The impact of the contravening conduct
88 As I said earlier, the right to consultation under cl 8 of the EA is important in and of itself. It gave Byron Group ATCs an entitlement to an opportunity to engage with Airservices about the proposed withdrawal of the Guidelines; and to persuade it that they should not be withdrawn. That entitlement was taken away from ATCs notwithstanding that it was eminently foreseeable that they would want to be consulted about any such proposal. The failure to provide that opportunity involved a serious breach of the EA.
89 Similarly, the right to maintenance of the status quo upon notification of a dispute is important in and of itself. In the present case Airservices' failure to maintain the status quo meant that Byron Group ATCs lost the benefit of the Guidelines in the period from 5 July 2018 until the FWC Decision was handed down on 11 April 2019. That failure too involved a serious breach.
90 However, Civil Air's contentions as to the impact of the contraventions go further than that. It contends that the serious impact of the withdrawal of the Guidelines can also be seen in a material increase in the number of ATCs called in to work when rostered on a grey day shift. In contrast, Airservices argues that there was minimal, if any, adverse impact on ATCs.
91 Civil Air has the burden of establishing that ATCs were materially adversely impacted in the way it contends.
92 I accept Mr Walsh's evidence that while some ATCs like being rostered on a grey day shift, many do not. He said that the benefit of being rostered on a grey day shift is that it holds open the possibility that the ATC will not be called in to work but will nonetheless be credited for the time that they held themselves ready for work, and thus would be paid while staying at home and attending to other responsibilities. But he said, and I accept, that many ATCs do not like grey day shifts because such shifts are uncertain and can have a significant impact on the ATC, even if they are not called in for duty.
93 First, that is because grey day shifts do not allow ATCs to plan their day with any certainty as they are required to hold themselves ready for work for a period which is generally 16 hours (twice the length of the nominal grey day shift, which is usually 8 hours). This means that those with parental responsibilities cannot plan to perform any childcare responsibilities that day. Nor can they plan to do anything on a grey day shift that might mean that they become unable to attend for work within two hours of receiving the call to come into work, or become unfit for duty by, for example, engaging in heavy physical activity and becoming tired. Second, the requirement to hold themselves available for the relevant window of time can make managing rest and fatigue challenging. For example, where the nominal shift is 6am to 2pm, employees must prepare as though they may be required attend work at 6 am, which means they cannot drink alcohol the night before (to ensure that the have a 0.00 BAC) and must go to sleep at a time that means they are rested and ready for work at 6 am. Having done that, the employee might only be called in to start a shift as late as 2 pm, and therefore they would need to be fit and alert through to the conclusion of that shift at 10 pm. Mr Walsh said that being rostered on a grey day shift and having to prepare for a shift that is twice the length of the nominal shift is fatiguing.
94 In cross examination, Mr Walsh accepted that in the meeting with Mr Nugent on 27 June 2018, both he and Mr Irvine put the position that the Guidelines were consistent with cl 19.18 rather than providing an additional benefit. Based on that, Airservices submits that if Civil Air's position was that the Guidelines did not provide any additional benefit to the terms of the EA then their withdrawal could not have had a materially adverse impact on ATCs.
95 I do not accept that submission. The fact that Civil Air previously argued that the requirements in the Guidelines were consistent with cl 19.18 of the EA does not show that their withdrawal had no impact. Having regard to the totality of the evidence I am satisfied that many Byron Group ATCs considered the Guidelines to be of benefit to them because the Special Note meant that when on grey day shifts they could not be called in to work to fill manufactured or consequential vacancies and because they considered that working on a grey day roster caused "fatigue, social or familial impacts" (FWC Decision at [88]). Even Mr Nugent said that he understood there would be some disharmony among ATCs because of their withdrawal.
96 I am not however persuaded that withdrawal of the Guidelines meant that there was a material increase in Byron Group ATCs being called in to work on a grey day shift. The evidence Civil Air relies upon for this contention has several deficiencies.
97 I accept Mr Irvine's evidence that following the withdrawal of the Guidelines he received multiple complaints from ATCs, who were "vocal and upset" and complaining about being called in to work on grey days. I also accept Mr Walsh's evidence that when he was working in the control room after the withdrawal of the Guidelines he saw a change in Airservices' use of grey days in the Byron Group. On one occasion he witnessed the shift manager for the Byron Group utilising an ATC rostered on a grey day shift differently to the way employees were utilised when the Guidelines were in place. He also said that after the withdrawal of the Guidelines, he received multiple complaints from Byron Group ATCs about grey day shifts "being activated" to cover a consequential vacancy.
