Fair Work Act 2009

s.739 - Dispute resolution

Alleged dispute about any matters arising under the enterprise agreement - construction of enterprise agreement - whether 7.2.3, 7.2.4 and 7.2.5 of the Team Jetstar Cabin Crew Agreement 2019 apply to casual employees

• [1] The Transport Workers' Union of Australia (TWU) and Jetstar Group Pty Ltd (Jetstar) are in dispute about whether subclauses 7.2.3, 7.2.4 and 7.2.5 of the Team Jetstar Cabin Crew Agreement 2019 (Agreement) apply to Jetstar's casual Cabin Crew employees. The provisions at issue establish reassignment rules in circumstances where an employee is displaced from their original duty. The dispute is the subject of a TWU application under s.739 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a dispute in accordance with the dispute settlement term of the Agreement. To resolve the issue in dispute the TWU and Jetstar have formulated an agreed question for determination by arbitration as follows:

Are clauses 7.2.3, 7.2.4 and 7.2.5 of the Team Jetstar Cabin Crew Agreement 2019 applicable to casual employment?

• [2] The answer to the question is "no" and my reasons for that conclusion follow.

• [3] As is evident from the question above, the dispute concerns the proper construction of certain provisions of the Agreement. The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[1]

• [4] Subclauses 7.2.3, 7.2.4 and 7.2.5 of the Agreement are part of a substantive provision in clause 7.2 titled "Rostering" which provides as follows:

7.2.1 The employer must prepare a roster for the roster period for full-time and part-time employees showing sign-on and sign-off times, stand-by, duties, rostered days off, flight details, dates and ports of overnight stays.

7.2.2 The roster must be provided to employees at least seven days before the commencement of the roster period.

7.2.3 The employer may displace employees and allocate an alternative duty at any time during the roster period for an operational reason. However, during a roster period reasonable efforts will be made as far as possible to minimise roster changes for employees.

7.2.4 Subject to clause 9.7 (excepting clause 9.7.8) an employee who is displaced from their original duty will become reassignable. This will apply to single day and multi day duties.

(a) Where an employee is displaced from a single day tour of duty, they may be assigned a duty, including airport standby, commencing no earlier than 180 minutes prior to their original rostered sign on and up to 180 minutes past their original sign off time.

(b) An Employee may be required to extend past their span of hours to which they have been assigned under this clause in the case of delays.

(c) A single day tour of duty includes duties that cross over midnight, do not include a stay in a hotel, and that signs on and signs off at the employees' home base.

(d) Where an employee is assigned an airport standby period under clause 7.2.4(a), the sign-on and sign-off time of the duty allocated will also be subject to the requirements under clause 7.2.4(a).

(e) Where an employee is displaced from a multi-day tour of duty, they may be assigned a duty commencing no earlier than 180 minutes prior to their original sign on time for the first day of the tour and signing off no later than 180 minutes from their original sign-off the last day of the tour.

(f) Where a re-assignable crew member has not been notified of an operational duty, they will be assigned stand by periods commencing no earlier than 180 minutes prior to their original sign on time for the first day of the tour and signing off no later than 180 minutes from their original sign-off the last day of the tour.

7.2.5 Employees by mutual agreement with Team Jetstar may work outside the reassignable limits in clause 7.2.4.

7.2.6 With the consent of the employer, employees may exchange duties, stand-by or rostered days off.

• [5] "Reassignable" is defined in clause 26 of the Agreement as meaning "employees awaiting replacement duties having been displaced from duties in accordance with this Agreement".

• [6] Casual employment is dealt with in clause 23 of the Agreement and relevantly provides that a casual employee is an employee engaged as such (clause 23.1); is to be paid per hour at the rate of 1/38th of the weekly rate prescribed for the class of work performed, plus 25% (clause 23.2); and is entitled to a minimum payment of four hours work at the appropriate rate (clause 23.4).

