[2019] FWCFB 4748
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.156—4 yearly review of modern awards

4 yearly review of modern awards – Proposed Helicopter Aircrew Award
(AM2016/3)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT HAMILTON
COMMISSIONER SIMPSON

SYDNEY, 8 JULY 2019

Proposed Helicopter Aircrew Award

Introduction

[1] On 10 December 2014 the Australian Manufacturing Workers’ Union (AMWU) proposed, as part of the current 4 yearly review of modern awards, the making of a new modern award to cover helicopter aircrew. The 4 yearly review was commenced and initially conducted pursuant to s 156(1) of the Fair Work Act 2009 (FW Act). Section 156 was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 effective retrospectively from 1 January 2018, but clause 26 of Schedule 1 to the FW Act (which was added by the amending Act) requires the Commission to continue to apply s 156 to the current review as if had not been repealed.

[2] The AMWU’s proposal for a new award has arisen from proceedings concerning an application by the AMWU in 2014 for the making of a modern enterprise award to replace the CHC Helicopters (Aircrew/Rescue Crew) Award 2002 (CHC Award). The decision issued by the Full Bench in respect to that application on 4 August 2014 1 stated (emphasis added):

“[5] At the hearing of this application it emerged that there is currently no modern award applicable to rescue helicopter aircrew and that there are at least three other operators that provide helicopter rescue services that are all award free. These operators, and CHC itself, all have enterprise agreements covering aircrew.

[6] In response to a question from the Commission, the AMWU indicated that it was considering making an application for an industry award covering rescue helicopter aircrew or an amendment to the scope of an existing award to achieve that outcome. In our view there is much to commend this approach. It would provide modern award coverage of all rescue helicopter aircrew and provide a common safety net for bargaining for all groups of employees. There would appear to be no impediment to making and determining such an application in the near future.

[7] In the circumstances we have decided to adjourn this application pending the making and determination of an application for industry wide award coverage of rescue helicopter aircrew. The matter can be relisted at the request of either party to the current award in the light of subsequent developments.”

[3] Pursuant to directions made by the Commission, the AMWU filed a draft of its proposed award on 17 June 2016, and subsequently the AMWU and other interested parties filed evidence and submissions concerning the proposed award. An amended draft of the proposed award was filed by the AMWU on 16 April 2018, and a further amended draft was provided to the Commission during the hearing before us on 20 July 2018. The AMWU ultimately proceeded on the last of these draft awards (proposed award). Following the hearing, a number of further submissions were filed including submissions that addressed issues raised by the Bench at the hearing.

Proposed Award

[4] The AMWU’s proposed award is expressed in clause 4.1 to cover “employees who are engaged to work in the occupation of Helicopter Aircrew (as defined in clause 17.1(a)) to the exclusion of any other modern award”. Clause 4.2 of the proposed award excludes employees covered by classifications in the Medical Practitioners Award 2010, the Airline Operations - Ground Staff Award 2010 and the Air Pilots Award 2010. Clause 17.1(a) defines “Helicopter Aircrew” in the following way:

Helicopter Aircrew are employees who are employed as Surveillance Aircrewperson, Rescue Aircrewperson, Surveillance Mission Coordinator, Aircrewperson, Line Training Aircrewperson or Check and Training Aircrewperson. Aircrewpersons engaged in either Emergency Medical Service, Search and Rescue, Helitak Work (Airborne Rapelling, Firebombing and Firemapping) or transportation of passengers by Helicopter.”

[5] Clause 18.1 of the proposed award sets minimum wages for two classifications: “Rescue Crew/Surveillance Crew” and “Aircrewperson/Surveillance Mission Coordinator”. Each classification has nine pay grades based on years of service, with the first year rate for the former classification aligning with the C9 pay level in the Manufacturing and Associated Industries And Occupations Award 2010 (Manufacturing Award) and first year rate for the latter classification aligning with the C7 pay level in that award. Clause 18.2 provides for a “Check and Training Aircrewperson” to receive an allowance of 12% on the base rate for a first year Aircrewperson, and clause 18.3 provides for an Aircrewperson performing training to receive an allowance of 5% on the first year base rate. The classification expressions used in clause 18 are defined in clause 17.1(b)-(g) as follows:

(b) Surveillance Aircrewperson - A member of the helicopter flight crew other than a pilot who is qualified and proficient in the operation of equipment and techniques necessary to be despatched on surveillance missions. A Surveillance Aircrewperson must have completed a Certificate III in Aviation or have equivalent level of skill and training.

(c) Rescue Aircrewperson - A member of the Helicopter flight crew other than a pilot who is qualified and proficient in the operation of equipment and techniques necessary to be despatched on surveillance missions and/or to be despatched from the helicopter to a person or persons in distress and to render the necessary aid prior to evacuation by the most appropriate means. They are also responsible for passenger safety during Passenger Transport Operations. A Rescue Aircrewperson must have completed a Certificate III in Aviation (Rescue Crewperson) or have equivalent level of skill and training.

(d) Surveillance Mission Coordinator – A member of the helicopter flight crew other than a pilot who is qualified and proficient in the operation of equipment and techniques necessary to be despatched as the Coordinator of surveillance missions.

(e) Aircrewperson - A member of the Helicopter flight crew, other than a pilot, who is qualified and proficient in the techniques necessary to perform any of the following: Search and Rescue, Emergency Medical, Rappelling, Sling loading, Surveillance Missions, Passenger Transport, or Winching Operations. This may also include left front seat operations assisting and monitoring the pilots. Aircrewperson are responsible for passenger safety during Passenger Transport Operations. Aircrewpersons must satisfy the requirements for an Aircrewperson/Winch operator set out in Civil Aviation Order 29.11. An Aircrewperson must have completed a Certificate IV in Aviation (Aircrewperson) or have equivalent level of skill and training.

(f) Line Training Aircrewperson - An Aircrewperson who at the direction of the employer performs instruction and/or training duties.