98 However, Mr Irvine's and Mr Walsh's evidence regarding complaints by Byron Group ATCs is hearsay and it was admitted subject to a ruling that it was not admissible to show the truth of the subject-matter of the complaints; that is, that the complaints had any substance or that grey day shifts were being used more often in order to fill manufactured or consequential vacancies. Mr Walsh's evidence that he personally witnessed one ATC rostered on a grey day shift being called in to fill a manufactured vacancy following the withdrawal of the Guidelines is, though, in a different category.
99 If Civil Air wished to establish that, following withdrawal of the Guidelines, Byron Group ATCs on grey day shifts were called in to work more, including so as to fill manufactured or consequential vacancies, it would have been straightforward to call some of the affected ATCs as witnesses. It did not however adduce evidence from a single ATC to the effect that he or she was adversely affected by the withdrawal of the Grey Day Guidelines, or by the failure to reinstate them once the dispute was notified. It did not even identify an individual ATC working in the Byron Group during the relevant period who was adversely affected by the withdrawal of the Guidelines. That is a significant deficiency.
100 The deficiencies in Civil Air's evidence fall to be considered in light of the evidence Airservices adduced. Mr Dawe is the head of Airservices' Workforce Deployment Team, which prepared the rosters for all ATCs and firefighters nationally, and whose duties included managing his team in producing master rosters, populating rosters, and overseeing Airservices' national electronic rostering system, Quintiq. He gave evidence which painted a quite different picture as to the impact of the withdrawal of the Guidelines on ATCs in the Byron Group. Relying on data extracted from the Quintiq database he testified that:
(a) in the period immediately after the withdrawal of the Grey Day Guidelines on 13 May 2018, the proportion of days on which ATCs rostered to work a grey day shift were actually required to work on the day reduced;
(b) in the period 13 May 2018 to 30 June 2018 (being the period immediately after withdrawal of the Guidelines), not a single day is identified as one in which the ATC rostered on a grey day shift was called in to cover a manufactured or consequential vacancy. The effect of his evidence is that, in the period between the withdrawal of the Guidelines on 13 May 2018 and the meeting on 27 June 2018 (in which Mr Irvine and Mr Walsh told Mr Nugent they were receiving complaints from ATCs about the withdrawal of the Guidelines), no employees were called in to work during a grey day shift to cover a manufactured or consequential vacancy; and
(c) Airservices' practice is not to use grey day shifts to cover absences that are known at the time the roster is posted, but rather to cover absences for something unknown at the time of fixing the roster, including a consequential vacancy.
Airservices relies on Mr Dawe's evidence to argue that the withdrawal of the Guidelines and the refusal to reinstate them had little if any adverse impact on ATCs in the Byron Group.
101 Civil Air objected to the salient parts of Mr Dawe's evidence on various grounds. Amongst other things, it argued that the relevant paragraphs of Mr Dawe's first affidavit were inadmissible hearsay, on the basis that the Quintiq data on which Mr Dawe based his analysis were prior representations either of the person that entered the data or someone else. It argued that Mr Dawe's evidence as to what the Quintiq data showed was opinion evidence and inadmissible under s 76(1) of the Evidence Act 1995 (Cth) (Evidence Act). It also contended that his opinions were not based on specialised knowledge, training or experience and it was therefore not admissible under s 79. In that regard it said that Mr Dawe failed to adequately explain the process by which data was extracted from Quintiq or how it was reviewed and summarised; he did not identify with any specificity what data he looked at, or the process of analysis or the basis upon which he drew his conclusions; and he did not annex all the material he analysed. Civil Air said that Mr Dawe did not sufficiently expose his reasoning process to enable an evaluation as to how he used his expertise to reach his opinion and it was therefore inadmissible, citing ASIC v Rich [2005] NSWSC 149; 190 FLR 242 at [289]-[291] (Austin J).
