Fair Work Australia|2012-07-12

Transport Workers' Union of Australia v Toll Dnata Airport Services [2012] FWA 5605 (12 July 2012)

s 739 - Application to deal with a dispute

[1] This decision will determine an application, pursuant to s 739 of the Fair Work Act 2009 ('the Act'), filed on 20 March 2012, by the Transport Workers' Union of Australia ('the Union') in which Fair Work Australia (FWA) is asked to deal with a dispute in accordance with the dispute settlement procedure under the Toll Dnata Airport Services Pty Ltd Employee Ramp and Cargo Enterprise Agreement 2010 - 2013 ('the Agreement'). The dispute is with Toll Dnata Airport Services Pty Ltd ('Toll Dnata') - a joint venture company which provides a number of airlines with airport support, including passenger and customer services, ramp activities, cargo handling, road feeder transport and aircraft servicing in Sydney, Melbourne, Brisbane, Perth, Adelaide and Darwin.

[2] The Agreement's dispute settlement procedure is found at Cl35 and relevantly subclause (4) is expressed as follows:

'If the matter remains in dispute, it must next be submitted to Fair Work Australia (FWA) for conciliation. For the purpose, it is agreed that the action FWA may take includes:

a) Arranging conferences of the parties or their representatives at which the FWA is present; and arranging for the parties or their representatives to confer among themselves as conferences at which the FWA is not present.

b) If the matter is not resolved in the conciliation conducted by the FWA, FWA will proceed to arbitrate the dispute and / or otherwise determine the rights and / or obligations of the parties to the dispute. In relation to such an arbitration, the parties agree that:

i. FWA may give all such directions and do all such things as are necessary for the just resolution of the dispute, including but not limited to those things set out in Division 3 of Chapter 5 of the Fair Work Act 2009;

ii. Before making a determination FWA will give the parties an opportunity to be heard formally on the matter(s) in dispute; and

iii. In making its determination FWA will only have regard to the materials, including witness evidence, and submissions put before it at the hearing and will disregard any admissions, concessions, offers or claims made in conciliation.'

[3] There is no argument that FWA is appropriately seized with jurisdiction to determine this dispute following an unsuccessful conciliation on 10 April 2012 and will do so following formal arbitration proceedings which took place on 22 June 2012. During the arbitration both parties referred to their respective witness evidence and relied on detailed written and oral submissions.

[4] Shortly stated, the dispute concerns the appropriate classification of the work performed by employees engaged in servicing Virgin Blue domestic aircraft at Sydney Airport. Teams of 2 employees (six in total) attend all Virgin Blue aircraft upon arrival at its dedicated domestic gates. This may involve 20 - 38 aircraft on each shift. The work has two components: to empty and flush out the aircrafts' sewage and waste water into a discharge tank on a small truck and, secondly, to replenish the aircrafts' fresh water supply, usually from a hose connection located at each gate. For hygiene reasons, the waste and water functions are performed independently and serviced by different vehicles. Each employee only performs one function, although they assist each other in guiding their vehicles near to the aircraft. The six employees engaged in this work are paid at the Air Service Agent 3 (ASA3) classification under the Agreement (presently $51,238 pa). It is contended by the Union that the work should be paid at the next highest classification, the ASA 3(a) rate (presently $55,861).

[5] It is necessary to set out the duties identified in each of the classifications found in Schedule A of the Agreement:

'A.1.4 An ASA 3a is defined as a person engaged as an Air Services Agent in a hands-on semi-skilled capacity, covering all duties including, but not limited to, any ramp, cargo-shed or cargo office related activity. Such duties may involve dealing directly with Australian Customs and AQIS staff; the use of computer and communication aids; compilation of reports such as Dead-weight Statements; acceptance, assessment and loading of dangerous good; operation of Company vehicles and equipment including against aircraft equipment and all equipment associated with ramp, freight and aircraft servicing and general transport operations. An ASA 3a can work without immediate supervision, and as required, an ASA 3a will perform the duties of an ASA 3 and may also be required to perform higher duties and responsibilities.

