DECISION

Fair Work Act 2009
s.739—Dispute resolution

Mark Wenke
v
Jetstar Airways Pty Limited
(C2019/1571)

Dispute arising under an enterprise agreement

[1] This decision concerns an application made by Mr Mark Wenke under s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement procedure in clause 8 of the Jetstar Airways Pilots’ Enterprise Agreement 2015 (Agreement). 1 Mr Wenke is a pilot employed by Jetstar Airways Pty Limited (Jetstar) whose employment is covered by the Agreement.

[2] Mr Wenke commenced employment with Jetstar in 2007 at a time when the company was anticipating the introduction of the B787 ‘Dreamliner’ into its fleet the following year. Pursuant to a letter of offer, Jetstar employed Mr Wenke, a very experienced B747 pilot, as a first officer for the B787. Pending the arrival of the new aircraft, it deployed him as a ‘check captain’ on its Airbus A320. A check pilot performs flight training and proficiency checks of pilots, rather than commercial flying. Under the letter of offer, Jetstar also agreed to transfer Mr Wenke for a five-year period to the position of B787 captain.

[3] For various reasons beyond the parties’ control, the introduction of the B787 into the fleet was delayed for many years and it did not enter service until 2013. Mr Wenke was then deployed as a check captain on the B787. It is not in dispute that Mr Wenke performed the role well. However, Jetstar regarded his deployment as a B787 check captain to be subject to the five-year fixed term B787 captaincy transfer contemplated in his 2007 letter of offer. In 2019, Jetstar advised Mr Wenke that the five-year term had ended. Mr Wenke regarded his deployment as a B787 check captain to be permanent and raised a dispute under clause 8 of the Agreement.

[4] Mr Wenke’s application under s 739 contended that Jetstar had contravened clause 24.2.4 of the Agreement, which states that ‘once a pilot has been assigned to a position, the pilot cannot be displaced from that position by a more senior pilot on the grounds of seniority’, except in limited circumstances, which include the expiry of fixed term appointments made under clause 12.2 of the Agreement. Mr Wenke said that Jetstar had, by the appointment of two other more senior pilots to B787 check captain roles, displaced him from his position of check pilot based in Sydney on the grounds of seniority. In response to the application, Jetstar submitted that clause 24.2.4 did not apply to check captain roles, and that in any event Mr Wenke was not displaced on the grounds of seniority or displaced at all. It said that his fixed term five-year appointment to the role had expired, bringing his case within the exception in clause 12.2 of the Agreement.

[5] Mr Wenke’s application was initially listed for conference. The matter remained unresolved, and the parties agreed that it should proceed to arbitration. Directions were issued for the filing and service of submissions and materials. At the hearing Mr Wenke gave evidence, as did Mr Christopher Harris, the company’s people manager for flight operations, and Mr Peter Terrill, its training manager for flight operations.

[6] The parties submitted to the Commission two agreed questions which they asked the Commission to answer in order to resolve the dispute. On 1 May 2019, Mr Wenke’s representative wrote to my chambers and advised that the parties wanted the Commission to determine firstly whether Mr Wenke ‘was appointed as a B787 Check Pilot based in Sydney (position) for a fixed term expiring on 10 April 2019’ under clause 12.2 of the Agreement, and secondly, if not, whether he was ‘displaced from the position on 10 April 2019 by a more senior pilot on grounds of seniority’ as contemplated by clause 24.2.4 of the Agreement. I advised the parties that I was content with the questions posed for determination, save that they should be answered in the reverse order: was the prohibition in clause 24.2.4 engaged; if so, did the exception apply? The outline of submissions filed by Mr Wenke and Jetstar each then confirmed the questions for determination as follows:

Question 1: ‘Was the applicant displaced from the position of Check Pilot based in Sydney (Position) on 10 April 2019 by a more senior pilot on grounds of seniority as contemplated by clause 24.2.4 of the Agreement?’

Question 2: ‘Was the applicant appointed to the Position for a fixed term expiring on 10 April 2019 under clause 12.2 of the Agreement?’

[7] The parties’ written submissions addressed these questions. Mr Wenke contended that the answer to the first question was ‘yes’. He said that he was displaced from his position in April 2019 by two more senior pilots who had been appointed as check captains in November 2018 and who assumed many of his duties. He said that the reasons for his displacement was seniority. Mr Wenke submitted that the answer to the second question was ‘no’, because he was not appointed to his position on a fixed term basis, and that even if he had been so appointed, any appointment was not made under clause 12.2 of the Agreement. He also said that any fixed term contract expired before 10 April 2019.

[8] Jetstar contended that the answer to the first question was ‘no’ because a check captain role is in the nature of higher duties and is not a ‘position’ for the purpose of clause 24.2.4 of the Agreement. It said that, even if ‘check captain’ were a relevant position for the purpose of the clause, Mr Wenke was not ‘displaced’ by ‘a more senior pilot’, nor was the reason for any displacement the application of the seniority rules in the Agreement. Jetstar said that it is not necessary to answer the second question, but contended that, if it were necessary, the answer would be ‘yes’.

[9] In his final written submissions lodged after the hearing, Mr Wenke invited the Commission to answer a different question. He said that the first question the Commission should answer was whether he had been displaced from his ‘pre-dispute position’, rather than the position of ‘check pilot’. Jetstar objected that this reframed the original question, which concerned whether he was displaced from his position of check pilot based in Sydney.