102 I did not accept Civil Air's objections. I was satisfied that the information extracted in the Excel spreadsheet and in the three audit trails dated 19 May 2018, 11 June 2018 and 20 June 2018 tendered by Airservices, upon which Mr Dawe's evidence was essentially based, had been extracted from the Quintiq database and to a limited extent other Airservices' business records. I inferred that the relevant entries were made either by a person who had or might reasonably be supposed to have had personal knowledge as to why the relevant employee was called in for duty from a grey day shift or because the relevant entries were made on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of that: see s 69(2) of the Evidence Act. In my view the Excel spreadsheet and audit trails are an extract from or a summary of the relevant parts of Airservices' business records, primarily the Quintiq database, and were admissible pursuant to s 48(1)(e) of the Evidence Act.
103 The data in the Excel spreadsheet is, though, of limited assistance unless it is explained, and I took the view that Mr Dawe's evidence would assist the Court by doing so. Civil Air's contention - that Mr Dawe did not properly explain the process by which data was extracted from Quintiq by him or someone else at his direction, nor how he reviewed and summarised it - was not without force; but, I concluded that on the basis of his training and experience working with the database and rostering ATCs, his opinion evidence was admissible under s 79.
104 It was relevant to my conclusion that Civil Air did not suffer any real unfairness. It had been provided with Mr Dawe's evidence, and the Excel spreadsheet and audit trails, well in advance of trial. It had an opportunity to analyse that material and to seek access to the database by an independent expert. It also had an opportunity to call Byron Group ATCs to give evidence that, contrary to Mr Dawe's analysis, following withdrawal of the Guidelines they were in fact called in more often to work when rostered on grey day shifts. It did not do so.
105 I decided to admit Mr Dawe's evidence over Civil Air's objections. Then, in cross examination, it became apparent that it was appropriate to give little weight Mr Dawe's evidence because:
(a) the Quintiq system does not capture, as a separate data point, whether a person who worked on a grey day shift was called in to fill a direct vacancy or a consequential vacancy. Establishing that required analysis of other data in Airservices' business records. Mr Dawe said that he analysed the data for all relevant employees on all dates in the period 13 May 2018 to 30 June 2018; but, he only provided Civil Air and the Court with audit trails for three dates: 19 May 2018, 11 June 2018 and 20 June 2018. He accepted that Civil Air's legal representatives were not given the opportunity to review the full scope of material that he considered in his analysis;
(b) he did not undertake an analysis of when and in what circumstances an employee rostered on a grey day shift was called in to work during 2017, notwithstanding that a grey day roster was introduced in the Byron Group in February 2017. The earliest period that he analysed commenced on 5 February 2018, which only covered a relatively short period before the Guidelines were withdrawn in May 2018;
(c) except for the period 13 May 2018 to 30 June 2018, his analysis of ATCs working on their rostered grey day shift did not distinguish between a "tactical change" (being a change made to the roster during the 45 day period commencing on its publication and ending on the first shift of the roster) which results in an ATC being taken off a grey day shift and allocated instead to a fixed shift; and an ATC rostered on a grey day shift being called in to work. Mr Dawe's evidence was that tactical changes to the roster were common. At paragraph 13(b) of his first affidavit Mr Dawe stated that from 19 March 2018 to 12 May 2018, ATCs rostered on a grey day shift actually worked on the day 79% of the time. However, under cross examination he accepted that without further analysis it was not possible to say what proportion of the 79% were in fact days worked by ATCs who were originally rostered on a grey day shift but were re-allocated to a fixed shift in advance of the roster commencing due to a "tactical change". That is, it was not possible to say how many of the 79% represented ATCs who were called in to work on a grey day shift because another ATC became unavailable for work. The same deficiency is true of Mr Dawe's conclusions about the proportion of ATCs who were called in to work on a grey day shift during the later periods of time found in paragraphs 13(d) and (e) of his affidavit dated 20 April 2021; and
(d) in cross examination, he accepted that his conclusion in respect of 19 May 2018, that the grey day was not utilised, was incorrect because the grey day shift had in fact been replaced with a different type of shift three days before the shift was due to commence. That is, he was wrong on one out of only three audit trails he relied on.
106 The result on this aspect of the evidence is that Civil Air did not establish that withdrawal of the Guidelines resulted in a material increase in Byron Group ATCs being called in to work when rostered on grey day shifts. Airservices' evidence was also deficient, but it did not have to prove anything.