Characterisation of the respondent's conduct
24 The applicant says it is an aggravating circumstance that the respondent was on notice that its conduct was potentially in breach of the 2012 Agreement through communications from the applicant. A letter from the applicant to the respondent was adduced in the penalty hearing through the affidavit of Mr Winter.
25 The letter was dated 18 December 2015 and addressed to Ms Lawton, the ATS Operational Training Manager. It relevantly stated:
Re: Forced leave over Christmas period - SSO
I refer to a concern and possible dispute regarding forcing SSOs in Brisbane Centre to take leave over the pending Christmas period.
This correspondence is to formalise that the dispute avoidance and settlement procedure has been enacted. Given the information provided to staff in email correspondence of 3 December 2015 it appears that there is a difference of understanding in relation to the ability of Airservices to force staff to take leave.
The relevant employee group (SSOs) are covered by the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2012-2015 ("the Agreement"). Under the Agreement, employees can only be directed to take leave when they are in excess of accruals (refer clause 36.1). An annual leave program is to be developed and maintained in consultation with employees (refer clause 36.8). Furthermore, "Changes to leave allocations, once published, may only be made with consultation" (refer clause 36.8(h)). We are concerned that a number of elements of the Agreement have not been complied with and the organisation may be in breach of the Agreement.
We understand that the first step in the disputes avoidance and settlement process, set out at clause 10.1(a) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2012-2015 ("the Agreement") has already occurred as Phil Ware, the Civil Air delegate, had a meeting with you on 7 December 2015.
As the matter remained unresolved following that meeting, Civil Air regarded it as appropriate to utilise clause 10.1(b) and raise this matter immediately with more senior levels of management. To that end, the Civil Air President, Daryl Hickey contacted you on 11 December 2015. During that conversation, Mr. Hickey had the strong impression that you undertook to consult with your staff as is required under the Agreement.
The latest advice received from the SSO group is that a new roster was published on 16 December 2015 that changed the leave arrangements and stood down staff for Public Holiday and recreation leave. There are up to twenty affected staff members who remain unhappy about being forced on leave over this period. The original notification regarding changed arrangements was provided on 3 December. Before we list a dispute, we seek your urgent reconsideration of this matter.
Finally, we note that "While a concern or dispute is being dealt with, work will continue as normal being the status quo save for any bona fide safety concerns." (Clause 10.1(h))
(Original emphasis.)
26 The applicant contends, and I accept, that the third paragraph of the letter set out what the applicant needed to do, in order to abide by the terms of cl 36.8(b) of the 2012 Agreement.
27 The letter also refers to two communications: one on 7 December 2015 and one on 11 December 2015, during which the applicant had attempted to draw the respondent's attention to its obligations under the 2012 Agreement. There is no debate that these communications occurred, and that the respondent did not take any steps to comply with cl 36.8(b) after these communications, or after the 18 December 2015 formal notification of a dispute.
28 Ms Lawton replied to this correspondence, but not until 8 January 2016: that is, not until after the contravention had occurred and Mr Bell and Mr Lo Castro had been forced to take their leave when they did not wish to do so. Her reply was in the following terms:
Thank you for your letter dated the 18 December 2015, referring to the matter of the Christmas leave period for Simulator Support Officer (SSO) staff working in Brisbane. I contacted the Simulator Team Leaders on receipt of your letter to ascertain the issues, and obtained email correspondence. I then met with the SSO cohort as a group as a matter of priority on my return to work on 4 January 2016. A large number of staff attended and a healthy exploration of the issues ensued.
An annual leave program is in place for Brisbane ATS Operational Simulator and is developed and maintained in consultation with the employees. A further improvement to that program is captured in the Simulator Annual Leave System of Approval (SALSA), developed by the staff group and approved by the ATS Operational Training Manager.
The Airservices Shutdown period applies to all non-operational staff, including the ATS School simulators; this business requirement and dates being communicated on numerous occasions to the employees via corporate communication channels. The default position therefore for all SSO staff was that a combination of leave and public holiday stand down would occur for the Christmas Shutdown period. Accrued Time Off in Lieu could also be used if required.
In response to ATC requests for training bookings during the Christmas Shutdown period, GM LA approved essential training to continue. SSO volunteers were sought to work to support the training. A number of staff volunteered to forgo taking their leave and support the training. Correspondence to staff on 22 November 2015 conveyed that some bookings were tentative, and if the booking were not confirmed or subsequently cancelled, that the staff would revert to the default position of leave during this time.
Staff were notified on 3 December 2015 and 14 December 2015 of the progressive updates to the bookings, including cancellations. In the first instance, staff preferences were sought regarding leave, noting that only the minimum number of staff required to support training were approved to work during this period. Where no staff preference was notified, leave was allocated equally across the remaining staff; all staff were aware that swapping of shifts was supported between staff.
The SSO cohort have reflected in discussion and email that there was confusion of operational versus non-operational unit status, what constituted essential training, and how roster changes for this period needed to be conveyed. There did not appear to be consistent understanding across the group of the default Christmas Shutdown period for the simulators. The outcomes from the discussion with the staff yesterday are focussed on providing clarity for staff in terms of role and requirements, and the method and timing for communication to changes to training requirements and rosters. I confirmed that ATS Operational Training is considered a non-operational group and as such Christmas Shutdown periods apply.
