| [2018] FWCFB 578 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 604 - Appeal of decisions
Qantas Ground Services Pty Ltd
v
Transport Workers' Union of Australia
(C2017/6074)
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, 23 FEBRUARY 2018 |
Appeal against decision concerning correct classification of Commissionaires under 2015 enterprise agreement – arbitration of a dispute in accordance with a dispute settlement procedure – principles of agreement interpretation – no ambiguity – plain meaning not disturbed by objective background facts - Commissionaire’s role involves ‘passenger handling’ – Commission decision upheld
[1] Qantas Ground Services Pty Ltd (Qantas) appeals a decision of Deputy President Sams made on 16 October 2017 1 (the Decision). The appeal is lodged pursuant to s.604 of the Fair Work Act 2009 (the FW Act). Proceedings before the Deputy President concerned an application by the Transport Workers’ Union of Australia (TWU) under s.739 for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement term in the Qantas Ground Services Pty Ltd Ground Handling Agreement 2015 (the 2015 Agreement).
[2] Clause 8.4 of the 2015 Agreement allows for a dispute to be referred to the Commission for resolution, including by arbitration. Clause 8.6 of the 2015 Agreement provides a right of appeal against a decision. It is accepted that permission to appeal is not required.
[3] The Deputy President characterised the dispute in the following terms 2:
“In brief, the dispute concerns the correct classification of a small group of Qantas employees (numbering 20 in Sydney, 5 in Melbourne and 10 in Brisbane) who are known as Commissionaires. These employees are engaged by QGS to transport elderly, disabled and less mobile passengers between check in areas and aircraft and around, and between terminals, using wheelchairs, or other motorised equipment. Commissionaires are presently classified as Ground Crew Level 2 (GC2) under the 2015 (and its predecessor). By this s 739 application, the Union seeks to have Commissionaires reclassified Ground Crew Level 3 (GC3) Year 2, given that the work they undertake is appropriately described as ‘passenger handling’. QGS disputes the proposition that Commissionaires are involved in ‘passenger handling’ and maintains the employees have, and always have been, correctly classified at GC2.”
[4] The Deputy President determined the dispute by deciding “that the role of Commissionaires, employed by QGS, should be classified as GC3 Year 2 under the 2015 Agreement.” 3
[5] By consent an order staying the Decision was made on 15 November 2017. 4
[6] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are exercisable only if there is error on the part of the primary decision maker. 5
[7] The Decision under appeal did not involve the exercise of discretion. It was concerned with determining the appropriate classification under the 2015 Agreement by interpreting the 2015 Agreement. There is no discretionary element involved in that task. It follows that our task on appeal is to determine whether the interpretation of the 2015 Agreement adopted by the Deputy President is correct. 6 If the instrument was erroneously interpreted or the facts erroneously applied to its proper interpretation then it is open for an appellate bench to grant the appeal.
[8] Accordingly, the question on appeal, as concerns the Deputy President’s interpretation of the 2015 Agreement, is whether his interpretation was correct. 7 Error might also be discussed in the reasoning process, where construction principles are misapplied or not understood. Other decisions made in the course of hearing and determining the dispute might involve the exercise of discretion. Such decisions are appealable on the bases identified in House v The King.8
[9] The Decision under appeal was largely an exercise of construing the 2015 Agreement. An Agreed Statement of Facts 9 provided a factual underpinning for the Decision. The agreed facts were supplemented by evidence of two Commissionaires (Mr Beach and Mr Price), a Qantas employee and TWU delegate (Mr Trinder) and the Head of Qantas Group Services (Mr Hardy). The evidence given was largely though not wholly, uncontested.
[10] At first instance, the Deputy President dealt with a preliminary point raised by Qantas. The employer contended that the TWU’s assertion that Commissionaires should be classified as GC3 was an extra claim in breach of the No Extra Claims clause in the 2015 Agreement (clause 30). The Deputy President rejected this contention. That conclusion is not challenged in the appeal.
[11] The Deputy President approached the determination of the dispute as an exercise of interpreting the 2015 Agreement, and in particular Appendix B which contains classifications descriptors, relevantly for GC2 and GC3 classifications. The definitions are as follows:
“Ground Crew 2 (“GC2”)
All of GC1 +
● Perform "hands-on" activities in all ground crew areas that are directly and indirectly associated with aircraft handling;
● Operate equipment and vehicles including tow motors, small vans, tarmac buses, mobile steps, belts, disabled passenger lift, aerobridges, fork-lift and equipment requiring similar operational skills associated with ramp, cargo, freight, catering, aircraft servicing and general transport operations;
● Undertake basic serviceability and maintenance checks of vehicles and/or equipment, including refuelling, for vehicles operated at this level;
● Undertake stores operations, loading and unloading of catering equipment and advanced preparation of foodstuffs;
● “Work down” as required.