[10] Mr Wenke’s justification for posing a different question in his final written submissions appears to be associated with the fact that, at the commencement of the hearing, he contended that the dispute had been ‘narrowed’ 2 and that the parties had agreed that the ‘position’ he held was that of ‘captain’ based in Sydney in the ‘wide-bodied’ category. However, this was evidently not agreed, because Jetstar maintained at the hearing that Mr Wenke’s permanent position was captain on the narrow-bodied A320,3 a position he successfully bid for after joining the company. In any event, Mr Wenke did not say at the hearing that he now wanted the Commission to answer a different question from the ones that had been agreed and addressed in the submissions, nor did Jetstar consent to any such course. I note that the cessation of Mr Wenke’s role as a check captain has been at the centre of this dispute since its notification to the Commission. Mr Wenke’s F10 application stated that the relief he sought would have Jetstar continue to employ him in his ‘current role as a Check Captain B787 on an ongoing basis’.

[11] I will proceed to answer the questions that were set for determination as set out at [6] above. To answer the different question posed by Mr Wenke in his final written submissions would deny Jetstar procedural fairness. If Mr Wenke contends that there is a further question that needs to be answered in order to fully settle the dispute that he has brought to the Commission under s 739, he may make a further application or approach to the Commission. Nevertheless, I propose to make some observations, without deciding any question other than those put above, that may assist the parties to finally resolve any outstanding differences.

Background

[12] This matter has a lengthy factual background dating back to 2007 when, in anticipation of the introduction of the new B787 aircraft into its fleet, Jetstar sought to recruit B787 pilots and advertised positions. Mr Wenke applied. By letter dated 4 October 2007 Jetstar offered Mr Wenke the position of first officer B787. The letter stated that he would be transferred on a temporary basis for a fixed term of five years to the position of captain B787. I will return below to the question of what the 2007 letter said about when that transfer would occur.

[13] The 2007 letter also said that, ‘prior to the commencement of B787 operations’, Mr Wenke would ‘perform the duties of an A320 Check Captain (Level 3, Check B) as directed by the General Manager, Flying Operations until such time as you (sic) B787 conversion training commences’. It stated that ‘at this stage training is programmed in May 2008 subject to type certification and delivery timetable’. Attached to the letter of offer was a five-page document entitled ‘Your employment with Jetstar’, as well as an Australian Workplace Agreement (AWA) comprised of 33 clauses. It is not disputed that the 2007 letter constituted Mr Wenke’s contract of employment upon his commencement with the company.

[14] At the start of his employment with Jetstar, Mr Wenke performed duties as an A320 check captain, in accordance with the 2007 contract. However, as noted earlier, the B787 was not introduced into service in May 2008. Mr Wenke says that the parties ‘never performed the contemplated B787 position in the 2007 contract’ and that ‘at this moment, there was a contractual breach entitling Mr Wenke to determine the contract’, because he was left in the position of ‘not being able to perform duties on the B787, as promised and agreed’. 4

[15] Mr Wenke continued to perform A320 check captain duties throughout 2008. On 5 March 2008 Jetstar and Mr Wenke signed an AWA termination agreement which was conditional on the approval by vote of the pilot group of a new collective agreement covering pilots. The Jetstar Airways Pilots’ Enterprise Agreement 2008 (2008 Agreement) was approved by vote of the pilot group and commenced operation shortly afterwards. In November 2008, Mr Wenke applied for and was appointed to additional check duties, now as both a ‘category A and B’ A320 check captain. In late 2008, he volunteered to cease his check captain duties. The parties then agreed that he would perform ‘line duties’ as an A320 captain, but in February 2009 it was agreed that he would revert to A320 category A and B check captain duties.

[16] As Mr Wenke explained in his witness statement, he commenced training as an ‘A320 check pilot on 15 October 2007, without holding the seniority to be an A320 line captain’. But in 2009 (precisely when is not clear), Mr Wenke successfully bid for a role as A320 captain. 5 Mr Harris said in his statement that Mr Wenke was awarded the position based on his seniority. An A320 captain is a higher position than the B787 first officer position to which Mr Wenke was appointed when he joined the company. It is Jetstar’s position in this matter that as a result of his successful bid, Mr Wenke’s assigned and permanent position became A320 captain, which is reflected in the seniority list. This is the position it expects Mr Wenke to return to, now that his five-year fixed term appointment as a B787 check captain has expired. For Mr Wenke, the parties had throughout this period ‘set their face against the terms of the 2007 contract’ and decided that Mr Wenke was to perform a different position to what was contemplated by the 2007 contract, such that he was at this point a permanent and ongoing A320 captain, and the proposed five-year fixed term transfer to a B787 captain role fell away.

[17] The delay in the introduction of the B787 persisted. After a further two years, in April 2011, Jetstar commenced preparatory work to introduce the B787 in the last quarter of 2012. On 29 April 2011 it called for expressions of interest (EOIs) for B787 pilot ‘project roles’, apparently of an administrative nature. 6 The EOI for those roles contained the following note: ‘These are project roles ONLY and not an EOI for pilots wishing to fly the B787’. Mr Wenke applied for a project role but was unsuccessful.