A.1.5 An ASA 3 is defined as a person engaged as an Air Services Agent in a hands-on capacity covering a range of duties which may include, but are not limited to, any ramp, cargo-shed, passenger or cargo office related activities. Such duties may where required involve the use of computer and communications aids, compilation of reports, operation of Company vehicles and equipment, including against aircraft equipment and all equipment associated with ramp, freight, aircraft or passenger servicing, general transport, and or clerical operations but excludes the operation of aircraft loading platforms (e.g. FMCs, MDLs and scissor lifts), in loading operations. As required an ASA 3 staff will perform ASA 2 duties and responsibilities or any other function in accordance with this Agreement.' (My emphasis.)

[6] The Union's two principle arguments are that the employees work 'without immediate supervision' - a distinction which takes them out of the ASA 3 classification and into the next highest classification (ASA 3(a)) and that their work is 'semi-skilled' - a term found in the higher classification.

[7] Toll Dnata maintain that ASA 3(a) employees are required to be trained in 'semi-skilled' functions and perform tasks not required by employees in the ASA 3 classification. These include scissor lift operations and in-hold systems for the powered rollers inside the aircraft. It argued that the ASA 3 waste and water functions requires limited training and is regarded as 'non-skilled' (unskilled).

[8] At this juncture, I point out that the Tribunal undertook a helpful inspection of both functions performed on one of the larger Virgin aircraft (Boeing A737). It is accepted by both parties that the same connection type for both waste and water servicing is performed on all sized aircraft, so the inspection on 20 June 2012 can be properly said to be an indicative example of the work in dispute.

[9] Employees 'clock on' for their shift at the ramp office located at the Sydney International Airport. There are two Ramp Supervisors who advise the employees of any particular requirement for that shift. Employees work a 3 week rotating roster. Shifts are usually 8 hours; although the range is 5 - 11 hours. Employees do not perform other duties on the waste and water shift, but have been trained to perform, and may alternate between waste and water functions. No employee is a designated team leader.

[10] A more expansive explanation of the work on a typical shift and how, and where it is performed, was outlined by Mr Brendon Connor, Toll Dnata's Sydney Freight Terminal Manager and by the Union's witness, Mr Blake Pound, an employee who has been performing the waste and water work since December 2011. Another employee, Mr Matthew Dunn, provided a statement, but was not available for cross-examination. All their evidence, in this respect, is largely uncontested.

[11] The employees utilize a work mobile phone for communication between themselves, their supervisors and the customer (Virgin). After 'clocking on', one employee picks up the waste truck; the other the water truck and they then drive to the Virgin gates at the Domestic Terminal - a distance of between 4.2 or 3.7 km, depending on the route taken. The employees collect a movement sheet from the Virgin Operations Office. The movement sheet will list the aircraft arrivals for that shift, the aircraft number, departure and arrival time and gate number. Obviously, this information is subject to many variables and further advice may be received from Virgin or viewed on the Terminal's TV monitors. The employees may also be required to perform the same functions on international aircraft. If this work is required, the employees will be advised by phone during the shift.

[12] It is to be noted that different aircraft have different water storage capacities and water pressure requirements (as described by Mr Dunn). Employees must obviously be familiar with these differences. The waste worker is required to use protective equipment, such as gloves, masks and aprons and obtain various medical immunisations.

[13] Mr Condon described the actual work process as follows:

'The toilet aspect of the Work involves the following steps:

a) Back the toilet truck up to the aircraft, stopping several feet away. The employee on the water truck guides the other employee in this regard.

b) The employee opens a panel on the plane, which contains the waste connections.

c) The employee attaches a hose from the truck to the connection and pulls a lever. This causes the waste to discharge into the truck.

d) The employee attaches another hose to a separate connection, and pumps in an amount of water. The amount required may vary between aircraft types by a few litres, but the amounts are guidelines only.

e) The employee disconnects and stores the hoses, and drives away from the plane.

The water aspect of the Work involves the following steps:

a) In the vast majority of cases, the employee pulls a water hose from the aircraft bay towards the plane. If the parking bay does not have a hose, the employee will use a hose from the water truck.

b) The employee opens a panel on the plane, which contains the water connection.

c) The employee fills the water tank until it overflows.

d) The employee disconnects and stores the hose, and drives from the plane.'

[14] All drivers on the airport tarmac, including the water and waste employees, are required to possess an Airside Driver Authority (ADA). This requires certification of the special requirements on an airport such as discrete signage, markings and conditions for driving on the tarmac. Employees undertake theory and practical exams and re-certification is required every 2 years.