(g) Check and Training Aircrewperson – A Check and Training Aircrewperson who is approved pursuant to the Civil Aviation Orders by the Civil Aviation Safety Authority (CASA) to conduct, and who does so conduct at the direction of the employer, flight proficiency tests and who certifies to the competency of Aircrewperson so tested. He or she is responsible for the training and operational standards of Aircrewperson and Rescue Crewperson.”

[6] Clause 19 provides for a range of expense-related allowances, and clause 20 provides for accident pay.

[7] Part 5 of the proposed award (clauses 23-29) deals with hours of work, tours of duty and overtime in terms which, as we understand it, are largely reflective of conditions in the CHC Award. Other provisions of the proposed award concerning award flexibility, consultation, dispute resolution, types of employment, termination of employment, leave and public holidays, the supported wage system and the national training wage are expressed in generally standard terms.

[8] In summary, the employees who would be covered by the proposed award work on, or conduct training in relation to, helicopter aircraft that are deployed to conduct a range of different types of missions including search and rescue, medical transfers, emergency evacuations and passenger transportation. Such employees are primarily employed in civilian capacities through helicopter service providers who win contracts with government agencies or private companies. The contracts with government agencies include helicopter services to ambulance services, firefighting services, regional hospitals and the Australian Defence Force. While working on these contracts, they may also respond to the Australian Maritime Safety Authority callouts. The contracts with private companies are predominantly with offshore oil and gas companies. The AMWU identified the following helicopter operators who would or might be covered by the proposed award:

[9] The AMWU submitted that there are helicopter operators which provide scenic passenger services using a pilot only without aircrew, so that the proposed award would not apply to them.

Interested parties’ positions

[10] The AMWU advanced its case for the making of the proposed award on the basis of the following propositions:

[11] The Australian Workers’ Union, which said it had coverage of various types of helicopter aircrew and members employed as helicopter aircrew performing a variety of roles including transporting members to and from offshore gas and oil operations, supported the making of the proposed award.

[12] Babcock was the only employer who appeared at the hearing and filed a number of written submissions. Babcock did not oppose a modern award being created for the “helicopter aircrew industry”, and had been involved in direct discussions with the AMWU resulting in a substantial measure of agreement with the AMWU concerning the terms of the proposed award. However Babcock remained opposed to some particular provisions on the proposed award on the basis that they could not appropriately form part of a fair and relevant minimum safety net because:

[13] Babcock opposed the following specific provisions of the proposed award on the bases set out below:

(a) Clause 19.6 - Other Required Additional Skill Certification Allowance: The prescription of a monetary allowance quantified at 5% is not consistent with wage fixing principles as it arbitrarily values hypothetical and unidentified skills which may result in a divergence from the principle of equal remuneration for work of equal value.

(b) Clause 19.7 - Fitness Allowance: There is no evidence demonstrating that a fitness allowance is a “necessary” inclusion and it is not included in a number of other similar awards including the Air Pilots Award 2010.

(c) Clause 19.9 - Overseas Allowance: The Australian Tax Office Taxation Determination TD 2017/19 Reasonable travel and overtime meal allowance expense amounts uses a table based on differential cost structures in different countries. The AMWU’s proposal to pay a blanket allowance is not justified and is inconsistent with a fair and relevant minimum safety net.

(d) Clause 19.22 - Indemnity: This is objected to on the basis that making an employer liable to pay a fine personally incurred by an employee is an unprecedented proposal that should be rejected.

(e) Clauses 19.26 - Income Protection Insurance: This is not an appropriate matter for inclusion in a fair and relevant minimum safety net, and is better suited to enterprise bargaining. Furthermore, the cost for employers of procuring such insurance would be vastly different from one employer to another and would likely mean vastly differential cost outcomes per employee.

(f) Clause 25 - Hours of duty and days free of duty and clause 26 - Multiple day tours: Witness evidence concerning the appropriateness of patterns of work under enterprise agreements should not be determinative of the award safety net provisions nor should industry norms be precluded by any new award. Further, clause 26 unlike clause 25 is not closely modelled on the Air Pilots Award and when read together these clauses should but currently do not enable practical continuation of a 15/13 permanent touring cycle.

(g) Clause 27 - Overtime days worked and clause 28 - Overtime hours worked: These provisions exceed what is required for a fair and relevant minimum safety net, and are ambiguously worded.

(h) Clause 30 - Annual leave: The clause does not have application in relation to permanent tourers and should be updated accordingly.

(i) Clause 32 - Jury Service Leave: The clause does not make clear that the ten day entitlement of the NES applies to jury service leave.

[14] CHC described itself in its submissions filed on 3 July 2018 as a “global leader” in helicopter services, helicopter emergency medical services, search and rescue, and helicopter maintenance, repair and overhaul, and a “world leader” in the provision of transportation to offshore oil and gas platforms and vessels. It said that it employs approximately 410 persons in its Australian operations, but it did not specify how many of these were helicopter aircrew who would be covered by the AMWU’s proposed award. In its submissions, CHC did not oppose the making of a modern award for helicopter aircrew, but it opposed the following provisions of the proposed award, generally on the same basis as in Babcock’s submissions:

[15] Westpac (Northern NSW Rescue Helicopter Service Limited), together with Australian Business Industrial and the NSW Business Chamber, sought and obtained leave to file a submission some time after the hearing of the AMWU’s application on 20 July 2018, and did so on 24 December 2018. The submission noted that helicopter aircrew employed by Westpac were currently covered by two enterprise agreements: Hunter Region Rescue Helicopter Pilots and Crewpersons Enterprise Agreement No. 5 and the Northern Region Life Saver Rescue Helicopter Enterprise Agreement No. 5. No opposition was expressed to the making of an award for helicopter aircrew as such, but the following submissions were made concerning the AMWU’s proposed award:

[16] The Health Services Union and United Voice filed submissions expressing a concern that the coverage of the proposed award would overlap with the coverage of ambulance officers/paramedics and ambulance attendants performing air ambulance work under the Ambulance and Patient Transport Industry Award 2010.