[18] On 3 December 2012, a further EOI was published seeking ‘B787 Lead Check & Training Pilots’. 7 It stated that Jetstar was preparing for the arrival of the B787 and that an ‘entry into service (EIS) project’ had commenced for the acceptance of the new aircraft, which was anticipated now to occur in the third quarter of 2013. The EOI stated that to facilitate the delivery schedule, a team of check and training pilots was required, and expressions of interest were sought from suitably qualified and experienced pilots. Certain preferred attributes, experience and qualifications were identified.

[19] Mr Wenke’s application for the EOI project role on the B787 was successful. A flight standing order headed ‘Initial B787 Check and Trainers’ advised that thirteen pilots, including Mr Wenke, had been selected and would join the B787 Flying Operations project team ‘in introducing the B787 into the Jetstar operation.’ 8 Jetstar maintains that in fact Mr Wenke did not need to apply for the role advertised in the EOI, because he had the right to a five-year transfer to a B787 captain role under the 2007 contract. Mr Wenke says that the 2007 contract had been superseded, and that he successfully applied for the advertised position, which is evidence of the existence of a new or varied contract pursuant to which he had now moved on from the A320 captain position to become a B787 check pilot, unencumbered by any time limitation in that position.

[20] It appears to be uncontroversial that the appointment of a pilot to a ‘check’ captain role carries with it an appointment to the corresponding captaincy. The evidence of Mr Harris was that a person must be a type captain in order to be a check captain on that type. 9 Mr Wenke says that ‘by reason of his appointment as a seeking (sic) B787 Lead Check & Training Pilot, he was also appointed a B787 captain’.10

[21] Mr Wenke commenced ‘ground school’ on 13 June 2013. On 10 September 2013, he received a letter from Mr Angus Sillar, Jetstar’s manager of standards and assurance, which attached a CASA instrument of approval for Mr Wenke to act as a B787 Category B Check Pilot. It stated:

“Dear Mark

LETTER OF APPOINTMENT

Please find attached your CASA Instrument of Approval to act as a B787 Category B Check Pilot.

Your appointment is effective from 23^rd of August 2013 with the instrument valid to end of September 2015 (Instrument number SR 132/13).

Please note that you are permitted to conduct only those Check Pilot functions that are specified in your CASA Check Pilot Approval.

Congratulations on this approval.” 11

[22] Mr Wenke received a similarly worded letter from Mr Sillar attaching an instrument of appointment from CASA approving him to act as a category ‘A’ check pilot, valid until the end of 2015. On 16 September 2013 Mr Wenke received a further letter from Mr Sillar appointing him to the role of senior check pilot. Mr Wenke considers these documents to evidence his permanent appointment by Jetstar to the position of B787 check pilot, whereas Jetstar regards the first two letters as confirmation only of regulatory approvals, and the third to concern check pilot status only, which is terminable on notice under clause 63 of the Agreement.

[23] The B787 was finally delivered to Jetstar on 10 October 2013. Starting from around this time Mr Wenke worked as a B787 check pilot. From July 2014, Mr Wenke also performed ‘category C’ check captain duties. Mr Wenke says that fifty percent of his day-to-day duties were comprised of category A check duties, forty percent of his time was devoted to category B duties, and ten percent was spent on category C duties.

[24] On 9 August 2015, Mr Wenke sent an email to Mr Lance Godwin, the company’s manager of flying operations, stating that he wanted the company to correct his entry in the seniority list from ‘CP Narrow SYD CCB Five (5) Years – B787 EIS’ to ‘CP Wide SYD CCB Five (5) – B787 EIS’. 12 The letters ‘CP’ mean captain; ‘CCB’ means check captain category B; ‘narrow’ and ‘wide’ mean narrow-bodied and wide-bodied respectively; ‘SYD’ means based in Sydney; and ‘EIS’ means ‘entry into service’. The correction that Mr Wenke sought was for the seniority list to record his position as ‘wide-bodied’ check captain, rather than ‘narrow-bodied’ check captain. On 14 September 2015 Mr Godwin wrote back to Mr Wenke, stating that the arrangements executed between him and Mr Wenke at the start of his employment had entitled him to return to a wide-body first officer position at the conclusion of the B787 introduction, but that Mr Wenke’s seniority number had enabled him subsequently to bid for and obtain a narrow-body command (i.e. the A320 captain position), which was now the (higher) position to which he was able to return instead of the B787 first officer position to which he had been appointed under the 2007 letter of offer. I note from this exchange that Mr Wenke did not seek to challenge the references in the seniority list to ‘five years’ or ‘B787 entry into service’.

[25] In May 2018, Mr Wenke was informed by Mr Schmidt, the company’s chief pilot, that he would be removed from the B787 in April 2019, and then be required to perform his captain duties on the A320. Mr Wenke disputed this. According to Mr Wenke, on 7 June 2018, Mr Schwarz, the company’s Boeing training and checking manager, told him that he was to be ‘replaced’ by new check pilots to be appointed under an EOI issued a few days earlier. 13 Mr Wenke raised his grievance at various levels, including with the new chief executive officer of Jetstar, Mr Gareth Evans, who confirmed that the company’s position was that Mr Wenke would ‘remain on the B787 until 10 April 2019’.

Mr Wenke’s contract of employment

[26] As will shortly become apparent, it is not necessary for me to form a concluded view about the terms of Mr Wenke’s contract of employment at the relevant times in order to answer the questions posed for determination. However, consistent with my aspiration to assist the parties to settle any remaining disagreement, I will set out some observations concerning the contractual arrangements between the parties.