[15] Training for the specific work involves a 1 and a half hour theory exercise and 30 minute assessment based on the Toilet / Waste Water Servicing Student Handbook. An experienced ASA 3 employee then provides a practical demonstration on the work. All the training is usually over one shift, although the one-on-one practical may be over 2 -3 shifts. Mr Pound also identified and described two other documents relevant to his training, being the:

[16] The parties are in disagreement about the nature of the supervision of the work. There is no doubt that the two Ramp Supervisors are 3-4 kilometres away from where the work is carried out and do not actually check the work after it is performed. This is done by Virgin's engineers and pilots.

[17] Nevertheless, Toll Dnata insists that the work is supervised at all times by the Ramp Supervisors, and the fact a supervisor is not physically present at the work location, does not mean the work is not supervised. Moreover, directions to the employees are given by the supervisors, both at the start of the shift and during the shift by mobile phone and the employees are required to work, at all times, according to Toll Dnata's operating procedures. Employees have regular and instant contact with the supervisors and are expected to contact them should there be any difficulties.

[18] On the other hand, the Union insists that the only time the work is supervised is when the employees undergo initial one-on-one training by an experienced ASA 3. No supervisor of Toll Dnata checks the work of the employees. Complaints or difficulties will usually come directly from Virgin's operational staff.

[19] In oral evidence, Mr Pound said that he undertook his initial training on 29 and 30 January 2012 and he had been performing the work for 8 - 12 weeks. He agreed that the two Ramp Supervisors prepare the shifts, advise of any specific requirements on the shift and are to be contacted if an employee is late or unable to attend for work. The supervisors can be contacted during the shift by mobile phone and they are given the daily service reports at the end of the shift. He agreed that if any assistance was required, the supervisors could attend the work site.

[20] Mr Pound acknowledged that the fresh water work was not particularly difficult or complicated and the task takes about 5 minutes. He also agreed that the three types of aircraft he had worked on, had the same hose connections and the process was standard. Mr Pound said there could be a delay of between 30 - 40 minutes between the servicing of each aircraft and, during these times, the employees can take a break or go to the toilet.

[21] As to the waste water work, Mr Pound agreed it was repetitive and uncomplicated. However, it could not be done without training. The actual process takes about 5 minutes and each aircraft has similar hose connections. Mr Pound described his own theory and practical training which is usually done on the same shift - an hour and a half theory and 5 hours practical on each of the water and waste work over 2 -3 days. While he was personally confident in doing the job, he believed other employees might take longer in training.

[22] Mr Pound also agreed that all employees require an ADA to drive on the tarmac and an airside security clearance. Mr Pound was shown the duties of a ASA 3(a) employee and he agreed that some of these duties were not required by an ASA 3; e.g. scissor lifts, handling of dangerous goods and dealing with AQIS (Australian Quarantine Inspection Service) staff. Mr Pound did not know the training requirements for these tasks.

[23] During his oral evidence, Mr Condon provided the Tribunal with a detailed plan of the airside of Sydney Airport and marked the route taken during the inspection and the relevant points of interest.

[24] In describing the work of the Ramp Supervisors, Mr Condon said that one supervisor spends about 80% of the time in the office, organising rosters, staffing and changes to movements. When it is busy the supervisor assists on the tarmac. The other supervisor spends 80% of the time around the tarmac, assisting with movements and resolving any clashes or problems. Both supervisors may attend the domestic terminal on water and waste work when required.

[25] Mr Condon indentified a copy of a movement or run sheet supplied to the water and waste employees by Virgin's operations, indicating aircraft registrations, aircraft type, bay arrival and time. He also referred to a sample completed run sheet which is handed to the supervisor at the end of each shift and which is later used to invoice and bill Virgin Australia for the work.

[26] Mr Condon described how suitable employees are selected to learn new skills so as they can move through the gradings. However, he said it is not mandatory for them to do so.

[27] In cross-examination, Mr Condon agreed that there is a diverse range of functions performed by employees in each classification; but not all the functions will be required to be performed by individual employees. Mr Condon acknowledged that some employees who were 'inherited' by Toll Dnata are paid at a higher rate than they would otherwise be graded at - an ASA 2 rather than ASA 3(a).