[17] The Australian Federation of Air Pilots (AFAP) filed a short submission on 28 December 2018. It noted that the possibility had been raised during the hearing that classifications and entitlements for helicopter aircrew should be included in the Air Pilots Award 2010, submitted that this award should only cover pilots, and requested that it be given an opportunity to be heard if any proposed amendments to the Air Pilots Award were implemented.

Evidence

AMWU evidence

[18] The AMWU filed statements of evidence from ten witnesses, none of whom were required to attend for cross-examination at the hearing. The evidence contained in their statements is summarised below.

Stephen Ford

[19] Mr Ford is employed by Bristow as a surveillance aircrewman (Mission Co-ordinator) and is only one of seven such full time employees in Australia. His duties involve flight management of Australian Border Force surveillance operational missions including the use of night vision goggles (NVG), electro-optic devices and infrared cameras. As a Mission Co-ordinator, he is required to be able to recognise different types of vessels and situations which require notification and reporting, and he expressed the opinion that each year of experience increased his knowledge as to the relevant requirements of his position. At Babcock, there were annual increments going up to 15 years under the applicable enterprise agreement.

[20] Mr Ford is a touring employee working out of a base at Horn Island in the Torres Strait, and operates as part of a team on a monthly deployment plan with a 15 days on, 13 days off roster. His missions involve a pre-flight phase and then the mission itself, which typically lasts for four hours. The qualifications he holds are: senior first aid certificate; marine radio operator certificate; aviation radio certificate, a Certificate II in computers equivalent; Class II Aviation Medical Certificate; Aviation Air-side Security Pass; Protected Level Customs Security Clearance; Dangerous Goods Awareness (law enforcement); International Trade in Arms Regulation Awareness; Crew Resource Management, Helicopter Underwater Escape Training and Maintenance Authority Approval.

[21] Mr Ford said ordinary hours of work are 12 hours per day. For work beyond this, he is not paid overtime but receives an additional flat-rate day allowance when required to stay at base for an additional 24 hours or attend training on an RDO. He is required to be on standby for a total of 156 hours while on a tour. Under the applicable fatigue management system, he may work 14 hours within a 24 hour period and is then required to take a 10 hour break, but he remains on call and there is no additional payment if he is required to return to duty during this break.

[22] He said his annual leave entitlement was 42 days per year which, under the 15/13 roster arrangement, meant in practice that leave could be taken for one tour per year. He receives a daily travel allowance, a mission co-ordinator allowance of $9,000 per year, life insurance coverage, income protection insurance coverage, accident make-up pay, upper respiratory tract infection (URTI) leave, reimbursement for the cost of supplying his boots and a $450 allowance for supplying his helmet.

Charles McGregor-Shaw

[23] At the time of making his first witness statement in September 2017, Mr McGregor-Shaw was employed by CareFlight in the Northern Territory as an Aircrew Officer, having previously been employed at CHC from 2004-2016. He returned to employment at CHC in November 2017. As an Aircrew Officer at CareFlight, Mr McGregor-Shaw was responsible to the pilot for the safe and efficient management of the aircraft during flying operations. His duties in this respect might include assisting the pilot to monitor the flight path, select a landing site, detect obstacles during take-off and landing, navigate the helicopter, use radio communication and radio navigation systems, conduct checklists, monitor helicopter systems and instrumentation and conduct specialised role operations such as winching, rappelling and load lifting; conducting appropriate pre-flight inspection of all search and rescue, sling load, rescue winch and search sensor equipment; operating such equipment safely and efficiently; ensuring the timely replacement of serviceable equipment; providing information concerning aircraft safety; rendering first aid assistance where necessary; conducting flight, task mission and safety briefings; and conducting medical crew safety training and currency checks.

[24] He said that aircrewmen had to be proficient in the techniques necessary to perform search and rescue, assisting medical crews with emergency medical interventions, rappelling, sling loading, passenger transport and winching operations. Mr McGregor-Shaw required a number of certificates for his role at CareFlight, which took him 8 months of full time training. He is required to hold a Certificate IV Aviation- Aircrewman, a CASA Certificate of Competency in Winching/Rappelling Operations), a CASA Civil Aviation Medical Certificate (Class 2), a CASA Aeronautical Radio Operators Certificate, a Helicopter Underwater Escape and Safety Certificate, an Advanced First Aid Certificate, an Advanced Resuscitation Certificate and a Dangerous Goods Certificate.

[25] At CareFlight Mr McGregor-Shaw was involved in carrying out search and rescue operations, which included searching for emergency rescue beacons held by vessels at sea, 4WD vehicles in the bush, or individuals on land or at sea. Once the beacon was located, this involved establishing communications and then rescuing and providing medical assistance if necessary. CareFlight also delivered emergency medical services and conducted inter-hospital transfers. Mr McGregor-Shaw said he worked at the Darwin base on a 7-day on, 7-day-off roster. When he was rostered on duty, he was on duty for 12 hours and was on standby for the other 12 hours. He received 42 days of annual leave per year and received 10 days of personal leave and an additional 6 days URTI leave.

[26] Mr McGregor-Shaw stated the view that annual pay increments for helicopter aircrew reflected growth in experience and the ability to better manage differing scenarios, and that a 3% annual pay increment was fair. He also opined that there should be provision for additional allowances when new skill sets were required, and that there should also be an allowance for the higher level of fitness required. He described indemnity for employees, coverage for life, total and permanent disability and income protection insurance, and accident make-up pay as standard in the industry.

William Peter Smits

[27] Mr Smits has been employed by CHC Helicopters as an aircrewman since 1990. He works as a touring aircrewman on a 51 days on, 13 days off roster. His general duties include working as a hoist operator, a Rescue Crewperson and a Rear Cabin Safety Officer. The missions conducted by CHC include Medivac retrieval and response to search and rescue all outs. Medivac retrievals may be performed for the RAAF or for oil and gas companies or Air Ambulance. In the case of Medivacs at some RAAF bases, paramedics will not be provided, and he might be required to manage and monitor patients. His level of training is to the standard of Advanced First Aid and Advanced Resuscitation. For search and rescue, the use of Forward Looking Infrared Search and Surveillance Cameras and NVGs might be required. In an Air Ambulance helicopter, Mr Smits said that he sat in the front left hand seat, and would operate the radios and the search and rescue homer.