• [7] Provisions regulating part-time employment are found in clause 22 of the Agreement. These relevantly provide for "Low" and "Medium" hours part time employment. "Low Hours" part time employees have "planned duty hours" of no more than 98 hours per calendar month roster (clause 22.3(a)) and a minimum of hours worked of 78 per calendar month roster period (clause 22.3(b)).

• [8] "Medium Hours" part time employees have "planned duty hours" of no more than 117 hours per calendar month roster (clause 22.4(a)) and a minimum of hours worked of 97.5 per calendar month roster period (clause 22.4(b)).

• [9] A full-time employee is an employee who is engaged as such and is rostered between 1716 and 1872 hours per annum (clause 7.1.1). "Planned duty hours" for a full-time employee will be up to 144 hours rostered over a 28 day roster period or 156 in a calendar month roster period (clause 7.1.2).

• [10] "Planned duty hours" is defined in clause 26 of the Agreement as "hours that are included in the roster published prior to the commencement of the roster period".

• [11] It is evident from these provisions that hours worked by full and part time employees are "planned duty hours" that are rostered and worked in accordance with a roster published before a roster period which is either 28 days or a calendar month.

• [12] In contrast, a casual employee has no "planned duty hours" under the Agreement, is paid by the hour and is guaranteed only a minimum payment of four hours work.

• [13] These provisions are consistent with the scheme in clause 7.2.

• [14] The obligation to roster employees under clause 7.2.1 applies only to full-time and part-time employees. The roster must contain information about "sign-on and sign-off times, stand-by, duties, rostered days off, flight details, dates and ports of overnight stays". Clause 7.2.2 requires that the roster must be provided to employees at least seven days before the commencement of the roster period. The use of the definitive article "the" before "roster" makes clear that "the roster" to which reference is made in clause 7.2.2 is one that is required by clause 7.2.1 and which contains the requested details set out therein. The obligation to provide "employees" with the roster at least 7 days before its commencement, is both textually and contextually an obligation that holds only to full-time and part-time employees. Afterall, it is only to these employees that Jetstar is required to provide a roster under clause 7.2.1. This is also consistent with the provisions discussed about setting out that "planned duty hours" worked by full and part time employees are rostered and worked in accordance with a roster published before a roster period.

• [15] The TWU accepts, as it must, that clauses 7.2.1 and 7.2.2 of the Agreement are confined in their operation to full-time and part-time employees. However, it says that clauses 7.2.3, 7.2.4 and 7.2.5 are not so confined and they apply to casual employees because:

• Use of "full-time" and "part-time" is not repeated from clauses 7.2.3, 7.2.4 and 7.2.5;

• Clauses 7.2.1, 7.2.2 and 7.2.3 are derived from clauses 6.2.1, 6.2.2 and 6.2.3 in the Team Jetstar Cabin Crew Agreement 2014 which did not deal with the "reassignable" provisions now found at clause 7.2.4 and 7.2.5; and

• Clauses 7.2.4 and 7.2.5 of the Agreement are intended to deal with all employees including casuals, and clauses 7.2.4 and 7.2.5 intentionally do not confine themselves to full time and part time employees only.

• [16] Although it is accepted that clauses 7.2.3, 7.2.4 and 7.2.5 of the Agreement did not appear in earlier iterations and do not refer in terms to "full-time" and "part-time" employees, that takes the matter no further. Several textual and contextual matters make clear that these provisions are confined and do not have application to casual employees.

• [17] First, there is the place of subclauses 7.2.3, 7.2.4 and 7.2.5 in clause 7.2 into which they have been included. That provision is titled "rostering" and deals substantially with rosters and associated matters.

• [18] Second, like subclauses 7.2.3, 7.2.4 and 7.2.5, subclause 7.2.2 also does not refer to "full-time" and "part-time". It is necessarily so confined having regard to the subject matter of that subclause and its text.