[28] Mr Condon acknowledged a change in the supervision of the water and waste employees occurred in March 2012. The work was previously supervised from the Cargo Shed by the Duty Managers. It is now supervised by the Ramp Supervisors on the tarmac. He denied this change was a result of a need for greater supervision. It was because the growth of the business put too much pressure on the Duty Managers.

[29] Mr Condon accepted that all classifications under the Toll Dnata Agreement have a degree of responsibility. He said that some ASA 3 employees act up to the ASA 3(a) level and if they are trained, qualified and meet a certain qualifying time, they may become permanent at the higher level.

[30] In respect to changes to aircraft schedules, Mr Condon said that these changes are either communicated directly to the employees by Virgin Operations or the Ramp Supervisors. The changes can also be viewed on the airport TV monitors. Mr Condon believed this amounted to minimal direction.

[31] In his written submissions, Mr S Bull put that it was reasonable to reclassify the work of the water and waste employees in light of the relatively small additional increment in salary, as it would not place an unreasonable financial burden on Toll Dnata. He said that the reclassification would provide a career progression for workers at the ASA 3 level.

[32] Mr Bull contended that two matters bring the disputed work within the ASA 3(a) classification; namely, the requirement for the work to be conducted 'without immediate supervision' and that the work is 'semi-skilled'. As to the work being 'without immediate supervision', Mr Bull submitted that the absence of proximity (of the supervisors) is but one of the indicia of unsupervised work. He noted that the work is done at the behest of the client who is external to Toll Dnata; the small crew size; the tight time frames in which the work must be completed; and the work is not checked by Toll Dnata, but by Virgin's engineers and pilots.

[33] In respect to the 'semi-skilled' nature of the work, Mr Bull relied on the manipulation and maintenance of the equipment, the tight time frames in which the work must be performed and the knowledge required of differing sized aircraft. He said that significant training was required before a person can work unsupervised and the employees have significant responsibility. Moreover, their work is subject to appraisal by the customer.

[34] In oral submissions, Mr Bull said that there is a great deal of overlap with the gradings. This provides flexibility for the employer and an ability for employees to progress through the classification. However, Mr Bull believed the Agreement should be read in a commonsense way. An ASA 3(a) employee is not required to do everything in that classification. They are not supervisors or leading hands and the waste and water work are discrete functions fitting neatly within the ASA 3(a) classification. He said the jobs require a particular skill and expertise which can be properly characterised as 'semi-skilled'. Mr Bull emphasised the lack of immediate supervision and the inherent responsibility of the employee performing the work without anyone checking or telling them what to do, including the customer.

[35] Mr C Magee of Counsel in opposing the Union's proposed orders, observed that each of the grades under the Agreement builds on the skill base of the preceding grade and requires an employee to undertake additional training and become competent to undertake higher skilled duties. He noted that the ASA 3 classification excludes work performed in the operation of aircraft loading platforms, such as FMC's, MDL's and scissor lifts (all types of scissor lifts). The tasks required to be performed by an ASA 3(a) employee include:

c) compilation of reports - including dead weight statements;

d) acceptance, assessment and loading of dangerous goods;

e) the operation of aircraft loading platforms (e.g. FMCs, MDLs and scissor lifts) in loading operations;

[36] Mr Magee said that Toll Dnata employs approximately 15 ASA 3(a) employees on the ramp at Sydney Airport who are required to be trained and competent in scissor lift operations and in-hold systems for the power rollers inside an aircraft. These are 'semi-skilled' functions. ASA 3 employees are not required to be trained or perform these tasks. Mr Magee highlighted the comments of Mr Condon as to the work performed by an ASA 3 employee and noted that the work was often used to rehabilitate injured workers because it is seen as light duties which are basic and non-skilled. He emphasized the limited initial training required.

[37] Mr Magee dealt with the Union's assertions as to the work being conducted 'without immediate supervision' and being 'semi-skilled'. He said that the Union was in error in respect to the well established principles for the interpretation of industrial instruments. In this respect, Mr Magee observed that the text of an industrial instrument must be considered as a whole and in the context of the whole of the clause and the scheme of the instrument; see: AMWU v Silcar Pty Ltd [2011] FWAFB 2555, Kucks v CSR Limited, Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511, The Chief Executive Officer Department of Agriculture and Food v Wall [2011] WAIRC 00263 and City of Wanneroo v Holmes [1989] FCA 369.