[28] Mr Smits stated that he holds CASA certification CAO29.11 to operate the winch and undertakes training in dangerous goods, resuscitation, first aid, helicopter underwater escape, drug and alcohol and management every two years. He also has to take a fitness test every four months. He does scheduled annual theory and practical skills checks. He is paid allowances for telecommunications, safety equipment, fitness and NVGs. His regular hours are 56 hours per week. When on tour he works a 15 days-on, 13 days-off roster. He has 42 days’ annual leave per year, which is usually taken in a block that fits in with the roster cycle. He supplies his own flying boots, gloves, winch gloves, safety undergarments, wet suits and div gear, for which he receives a safety equipment allowance of $2,580.79 per year (as at January 2015, indexed annually). He is provided with coverage for life insurance, income protection insurance, accident make-up pay and indemnity insurance.

Brett Hoy

[29] Mr Hoy has been employed by Babcock as an Aircrew Officer since 2015, and currently works at Warrnambool Airport. Babcock is contracted to provide services to Air Ambulance Victoria from this base. The missions conducted from there include search and rescue, inter-hospital transfers and “primary” missions to winch persons out from any medical emergency situation.

[30] Mr Hoy stated that his duties include winching, navigation, systems management, medical assistance and cabin management, and his usual day at work involves flying, training, administration and rescue tasks. Winching in the conduct of rescues involves supervising the paramedic or rescue crewman going down the wire and communicating with the pilot about where to fly. Operation of the flight management system includes the radios, aircraft GPS, onboard mapping and assistance to the pilot in setting up navigation. Medical assistance to the onboard paramedic may require assistance in preparing drugs, operating medical equipment, bandaging wounds and splinting limbs, and manual handling of patients. Cabin management includes cabin security, cabin safety, stowage of equipment, responsibility for dangerous goods onboard, and ensuring safe conduct of winching operations.

[31] Mr Hoy said that as an aircrewperson he is required to hold a Certificate IV or equivalent (in his case acquired by his previous training and experience in the Army as a helicopter crewperson), and rescue crewpersons are required to hold a Certificate III or equivalent. He holds a CASA CAO 29.11 certificate for operation of the winch, and is also recognised as a Checker and Trainer by CASA. Mr Hoy works about 50 hours per week, with no designated meal periods, but he does receive a meal allowance if he is unable to take a normal meal break. He receives overtime if he works beyond his normal shift hours. There is a mandatory 8 hour rest period between shifts. He receives 6 weeks annual leave, 10 days personal leave and an additional 5 days of URTI leave. He receives the NVG, Mobile Intensive Care Ambulance (MICA), Check and Trainer, Supervisory Aircrew and Overtime allowances. Babcock supplies all necessary equipment for him to perform his work.

Steven Guyett

[32] Mr Guyett has been employed by Babcock as a helicopter aircrewman for 11 years and has been an aircrewperson for 15 years. He works as a touring employee on surveillance operations, and is based at Horn Island in the Torres Strait. His current role is that of a surveillance mission coordinator, which means that he is in charge of mission planning and the conduct of the mission. Mr Guyett said that mission planning requires him to download documents, gain intelligence from Canberra and do the flight planning. The workforce conducts planned flights but also has to respond to search and rescue callouts and to calls from the Australian Border Force. Mr Guyett described a range of qualifications and training certificates which he held from his current or previous employment, including NVG training, Class 2 Medical Certificate, winch endorsement, Advanced First Aid Certificate, private pilot’s license, Australian Border Force security clearance, Helicopter Underwater Escape Training, CASA medical, marine radio license, and flight radio license. Mr Guyett estimated that for a person with no prior experience, it would take 3-5 years employment to qualify as a surveillance mission coordinator, and for a person who already held qualifications and experience, it would take 19 months to 2 years.

[33] Mr Guyett said his hours of work are highly variable and that he could work a 14 hour day but only get paid for 12 hours of work. Because the operation is a 24/7 one, he could be required to perform his duties at any time of the day or week, including at night and on weekends and public holidays. Mr Guyett stated that he refuses to remain on call following a 12 hour shift because he is not compensated for this, and that so far there has been no objection to this. Mr Guyett said that he is entitled to 6 weeks of annual leave but Babcock took RDOs off the employees as they were counted as part of the leave, making annual leave one month rather than 6 weeks. He said the process to apply for annual leave is difficult and employees can be knocked back if it does not suit Babcock. While unsure how much sick leave he is entitled to, Mr Guyett said that he receives more personal leave because employees cannot fly when they have a cold because it may burst their eardrums. He is required to maintain a high level of fitness and must pass a medical test.

Joel Young

[34] Mr Young has been employed by Babcock as an aircrew officer since December 2016, and prior to this he was an aircrew officer in the Royal Australian Navy for over 7 years. He is a fixed base employee, located at Helicopter Emergency Services 4 base at Warrnambool, which is one of 5 bases in Victoria. His duties include front left seat flying (involving navigation, radio calls and liaising with the pilot), operating the winch and helping the MICA paramedic, and he has secondary duties which include managing the search and rescue store, updating maps and charts, and towing and refuelling aircraft.

[35] His position requires him to hold CASA CAO 29.11 (winch endorsement) and CAO 20.11 (qualification in emergency and life saving equipment and passenger saving in emergencies), and to be MICA and NVG-qualified. To be front-seat qualified, it is also necessary for him to hold a senior first aid certificate, an advanced resuscitation certificate and bronze medallion in life saving, and to pass a fitness test. He also has an aircraft qualification issued to him by Babcock. Because of the time it takes to obtain the necessary qualifications and experience, many aircrew officers were ex-army and ex-navy with previous training and experience.