Ground Crew 3 ("GC3")
All of GC1 and GC2 +
● Operate all in-hold systems and associated equipment on aircraft;
● Push back;
● Undertake basic serviceability and maintenance checks of vehicles and/or equipment, including refuelling, for vehicles operated at this level;
● Driving and operating high-lift catering vehicles;
● Compile operational reports and documents using designated systems and equipment;
● Required to work without direct supervision;
● All Team Leader and related duties for employees classified in GC1;
● “Work down” as required;
And
● Passenger handling. For an employee employed after the Date of Commencement of this Agreement GC3 Year 2 rate of pay will apply for passenger handling.”
[12] The Deputy President framed the issue for determination as follows: 10
“[101] ….In short, the Commission’s task is to ascertain the objective intention of the contested words, based upon the language and terms of the 2015 Agreement, when read as a whole, having regard to its context and purpose.
[102] At the risk of oversimplifying the eloquent submissions of both parties, it seems to me that the gravamen of this case, is really to answer one question - what is the ordinary meaning of the term ‘passenger handling’?....”
[13] The Deputy President concluded that:
“the expression ‘passenger handling’ in the 2015 Agreement’s context sits in splendid clarity, unvestured by any doubt or uncertainty.” 11
[14] The Deputy President concluded that a “passenger” in this context meant customers of Qantas domestic airline services. He concluded that “handling” in this context meant “to touch or feel with the hand, use the hands on, as in picking up; to manage in use with the hands, to manipulate; to deal or treat in a particular way; to manage, direct or control.” 12
[15] The Deputy President reasoned that as the Commissionaires are trained on specific people skills as part of their ‘customer service’ role and because they speak to the passenger and may occasionally be required to physically handle a passenger when guiding or securing a passenger into or out of a wheelchair or trolley or into a seat then Commissionaires are involved in passenger handling. 13
[16] Accordingly, he concluded that Commissionaires perform work that falls within the description of “passenger handling” within the definition of GC3 in Appendix B of the 2015 Agreement, and should be so classified.
[17] In so doing, the Deputy President considered it “impermissible” to call in aid of interpretation evidence of surrounding circumstances on the basis that he found the contested term of the 2015 Agreement is not ambiguous, uncertain or capable of more than one meaning. 14 Those surrounding circumstances concerned the history of the provision, the intention of Qantas in agreeing to the provision, comparable terms in antecedent agreements and the broader industrial relations framework in which Qantas operates with other unions covering customer service employees such as the Australian Services Union (ASU).
[18] The Notice of Appeal identifies 3 grounds of appeal. By its first ground of appeal, Qantas contends that the Deputy President erred in determining that the role of the Commissionaires employed by Qantas should be classified as GC3 under the 2015 Agreement. By the second ground of appeal, Qantas contends that the Deputy President erred in that he did not correctly apply the principles of construction of enterprise agreements. The third ground of appeal builds upon the foregoing grounds and by it Qantas contends that the Deputy President failed to consider, or properly consider, the language of the relevant provisions having regard to their context and purpose. Particulars of the contended failure are thereafter set out but need not be reproduced.
[19] In support of the first and third appeal grounds, Qantas contends that the Deputy President’s task was to determine whether Commissionaires had been correctly classified. It contended that the task involved the proper construction of the 2015 Agreement including the phrase “passenger handling” and an assessment of the work being performed by Commissionaires in order to determine which of the classifications contained in the 2015 Agreement best described the substantial character of the work being undertaken by Commissionaires. It contended that the resolution of the issue was not confined to a construction of the phrase “passenger handling” itself and in proceeding in this confined way, the Deputy President misdirected himself and failed to consider, or properly consider, the evidence which was before him.