[27] As noted above, the 2007 contract stated that Mr Wenke was to be appointed to the position of B787 first officer, and that he would be transferred on a temporary basis for a fixed term of five years to the position of B787 captain. What did the 2007 letter of offer say about when Mr Wenke’s transfer to the position of B787 captain would occur?

[28] In fact, Mr Wenke received two letters of offer dated 4 October 2007. Mr Wenke’s representatives helpfully prepared a tribunal book, which was admitted into evidence as exhibit A5. Behind tab 1 there appears the letter of 4 October 2007. There are two copies. One is evidently an original document, appearing on coloured letterhead and signed in blue pen by or for Mr Rohan Garnett, then Jetstar’s group general manager of people. The other is at first blush simply a photocopy of the original. But that is not the case. The two letters are almost identical but there is one significant difference. 14 The original letter states, at paragraph 3 (with my emphasis added): ‘As discussed with you previously, from your commencement date on the B787 aircraft you will be transferred on a temporary basis for a fixed term of five years to the position of Captain B787.’ The photocopy states: ‘As discussed with you previously, from your start date you will be transferred on a temporary basis for a fixed term of five years to the position of Captain B787’. This difference in wording was not the subject of submissions.

[29] The words ‘from your commencement date on the B787’ clearly connote that the fixed five-year term as B787 Captain will occur when Mr Wenke is deployed on B787 work. Exactly when this will be is not clear. During the proceedings, counsel for Jetstar stated that the 2007 contract should have stated that the five-year fixed term captain role would commence at the time B787 conversion training commenced, and suggested that the words ‘as directed by the general manager, flight operations, until such time as your B787 conversion training commences’ were ‘code’ for the commencement of ground school training. 15 In any event, it is clear from the original letter that the fixed term B787 captain role would commence in the future, when Mr Wenke in fact ‘commenced’ on that aircraft. Mr Wenke’s email correspondence with Mr Godwin in 2015 (see [24] above) suggests that this is how the parties had understood the matter. Mr Wenke’s reply to Mr Godwin’s message noted that the ‘letter of employment says that I was employed as 787 First Officer, with a five-year transfer to 787 Captain from 787 EIS’. This is consistent with the other arrangements in the 2007 letter, pursuant to which Mr Wenke was deployed as an A320 check captain ‘until such time as you (sic) B787 conversion training commences.’

[30] The original letter of 2007 supports the position of Jetstar that the five-year fixed term B787 pilot appointment was to operate when the new aircraft was actually introduced, whenever that ultimately occurred. Although training on the aircraft had been programmed to take place in May 2008, and the aircraft was not delivered and operational for another five years, nothing in the letter of offer placed a limitation on when the fixed term deployment could commence. It appears that under the 2007 contract Mr Wenke would have been within his rights to demand the fulfilment of the five-year transfer even if the aircraft had not been introduced for another ten years.

[31] On the other hand, the words in the photocopied letter, read literally, would appear to mean that the fixed term five-year B787 captain transfer would start to run from the commencement of Mr Wenke’s employment with Jetstar. That would support his submission, noted earlier, that ‘at this moment, there was a contractual breach entitling Mr Wenke to determine the contract’. However, it would be difficult to reconcile an obligation to transfer Mr Wenke immediately to the B787 captain role from his start date with Jetstar with the proviso that appears in the fourth paragraph of the 2007 letter that ‘prior to the commencement of B787 operations’ he would work as an A320 check captain ‘until such time as conversion training commences’. Further, there is an evident commercial purpose in employing Mr Wenke in the ongoing position of first officer for the new aircraft with a five-year captain transfer upon B787 commencement but deploying him on other work (A320 check captain) pending the new aircraft’s introduction. But it is very difficult to see any point in an immediate transfer of Mr Wenke to a captain position on an aircraft that had not been delivered and in respect of which training was only planned for the following year. Therefore, if the photocopy version of the letter were to be regarded as the authoritative version of the 2007 contract, I would be inclined to read the words ‘from your start date’ to mean ‘from your start date on the B787’.

[32] It is possible that the different wording in the two letters caused Mr Wenke some confusion about when he could expect his five-year fixed term B787 captain role to commence, although his witness statement suggests that he was aware of the wording in the original 2007 letter. 16

[33] Some further features of the 2007 contract warrant attention. First, the 2007 letter stated that the attached AWA, in conjunction with the letter, set out the terms of Mr Wenke’s employment at Jetstar. 17 It also stated that its terms and conditions and those in the AWA replace any prior written and oral representations, and ‘will continue to apply to any other positions you may hold with Jetstar, as described in the AWA’.18 The AWA stated that ‘this Agreement applies to the Employee’s Employment with Jetstar in the Employee’s position as a Pilot on appointment and to any other position with Jetstar that the Employee may be transferred or promoted to, including during any period of secondment’ (clause 1.2). The AWA was later terminated and ceased to have statutory force; even if it also ceased to have any contractual effect, the arrangements in the 2007 letter remained and applied on their terms to future positions.

