The Decision to deploy the employees to provide a SAFRA service and the asserted non-compliance with clause 8.3(a)
32 Civil Air contended that the SAFRA Implementation decision was a decision to use or deploy the Cairns TCU employees to provide the overnight SAFRA service from 31 October 2019. That was the change which, prior to a decision being made to adopt it, Civil Air contended required consultations with the Cairns TCU employees. The decision to introduce that change without the consultation required by cl 8 was pleaded as a failure to comply with cl 8.3. Read in context, including by reference to [17] of the Further Amended Statement of Claim, which sets out why the change was likely to have a significant impact upon the Cairns TCU employees, what was being asserted was a failure to comply with para (a) of cl 8.3 by the failure of Airservices to consult in the manner required by cl 8.5.
33 There was a suggestion in the opening written submissions of Civil Air that the SAFRA Implementation decision also engaged cl 8.3(b), but I disregard that as falling outside of Civil Air's pleaded case.
34 Civil Air pleaded that the SAFRA Implementation decision was a "change" within the meaning of cl 8.3 of the Enterprise Agreement. Airservices contended in response that cl 8.3 was directed to "change" not to a decision. As stated already, properly understood cl 8.3 is directed to a proposed change. Clause 8.3 contemplates that a change will be determined once a "final decision" (cl 8.1) is made to implement the change. For that reason the clause requires that the consultation about the proposed change occur prior to a "final decision".
35 Airservices correctly contended that Civil Air's contention that it had failed to consult regarding its decision to implement the overnight SAFRA service begins from the premise that Airservices in fact made such a decision. Airservices denied it had made any such decision. It made the following submission (citations omitted):
No such decision was made by Airservices: in taking steps to reinstate a SAFRA service Airservices was either implementing the 2004 Ministerial Directive to provide the SAFRA service or complying with the Safety Finding of 25 May 2018. To characterise such action by Airservices as being a decision regarding significant change does not properly reflect the true state of affairs. Airservices did not have a choice regarding implementing the SAFRA service - it had to do so to meet its statutory obligations as a provider of civilian air traffic services.
Seeking to characterise the decision under contemplation to a decision by Airservices to utilise the Cairns TCU group ATCs to provide the SAFRA service does not improve Civil Air's position. The selecting of one group of ATCs over another group of ATCs to implement a service which must be provided by some number of Airservices' staff does not elevate Airservices' mere compliance with its statutory obligations to a decision.
36 I reject that submission. That the SAFRA Implementation decision was driven by the need for Airservices to comply with the Safety Finding and thus its statutory obligation does not deny that decision the character of a "final decision" contemplated by cl 8.
37 There are all manner of compliance requirements made by occupational, health and safety laws amongst many other laws which regulate and, from time to time, require changes to be effected in a workplace. The decision made to implement a measure in order to comply with the law as required by a regulator is not a decision of the regulator in question, even if the regulator's decision is quite specific as to the particular change being required. Nor is a decision made by Airservices to implement compliance measures to be characterised as involuntary in the sense that it is not the decision of Airservices. How the directive of a regulator is to be implemented and the consequences for employees of different paths taken to effectuate compliance is fruitful ground for the kind of consultation which cl 8 envisages.
38 Airservices' compliance with its statutory obligation could have been effected by a range of means. The evidence was that Airservices considered four different options for complying with the Safety Finding, three of which did not involve the Cairns TCU employees. In relation to effectuating compliance with the Safety Finding by 31 October 2009, the possibility of using the controllers manning the towers at Rockhampton and Mackay airports to provide the necessary services was also considered.
39 Airservices chose to bring about compliance by deciding that particular measures utilising particular employees be implemented in accordance with a particular timeframe. The particularity of the compliance path chosen had consequences particular to the employees affected and, consequently, there was utility of the kind envisaged by cl 8 in those employees being consulted. The decision, in my view, was unquestionably the kind of final decision which cl 8 intends not to be made without the prior consultation which the clause requires.