[36] Mr Guyatt stated that he received MICA and NVG allowances and a daily travel allowance if he worked at another base. His hours of work ranged from 45-56 hours per week. His roster required him work two 10-hour day shifts and two 14-hour night shifts, and then he had 3 days off. He receives 42 days’ annual leave which is inclusive of RDOs, 10 days’ personal leave and in addition URTI leave (3 days in the first year and 5 days thereafter), insurance coverage for death or permanent impairment and income protection, and accident make-up pay.

Brandon Rogers

[37] Mr Rogers has been employed by Babcock as a search and rescue aircrewman since August 2015. Prior to this he was an aircrewman in the Australian Army for around 6-7 years. He currently works from a base in the La Trobe Valley performing emergency medical services work. His general duties and responsibilities include assisting the pilot with radio and navigation systems, assisting the MICA paramedic as required, ensuring cabin security of equipment and passengers and operating the winch when required. Mr Rogers said that his work primarily involved responding to 000 calls, and he also was involved in hospital transfers.

[38] He completed a 9-month training course, and trained on specific aircraft types and in the use of NVGs, when he was in the Army. He holds CASA CAO 29.11 and 20.11 certificates. His MICA training was conducted by Ambulance Victoria. He is required to pass a fitness test each year.

[39] Mr Rogers said that his gross income, inclusive of allowances, was approximately $3,200 per fortnight. He receives a MICA allowance, NVG allowance and base safety officer allowance. He works and is paid for 48 hours in 8 days across his roster cycle. He is entitled to 42 days’ annual leave, 10 days’ personal leave and additional URTI leave. His roster consists of two 10-hour day shifts, two 14-hour night shifts and then four rostered days off. Babcock reimburses employees for footwear expenses, and all other equipment and clothing are provided.

Andrew Barry Gaskin

[40] Mr Gaskin has been employed by Babcock as a search and rescue aircrewman since 2015, and is based in Adelaide. He undertook training as Airman Aircrew during his prior employment in the Royal New Zealand Air Force, which required the completion of a six week course, and then undertook a helicopter conversion course of 3-4 months. It then took him some years to progress from provisional C-class certification to full C-class certification and then to B-class and ultimately A-class certification. Mr Gaskin said that when he moved to employment with Babcock, he did company induction training and ground and flying training on the B412 helicopter. This training covered front left seat crew duties, winch operator duties, rescue crew duties, the use of medical equipment, rear cabin duties including aircraft conning and confined area operations, loading/unloading freight and role equipment fitting and removal. This training took about 4 weeks.

[41] Mr Gaskin stated that his duties include assisting the pilot in the operation of the aircraft, non-ATC communications, assistance with aircraft navigation, operation of the winch, fast rope dispatch, passenger/crew/freight loading and unloading, role equipment changes, helicopter refuelling, administrative tasks and maintaining currency in training and performance evaluation checks. The missions performed include surveillance operations, search and rescue operations, primary response missions to recover injured persons from accident scenes, and hospital transfers.

[42] Ms Gaskin said that he receives a NVG allowance, works 48 hours and spends 24 hours on standby over an 8-day roster cycle, receives 40 days’ annual leave and insurance coverage, and is reimbursed for the cost of his boots.

Employer evidence

[43] The only employer affected by the AMWU’s application which adduced evidence was Babcock. It tendered statements of evidence made by three witnesses, one of whom, Stephen Flanagan, was cross-examined by the AMWU.

Stephen Flanagan

[44] Mr Flanagan has been employed by Babcock as Chief Aircrewman since October 2015, reporting to the Chief Pilot. He was previously a check and training crewman in the Hunter Region Surf Life Saving Helicopter Rescue Service, and prior to that had the same role at CHC for a period of 12 years. His role is to maintain standardisation of training and procedures and ensure Babcock’s compliance with CASA requirements and that aircrew do not exceed Fatigue Risk Management System limits. Mr Flanagan outlined the roles and responsibilities of the three classifications of aircrew at Babcock - Search and Rescue Aircrewperson, Surveillance Aircrewperson and Rescue Crewperson. He said that a Rescue Crewperson’s primary role was to render assistance to persons in distress over water or land and as necessary to be despatched from the helicopter by winch. The Surveillance Aircrewperson’s primary role was to provide surveillance and operate sensor equipment on behalf of the Australian Border Force. A Search and Rescue Aircrewperson is trained to a higher standard than Rescue Crewpersons due to their role and the nature of their missions.

[45] Mr Flanagan said that Babcock has its own training system equivalent to the Certificate IV in Aviation. It requires a CASA Class 2 medical as the minimum for all aircrew, and some aircrew were in addition required to pass a specific fitness test as determined by the relevant client. In respect of equipment, Babcock supplied all safety equipment, and reimbursed employees for the provision of boots. When he worked at CHC, employees received a safety equipment allowance and supplied their own gloves and boots. In respect of Babcock’s contract with Ambulance Victoria, employees were required to complete that MICA course.

[46] In cross-examination, Mr Flanagan agreed that helicopter aircrewmen were required to operate in a bent-over position at times; work in a confined and vibrating environment; load and unload aircraft by lifting bags, equipment, and stretchers; operate a winch and pull on cables; and drag or carry a survivor’s limp body; and for those purposes were required to have a level of strength in their arms and shoulders. He also accepted that rescue crewman (as distinct from aircrewmen) were required to have an ability to go down a winch and descend from the helicopter and to undergo an underwater test, that this required a higher level of fitness than for surveillance crewpersons, and that Babcock paid a fitness allowance for rescue crew.

Lauren Adams

[47] Ms Adams is employed by Babcock as its Managing Director - Aviation Onshore, with responsibility for ensuring that its departments function efficiently, economically and safely in servicing Babcock’s commercial clients. Ms Adams said that she was involved in the negotiations for Babcock’s current enterprise agreement, the Babcock Mission Critical Services Australia Aircrew Enterprise Agreement 2016 (2016 agreement), which contains an income protection insurance coverage entitlement for aircrew. Ms Adams said that the preceding enterprise agreement did not contain such an entitlement, and Babcock agreed to introduce it in bargaining for the 2016 agreement in response to a claim advanced by aircrew representatives.