[34] Secondly, the arrangement in the 2007 letter for a five-year fixed term transfer to a B787 captain role was consistent with the terms in the attached AWA, as well as the terms of the 2008 Agreement. Both instruments made provision for the appointment of pilots to duties on five-year fixed term contracts in connection with the introduction of new wide-bodied aircraft. Clause 21.6.1 of the AWA and clause 22 of the 2008 Agreement stated that, if pilots are recruited as a result of introducing a new aircraft type, they will be employed as a full time first officer but may be transferred on a temporary basis for a fixed period as captain during the implementation period of any new aircraft type for a period of up to five years. 19 This is what Jetstar says in fact occurred in Mr Wenke’s case.

[35] Thirdly, the 2007 letter of offer states that it is a condition of employment that Mr Wenke obtain any qualifications and standards which are required by Jetstar and CASA. 20 This provision anticipates the need for Mr Wenke to meet regulatory requirements such as those which were the subject of the CASA approvals pertaining to Mr Wenke’s check captain functions, referred to earlier.

[36] Contrary to the contention of Mr Wenke, the 2007 contract was not a minimalist ‘two page document’ with some template clauses and no ‘four walls.’ 21 It was a detailed contract which regulated Mr Wenke’s employment in the immediate future pending the arrival of the B787 as well as what would happen later upon the new aircraft’s introduction into the fleet. Under the contract, Mr Wenke was employed as a B787 first officer. This was his underlying position. He would be transferred to a B787 captain position at some point in the future for a fixed term of five years (as the AWA and, after its termination, the 2008 Agreement, specifically contemplated and authorised). But the B787 had not yet arrived. The 2007 contract assigned to Mr Wenke an A320 check captain role in the meantime. It requires no specialist industry knowledge to appreciate that pilots for new aircraft that are to be introduced into an airline’s fleet need to be recruited well ahead of time. It is no surprise to see in the 2007 letter the statement that training was programmed for May of the following year, ‘at this stage’, and ‘subject to type certification and delivery timetable.’ The arrival time of the B787 was uncertain and the contract made no promise about it. (For this reason, if Mr Wenke’s submissions that ‘at this moment there was there was a contractual breach’ (see [14] above]) is directed at the fact that the aircraft was not introduced in May 2008, it is difficult to see how it is sustainable.) In the result, the aircraft was delayed for five years. But there is nothing in the letter of 2007 that set a time limit on when the five-year fixed term B787 captaincy transfer could be activated. The letter does not say that the transfer will not occur, or that the arrangements will lapse, or that the contract will be renegotiated, in the event that the training planned for May 2008 does not occur, or if the B787 does not enter service by a particular time.

[37] Such was the contract of employment that Mr Wenke agreed to in October 2007. Mr Wenke contends, however, that the 2007 contract was superseded or replaced. He says that the contemplated B787 position never materialised, and that the parties later abandoned the 2007 letter, with its planned five-year fixed term wide body captain transfer, and instead agreed in 2013 that Mr Wenke would perform a continuing B787 captain role. Mr Wenke said that the new or varied contract was evidenced, although not necessarily constituted, by the correspondence from Jetstar to Mr Wenke in 2013 and 2014 relating to his role as check captain for the B787, which had finally entered service. 22

[38] Mr Wenke pointed to the advertisement for check and training pilots dated 3 December 2012 as evidence of the existence of a new or varied contract. He submitted that the EOI said nothing about the role being for a fixed term of five years. However, the text of the EOI makes clear that it relates to a ‘project’ role to facilitate the delivery of the aircraft. The EOI said that this was an ‘EIS’ (entry into service) project. Unlike the earlier EOI, it did not contain the note stating that this was not an EOI for pilots wishing to fly the B787, but in my view so much was obvious; it was an EOI for a project of limited duration (entry into service of the new aircraft) on a mode of engagement (check captain) that was inherently impermanent, being in the nature of a higher duties role that was terminable on notice. 23

[39] Mr Wenke relied on Mr Sillar’s letter of 10 September 2013, referred to at [21] above. Plainly, this document confirms that Mr Wenke has satisfied a regulatory requirement. It attaches an instrument of approval, of the kind that one would expect Mr Wenke to receive from Mr Sillar, whose role as manager of standards and assurance was to ensure the airline’s compliance with CASA regulations. Mr Wenke acknowledges this but says that it is also evidence of a variation to or replacement of the 2007 contract of employment. However, in my view the letter is entirely compatible with the continuing existence of the 2007 contract of employment. Mr Sillar’s letter is not inconsistent with Mr Wenke’s contention that a new contract or contractual variation might have been made, but it is not evidence of this having occurred.

[40] Mr Wenke also relied on the three-line letter dated 16 September 2013 confirming his appointment as a senior check pilot. But again, this document is consistent with the subsistence of the 2007 contract and the activation of the contemplated, now much delayed five-year fixed term B787 captain transfer. It is not inconsistent with the hypothesis advanced by Mr Wenke as to the existence of another contract, but nor is it evidence that supports that hypothesis. The same can be said of the next documents on which Mr Wenke relies, the six line letter from Mr Sillar attaching a CASA instrument of approval for Mr Wenke to act as a B787 category A check pilot dated 7 November 2013, the letter dated 2 July 2014 from Mr Sillar attaching the approval to work as a check pilot category B and C on the B787 class simulator, and Mr Sillar’s letter dated 11 November stating that Mr Wenke was granted approval to line train from both left and right seats. 24

[41] Mr Wenke says that the 2007 contract was extinguished, superseded or varied by the subsequent conduct of the parties. 25 But the documents he relies on do not either individually or collectively constitute evidence that the 2007 contract of employment was varied or superseded.26 Moreover, the 2007 contract foreshadowed the possibility of delay by noting that training on the B787 was scheduled, at that stage, for the following year, and subject to conditions. It did not make the future five-year transfer subject to the timely delivery of the new aircraft.