40 Next, Airservices contended that the SAFRA Implementation decision did not constitute a "change" or more correctly a proposed change which engaged cl 8.3(a). Airservices contended that the asserted "change" was not a change because the decision to implement an overnight SAFRA service and utilise the Cairns TCU employees to provide it was not new but a long standing position dating from 2018. It was therefore said to be not a change in issue in this proceeding.
41 Airservices essentially contended that the only change in prospect as at October 2019 was the rostering changes that needed to be made to provide the overnight SAFRA service as and from 31 October 2019. It was Airservices' case that that prospective change did not engage cl 8.3(a) because it was wholly encompassed by cl 8.3(b) in circumstances where cl 8.3(a) and (b) were asserted to be disjunctive.
42 Civil Air agreed that the SAFRA Implementation decision heralded rostering changes but contended that the nature of the change was broader. It also contended that the change was new rather than the product of a longstanding proposal. It sought to deny that a firm decision to provide an overnight SAFRA service had been made prior to October 2019 and, if made, Civil Air essentially sought to say that any such proposal had lapsed by October 2019. Furthermore, Civil Air sought to give the implementation of the SAFRA overnight service currency as a new change because its implementation date of 31 October 2019 was said to be both short and of such significance as to relevantly distinguish that proposal from any prior proposal.
43 I then need to assess whether by the SAFRA Implementation decision Airservices determined to impose a change in the deployment of the Cairns TCU employees or merely effectuated a previously determined change in deployment. To do that I need to return to the facts and the detail of the background which preceded the making of the SAFRA Implementation decision.
44 Between CASA issuing the Safety Finding on 25 May 2018 and September 2018, Airservices considered various options to address the Safety Finding including the provision of an overnight SAFRA service. On 16 August 2018, CASA requested that Airservices provide it with an action plan, timeline and measurable milestones outlining Airservices' intent to address the Safety Finding.
45 On 6 September 2018, an email was sent to various employees including the Cairns TCU employees. That email advised that several options had been explored to allow Airservices to provide a full SAFRA service for the Rockhampton/Mackay sector. The email advised that the proposal which had been assessed as being the most appropriate to Airservices current situation was to use the Cairns TCU employees to provide the SAFRA service. Employees were directed to a website in which it was said information would be shared about the changes and were informed that once Airservices had a clearer idea of what training would be required, further details would be provided.
46 On 10 September 2018, Airservices briefed a number of representatives of Civil Air on the future direction of the Rockhampton/Mackay sector including in relation to training. The proposal discussed was described as "at the preliminary stage at the moment". On 21 September 2018, employees including the Cairns TCU employees were advised that two controllers from the Capricornia Group with an approach rating for the Rockhampton/Mackay sector would transfer to the Cairns TCU. Employees were informed that there was still a lot of work to do on the rostering side and that they should expect to see some changes over the coming weeks.
47 On 21 September 2018, Airservices provided CASA with an action plan setting out the proposed utilisation of ATCs working in the Cairns TCU group to provide the overnight Rockhampton/Mackay SAFRA service, a timetable for the training of the Cairns TCU employees to allow this to occur and an expected implementation date of 31 March 2019. That action plan was agreed to by CASA on 15 October 2018.
48 In the meantime, Airservices was also progressing a project called the "Airspace Modernisation Program". Work on that project had commenced in about September 2018. The Airspace Modernisation Program was being undertaken by Airservices to better align airspace use across Australia and standardise procedures and training required to deliver air traffic control services. Mr Wells deposed that the program would deliver a better use of resources to the places where industry required them. In October 2018, as part of that program, Airservices reviewed the continued need for an overnight SAFRA service for the Rockhampton/Mackay sector and for three other regional locations. It was determined that on a traffic volume metric the SAFRA service was not needed and the only reason the service was to be provided was because of the Ministerial Directive.
49 On 5 November 2018, Airservices requested CASA to approve an updated action plan including an extension of time until about August 2019 for the provision of any overnight SAFRA service for the Rockhampton/Mackay sector. That updated action plan was accepted by CASA on 13 November 2018.
50 On 19 November 2018, employees including the Cairns TCU employees were told that a full SAFRA service would commence on 3 June 2019 and that various preparations would occur in the interim including the training of the Cairns TCU employees and the development of new rosters.