Martin Mason

[48] Mr Mason is Babcock’s Head of Operations, and has the responsibility for overseeing, managing and supporting all bases with rosters, planning, systems and processes for the delivery of contractual requirements and safe operations. Mr Mason explained in his statement that Babcock distinguished between “fixed base” employees who work from their home base and “touring employees” who work on the basis of tours of duty away, with most touring employees working exclusively on that basis all year round on a 15 days-on, 13 days-off roster. This standard touring schedule is arranged for aircrew to be the same as for pilots so that they operate alongside each other working on the same commercial contracts that Babcock has in place, and is provided for in the 2016 agreement. Similarly, the 2016 agreement provides for annual leave entitlements in terms virtually identical to Babcock’s enterprise agreement covering its pilots. Mr Mason also said that Babcock either supplies all necessary equipment to employees or reimburses employees for its cost.

Consideration

[49] As earlier stated, the AMWU’s current application for an award covering helicopter aircrew arose from earlier proceedings concerning an application by the AMWU for a modern enterprise award to replace the CHC Award. The Full Bench adjourned the hearing of that earlier application on the premise that helicopter aircrew were award-free and accordingly that it would be appropriate for an application to be made for a new industry award or for the extension of the scope of an existing award to cover such employees.

[50] It is clear that this premise was incorrect. The AMWU submitted before us, without contradiction from any other interested party, that helicopter aircrew are in fact covered by the Miscellaneous Award. We accept that submission as correct. Subject to certain exceptions which are not presently relevant, the coverage of the Miscellaneous Award is set out in clauses 4.1 and 4.2 as follows:

4.1 Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14—Minimum wages who are not covered by any other modern award.

4.2 The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

[51] The meaning of the exclusion in clause 4.2 was considered in the Full Bench decision in United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort2 The Full Bench said:

“[37] We consider that clause 4.2 has a plain meaning based on the ordinary meaning of the words used. The exclusion in clause 4.2 has two requisite elements. Stated in reverse order, they are:

(1) the classes of employees must not have been traditionally covered by awards; and

(2) this must have been because of the nature or seniority of their role.

[38] That is, it is not sufficient for the exclusion to apply that a particular class of employees has not traditionally been covered by awards where this is not attributable to the nature or seniority of the employees’ role.

[39] It may be accepted, as submitted by AAA Pet Resort, that the remainder of clause 4.2, “...including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists”, cannot be read as exhaustively stating the scope of the exclusion. Nonetheless it is plain that the identified classes of employees are intended both to serve as examples to guide the interpretation and application of the clause and to constitute the principal classes of employees excluded. Thus “managerial employees” are a class of employees traditionally excluded from award coverage because of the “seniority of their role”, and the other identified classes are specialist white collar professionals traditionally not covered because of the “nature ... of their role”. To read the clause this way is consistent with the overall context of the award to which we have referred, including the lack of any classifications applicable to managerial or professional employees.”

[52] In respect of the exclusionary provision in clause 4.2, it is not clear that helicopter aircrew can be characterised as not having been traditionally covered by awards. The CHC Award and, before it, the Lloyd Helicopters (Aircrew/Rescue Crew) Award 1995, covered for some time one of the major operators in the helicopter industry. In any event, we do not consider that helicopter aircrew could be regarded as having traditionally been excluded from award coverage because of the nature or seniority of their role. Helicopter pilots are covered by the Air Pilots Award 2010 and, previous to the making of that award, were covered by the Helicopter Pilots (General Aviation) Award 1999 and before that the Helicopter Pilots (General Aviation) Award 1987. Paramedics performing duties on helicopters are covered by the Ambulance and Patient Transport Industry Award 2010 (see clause 15.3). The Bristow Helicopter (Aircraft Engineers) Award 2000 applied, as its title indicates, to helicopter aircraft engineers employed by Bristow. First and second officers as well as pilots on fixed-wing aircraft are covered by the Air Pilots Award (see the definition of “pilot” in clause 3), and aircraft cabin crew generally are covered by the Aircraft Cabin Crew Award 2010. There is no characteristic of helicopter aircrew which distinguishes them from these other categories of aircraft employees such as to make them unsuitable for award coverage, and we can identify no previous decision of this Commission or its predecessor which states otherwise.

[53] The exclusion in clause 4.2 of the Miscellaneous Award is therefore not applicable to helicopter aircrew. In respect of clause 4.1, it is not in dispute that no other modern award covers helicopter aircrew. They are therefore covered by the Miscellaneous Award if they fall within any of the classifications listed in clause 14. Clause 14.1 contains four wage classifications, which are defined in Schedule B in wide and generic terms. Levels 3 and 4 are defined as follows:

Level 3

An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.

Level 4

An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.

[54] The rate for Level 3 equates to that for the C10 classification level in the Manufacturing Award, which requires a trade certificate, or a Certificate III in Engineering - Mechanical Trade, Engineering - Fabrication Trade, Engineering - Electrical/Electronic Trade, Engineering - Production Systems, Engineering Production or equivalent. The rate for Level 4 equates to the C7 classification level in the Manufacturing Award, which relevantly requires a Certificate IV in Engineering, Manufacturing Technology or Laboratory Techniques. The AMWU’s proposed award would cover the classifications of “Rescue Crew/Surveillance Crew”, for which a Certificate III in Aviation or equivalent is required, and “Aircrewperson/Surveillance Mission Coordinator”, for which a Certificate IV in Aviation appears to be required. Employees in such positions would readily fall within Levels 3 and 4 respectively of the Miscellaneous Award. The Miscellaneous Award therefore applies.

[55] Because the AMWU seeks the making of a new modern award, s 157(1) of the FW Act applies. Section 157(1) relevantly requires the Commission to be satisfied that the making of a new modern award or the variation of an existing modern award is “necessary to achieve the modern awards objective” in s 134(1). A “…relevant and significant element of the analysis…” as to whether this criterion is satisfied in circumstances where the coverage of a group of employees is proposed to be transferred from an existing award to another award is whether the currently applicable award meets the modern awards objective in respect of that group of employees. 3

[56] Additionally, subss 163(1) and (2) have application to the AMWU’s application for a new award to apply to helicopter aircrew. They provide as follows:

Special rule about reducing coverage

(1)  The FWC must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless the FWC is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.