[42] During the hearing, I inquired as to the form of the alleged new or varied contract. I was told that it was not an oral contract, but that it could be in writing. 27 Perhaps its terms are said to be substantially implied by fact. However, in my view the form and content of the postulated new or varied contract remains nebulous. It appears to me that the 2007 contract endured and has applied to Mr Wenke’s employment with Jetstar since the commencement of his employment up to the present day. Clearly there have been some changes. In particular, Mr Wenke bid for, and succeeded in obtaining, an A320 captain position, which was ‘higher’ than the wide body first officer position to which he had been appointed in 2007. In this respect, he was effectively promoted, and the terms of his employment changed in the ordinary way. But this does not mean that the 2007 contract was displaced, or that its provision for a future five-year fixed term transfer to a B787 captain position did not survive.

[43] It would have been desirable for Jetstar formally to advise Mr Wenke that his five-year transfer to a B787 captain position was commencing and that it was aligned with his check captain appointment. If the five-year period was to be extended, this too should have been communicated to him. However, the fact that these things did not occur does not mean that Mr Wenke was permanently appointed to the position of B787 captain.

[44] I now turn to the two questions submitted for determination.

Questions for determination

[45] The parties agree, and I am satisfied, that clause 8 of the Agreement authorises me to determine the dispute by answering the questions submitted by the parties.

[46] The first question asks whether Mr Wenke was ‘displaced from the position of Check Pilot based in Sydney (Position) on 10 April 2019 by a more senior pilot on grounds of seniority as contemplated by clause 24.2.4 of the Agreement.’

[47] Clause 24.2.4 of the Agreement states:

“Once a pilot has been assigned to a position, the pilot cannot be displaced from that position by a more senior pilot on the grounds of seniority except in the case of:

(a) clause 24.2.1(e) (reduction of establishment)

(b) clause 23 (redundancy)

(c) expiry of a fixed term appointment under clause 12.2.”

[48] Clause 24.2.5 of the Agreement then states that, for the purposes of clause 24.2.4, ‘position means base, category and rank’.

[49] Clause 24.2.4 establishes a prohibition on the displacement of a pilot on the grounds of seniority ‘once a pilot has been assigned to a position’. The position from which Mr Wenke claimed to have been displaced, as defined in the first question, was ‘Check Pilot based in Sydney’. Mr Wenke’s final submissions concede that ‘check captain’ is not a ‘position’ for the purpose of clause 24.2.5. 28 The answer to the first question must therefore be ‘no’, because the parties agree that the clause does not apply to the position of check captain. In my view, the concession is quite properly made, and the parties’ now common understanding of this point is clearly correct.

[50] Clause 63.1 of the Agreement, titled ‘check and / or training captains’, states that instructors will be appointed and paid as such for a minimum continuous period of six months, and that either party must give a minimum of two months’ notice before a pilot’s return to ‘line duties’. Mr Wenke was appointed as a check captain under this clause and could be returned to the line on two months’ notice. He received an allowance of 18% in addition to his base salary while performing his check captain duties (see clause 35.7 of the Agreement). It is clear that the check pilot role is in the nature of higher duties. It is not a position to which a pilot has been assigned for the purposes of clause 24.2.4 or 24.2.5.

[51] As the answer to the first question posed for determination is ‘no’, it is unnecessary for me to consider the second question of whether the present case falls within the exception to the prohibition in clause 24.2.4(c), that is, whether Mr Wenke was appointed for a fixed term expiring on 10 April 2019 under clause 12.2 of the Agreement.

[52] It is also not necessary for me to determine the subsidiary arguments concerning question 1, namely whether Mr Wenke was ‘displaced’ or whether any displacement occurred on the grounds of seniority. However, I will make some observations on the parties’ contentions concerning the meaning of ‘displacement’ in clause 24.2.4 and whether any displacement was related to seniority.

‘Displaced’

[53] Mr Wenke contended that the two more senior pilots appointed on 29 November 2018 to check pilot roles in Sydney factually displaced him. He says that, for the purposes of clause 24.2.4, a ‘displacement’ does not require one pilot to replace another in exactly the same position in a ‘binary swap’. Mr Wenke says ‘displacement’ is different from and broader than ‘replacement’ and covers reductions in establishment occurring through positions being spilled, absorbed or dispersed, and that it contemplates a pilot’s loss of position however that may arise. Mr Wenke says that he was displaced on 10 April 2019 by the two pilots appointed the previous November, notwithstanding that he continued for a number of months to perform substantially the same type of duties, which progressively diminished significantly in volume. Jetstar submits that it does not make sense to speak of Mr Wenke being ‘displaced’ in these circumstances.

[54] In my view, the use of the indefinite article in clause 24.2.4 (‘displaced from that position by a more senior pilot’) presents a constructional difficulty for Mr Wenke’s broad interpretation of the word ‘displace’ in the context of clause 24 and the Agreement as a whole. Clause 24 is concerned with seniority, a concept that is a substantial determinant of employment-related benefits for pilots under the Agreement. Clause 24.2.1 states that seniority will be ‘a major consideration to determine the order of selection / allocation of pilots for promotion’. Mr Wenke contended that the clause does not state that seniority is ‘the major consideration’, but plainly seniority has a significant bearing. It is clear that Jetstar pilots ‘bid’ for vacancies and that a more senior pilot might ‘outbid’ a more junior colleague. The seniority regime in the Agreement advances the preferences of a pilot over those of a less senior colleague. Clause 24.2.4 is something of an exception: once assigned to a position, a pilot cannot be displaced by a more senior pilot on the grounds of seniority.