[20] Qantas contends that consistent with Frontera Brands (Australia) Pty Ltd v AMWU, 15 the Deputy President was required to consider the substantial character of the work undertaken by Commissionaires in determining the appropriate classification and that this necessarily required a consideration to be given to the classification GC2 and the appropriateness or otherwise of Commissionaires being classified at GC2. It contends that by focusing on the literal meaning of the term “passenger handling” contained in the descriptor of the GC3 classification and asking whether the work performed by Commissionaires fell within that term, the Deputy President failed to determine the most appropriate classification from among the range of classifications in the 2015 Agreement for Commissionaires. As a consequence, so argued Qantas, the Deputy President failed to consider or properly consider that:
• the substantial character of the work undertaken by Commissionaires was the transport of passengers, including through the use of the disabled passenger lift;
• that the 2015 Agreement refers to general transport operations through the operation of variously described vehicles and the operation of the disabled passenger lift in the descriptors of the GC2 classification whereas the GC3 classification descriptor contains no such reference;
• the descriptors of the GC3 classification involve the operation of more complex machinery and in the performance of tasks more complex than those undertaken by Commissionaires;
• both the 2015 Agreement and the predecessor enterprise agreement contains relevantly identical descriptors of GC2 and GC3 classifications;
• at the time when each agreement was made, Commissionaires were employed and paid as GC2 level employees;
• there had been no alteration to the duties and responsibilities of Commissionaires since 2010 and neither the meaning of “passenger handling” nor the classification of Commissionaires were the subject of bargaining for either agreement;
• the reference to “passenger handling” was included in the descriptors for the GC2 and GC3 classifications in the 2009 agreement to enable Qantas to employ, if it wished, employees in respect of whose employment the 2009 agreement would apply to undertake customer service work;
• Qantas had an agreement with the ASU since at least 2011 not to employ persons covered by the 2013 agreement or under an antecedent agreement to undertake customer service work;
• the reference to “passenger handling” was removed from the descriptors of the GC2 classification in the 2013 agreement out of concern that its continued inclusion at that classification level might result in the 2013 agreement failing to pass the better off overall test and thus risk it not being approved by the Commission; and
• “Passenger handling” has a particular industry meaning and usage and is preferable to employees engaging in customer service work typified by the provision of check-in services, performing work at customer service desks and in the Qantas club.
[21] In addition and further in support of the second ground of appeal, Qantas contends that the Deputy President misapplied the principles applicable to the construction of an enterprise agreement. It says that the Deputy President did so in three respects. First, by disaggregating the words “passenger” and “handling”, thus leading to a misunderstanding of the aggregate phrase. Secondly, by not considering the ordinary meaning of the term “passenger handling” having regard to the context and purpose including the express provision in the descriptor of the GC2 classification, to operating “equipment and vehicles including . . . disabled passenger lift . . . and equipment requiring similar operational skills associated with . . . aircraft servicing and general transport operations”. In the result, Qantas says that the Deputy President overlooked the fact that the Commissionaires are the only employees who operate disabled passenger lifts and whose role is focussed on the transportation of passengers using equipment in respect of which they are trained. Additionally, Qantas says that the Deputy President did not consider the functional nature of the classification structure, relevantly, beginning with non-driving duties described in the GC1 classification descriptor, moving to the driving of specified vehicles described in the GC2 classification descriptor, and then to the driving and operation of more complex vehicles and machinery described in the GC3 classification descriptor.
[22] Thirdly, the Deputy President failed to consider or properly consider the evidence which he regarded as “surrounding circumstances” and so failed to assign appropriate weight to the evidence about the reasons for the inclusion of “passenger handling” into the classification structure, the reasons that Qantas did not engage persons to perform “passenger handling” under the 2015 Agreement or the reason for the removal of “passenger handling” from the GC2 classification descriptor when the 2013 agreement was made. Qantas contends that as the term “passenger handling” is not defined in the 2015 Agreement, this is indicative of ambiguity as to the meaning of the term in the context of the airline industry and thus ought to have been considered and given appropriate weight.
[23] The TWU contends that the Deputy President’s decision was correct in fact and law. It says that the Deputy President provided clear and comprehensive reasons for his decision. It says he approached his task of agreement interpretation in an orthodox manner in accordance with established principle. It says there was no error in approach to construction of the phrase “passenger handling”. It says that it is not a defined term in the 2015 Agreement. It says that there was no evidence that the phrase had a particular meaning to the entities which negotiated the 2015 Agreement, nor in an industry context. It says the Deputy President was entitled to take the approach to interpretation which he did.