Special rule about making a modern award

(2)  The FWC must not make a modern award covering certain employers or employees unless the FWC has considered whether it should, instead, make a determination varying an existing modern award to cover them.

[57] These provisions apply to the AMWU’s application in the following way. First, we must be satisfied that the current coverage of helicopter aircrew under the Miscellaneous Award does not meet the modern awards objective such that an alteration to this position is necessary to meet the modern awards objective.

[58] Second, if we are satisfied that the current modern award coverage must be changed to meet the modern awards objective, s 163(2) prevents us from making the new award proposed by the AMWU until we have given consideration to whether an existing modern award should be varied to cover helicopter aircrew. This is problematic in terms of the way in which the AMWU advanced its case, in that the AMWU’s primary case was that its proposed new award should be made and only submitted in the alternative that an existing award should be varied to cover helicopter aircrew. The approach taken by the AMWU implies an order of consideration in reverse of that required by s 163(2).

[59] Third, in giving primary consideration as to whether an existing award should be varied to cover helicopter aircrew as required by s 163(2), it is necessary to consider for the purpose of s 163(1) whether any relevant award is appropriate for them. Again, because of the way in which the AMWU advanced its case, limited attention was given to this issue and it was initially addressed only in relation to the Aircraft Cabin Crew Award.

[60] In relation to the first of these three issues, the AMWU as earlier stated submitted that the Miscellaneous Award did not (together with the NES) constitute a fair and relevant or comprehensive safety net of terms and conditions for “the highly skilled occupation of helicopter aircrew”, and was never intended to do so. This submission may be accepted as consistent with the basis upon which the Miscellaneous Award was made. The award was made by the award modernisation Full Bench of the Australian Industrial Relations Commission pursuant to Part 10A of the Workplace Relations Act 1996 in response to paragraph 4A of the Ministerial request made under s 576A of that Act to “create a modern award to cover employees who are not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards (including State awards)”. In relation to the conditions of employment to be contained in the Miscellaneous Award, the Full Bench said:

“[153] We deal now with conditions of employment. Our approach to conditions of employment is influenced by the nature of the award’s coverage. We agree with those who have suggested that the coverage of the award is very narrow and likely to be limited in time where emerging industries are concerned or where the expansion of coverage of a modern award is involved. Accordingly we do not think the award should contain a comprehensive safety net designed for any particular occupation or industry. Rather it should contain basic conditions only, leaving room for the application of an appropriate safety net in another modern award in due course. That said, there is still room for the exercise of considerable discretion in formulating appropriate wages and conditions.” 4

[61] The Full Bench went on to discuss briefly some of the specific conditions which were to be included in the Miscellaneous Award. It is only necessary for illustrative purposes to quote what the Full Bench said in respect of the award’s hours of employment clause:

“[156] There were suggestions by representatives of employees and employers that we should alter the hours of work provisions in the exposure draft in a variety of ways. In the end we have decided not to make any change. The hours of work in the exposure draft properly balance the need for some basic protections for employees with a great deal of flexibility for employers.”

[62] The above passages make it clear that the Miscellaneous Award was never intended to provide a comprehensive safety net for any particular industry or occupation, but rather was meant to provide basic conditions only for employees not covered by other modern awards until such time as a proper safety net could be established for identifiable groups of such employees in another modern award. The terms of the Miscellaneous Award reflect this underlying intention. We have already referred to the simplified and generic classification structure, which is not constructed with any particular group of employees in mind but is rather designed as a catch-all for any employees not covered by any other modern awards. The Full Bench decision above describes the natures of the hours of work provisions. Other provisions are of a similar nature: clause 15, Allowances, for example provides only for some basic expense-related allowances and does not deal with any specific skill increments or disabilities which might be required for a specific industry or occupation, and clause 22, Overtime and penalty rates, provides for a fairly rudimentary scheme of overtime rates and nightime and weekend penalty rates that is not adapted for any particular pattern of work.

[63] We have earlier summarised the witness evidence given before us in respect of the work of helicopter aircrew. That evidence was substantially if not wholly concerned with the work of search and rescue and surveillance helicopter aircrew, and demonstrated that they are required to perform highly specialist functions (such as winching, navigation, systems management, medical assistance and cabin management) which require the utilisation of special equipment, specific training, and the maintenance of skills currency and medical/fitness standards. Such aircrew rescue helicopter aircrew must also perform their work in often difficult and challenging environments. They may be engaged to work at a fixed base or on a touring basis, and in either case they work non-standard patterns of hours which are specifically adapted for the nature of the work performed.

[64] We are satisfied that the Miscellaneous Award does not adequately deal with these special characteristics of the work of search and rescue and surveillance helicopter aircrew, nor was it ever intended to for the reasons already explained. It does not provide for a classification and allowance structure which properly reflects the specialist skills utilised, does not contain an hours of work provision which is appropriate for the working patterns of such aircrew, and does not take into account the environment in which such aircrew work.

[65] The evidence before us said little or nothing about the work of aircrew on passenger helicopters, but this is also likely to involve specialist skills, especially in connection with the transport of passengers to and from offshore oil and gas platforms.

[66] For these reasons, we consider that the Miscellaneous Award does not provide a fair and relevant safety net of terms and conditions for helicopter aircrew, and therefore does not achieve the modern awards objective in s 134(1). In reaching this conclusion, we have taken into account all the matters specified in s 134(1)(a)-(g), with the matters in paragraphs (d), (da), (f) and (g) weighing most strongly in favour of this conclusion. We therefore consider it is necessary in order to achieve the modern awards objective to place helicopter aircrew within the coverage of a modern award other than the Miscellaneous Award.