[38] Mr Magee put that the approach of the Union offends the principles highlighted in the above cases and the ordinary meaning of the words in the clause. Mr Magee postulated further and said that even if FWA was satisfied the work was performed 'without immediate supervision', and was 'semi-skilled', that would still not bring it within the descriptors and indicative tasks of the definition of an ASA 3(a) employee. The work clearly falls within the ASA 3 classification and, by specific exclusion, is not within the ASA 3(a) classification.

[39] Mr Magee highlighted the evidence as to the nature of the supervision and said that the work is, at all times, under the supervision of the Ramp Supervisors. Notwithstanding that the supervisors are not physically in proximity, communication is instant and employees are required to comply with all of Toll Dnata's operating procedures. Mr Magee said that complaints about the work are directed to, and followed up by Toll Dnata's supervisors and management.

[40] Mr Magee referred to the evidence of the Union (Mr Pound) that the work was not complicated or difficult. All aircraft have the same connection type and the employees are not involved in 'semi-skilled' tasks such as:

a) compilation of reports - including dead weights statements;

b) acceptance, assessment and loading of dangerous goods;

c) the operation of aircraft loading platforms (e.g. FMCs, MDLs and scissor lifts) in loading operations;

[41] In oral submissions, Mr Magee emphasised the Union's own evidence as to the work being not particularly difficult or complicated and requiring minimal training. He rejected Mr Bull's reference to the relatively small cost of the claim and said that the cost impact was irrelevant to what is properly required to be considered by FWA in a case such as this.

[42] Mr Magee further submitted that as there is no reference at all to supervision in the ASA 3 classification, an ASA 3 employee can be supervised or unsupervised. The Union was therefore approaching the case on the wrong premise. It is the work performed, which must be examined within the context of the whole of the classification structure, otherwise there would be no purpose in having such a structure. The different tasks in ASA 3(a) are 'semi-skilled' and require a significant level of training. Mr Magee added that the word 'immediate' means a capacity to exercise supervision, not someone standing next to an employee for the entire shift. In any event, supervision is available, at all times, during the shift.

[43] Mr Magee noted that the exclusion in the ASA 3 classification of 'the operation of aircraft loading platforms' makes it plain that they are in the higher classification. Clearly, if employees do not perform these tasks, they cannot be in the higher classification.

[44] In reply, Mr Bull said the exclusion in the ASA 3 classification was obvious because it was a base function. The absence of reference to supervision was not unusual, as it may be assumed the base level would be heavily supervised. He noted that there were other employees in customer service roles at ASA 3(a) who do not have any skills to deal with aircraft platforms and do not perform that work. This demonstrates that the classification categories are an indicative list of a number of mutually exclusive functions.

[45] Both parties have approached this matter by reference to the interpretation of the classifications clause in the Agreement and the meaning of certain words and expressions in the specific classifications of ASA 3 and ASA 3(a). With this in mind, it is necessary for the Tribunal to apply the appropriate principles when interpreting the words used in an industrial instrument; in this case, the applicable enterprise agreement.

[46] A very recent decision of the Full Bench of FWA in Cape Australia Holdings Pty Ltd v Construction, Forestry, Mining and Energy Union [2012] FWAFB 3994 usefully summarised the applicable legislation and authorities on the correct approach to the interpretation of enterprise agreements made under the Act. At para 5 - 10 the Full Bench said:

'[5] By virtue of s.46 of the Acts Interpretation Act 1901 (Cth) that act is applicable to the construction of enterprise agreements as if the enterprise agreement were an act. Section 46 states:

"s.46 Construction of instruments

(1) If a provision confers on an authority the power to make an instrument that is neither a legislative instrument for the purposes of the _Legislative Instruments Act 2003_nor a rule of court, then:

(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and

(b) expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time; and

(c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.

(2) If any instrument so made would, but for this subsection, be construed as being in excess of the authority's power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power." 3

[6] Section 7(1) of the Legislative Instruments Act 2003 (Cth) declares that 'fair work instruments (within the meaning of the Fair Work Act 2009)' are not 'legislative instruments.' The definition of a 'fair work instrument' in s12 of the Act includes an enterprise agreement. An 'enterprise agreement' is defined to include, relevantly, a 'single enterprise agreement' which is in turn defined to mean an enterprise agreement made as referred to in s172(2). The Total Corrosion Agreement is such an agreement.