• [19] Third, subclause 7.2.3, refers to "the roster period" and "a roster period", which is plainly a reference to the "roster" required by subclause 7.2.1 having regard to the fact that only full-time and part time employees work "planned duty hours" which are rostered and worked in accordance with a roster published before a roster period (see clauses 7.1.1, 7.1.2, 22.3(a) & (b), 22.4(a) & (b), 23 and 26). Similarly, the requirement in subclause 7.2.3 that "during a roster period reasonable efforts will be made as far as possible to minimise roster changes for employees", is a reference to changes to the roster prepared under subclause 7.2.1 and provided to employees under subclause 7.2.2. Contextually the reference to "employees" must thus be to full-time and part-time employees.

• [20] Fourth, the opening words in subclause 7.2.3 that the "employer may displace employees and allocate an alternative duty" raises the question - "displaced from what?". Contextually it is a displacement from "duty" as is evident from the power which immediately follows - the power to allocate an alternative duty. The caveat to displacement from duty is the second sentence in subclause 7.2.3 - that Jetstar will as far as possible, minimise roster changes for employees. Taken together the duties from which an employee may be displaced are those duties set out in the roster which is required by subclause 7.2.1. Thus, employees who may be displaced and reassigned duties are full-time and part time employees. As noted earlier, a casual employee has no "planned duty hours" under the Agreement, is paid by the hour and is guaranteed only a minimum payment of four hours work. Moreover, a casual employee is under no obligation to accept work so the notion that Jetstar may allocate alternative duties (which in the context of clause 7.2.3 means compel the performance of the duties) to a casual employee is an anathema to the notion of casual employment properly understood. In any event the power to displace and reallocate duties is exercisable during "a roster period", which as earlier discussed has no application under the Agreement to casual employees.

• [21] Fifth, again by reference to the roster and its content set out in clause 7.2.1, "original duty" in subclause 7.2.4, refers to an employee's "duties" assigned under the roster required by subclause 7.2.1. Thus, an employee who is rostered under subclause 7.2.1 and assigned "duties" may be displaced from their original duty (that is their rostered duty under subclause 7.2.1) and will become reassignable under subclause 7.2.4.

• [22] Sixth, and to similar effect the references in subclause 7.2.4 to "duties", "rostered sign on time", "sign off time", "signs on and signs off", "stand by", "sign on and sign off time", and "sign on time", are all required content of the roster that must be provided to full-time and part-time employees under subclause 7.2.1, seven days before its commencement under subclause 7.2.2.

• [23] Seventh, by its subject matter, subclause 7.2.5 takes its meaning from subclause 7.2.4 which in turn diverts attention to subclauses 7.2.2. Similarly, subclause 7.2.6 by reason of its subject matter allowing a procedure for swapping "duties, stand-by or rostered days off" as between employees, draws attention to clause 7.2.1 which deals with those matters as required content of the roster.

• [24] Eighth, the reference to "employee" in subclauses 7.2.3, 7.2.4 and 7.2.5 without reference to "full-time" and "part-time" employee, does not have the result the provisions apply to a casual employee as the TWU contends. Context cannot be ignored. Clause 26 of the Agreement defines "Employee" as "a Cabin Crew Member or a Cabin Manager/Customer Service Manager, unless otherwise defined". The terms "Cabin Crew Member" and "Cabin Manager/Customer Service Manager" are also defined. The word "employee" is variously used in the Agreement and appears sometimes in its capitalised form and sometimes in lowercase. Sometimes "crew member" appears instead (as for example in clause 7.2.4(d) "employee" and 7.2.4(e) "re-assignable crew member"). The precise meaning of the term used must be discerned from the context in which the term appears. So, for example:

• When clause 11.3.1 provides that an "employee" may be directed to take annual leave in certain circumstances and clause 11.5 provides that annual leave will be paid at the rate of the "employee's" annual base salary, the meaning of "employee" is determined by reference to the context in which it is used. Relevant context is found in the first sentence of clause 11 which provides that "clause 11 applies to full time and part time employees (and not to casual employees)". Coverage of the clause having been set out, it is unnecessary to repeat reference to full time or part time employee whenever "employee" is used.