51 However, for various reasons including further extensions sought by Airservices and granted by CASA, that proposal was not implemented in circumstances where on 13 February 2019 CASA agreed to a request by Airservices to further extend the date for the provision of a full SAFRA service to 30 September 2019.
52 In March 2019, SAFRA training for some of the Cairns TCU employees commenced. Between March 2019 and May 2019, three ATCs were trained but none undertook their final endorsements.
53 On 29 May 2019, Airservices asked CASA for yet a further extension to December 2019.
54 Although in the middle of 2019 the training program necessary to enable Cairns TCU employees to provide the SAFRA service was continuing, it occurred in circumstances where, as Mr Wells described it, Airservices was hoping that it would never actually have to provide the service because the "Airspace Modernisation Program" would take effect. If implemented, the program would have brought about regulatory changes which would have avoided the need for a SAFRA service in the Rockhampton/Mackay sector.
55 On 10 July 2019 CASA told Airservices that it would not agree to a further extension without Airservices providing a case in support.
56 The SAFRA training for a few of the Cairns TCU employees continued until 19 September 2019 when it was paused or suspended. Mr Wells deposed that the training had been described as a box-ticking exercise and was undertaken on the basis that Airservices hoped that it would not be required to provide the overnight SAFRA service. Mr Fitzgerald, who as at October 2019 held the position of Transitional Line Leader for the Cairns TCU employees, understood that the training was postponed in September 2019 because Airservices would not have to provide the full SAFRA service for the Rockhampton/Mackay sector. Despite that evidence, Airservices asserted that the training was in fact paused or postponed because of illness and other difficulties rather than because Airservices had concluded that the overnight SAFRA service would not be needed. It suffices for present purposes to conclude that irrespective of the specific cause of the pause in training, the evidence to which I have just referred as well as the evidence of Airservices' desire to implement the Airspace Modernisation Program and its expectation that the proposal would be supported (see [58]) reveals that by this time Airservices was of the view that the training would likely be of no utility because there was a likelihood that an overnight SAFRA service would not be required. Mr Wells accepted that, over the three months prior to October 2019, communications had been made to the Cairns TCU employees as well as to the Capricornia Group to the effect that the SAFRA service might not be implemented at all for "a myriad of reasons" including the development of the Airspace Modernisation Program and a lack of trainees.
57 On 23 September 2019, Airservices wrote to CASA informing CASA that it will not be able to meet the 30 September 2019 deadline for the implementation of the full SAFRA service. The correspondence suggested that full service provision could be achieved in mid-January 2020.
58 By that correspondence, Airservices also sought CASA's support in respect of pending elements of the Airspace Modernisation Program that would otherwise enable the Safety Finding to be addressed. At that point in time, Airservices was still regularly meeting with CASA regarding the Airservices Modernisation Program proposal and was also seeking change at the Ministerial level to have the Ministerial Directive rescinded. Mr Wells deposed that, at that time, Airservices anticipated that it would obtain CASA's support not to recommence the SAFRA service.
59 The then implementation deadline of 30 September 2020 was not met by Airservices in circumstances where no extension had been granted by CASA.
60 On 9 October 2019, CASA responded to the correspondence from Airservices of 23 September 2019, stating that Airservices' proposal that the adoption of the Airspace Modernisation Program would dispense with the need for a SAFRA service was not satisfactory to CASA for several reasons. CASA stated that in its view it would be inappropriate to sanction a further period of non-compliance by Airservices based on assurances that a service, being the Airspace Modernisation Program, will be implemented following changes that had not yet been formally notified or assessed. CASA then stated:
In the interests of safety, CASA requires [Airservices] to return to a compliant state without further delay. According to the training figures advised, this should be achievable no later than 31 October 2019.
61 The letter concluded by stating, in essence, that CASA has explained its position and its expectation that Airservices will make all proper efforts to return to compliance by resuming the SAFRA service to Mackay and Rockhampton without further delay.