[7] As to the general approach to the construction of enterprise agreements the observations of French J, as he then was, in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (Wanneroo) 4 are apposite:

"[53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '...the entire document of which it is a part or to other documents with which there is an association'. It may also include '....ideas that gave rise to an expression in a document from which it has been taken' - Short v FW Hercus Pty Ltd [1993] FCA 51; (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J)."

[8] While his Honour's observations were made in the context of interpreting an award the same principles apply to the interpretation of enterprise agreements. 5 For example, similar observations were made by their Honours Gummow, Hayne and Heydon JJ in _Amcor v CFMEU:_6

"Clause 55.1.1 must be read in context. It is necessary, therefore, to have regard not only to the text of cl 55.1.1, but also to a number of other matters: first, the other provisions made by cl 55; secondly, the text and operation of the Agreement both as a whole and by reference to other particular provisions made by it; and, thirdly, the legislative background against which the Agreement was made and in which it was to operate."

[9] The fact that the instrument being construed is an enterprise agreement is itself an important contextual consideration. As French J observed in Wanneroo, at paragraph [57]:

"It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg Geo A Bond and Co. Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503-504 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):

"Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties."

[10] None of these principles were matters of contention in these proceedings and we have applied them in the determination of the appeal. The issue on appeal is the application of the principles to clause 5 of the Total Corrosion Control Agreement.'

[47] To this recent authority may be added the views of the High Court in a number of often cited cases. In Codelfa Construction vs State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337, Mason J said at 348:

'there is more to the construction of the words of written instruments than merely assigning to them their plain and ordinary meaning - see, for example, the remarks of Knox C.J. in Life Insurance Co. of Australia Ltd. v. Phillips [1925] HCA 18; (1925) 36 CLR 60, at p 69 . This has led to a recognition that evidence of surrounding circumstances is admissible in aid of the construction of a contract.'

[48] In K & S Lake City Freighters Pty Ltd v Gordon and Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, Mason J, at 315, stated:

'Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.'

[49] The above approach of Mason J was adopted by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 where the Court stated:

'Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.'

[50] In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004)219 CLR 165 at 179, the High Court stated:

'The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.'

[51] Thus, it will be seen that the well accepted principles applying to the interpretation of an industrial instrument, such as an enterprise agreement, begin with a consideration of the natural and ordinary meaning of the words used; see: re: Clothing Trades Award (1950) 68 CAR 597; but nevertheless, require the words to be read as a whole and in context; see: Australian Timber Workers' Union v W Angliss & Co Pty Ltd (1924) 19 CAR 172.

Application of the principles to the work in dispute

[52] At the outset, I would wish there to be no doubt that I accept, unreservedly, that the water and waste work is integral and critical to the tight time frames and smooth operation of aircraft movements required by Toll Dnata's customers. Of course, the work is important and has a degree of responsibility attached to it. But that is not the point in issue here. All jobs associated with aircraft movements at Sydney Airport, or indeed any airport, are integral to the prime objective of providing a quality on-time service for the airlines and their passengers. However, the issue here is where the work of an ASA 3 employee, when performing water and waste functions, fits in the context of the classification structure of the Agreement.

[53] Not surprisingly, the Union's case focussed on the two expressions found in the ASA 3(a) classification:

Therefore, a convenient starting point is to consider the natural and ordinary meaning of these expressions and then to consider the words used in the context of the classification structure of the Agreement.

[54] The Macquarie Dictionary defines 'immediate' as:

'4. Having no object or space intervening; nearest or next: in the immediate vicinity'; It defines 'supervise' as:

'to oversee (a process, work, workers etc) during execution or performance; superintend; have the oversight and direction of.'

[55] Given the above definitions, it does seem to me to be very difficult to sustain an argument that employees who are located 3-4 km from their direct supervisors, are within the immediate vicinity of the persons who are overseeing them. Thus, while the adjective 'immediate' might not strictly apply to the waste and water work here in dispute, the word must be read in conjunction with 'supervision'. When viewed in this light, the force of Mr Magee's argument as to the actual nature of the supervision, becomes obvious. There can be no doubt that, for all practical purposes, the waste and water employees are under the oversight and direction of the Ramp Supervisors. Any problems, such as changed bay allocation or other directions from Virgin's operations, are not decisions undertaken independently by the employees themselves in the course of their duties; rather they follow the directions of others in the performance of these duties. In my view, this is a fundamental difference to working 'without immediate supervision'. In any event, I am bound to follow the agreement interpretation principles (referred to earlier) which require the Tribunal to consider the words in their context, and not in isolation. In doing so, I am unable to agree with the Union's strict literal approach to the interpretation of the words, 'without immediate supervision' as applying to the work in dispute.