• When clause 12.2 provides that a "crew member" must advise Jetstar that they will be unable to-attend for duty because of the need to access personal leave, immediately that the "crew member" becomes aware that they are unfit for duty, the meaning of "crew member" is also determined by reference to the context in which it is used. Relevant context is found in the first sentence of clause 12 which provides that, except for sub-clause 12.3.2, "clause 12 applies to full time and part time employees (and not to casual employees)".

• Similar observations may be made, for example about the use of "employee" in clause 15 which deals primarily with notice of termination and clause 16 which deals with redundancy. Relevant context for ascertaining the meaning of "employee" in these provisions is found in clause 23.4 which makes clear that a casual employee is not entitled to "redundancy and notice of termination".

• [25] As I have already noted the subject matter and scope of subclauses 7.2.3, 7.2.4 and 7.2.5 is plainly dealing with the matters or matters relating to matters in subclauses 7.2.1 and 7.2.2, which are matters confined to full and part-time employees. It follows that reference in the remainder of clause 7.2 to "employee" or to "crew member" is a reference to full and part-time employees only.

• [26] Before concluding, it is necessary to say something about the evidence led by the TWU as to the practice of Jetstar vis-à-vis casual employment since the Agreement was made[2] which it says is consistent with the displaced and reassignable provisions of the Agreement at issue. Jetstar disputes that the evidence establishes such a practice and says the evidence is of no assistance in construing the meaning of subclauses 7.2.3, 7.2.4 and 7.2.5 of the Agreement.

• [27] There are several difficulties in accepting evidence of conduct after the Agreement was made in construing the meaning and effect of the disputed provisions. First, the evidence is limited because it is evidence of the experience of one casual employee and says nothing about Jetstar's practice more generally. Second, as Gray J explained in S_hop Distributive and Allied Employees' Association v Woolworths Limited[3]_ a difficulty in relying on evidence about the conduct of an employer to establish a common understating is the absence of any explanation for the conduct. The reason for the conduct might have been 'inadvertence on the part of those responsible for making the payments', or an 'act of generosity on the part of the respondent, from which it has now resiled.'[4] The mere fact that something was done in the past is not "_evidence of a settled interpretation, of which the parties had a common understandin_g'.[5]

• [28] Third, as I explained in NTEIU v Deakin University[6], to the extent that reliance is placed upon what is said by the Full Bench in "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Ltd[7] at [114] and specifically at 15 thereof, it is plain that the Full Bench relied upon the judgment in Spunwill Pty Ltd v BAB Pty Ltd[8] in order to formulate the principle set out at 15. It seems clear from the NSW Court of Appeal judgment in Magill v National Australia Bank Limited[9] that the Court of Appeal expressly rejected the approach to post contractual conduct adopted in Spunwill and preferred the view of Bryson J in Sportsvision Australia Pty Limited v Tallglen Pty Limited[10] who considered the reasoning of Lord Reid in James Miller & Partners Limited v Whitworth Street Estates (Manchester) Limited[11] to be unanswerable. In Miller his Lordship there said:

"I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or year later."[12]

• [29] For these reasons that evidence is of no assistance. The remainder of the evidence relied on by the TWU is simply evidence of one employee's subjective belief of the proper construction of the Agreement and is also of no assistance.

• [30] For the reasons given, I consider that the construction for which Jetstar contends is correct. On their proper construction, subclauses 7.2.3, 7.2.4 and 7.2.5 of the Team Jetstar Cabin Crew Agreement 2019 do not apply to casual employment

• [31] The answer to the question posed by the parties for arbitration is "no".

[1] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]- [130] and the authorities referred to therein (The analysis of the principles of construction set out therein were not disturbed on appeal: see King v Melbourne Vicentre Swimming Club Inc [2021 FCAFC 123, 308 IR 171 at [40]- [43])

[2] See exhibit 1 and specifically at [10]-[21]

[3] [2006] FCA 616; (2006) 151 FCR 513

[6] [2020] FWC 14

[7] [2017] FWCFB 3005

[8] (1994) 36 NSWLR 290 at 304

[9] [2001] NSWCA 221

[10] (1998) 44 NSWLR 103

[11] [1970] AC 583

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