[55] Even if one accepts a broad interpretation of ‘displacement’, such that it covers a case of two pilots appointed to new positions gradually assuming the work of and eventually ‘displacing’ another pilot, its application to the facts would still need to be directed at the ‘position’ from which the affected pilot was said to have been displaced, and it is accepted that this position cannot be the check captain role. To the extent that Mr Wenke might contend in a new dispute that the position from which he was displaced was that of wide-body captain in Sydney, he would need to establish how one or more pilots displaced him from that position, as opposed to the check pilot role.

[56] Mr Wynne and Mr Davies were appointed as check captains in Sydney pursuant to clause 63 of the Agreement. They are performing roles akin to ‘higher duties’, just as Mr Wenke previously did. It is not clear to me how it could be said that they displaced Mr Wenke from a wide-bodied captain position that was unrelated to the temporary and terminable ‘higher duties’ role of a check captain, which the parties agree is not a position for the purposes of clause 24.2.4.

‘On grounds of seniority’

[57] Then there is the question of whether any displacement of Mr Wenke occurred on the grounds of seniority. Mr Wenke contended that Jetstar did not adduce any evidence as to its rationale for appointing the two pilots and removing him from his role. This is not the case. Mr Harris gave evidence that there is a maximum five-year appointment for pilots who are recruited for the introduction of new aircraft types. This is consistent with the terms of the AWA that accompanied the 2007 letter of offer and the 2008 Agreement. Further, the letter from Mr Dean Salter, then CEO of Jetstar, to Mr Wenke dated 22 August 2018 stated that the company’s reason for returning Mr Wenke to his A320 position was because his five-year appointment had ended. 29 Mr Wenke noted that Mr Salter’s letter had stated that he would be ‘returned to a position in line with your seniority on 10 April 2019’.30 But this reference to seniority concerned the manner in which Mr Wenke’s underlying position had previously been determined, which under the Agreement is subject to the application of the seniority provisions, not the reason for any ‘displacement’ of Mr Wenke from the check captain role by another pilot or pilots.

[58] There was also evidence to support Jetstar’s contention that Mr Davies and Mr Wynne were appointed to the check positions in Sydney in November 2018 on merit, and not based on seniority. The flight standing orders FSO 047/18 and FSO 073/18 sought expressions of interest for the appointments. These were to be assessed in accordance with the selection criteria described in Jetstar’s ‘OM3’, the Aircrew Training and Checking Operating Manual. 31 Applicants were invited to submit a CV, along with a brief statement of their skills and availability, which is concordant with clauses 24.2.1(a) and 63.1 of the Agreement. Under these provisions, appointments to check captain positions are not affected by the seniority principles; they are based on merit. It is acknowledged that Mr Wynne and Mr Davies have higher seniority than Mr Wenke under the Jetstar seniority system, because they have longer service with the company. But the fact that they are more senior to Mr Wenke does not establish causation, or a sound basis for any inference that this was the reason for their appointment or any displacement of Mr Wenke. There is no evidence or suggestion that they are not worthy appointees to the check captain role.

[59] In my view there is no evidence before me that Mr Wenke was displaced by Mr Wynne and Mr Davies, or either of them, or anyone else, on the grounds of seniority. Mr Wenke pointed to Mr Salter’s acknowledgement in the letter of 22 August 2018 that Jetstar has the ability to appoint check captains on merit and out of seniority. 32 But I fail to see how that uncontentious fact says anything at all about causation. Nobody told Mr Wenke that he was being replaced or displaced or returned to the line on the grounds of seniority. He suspects that this is what in fact occurred, but the evidence does not bear this out.

[60] It is not necessary for me to make factual findings about these matters. But at the very least, Jetstar has put forward a cogent case that its reason for returning Mr Wenke to A320 duties was the expiry of his five-year assignment. Mr Wenke challenges the lawfulness of Jetstar’s treatment of his position as temporary. He says that, when he finally commenced his B787 captain role, the 2007 contract had long since been superseded and that no limitation was placed on his engagement as a B787 captain. As I have outlined above, these contractual propositions face a number of difficulties. But even if Mr Wenke’s contractual arguments were accepted, and even if there were other irregularities associated with Jetstar’s treatment of Mr Wenke’s B787 captain role as temporary, this would not negate Jetstar’s stated grounds for returning Mr Wenke to the line. Rightly or wrongly, it thought his time was up.

[61] Mr Wenke submitted that Jetstar conspired with the AFAP to impose a fixed term on Mr Wenke’s new or varied contract, because it agreed with the union that seniority is ‘king’. He points to Mr Harris’ statement that he was informed by Mr Schmidt that Mr Wenke’s ‘return to line’ date had been agreed with the AFAP in 2018. 33 I accept the proposition that the AFAP had an interest in Mr Wenke’s circumstances. But this is not surprising, given that the AFAP is a union covered by the Agreement. It does not suggest to me some kind of conspiracy between Jetstar and the union, nor does it cast doubt on the genuineness of Jetstar’s belief that Mr Wenke’s B787 captaincy was always intended to be a time-limited proposition, and that his five-year appointment had ended.

