Fair Work Act 2009

s.739 - Application to deal with a dispute

Lloyd Helicopters Pty Ltd Trading as CHC Helicopters (Australia)

Alleged dispute about any matters arising under the CHC Helicopter (Australia) Pilots Offshore Enterprise Agreement 2023 - dispute determined

• [1] Mr Scott Wetherall is a pilot employed by Lloyd Helicopters Pty Ltd (trading as CHC Helicopter) and he is covered by the CHC Helicopter (Australia) Pilots Offshore Enterprise Agreement 2023. He has made an application for the Commission to deal with a dispute concerning a clause in the Agreement that provides a right for employees to have up to 2 days free of Duty per year adjacent to annual leave.

• [2] Until recently Mr Wetherall and at least some other pilots were not aware of this right and did not receive the benefit of it. That is no longer the case, however the parties are in dispute about whether there should be any restitution for previous years.

• [3] The dispute was referred to the Commission in circumstances where the applicant's representative, the Australian Federation of Air Pilots, had understood that a resolution had been reached in January 2025, but the respondent subsequently ceased communicating with it over the matter. That is regrettable and does not reflect well on the respondent.

• [4] The parties did not agree on the question to be arbitrated. I consider that the dispute will be determined by answering the question: Is the Respondent required to provide any benefit to employees who have not received the right provided in clause 34.1.1 of the Agreement? For the reasons below, the answer to the question is "No".

• [5] Clause 34 deals comprehensively with the subject of annual leave over 10 subclauses. The contentious part of the relevant clause (cl. 34.1.1) provides: "An employee shall have the right to have a maximum of two (2) rostered days free of Duty per year to be taken before or after, or any one day before and one day after such leave period on full pay."

• [6] The parties agree that cl 34.1.1 provides an employee with a right or entitlement to take up to two rostered days free of duty adjacent to a period of annual leave. However, the respondent submits that it has never denied employees from exercising that right but that it has no positive duty to ensure that they do. It says that it is entitled to rely on employees exercising the right conferred by making a request to the respondent, and absent any such request the right is effectively forfeited. The applicant does not allege that the respondent has refused to grant the entitlement but submits that it has denied it by not having a system in place to facilitate access to the entitlement. It submits that the respondent has a positive obligation to actively manage and facilitate access to all leave entitlements under the Agreement, including the additional days off conferred by subclause 34.1.1. The applicant submits that because the right does not accrue and is lost if not taken, this elevates the need for the respondent to have a process in place to ensure it is well known and accessible by employees. Further, it contends that the respondent has an obligation to ensure employees understand the entitlements under the Agreement. In relation to any educative duty of the respondent, there is nothing in the Agreement that supports the existence of any such obligation. The only related obligation on the respondent is to ensure that employees have access to the Agreement which it is required under clause 8 to post on the intranet.

• [7] In my view, there is no ambiguity in subclause 34.1.1. The words bear their ordinary and plain meaning, read as a whole and in context. Clause 34.1.1 confers on employees a legally enforceable right to a maximum of two rostered days free of Duty per year to be taken adjacent to a period of annual leave. The right is not subject to approval by the employer and does not expressly require a request to be made by the employee to have the right. Neither does it expressly impose any obligation on the respondent to take any action (other than to recognise the right). The applicant submits that the word 'have' in the phrase "shall have the right' establishes a clear and enforceable legal entitlement. That is not in dispute. However, the applicant further submits that the use of the word 'shall' denotes a mandatory obligation on the employer. In my view, 'shall' does not impose any particular obligation on the employer. In context, 'shall have the right' means no more that the employee 'has the right'. I accept the respondent's submission that the clause would have the same meaning if the word 'shall' was removed. The applicant also submits that the right to have the days off is not the right to ask for it. That is true, but the request involved is not a request in the sense that the respondent has the right to refuse the entitlement. The right is conferred by the clause; it is not a discretionary entitlement. An employee is merely giving the respondent notice that they are exercising the right conferred by the clause. In other words, the making of the request or giving notice to the employer is not a condition to trigger the existence of the right, rather it is notifying the respondent that the employee wishes to exercise the right conferred.

• [8] Further, the right conferred is to be taken adjacent to a period of annual leave. Subclause 34.6 of the Agreement requires the respondent to produce a rolling annual leave roster. Employees are required to submit 3 preferences for the taking of the total of one year's annual leave accrual for the following year, by 1 September. The respondent is then required to place all leave on the annual leave roster by 15 September. There is no requirement that the annual leave be taken in one period. That indicates there is flexibility as to which period of annual leave the additional days free of Duty are to be taken, and whether it is taken as two days' before or after the leave or one day before and one day after, as contemplated by clause 34.1.1. That suggests that it is at the employee's election as to when the additional days off are to be taken, which lends further support to the respondent's contention that it is entitled to rely on employees to notify it that they intend to exercise the right. The applicant submits that because the additional days free of Duty are to be taken adjacent to a period of annual leave, they are integrally connected and 'tethered' to annual leave. Accordingly, it submits, the additional days are required to be planned and managed in conjunction with the broader annual leave roster. There are two difficulties with this proposition. Firstly, the rostering provisions in clause 34.6 deal with annual leave and the additional days free of Duty are not annual leave. Secondly, if they were, they would be included in the employee's obligation to notify the respondent by 1 September of their preferences for taking annual leave.

• [9] The applicant points to other terms in the Agreement that expressly require an employee to make a request to access an entitlement.[1] It submits that this is a contextual consideration that supports its construction, given that subclause 34.1.1 has no express requirement for a request. For example, subclause 34.2 provides that an employee is, if requested, entitled to be paid their salary at the commencement of the leave period, and subclause 34.10 which provides that an employee may request to cash out part of their annual leave entitlement, which is subject to approval by the employer. Other examples include the right to request casual conversion or request a flexible working arrangement. However, I do not consider that these examples lead to a conclusion that the absence of an express obligation to make a request in subclause 34.1.1 means that the respondent is required to take some action to ensure employees access it. The terms in the Agreement that expressly requires the employee to make a request are rights to make a request to change what would otherwise be the entitlement or provision. The request that we are concerned with in relation to subclause 34.1.1 is to exercise the right, not to bring the right into existence.

• [10] In short, I consider that subclause 34.1.1 confers a right for employees to have up to two additional days off per year, adjacent to annual leave. However, employees need to notify the respondent of the exercise of their right. As the right does not accrue from year to year the respondent is not obliged to provide any restitution for previous occasions where employees have not exercised it.

• [11] My determination of the dispute is that the respondent is not required to provide any benefit to employees who have not received the right provided in clause 34.1.1 of the Agreement.

Mr J. Marks, Legal Representative from the Australian Federation of Air Pilots, Appearing for the Applicant

Mr A. Thomas, Counsel, Appearing for the Respondent

[1] Applicant's outline of submissions at [17].

Printed by authority of the Commonwealth Government Printer