[67] It is necessary to emphasise however that our conclusion in this respect does not imply that modern award provisions for helicopter aircrew of the nature and extent of those prescribed in the AMWU’s proposed new award are necessary in order to achieve the modern awards objective. Many of the provisions of that proposed award simply reflect bargained outcomes achieved at CHC and Babcock and are not suitable for a fair and relevant modern award safety net. Without being exhaustive, there are four features of the AMWU’s proposed award in particular which we provisionally consider are not likely to be suitable for a modern award safety net:

[68] We now turn to the consideration required by s 163(2), namely whether an existing modern award should be varied to accommodate coverage of aircrew. We agree with the AMWU’s submission that the Aircraft Cabin Crew Award would not be a suitable award to cover helicopter aircrew. It is an award which contains terms and conditions tailored to the employment of flight attendants on scheduled domestic and international passenger flights. This is of little relevance to helicopter aircrew, and if they were to be covered by the Aircraft Cabin Crew Award, it would require the addition of a separate schedule of conditions applicable to them which would amount to an award within an award. This would not meet the modern awards objective in s 134(1) having regard in particular to paragraph (f) (“the likely impact on any exercise of modern award powers on … the regulatory burden”) and paragraph (g) (“the need to ensure a simple, easy to understand … modern award system”).

[69] We consider however that it may be appropriate for the Air Pilots Award to cover helicopter aircrew, notwithstanding its current occupational focus. Helicopter pilots are covered by this award, and Schedule E, Sector Specific Conditions – Helicopter Operations contains conditions specifically applicable to various types of helicopter operations including for all on-shore operations including cattle mustering and police operations, and off-shore operations including hydrocarbons and gas operations, marine pilot transfer and search and rescue. The hours of work provisions are adapted to the needs of such operations (although they take into account regulatory requirements applicable only to pilots), and deal with helicopter operations which involve home base duties, multiple day tours and travelling and working away from home base. The annual leave and personal carer’s leave entitlements (including the entitlement to additional URTI leave) are substantially similar to those contained in the AMWU’s proposed award.

[70] It is a statement of the obvious to say that helicopter aircrew work together operationally with the pilots with whom they fly, and for that reason share the same employer as such pilots, work the same or similar patterns of hours, operate from the same locations, and suffer the same or similar disabilities. The evidence of Mr Mason made this explicit for at least touring aircrew and pilots, and it is implicit in the evidence of all the AMWU’s witness who described the extent to which they work in close collaboration with pilots. For that reason, there is much to be said for the proposition that helicopter aircrew and pilots should be covered by a single modern award, particularly as it is apparent that many of the conditions currently applying to helicopter pilots under the Air Pilots Award could equally, perhaps with some minor modifications, apply to helicopter aircrew. This appears to be accepted to a substantial degree by the AMWU which, in submissions filed subsequent to the 20 July 2018 hearing (at which the Bench raised the possibility of coverage under the Air Pilots Award) on 20 August 2018, stated the following:

“196. The Commission asked whether the classifications and entitlements for helicopter aircrew may be included in the Air Pilots Award 2010, instead of the Commission making a separate modern Award.

197. The AMWU understands that the operational hours of work for pilots and aircrew operating on the same helicopter are structured in the same way.

198. Aircrew have the same fatigue risk management standards as pilots.

199. Aircrew have the same level of training and duty hours as pilots.

200. Flight and duty hours are the same as the pilots. The duty hours change depending on the job role. However the duty hours mirror and are identical to the pilots. Duty is on call ready to fly. Flying time is separate. Both have restrictions and accrue fatigue.

201. If Aircrew and Pilots are on different rosters, then the Helicopter would need to land every time that any Aircrew or Pilots had flown the maximum number of hours or were due for rest. Rostering Aircrew and Pilots on the same rosters alleviates this problem and therefore is the main way in which most Aircrew and Pilots are rostered.

202. These parameters mean that the rostering would be identical.

203. At many bases, the pilots and Aircrew will be flying together with a fixed crew of Pilot, Aircrew and Rescue crew attached to a Helicopter.

204. In surveillance operations, there may be some differing rostering arrangements. Surveillance Aircrew may not necessarily fly with the same pilots. However, the same roles exist in every flight and the same parameters for duty hours applies.

205. Pilots, Aircrew and engineers live in the same standard quarters. The accommodation facilities are generally shared.

206. On the basis of these common parameters, the AMWU would support a variation to the coverage of the Air Pilots Award 2010 as long as there is retained the helicopter aircrew specific entitlements in a separate schedule.”

[71] The relevant effect of s 163(2) is to require us to finalise our consideration of whether helicopter aircrew might appropriately be covered by the Air Pilots Award - that is, reach a final view about that matter – before we give any consideration to the making of the new award proposed by the AMWU. As already stated, the possibility of helicopter aircrew being covered by that award arose from comments from the bench during the hearing of the application, and it may be that not all interested parties, including those with an interest in the Air Pilots Award such as the AFAP, have yet been given a proper opportunity to be heard in relation to this issue. Accordingly we consider that the appropriate way forward is, in the first instance, for the presiding member of the bench to conduct a conference of the parties to identify what existing provisions of the Air Pilots Award might appropriately apply to helicopter aircrew and what modifications might be necessary in order for that award to cover helicopter aircrew in a way consistent with the modern awards objective. If no consensus can be reached, a further hearing will be listed to receive any further submissions which interested parties may wish to make concerning the possibility of coverage under the Air Pilots Award.

al of the Fair Work Commission with the member's signature.

VICE PRESIDENT

Appearances:

Mr M Nguyen on behalf of the Australian Manufacturing Workers’ Union

Ms R Liebhaber on behalf of the Health Services Union

Ms N Dabarera on behalf of United Voice

Mr V Rogers on behalf of Babcock Mission Critical Services

Hearing details:

2018.

Sydney:

20 July.

Printed by authority of the Commonwealth Government Printer

<PR710129>

 1   [2014] FWCFB 5092

 2   [2018] FWCFB 128

 3   Alpine Resorts Award 2010 [2018] FWCFB 4984 at [53]

 4   [2009] AIRCFB 945 at [153]