that air traffic controllers working at Archerfield were in General Aviation Aerodrome Procedures ("GAAP") or an Outstation. Mr Valkenburg was transferred to a position as an air traffic controller in the Tower at Brisbane Airport. That transfer enabled him to undertake training leading to the acquisition of the five separate ratings which would qualify him for appointment as a Full Performance Controller. The transfer also resulted in Mr Valkenburg's receiving an increase in salary. 7 It is contended on behalf of Civil Air that Mr Valkenburg's transfer to Brisbane Airport constituted a breach of the 1998 Agreement and the Letter of Agreement which it incorporated by reference because no training pool had been established as contemplated by cl 3(b) of the Letter of Agreement. It is further contended that a separate breach of the 1998 Agreement and Letter of Agreement had been constituted by Airservices' failure, to advertise, in accordance with cl 3(f) of the Letter of Agreement, the vacancy at Brisbane Airport to which Mr Valkenburg was appointed. That vacancy, Civil Air contends, was a "training opportunity" within the meaning of cl 3(f) of the Letter of Agreement. 8 Mr Starrenburg, the Strategic Human Resources Manager - Brisbane Operations for Airservices, has deposed that Mr Valkenburg had been recruited by Airservices in 1995 and had served in the "Tower" stream at Tamworth Airport which was a GAAP/Outstation within the meaning of the 1998 Agreement and the Letter of Agreement. After completing more than two years service at Tamworth, Mr Valkenburg elected to transfer to the major centre of Brisbane. He was then notified that he would be unattached and transferred permanently to the Brisbane "En Route" stream. However, before he could begin work in that stream, according to Mr Starrenburg, "he was seconded to the Archerfield Tower working as a Full Performance ATC to fill a short-term requirement." Thereafter, the perceptions of Airservices affecting Mr Valkenburg, were, on Mr Starrenburg's account, that; "47. In April 1999 the Terminal Operations Group Line Manager responsible for staffing at Archerfield(Mr Phil Faulkner) wrote to me as the Human Resources Manager for the Brisbane Centre Operations. Mr Faulkner advised that the Terminal Operations Group was reducing staffing in Archerfield and would cease to require the services of Mr Valkenburg from July 1999. This meant that upon completion of his secondment, Airservices in accordance with the notification of permanent transfer given to Mr Valkenburg, transferred him to Brisbane Enroute where he was to undertake an extended period of cross-stream training. 48. However, at the cessation of Mr Valkenburg's secondment to the Archerfield Tower in August 1999 there was a surplus of ATC staff in the Brisbane Enroute Stream and a voluntary redundancy process was in train. This meant that placing Mr Valkenburg in the Enroute Stream on his transfer from Tamworth as a former GAAP/Outstation ATC would have resulted in him being immediately classified under the provisions of the 1996 CA relating to redundancy (see clause 17) as a 'Potentially Surplus' ATC. 49. The consequence of this situation was that a decision was made to place Mr Valkenburg in a position of Tower Controller in the Brisbane Tower. Mr Valkenburg has been employed in that position since." 9 In his affidavit, Mr Starrenburg made the further point that, if Mr Valkenburg had been placed in the Brisbane "En Route" stream as originally intended, he would immediately have been identified as "Potentially Surplus" and subject to a redundancy process. That was, Mr Starrenburg said, "not thought to be an appropriate outcome for him and not consistent with the notification given to him by Airservices". Mr Starrenburg's summary of the reasons for the decision taken by Airservices in relation to Mr Valkenburg ended with this sub-paragraph; "(g) It was considered that if the LOA applied to the placement at all, it was covered by clause 4(c) of the LOA. Further, it was not considered that by placing Mr Valkenburg in the Brisbane Tower, Airservices was filling a vacancy or that there was a training opportunity which otherwise would have been filled by applicants for it. There was no vacancy that needed to be filled at that time or training opportunity that had arisen." 10 Sub-clause 4(c) of the Letter of Agreement found its place in cl 4 headed "Movement between Streams", the relevant sub-clauses of which were in these terms; "a. Opportunities for cross stream training between ENROUTE and TMA in Sydney, Perth and Adelaide shall first be afforded to controllers who have an entitlement to remain at those locations due to consolidation agreements (see Clause 3.b.(1)), provided they are assessed as capable of attaining TMA rating/endorsements. b. Where other vacancies exist, priority for movement between streams at a unit shall be afforded those who were employed as controllers at the time of ratification of the 1992 ATC EBA. c. Where other movements between streams at a unit will not incur an increase in attainable remuneration, such movement will be considered in the light of overall staffing needs. d. Cross stream transfers will be based on agreed merit selection processes for assessing the likelihood of individuals successfully completing the required training programs. , Those assessed as meeting such criteria will have access to training opportunities based an the above priorities (see Clause 3), and their subsequent placement in the training pool and progression to the training list. e. The objective is to maintain an appropriate balance between in-stream, cross-stream and new recruit training opportunities." 11 Mr Starrenburg also deposed to certain practical aspects of the establishment of training pools. The relevant paragraphs from his affidavit are; "80. With respect to the matter of training pools, such pools have been established since 1996 for forecast staff vacancies and placements. 81. However, in smaller locations (5-10 staff) it has simply never been practicable to forecast vacancies and advertise prior to the event and on an annual basis. In practice, the placement of staff into vacancies in such small locations was carried out by advertising when a discrete vacancy occurred and actually then filling in accordance with the ATC priority list of the LOA. 82. In larger Centres, a significant number of staff movements were filled by the placement of ab-initio ATCs on graduation, ATC staff returning from outstation towers, staff returning from secondment or project positions elsewhere, or internal transfers at the same salary level. 83. 1 also note that the LOA introduced a process of establishing Training Pools for each "Unit" within the defined "Districts" with applications being sought annually based on forecast staffing requirements. As I have stated earlier, the former Air Traffic Services Northern District was responsible for managing 9 remote and smaller units other than Brisbane. Those units were Archerfield, Cairns, Coffs Harbour, Coolangatta, Hamilton Island, Mackay, Maroochydore, Rockhampton and Tamworth. ... ... ... ... ... 87. A training pool was established for the Brisbane Tower during the second quarter of 1997 and a number of placements were made from that formally constituted pool."