[24] On the issue of surrounding circumstances, the TWU says that the evidence before the Deputy President of the context in which the 2015 Agreement was negotiated did not provide a reliable foundation for an approach to construction which placed emphasis on an expression that was not defined and which did not have an understood meaning between the negotiating entities.
[25] It says that the proper approach to construction was to objectively identify the common intention of the parties by reference to what a reasonable person would understand from the language the parties used to express their agreement. This, it says, is what the Deputy President did.
[26] We are not persuaded that the Deputy President’s decision is attended by appealable error and we consider that the Deputy President’s conclusion was correct. We propose therefore to dismiss the appeal. Our reasons for that conclusion may be shortly stated.
[27] The principles applicable to the proper construction of an enterprise agreement were canvassed at length in Australasian Meat Industry Employees Union v Golden Cockerel Pty Limited (Golden Cockerel). 16 The summary of the applicable principles set out in Golden Cockerel was modified in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited (Berri)17 to take account of the discussion by the Full Bench of the extent to which evidence of prior negotiations and positions adopted in negotiations might be called into aid a construction in light of the statutory scheme under which an enterprise agreement is made and the fact that it is made when a majority of relevant employees vote to approve the agreement. The applicable principles need not be rehearsed at length here and were not put in issue in the appeal. However, in short compass, much like the approach to construing a statute, the construction of an enterprise agreement begins with a consideration of the ordinary meaning of the words used, having regard to the context and evident purpose of the provision or expression 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 being considered. The statutory framework under which the agreement is made may also provide context, as might an antecedent instrument or instruments from which particular provisions might have been derived.
[28] It appears to us on a review of the Decision that the Deputy President correctly applied the applicable construction principles and approached the task of construing the 2015 Agreement in an orthodox way.
[29] The Deputy President considered Appendix B to the 2015 Agreement and in particular the expression “passenger handling” in the descriptor of classification GC3 to have a plain meaning even though it was not a defined term or phrase. He did not consider it to be ambiguous or susceptible to more than one meaning.
[30] We agree. A “passenger” for the purpose of the expression in Appendix B is a customer of one of the Qantas Airways companies (related entities of Qantas) (Qantas Airways) and “handling” has its ordinary dictionary meaning of managing, directing or controlling. Counsel for Qantas submitted that the Deputy President fell into error by considering the meaning of the expression disjunctively. We do not agree. The phrase “passenger handling” has no special or particular meaning that differs from the combined meaning of its disjunctive elements. It is to be interpreted as applying to a person who manages, directs or controls a customer of Qantas Airways. This meaning reflects the language of the 2015 Agreement having regard to its context and purpose. 18
[31] Contrary to the contentions of Qantas, we do not consider that the evidence on which it relies to establish the purpose for including the reference to “passenger handling” in the descriptors for the GC2 and GC3 classifications in the 2009 agreement; 19 its reasons for not employing persons to undertake “passenger handling” under the agreement;20the reasons for removing the reference to “passenger handling” from the descriptors of the GC2 classification in the 2013 agreement;21 or that “passenger handling” has a particular industry meaning and usage22, provide any assistance in either establishing any ambiguity as to the meaning of “passenger handling” or in resolving the meaning of that phrase in the context of the 2015 Agreement.
[32] The evidence about the first three of the matters amounts to no more than evidence about the subjective intentions of Qantas. There is no evidence that these matters were discussed with bargaining representatives for the various agreements, the representative union or with the employees who voted to approve the various agreements, much less that these matters were acknowledged or agreed. As to the fourth matter, we are not persuaded that the evidence establishes the existence of any particular industry meaning and usage that is to be ascribed to “passenger handling”. But even if it be accepted that there is some particular industry meaning or usage that may be ascribed to the term, there is no objective evidence that the particular industry meaning or usage is exhaustive. It is doubtless the case that engaging in customer service work which may involve check-in services, performing work at customer service desks and in the Qantas club, would fall within the description of “passenger handling”, but so too would the tasks of speaking to disabled passengers who are being assisted by Commissionaires, carrying or assisting disabled passengers with their hand luggage or walking aids, and physically easing a disabled passenger into and out of wheelchairs and seats.
[33] Having concluded that the expression “passenger handling” has an ordinary and unambiguous meaning, the dispute before the Commission was to be resolved by applying Appendix B, as so interpreted, to the facts concerning the work of Commissionaires.