62 Mr Wells gave evidence as to Airservices' reaction to CASA's correspondence of 9 October 2019. As a consequence of the correspondence, Airservices was concerned that CASA might issue a "Safety Alert", the consequence of which might entail Airservices losing its operating certificate. Mr Wells accepted that the potential issue of a Safety Alert was of serious concern for Airservices' business and that it would have attracted the attention of the Board of Airservices. Mr Wells deposed that Airservices wanted to avoid the potential consequences that the issue of a Safety Alert might entail.
63 It was in that context that a meeting of senior managers of Airservices was convened on 10 October 2019. Mr Wells deposed that in that meeting the decision was made by Airservices "to attempt to comply with the new 31 October 2019 deadline" and that compliance would be achieved using the Cairns TCU group. Mr Fitzgerald deposed that a meeting was convened to discuss what he referred to as CASA's directive that Airservices was required to provide a full SAFRA service for the Rockhampton/Mackay sector by no later than 31 October 2019. He stated that, at the meeting, discussion ensued as to the measures that would need to be taken in order to comply with that directive. The measures discussed included roster options for the Cairns TCU and the Capricornia Groups and the training, including refresher training, that would be required for the Cairns TCU employees.
64 A summary of the minutes of the meeting presented in Mr Fitzgerald's evidence included a comment that the Cairns TCU will require a refresher and endorsement for three controllers, will require "backfill of shifts" and that new rosters will be required for the Cairns TCU and for the Capricornia Group. In his oral evidence, Mr Fitzgerald stated that it was decided in the meeting that to attempt to meet the deadline Airservices would use a combination of existing Capricornia Group employees and the Cairns TCU employees who had previously received training in the SAFRA role. He stated that at the meeting a rough plan was developed for how the staffing was to be organised to provide the SAFRA service by 31 October 2019.
65 Both Mr Wells and Mr Fitzgerald confirmed that the decision made at the meeting of 10 October 2019 was then communicated to employees by an email sent by Mr Wells on 11 October 2019. That email was addressed to Capricornia Group and Cairns TCU employees and stated (emphasis added):
Please be advised we have received instructions to resume full SAFRA services using the existing APP R rating and endorsement model by 31st October 2019.
The resumption will be project managed by Peter Bloom from CSE, in conjunction with your Line Leaders Mike Vokes and Adrian Fitzgerald. They will be talking to you early next week to consider the training and other interim shift and roster changes required to make this date.
Further work and contribution is welcome for the end state rosters, seeing this service integrated with CS TCU.
I know this may seem at odds with previous communications but will be our way forward until new methods of SAFRA delivery become available and are implemented, hopefully in 2020.
Thank you for your patience and commitment in what will be a busy few weeks ahead. Any questions, please come and ask.
66 It was not in contest that the SAFRA Implementation decision was a "final decision" of the kind contemplated by cl 8. However, as earlier stated, Airservices contended that neither the provision of an overnight SAFRA service nor that the Cairns TCU employees would provide that service were changes effected by the SAFRA Implementation decision because each of those changes were the subject of decisions made by Airservices in 2018. Airservices' case was that the only change encompassed by the SAFRA Implementation decision was roster change for the Cairns TCU employees.
67 There are a number of aspects of cl 8 which assist in contributing to an understanding of when a proposed modification of some kind is contemplated by the clause to satisfy the description of a proposed change. First, it must be presumed that the clause imposes an obligation to consult about something that the clause contemplates would justify consultation. Accordingly, in having a proposed change in mind as the trigger which engages the obligation to consult, the clause must have had in mind a proposal for something to be done which justifies consultation with affected employees. Second, the intent of the clause, as subclause 8.1 states, is for employees to be fully informed and consulted. That tends to suggest that the proposed change that is contemplated was conceived of in broad rather than narrow terms. Third, the change is to occur prior to a "final decision". It is not any decision which heralds a change but a firm and (at least when made) what must be capable of being characterised as a final decision.