A summary of agreed actions is listed below:
1. ATS Operational Training Simulators will not accept bookings over the Christmas Shutdown Period.
2. The Brisbane leave program (SALSA) rules to be reviewed to be more explicit regarding ensuring staff factor the Christmas Shutdown period into their leave balances.
3. ATC short notice training requests for essential training to support business continuity (e.g. post-incident remediation) will be addressed through the following process:
a. ATC contacting ATS Operational Training Manager (OTM) for short notice training request;
b. OTM to refer to a call out list of staff willing to support short-notice training,
c. Call out to be covered by AD/ED as appropriate.
4. Agenda for the SSO staff meeting on 24 February 2016 to include Communication and Consultation methods and timing for roster changes.
5. OTM to communicate and reinforce Corporate Requirements directly with the SSO cohort via email and/or briefings.
6. OTM to work with the Simulator Team Leaders on ensuring quality communication, courtesy and consultation in the work place (informed by outcomes of the 24 February 2016 meeting).
The staff present at the 4 January 2016 meeting were welcoming and supporting of these agreed actions and therefore I am confident that these actions will alleviate any future confusion relating to the management of leave during the Christmas Shutdown period.
We are prepared to engage in further discussion with you as per the dispute avoidance and settlement procedure.
29 There was some debate during the hearing about what inferences should be drawn from Ms Lawton's reply, especially in the context of the respondent having admitted a contravention of s 50 of the FW Act. Having considered the parties' submissions, I make the following findings:
(a) this is an explanation given by Ms Lawton after the conduct giving rise to the contravention, and indeed at a time when there was no point in consulting Mr Bell and Mr Lo Castro, as they had taken their leave as they had been required to do;
(b) the view expressed that the shut down period could apply to the SSOs (because they are "non-operational staff") is contrary to the respondent's subsequent admission of a contravention of cl 36.8(b); and
(c) Ms Lawton does propose some "agreed actions" going forward, to avoid a similar situation arising again.
30 While it might be said there is a basis disclosed in this correspondence for the respondent's view, expressed through Ms Lawton, that what it had done was not in breach of cl 36.8(b), it is far from clear how the respondent (or Ms Lawton) could have reached that view on the face of cl 36.8. This correspondence does nothing to indicate any consciousness by the respondent, or any acceptance, that it should have been consulting each of its employees about the leave program, where it affected them.
31 In my opinion, the relevant evidence on this matter (which does not go beyond these two pieces of correspondence and the agreed facts) does disclose a conscious decision by the respondent to ignore what the applicant had sought to draw to its attention, and to press on with its plan to require Mr Bell and Mr Lo Castro to take their leave when the respondent wanted them to take it, over the shut down period. The evidence is that the respondent only addressed the applicant's complaint after it was too late to do anything about it, insofar as the two affected employees were concerned. The evidence about the "amends" later made by the respondent tends to support this inference.
32 The applicant's submissions used the word "flagrant" to describe the respondent's breach of the 2012 Agreement, but I consider that is, on the evidence, something of an exaggeration. There is no direct evidence to support a finding of flagrancy, which in my opinion suggests more than deliberateness, and instead some kind of consciousness that what is being done is wrong, and deeply or significantly wrong. In my opinion the evidence does not support a characterisation of the respondent's conduct in that way.
33 That said, it is relevant to describe the consequence of the respondent's conduct as having real significance for Mr Bell and Mr Lo Castro: they were not able to implement the plans they each had to take leave at other times, and were forced to take it at a time that suited their employer. I accept, as the respondent submitted, that this might have been the outcome even after consultation. However, consultation means an employer is open to listening to its employees and acting on what it hears. The fact there was no simulator work booked in Perth during the shut down period is beside the point in terms of the cl 36.8(b) obligation, because the point of consultation is that there may have been other factors, relevant to those employees, which may have persuaded the respondent it should not require these two employees to take leave, despite the absence of simulator work in Perth, where Mr Bell was located.
34 The fact that cl 36.8(b) is expressed as an obligation owed to each employee, as an individual, suggests the 2012 Agreement contemplates that an employer will, in designing and implementing its leave program, bring an open mind, capable of persuasion, to consultation about when an individual employee should take her or his leave.
35 While I accept the periods of leave the two employees were forced to take were, in fact, quite small - six days in the case of Mr Bell, and two days in the case of Mr Lo Castro - each and every period of leave is important to an employee, who has a fixed amount of leave.
36 The respondent is a business of reasonable size. It is a statutory corporation. Its 2015-2016 and 2017-2018 annual reports were in evidence, without objection from the respondent, through Mr Winter's affidavit. I infer it was sufficiently resourced to secure legal advice on its obligations under the 2012 Agreement, in the same way it has been ably resourced and represented in defending this proceeding. There is no evidence Ms Lawton or anyone else at the respondent sought such advice upon receipt of the applicant's complaint. I am prepared to infer from the timing of the applicant's complaint and the absence of any evidence about a response from Ms Lawton (or anyone else from the respondent) to the applicant before the shut down period, that the respondent simply decided to press on with the arrangement it had imposed on its employees. That may be because it believed the applicant's interpretation of the 2012 Agreement was incorrect, or it may be because it decided to ignore the applicant's complaint, despite knowing what it said was correct. There is no evidence upon which to make an express finding either way.
37 What can be said is that the respondent did press on and force these two employees to take leave at a time they did not wish to do so, in a way it now acknowledges was a contravention of its obligations under cl 36.8(b) of the 2012 Agreement.