Other matters

[62] Mr Wenke contended that certain representations were made to him to the effect that his deployment as B787 captain would be on a permanent basis.

[63] In his witness statement, Mr Wenke said that on 29 August 2007, he was told by Mr Mark Wheeler, who was the company’s chief pilot at the time, that he would be employed as a direct entry B787 captain under a five year term, and that, with fifteen B787s on order, he would soon have the seniority to hold a B787 captain position before the five-year term expired. According to Mr Wenke, he then asked what would happen at the end of the five years if he did not have the seniority to be a B787 captain, and Mr Wheeler replied with words to the effect that it would not matter because he would be a check captain which was outside the seniority system. 34 However, as noted earlier, the 2007 letter of offer clearly stated that it replaced any prior written and oral representations.

[64] Mr Wenke also said that on 29 August 2012, during a Jetstar gathering at the Storey Bridge Hotel in Brisbane, Mr Schmidt said to him ‘you have my word that once on the B787 you will never have to leave it.’ 35 Mr Wenke also gave evidence about a conversation he had with Mr Salter in the Aviator bar at the Stamford Hotel in Sydney, during which he was assured that ‘everything would be ongoing’. Mr Schmidt and Mr Salter did not give evidence. Mr Wenke invited me to draw an adverse inference from the fact that Jetstar did not call them, however their evidence would not have been relevant to the questions posed for determination because it is acknowledged that ‘check captain’ is not a position to which clause 24.2.4 applies. Mr Wenke’s evidence about these representations may on the other hand be relevant to other potential causes of action to which he has referred during these proceedings.

[65] Finally, I take note of Mr Wenke’s evidence that he believes Jetstar to be short-staffed in operational B787 flight examiners and check pilots. If that is in fact the case, there may be an opportunity for Mr Wenke again to be appointed to a B787 check captain role under clause 63 of the Agreement.

Conclusion

[66] Mr Wenke is a very experienced and well-regarded pilot. It is clear from Jetstar’s materials and evidence that the company values his service. I appreciate that he feels aggrieved about not continuing in his previous role. However, Mr Wenke’s contention that he was displaced from the position of Check Pilot based in Sydney on 10 April 2019 by a more senior pilot on grounds of seniority, contrary to clause 24.2.4 of the Agreement, is rejected.

[67] The answers to the questions that the parties asked the Commission to determine in order to resolve the dispute are as follows:

Question 1: ‘Was the applicant displaced from the position of Check Pilot based in Sydney (Position) on 10 April 2019 by a more senior pilot on grounds of seniority as contemplated by clause 24.2.4 of the Agreement?’

Answer: No

Question 2: ‘Was the applicant appointed to the Position for a fixed term expiring on 10 April 2019 under clause 12.2 of the Agreement?’

Answer: Not necessary to answer

DEPUTY PRESIDENT

Appearances:

L. Howard of counsel for Mr Wenke

N. Gaspar for Jetstar

Hearing details:

2019

Melbourne

8 August

Final written submissions:

Mr Wenke: 30 August 2019

Jetstar: 13 September 2019

Mr Wenke (in reply): 20 September 2019

Printed by authority of the Commonwealth Government Printer

<PR711056>

 1   AE413585

 2   Transcript of proceedings, PN108 and 128

 3   PN183

 4   Applicant’s written closing submissions, paragraph 4

 5   PN192-193

 6   Exhibit 5, Tab 8

 7   Exhibit 5, Tab 10

 8   Exhibit 5, Tab 11

 9   Witness statement of Christopher Harris, paragraph 28

 10   Applicant’s closing written submissions, paragraph 8

 11   Exhibit 5, Tab 12

 12   Witness statement of Mark Wenke, attachment MW-8

 13   Witness statement of Mark Wenke, paragraph 30

 14   Note also the date referred to in the second paragraph of page 2 of the letter, which is 21 October 2007 in the original and 14 October 2007 in the photocopy.

 15   PN1112

 16   Witness statement of Mr Wenke, paragraph 6(b)

 17   Letter of offer dated 4 October 2007, page 1 paragraph 2

 18   Ibid, page 1 final paragraph

 19   See also clause 22.1 of the Jetstar Airways Pilots Enterprise Agreement 2008

 20   ‘Your Employment with Jetstar’, page 2 (fourth page of the letter of offer).

 21   PN205, PN883

 22   PN821 and following

 23   See clause 19.3.1 and 26.1 of the Jetstar Airways Pilots Enterprise Agreement 2008

 24   Exhibit 5, Tabs 14, 16 and 15

 25   PN894

 26   See PN820 and following: PN826, PN833

 27   PN1200-1205

 28   Applicant’s written closing submissions in reply, paragraph 1

 29   Witness statement of Mr Mark Wenke, MW-11

 30   Ibid, MW-11

 31   Ibid, MW-22

 32   PN974

 33   Witness statement of Christopher Harris, paragraph 32. I note that Mr Wenke objected to this passage from Mr Harris’ statement on the basis that it was hearsay (PN716) but sought to rely on it in his contentions on the ‘seniority’ point.

 34   Witness statement of Mark Wenke, paragraph 3

 35   Ibid, paragraph 14