68 To my mind, the decision made by Airservices in November 2018 and communicated to employees on 19 November 2018 (initial SAFRA decision) that the Cairns TCU employees had been chosen to provide an overnight SAFRA service for the Rockhampton/Mackay sector was, when made, a final decision about those matters. Whether cl 8 was then complied with is not here in issue. The question here raised is whether the SAFRA Implementation decision that an overnight SAFRA service be implemented by 31 October 2019 also engaged cl 8.3(a). I consider that whilst it was a firm decision when made, the initial SAFRA decision had, by at least mid-September 2019, become highly conditioned by Airservices' desire to avoid implementing a SAFRA service at all and its expectation that it would not need to do so because it anticipated that CASA would support its proposition that the SAFRA service not be recommenced pending the acceptance and implementation of the proposed Airservices Modernisation Program.
69 I also consider that by at least mid-September 2019 Cairns TCU employees had been told that it was unlikely that they would be required to provide an overnight SAFRA service for the Rockhampton/Mackay sector.
70 By that time, what had been a final decision when initially made was so qualified by Airservices' contrary intent and its expectation that it would not be ultimately required to implement an overnight SAFRA service that, in my view, it could not be said that a SAFRA overnight service for the Rockhampton/Mackay sector to be provided by the Cairns TCU employees was sufficiently certain to be regarded as a prospective change. In other words, the change which had been proposed was no longer sufficiently proposed by Airservices to enable it being characterised as a proposed change of the kind contemplated by cl 8 of the Enterprise Agreement.
71 When, however, the SAFRA Implementation decision was made on 10 October 2019, that which had effectively lapsed as a proposal for change was re-enlivened. The change in Airservices' position is, I think, well captured in the following comment in Airservices' communication of the SAFRA Implementation decision to the employees that "[the SAFRA Implementation decision] may seem at odds with previous communications but will be our way forward…".
72 The re-enlivenment of the proposal that an overnight SAFRA service be provided and that the Cairns TCU employees be deployed to do so was sufficient to re-engage the consultation obligation provided for by cl 8, even if it be accepted that cl 8 had been earlier engaged by the initial SAFRA decision. The re-enlivened proposal that a SAFRA service be provided by the Cairns TCU employees was a matter which, in terms of what cl 8 contemplates, justified consultation even if it were the case that some consultation had occurred prior to, or at or about, the time of the initial SAFRA decision taken nearly a year beforehand. A "genuine opportunity" for employees to express their views in order to facilitate the mitigation of potential adverse effects of a proposed change ordinarily requires a close temporal connection between the consultation and the implementation of the change. That is particularly likely to be the case in relation to changes proposed to the way in which employees are to be deployed in the future. In relation to matters of that kind, the prevailing personal circumstances of an employee, rather than those that may have existed a year earlier, are likely to be of significance to any assessment of whether, and the extent to which, the employee may be adversely affected.
73 Furthermore, pursuant to the SAFRA Implementation decision the deployment of the Cairns TCU employees was to occur within 21 days. That was a significantly different proposal to the initial SAFRA decision where the action plan for implementation allowed for 245 days. A large part of the reason for the long lag-time initially planned for was the need to train the employees in the provision of the SAFRA service so that they could obtain the relevant endorsements to enable them to provide that service. That was to be done progressively with only a few of approximately 18 Cairns TCU employees being able to be trained at the one time. With all of the Cairns TCU employees endorsed to provide SAFRA, as the initial SAFRA decision envisaged, the adverse effects of performing the evening and night shifts (including over weekends) which the provision of an overnight SAFRA service required could have been shared amongst all of those employees.
74 In contrast, the SAFRA Implementation decision was made in circumstances where only three or four of the Cairns TCU employees were trained and where, I would infer, the adverse burden of repeated evening and night shifts would fall very heavily on a few and then somewhat on others covering for yet other employees who would be frantically undertaking training. In circumstances where the change would likely have rostering consequences for some or all of the employees, the short notice of the change was also likely to have adverse consequences for employees because the Christmas holiday period was less than two months from the impending implementation.