[56] I turn now to whether the work is 'semi-skilled'. In my opinion, the evidence adduced by both parties, compels only one finding - the work in dispute is not 'semi-skilled' work. Mr Pound, honestly and objectively, gave evidence that the work was neither complicated or difficult. In my assessment, the initial theory and practical training is akin to an induction or indeed the initial training for any job where employees are required to become acquainted with the processes and procedures of performing a task with which they are relatively unfamiliar. It does not follow that the extent or complexity of such training means the actual work is complex, difficult or skilled. From the evidence as to the initial training and from my observations of the work itself, I am not convinced that this work can be properly characterised as 'semi-skilled'. This finding is further demonstrated by considering the work in the context of the additional skills and training required for an ASA 3(a) classification to which an ASA 3 may naturally move to in accordance with ordinary career progression.

[57] In my judgment, it would distort the classification structure, and the rationale behind it, if the waste and water work was equated to the other additional requirements for an ASA 3(a). I do not accept that the Union's case is supported by the fact that an ASA 3(a) employee is not required to undertake all of the tasks relevant to that classification. Each classification demonstrates a positive movement up the career path structure from the base grading of an ASA 3. The structure is particularly crafted to reflect the employer's need for flexibility and an employee's opportunity to enhance his/her career progression. It would be wrong and unrealistic to conclude that the skills and training required for an ASA 3(a) are no different to that of the base grade ASA 3 classification.

[58] In any event, it is an unremarkable observation that an employee is not always required to exercise all of the skills or perform all of the tasks specified in his/her classification. The relevant test, in the present circumstances, is whether the employee has been trained and possesses the relevant skills appropriate to the higher classification. I do not believe the work of the waste and water employees satisfies that test.

[59] In addition, I note that ASA 3 employees may obtain the necessary training and may perform the higher duties of the ASA 3(a) and ASA 2 classifications, and be paid accordingly, even while remaining as a substantive ASA 3. Conversely, an ASA 2(a) employee (2nd highest) may be required to perform the functions of an ASA 2, ASA 3(a) or ASA 3. It is also pertinent to note that employees required to perform higher duties, on more than 50% of the shifts they work over a 6 month period, will be offered employment at the higher grade (cl 17.18)

[60] As plainly evident in this case, the employees in ASA 3 classification do not hold, or are required to hold, the particular skills and perform the higher functions which are required for an ASA 3(a); namely, dealing directly with Australian Customs and AQIS Staff; the use of computer and communication aids (accepting the use of a mobile phone); compilation of reports such as Dead-weight Statements; acceptance, assessment and loading of dangerous goods; operation of Company vehicles and equipment, including against aircraft equipment and all equipment associated with ramp, freight and aircraft servicing and general transport operations. Relevantly, there is an express exclusion for aircraft loading work in the ASA 3 classification itself.

[61] Finally, in deference to Mr Bull's argument that the orders sought will have a minimal economic impact, I make the following observation: while this may be true, it is a submission which does not assist the Union's case. The test in a matter such as this, is not the economic cost of the change sought, but the application of the principles I have earlier referred to, as applied to the fact and circumstances of this case.

[62] It follows from the forgoing consideration, that I am unable to come to a conclusion that the waste and water work performed by ASA 3 employees should be paid at the ASA 3(a) rate. The application must therefore be dismissed. An order to that affect will be issued separately to this decision.

Mr C Magee, Counsel for Toll Dnata Airport Services

Printed by authority of the Commonwealth Government Printer

Instruments Act 2003

Transport Workers' Union of Australia v Toll Dnata Airport Services [2012] FWA 5605

At a glance

Court

Decision date

Source

Judgment (117 paragraphs)

Transport Workers' Union of Australia v Toll Dnata Airport Services [2012] FWA 5605 (12 July 2012)

Parties

Legislation Cited (2)

Cases Cited (5)