[34] We have noted that the facts concerning the work of Commissionaires were largely not in dispute. The Deputy President concluded on the basis of the documentary evidence, the agreed facts and the oral evidence before him that Commissionaires perform duties which require certain specialist people skills. 23 The Agreed Facts were that “commissionaires transport elderly, disabled and less mobile passengers via wheelchair and by operating equipment and vehicles, including disabled passenger lifts and small motorised carts.”24 The evidence was that this is their core function. The evidence was also that whilst Commissionaires are trained to operate (and do operate) the equipment with which they transport passengers from terminal to aircraft and vice versa (such as wheelchairs and lifting hoists) they also undergo on-line training in customer service.25 The evidence was that Commissionaires speak to passengers they are assisting, carry or assist with their hand baggage or walking aids and from time to time help physically ease them into and out of wheelchairs and seats.26
[35] We consider that this evidence as a whole supports a conclusion that Commissionaires are engaged in “passenger handling” and most appropriately within the meaning of Classification GC3 of Appendix B of the 2015 Agreement.
[36] We do not consider that the terms of Appendix B of the 2015 Agreement could reasonably support an interpretation that Commissionaires are properly or more appropriately classified as GC2. The GC2 classification makes no reference to passengers other than the operation of a “disabled passenger lift”. While operating a disabled passenger lift could be said to be “managing” or “controlling” a passenger, the Commissionaires also assist passengers in getting into and out of the lift and into and out of their seat or wheelchair at the terminal or in the aircraft. Commissionaires do more than merely operate transportation equipment. GC2, on its terms, applies to ground crew concerned with the handling of aircraft or equipment. It is only GC3 which includes reference to passenger handling. It appears to us that on a proper application of the classification descriptors, an employee who operates some or all of the equipment described in GC2 but whose duties also involve a not insignificant “passenger handling” component, is properly and most appropriately to be classified as a GC3. This is apt to describe the role of a Commissionaire.
[37] Although it must be accepted that the duties of a Commissionaire involve the operation of equipment described in GC2 and in particular the “passenger lift” with a lesser component of passenger interaction, the GC3 classification, on our reading, is not limited to passenger handling functions. On its express terms, a GC3 classified employee may be required to perform all or any of GC1 and GC2 duties, together with any of the nine other functions only one of which is passenger handling.
[38] The substantial character of the role of a Commissionaire is the transport of passengers including through the use of the disabled passenger lift. We agree with the Deputy President’s conclusion that the most appropriate classification from the range of classifications in the 2015 Agreement for a Commissionaire is CG3.
[39] As we have not identified any appealable error in the Decision, we dismiss the appeal. The stay order in PR597760 is set aside.
DEPUTY PRESIDENT
Appearances:
Mr C. O’Grady QC, Mr B. Rauf and Mr S. Woodbury for Qantas Ground Services Pty Ltd
Mr A. Howell and Ms L. De Plater, for the Transport Workers' Union of Australia
Hearing details:
2017 and 2018.
Melbourne and Sydney.
12 December and 24 January.
<PR599890>
2 Ibid [2]
3 Ibid [119]
4 PR597760
5 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
6 Australasian Meat Industry Employees Union v Golden Cockerel Pty Ltd [2014] FWCFB 7447 at [7].
7 Energy Australia Yallourn Pty Ltd T/A Energy Australia v Construction, Forestry, Mining and Energy Union [2017] FWCFB 3574 applying Pawel v AIRC [1999] FCA 1660.
8 [1936] 55 CLR 499
9 Decision [7]
10 Ibid [101] - [102]
11 Ibid [104]
12 Ibid [103]
13 Ibid [111] – [112]
14 Ibid [119]
18 Berri [114] principle 1
19 That is, to enable Qantas to employ effort wished, employees in respect of whose employment the 2009 agreement would apply to undertake customer service work
20 That is, because Qantas had an agreement with the Australian services union since at least 2011 not to employ persons covered by the 2013 agreement or under an antecedent agreement to undertake customer service work
21 That is, because of concern that its continued inclusion at that classification level might result in the 2013 agreement failing to pass the better off overall test and thus risk it not being approved by the Commission
22 That it is referrable to employees engaging in customer service work typified by the provision of check-in services, performing work at customer service desks and in the Qantas club.
23 Decision [111]
24 Decision [7(c)]
25 Mr Hardy’s evidence PN 434 – 435 and attachments BH5 and BH6 to Mr Hardy’s Witness Statement
26 Ibid PN 441 – 443, PN 471 – 482, PN 515
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