75 These are all matters about which, it may be said, the likely adverse consequences for some or all employees were significantly different from what would have been the likely adverse consequences of an implementation made in consequence of the initial SAFRA decision. They were consequences that employees had a legitimate interest to avoid or mitigate and thus an interest in being consulted about, not simply as rostering changes, but in relation to whether given the short implementation period and the lack of trained and endorsed employees, the Cairns TCU employees should have been deployed to provide the SAFRA service at all on and from 31 October 2019. As earlier observed, other options such as an overnight service being provided by the Rockhampton and Mackay towers were considered by Airservices when the SAFRA Implementation decision was made. It was in the interests of the Cairns TCU employees that Airservices genuinely consider that possibility amongst other possibilities which may have either fully or partially mitigated the likely adverse impact upon the Cairns TCU employees of the SAFRA Implementation decision. These are the kind of interests that cl 8 contemplates that the consultation obligation it provides for should address.
76 It follows, therefore, that if the SAFRA Implementation decision entailed changes that were likely to have a significant impact upon the Cairns TCU employees, as I find it did, the consultation obligation imposed by cl 8.3(a) was engaged not only by reason of inevitable rostering changes which would be required but also by reason of the change involved in the SAFRA work being allocated to the Cairns TCU employees or, in other words, by reason of the deployment of those employees into that new work in the particular circumstances which then prevailed and in the timeframe in which the SAFRA Implementation decision required that deployment to be effectuated.
77 That deployment was sufficiently identified as the asserted change by the Further Amended Statement of Claim. However, although the consequences for the employees of that deployment were wider, the only consequence relied upon as explaining why the change was likely to have a significant impact upon the Cairns TCU employees was that changes would be required in the regular work patterns of those employees, including significant increases in night and weekend shifts such that the preparation of a new master roster would be required.
78 Those asserted consequences should be accepted as being likely to have had a significant impact upon the employees. However, although formally denied by Airservices, no part of its evidentiary case sought to diminish the correctness of that proposition and the evidence led by Civil Air confirmed it. Each of Mr Wells, Mr Fitzgerald and Mr Adkins (Airservices' ATC Line Manager for the Cairns TCU Group and Brisbane TCU Group) accepted that the introduction of SAFRA required a new base roster for the Cairns TCU employees. Mr Wells accepted that the introduction of SAFRA would result in a doubling, or thereabouts, of night and evening shifts for the Cairns TCU employees. Furthermore, and for the reasons later discussed, the Published Roster included very significant changes from the then regular roster of the Cairns TCU employees. All of that confirms the likelihood (as at the time the SAFRA Implementation decision was made) of the prospective change having a significant impact upon the Cairns TCU employees.
79 Accordingly, I find that Airservices was obliged by cl 8.3(a) of the Enterprise Agreement to consult with the Cairns TCU employees about the deployment of those employees to provide an overnight SAFRA service for the Rockhampton/Mackay sector from 31 October 2019. Airservices was obliged to consult in the manner required by cl 8.5 of the Agreement.
80 The evidence demonstrates that Airservices did not discharge that obligation.
81 The consultation relied upon by Airservices was its evidence that the Cairns TCU employees were informed in September 2018 that Airservices considered that the provision by them of a SAFRA service was the most viable option and that an internet site for the sharing of information had been established. During September and October 2018, feedback was also provided by some ATCs. Additionally, reliance was placed on feedback about training sought from Civil Air delegates in September 2018 and some correspondence and other communications in May through to July 2019 with and by the then local rostering representative for the Cairns TCU employees regarding the preparation of a master roster to accommodate provision of a SAFRA service.
82 All of that consultation related to the initial SAFRA decision. None of that consultation was or could have been about the proposed specific change made by the SAFRA Implementation decision. The significance and distinction between those two proposed changes has already been addressed. Whilst the consultation in relation to the initial SAFRA decision may have somewhat eased the burden of the consultation that was required in relation to the SAFRA Implementation decision, it could not and did not discharge that burden. Consultation in accordance with the detailed and thorough requirements made by cl 8.5 in relation to the deployment of the Cairns TCU employees to provide an overnight SAFRA service from 31 October 2019 did not occur and it follows that Airservices failed to comply with cl 8.3(a) of the Enterprise Agreement.