[2017] FWC 2268

DECISION
Fair Work Act 2009
s.739—Dispute resolution

Ali Albouni
v
Jetstar Airways Limited
(C2017/1041)

COMMISSIONER ROE MELBOURNE, 26 APRIL 2017

Resolution of dispute in accordance with the dispute resolution procedure of the Jetstar
Pilots’ Enterprise Agreement 2015.

Introduction

[1] This matter deals with a dispute application made by a pilot employee, First Officer
Ali Albouni against Jetstar Airways Pty Limited (“Jetstar”) regarding the application of the
Jetstar Airways Pilots’ Enterprise Agreement 2015 (“the Agreement”). The Applicant in this
case is represented by the Australian Federation of Air Pilots (AFAP). This application was
brought under the disputes resolution procedure at clause 8 of the Agreement.

[2] The Fair Work Commission (“the Commission”) has jurisdiction to determine this
matter and the Commission’s jurisdiction is not in dispute.

Agreed Questions

[3] At the conciliation of this matter the parties agreed that two questions are before the
Commission for determination via arbitration. The Agreed Questions are:

 In the circumstance set out in the second sentence of Clause 44.1.3 can the Training
and Check Department determine that no “return to work” flying/simulator training
program is required?

 In the event that the answer to the first question is “no” what compensation if any is
appropriate for Mr Albouni?

[4] However, at the hearing of the matter I raised a concern about whether the phrasing of
the second question accurately reflected the intention of the parties at the conciliation
conference. The parties agreed that I should not determine the second question at this stage. In
the event that I found that the answer to the first question is “no” then this will be the final
resolution to the first aspect of the dispute and the parties have agreed that they will confer
and hopefully agree on the appropriate final resolution to the dispute as it relates to Mr
Albouni. In the event that parties cannot agree within fourteen days of this decision then they

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are to advise the Commission and a further conciliation conference will be convened,
otherwise, I will assume that the matter is resolved and the file will be closed.

Background

[5] The Applicant is required to complete a Cyclic Simulator Check (“Cyclic SIM”) every
6 months in order to maintain his simulator currency. A pilot who does not have simulator
currency cannot fly in service until a Cyclic SIM is completed. The Applicant’s simulator
recency expired on 26 February 2017.

[6] The Applicant took annual leave from 27 February 2017 until 6 March 2017.
Immediately prior, on the 25 and 26 February 2017, he had 2 rostered days’ off. The total
annual leave period, including the two rostered days’ off, was 9 days.

[7] The Applicant cancelled a holiday he planned for Japan, and spent some of the 9 day
period of leave studying for his Cyclic SIM.

[8] The Applicant travelled from his home base in Perth to Melbourne on 6 March 2017
and completed and passed his Cyclic SIM on 7 and 8 March 2017.

[9] The dispute as notified concerns a claim by the Applicant for the benefit of a ‘return to
work’ flying/simulator training program available at Clause 44.1.3 for pilots whose simulator
currency has expired whilst they are on annual leave for a period of seven days or more.

[10] AFAP argue that as Jetstar refused to re-roster the Applicant’s Cyclic SIM and supply
a return to work simulator training program, the Applicant completed duty on 4 out of 9 days
of his annual leave. Jetstar do not accept that the Applicant was on duty and argues the study
for the Cyclic SIM is not duty. Jetstar argue that Mr Albouni could have studied for his Cyclic
SIM prior to his annual leave. The Applicant contends that Jetstar should provide
compensation by applying the ‘Work on Annual Leave’ payment at clause 48.13 of the
Agreement. Clause 48.13, Clause 35.6.1 and Clause 7.26 of the Agreement are relevant to this
question but not to the question of the interpretation of Clause 44.1.3. It is not necessary to
determine these matters at this stage as they are not relevant to the question to be decided.

Consideration

[11] The parties agree that the principals to be applied by the Commission in interpreting
the Agreement have been clarified by the Full Bench in Australasian Meat Industry
Employees Union v Golden Cockeral Pty Ltdi (“Golden Cockeral”). This is the approach
which I have adopted.

[12] Clause 44.1.3 of the Agreement is as follows;

“A pilot will not be rostered for a simulator or route check within seven (7) days of
returning to work after annual leave of seven (7) days or greater. However, in the
event a pilot’s route check or simulator recency has expired whilst on annual leave,
the pilot will be rostered for an appropriate ‘return to work’ flying /simulator training
program as determined by the Training and Check Department.”

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[13] The surrounding provisions which provide some context for the interpretation of this
provision are;

“44.1 Pilots will be given the following minimum notice of a session in the flight
simulator:

44.1.1. if the session is the pilot's own cyclic check or own training, the notice
will be ten (10) days.

44.1.2. if the session referred to in 44.1.1 is cancelled, deferred or requires a

repeat, the ten (10) days notice is not required.

44.1.3. A pilot will not be rostered for a simulator or route check within seven
(7) days of returning to work after annual leave of seven (7) days or greater.
However, in the event a pilot's route check or simulator recency has expired
whilst on annual leave, the pilot will be rostered for an appropriate 'return to
work' flying/simulator training program as determined by the Training and
Check Department.

44.2 In relation to a pilot's own cyclic simulator session, the pilot and co-pilot
operating positions will be occupied by pilots employed by the Company or pilots
under training employed by the Company or by pilots checked to the Company's flight
operating standards.

44.3 For roster planning purposes, simulator and aircraft training sessions will be
considered as Flight Duty Periods.

44.4 Pilots will not be scheduled for more than four (4) hours simulator Flight Time on
any one (1) day.

44.5 Pilots will not be required to Sign-On for more than one (1) simulator duty period
on the same calendar day.

44.6 A pilot may be required to position for up to two and a half (2.5) hours scheduled
Flight Time, prior to a simulator duty on the same day, provided that the simulator
duty is a training session only, and the total duty time does not exceed twelve (12)
hours. Any extension beyond twelve (12) hours will be at the discretion of the pilot.

44.7 A pilot will not be required to position prior to a pilot's own simulator check
session on the same day.

44.8 A pilot may be required to position after a simulator session.”

7.26 "Duty Time" means any task (including Positioning) that a pilot is required to
carry out associated with the business of the Company.

[14] The parties agree that the circumstances of this case were that Mr Albouni’s recency
effectively expired whilst on annual leave of seven days or more. Nothing turns on the fact
that it expired the day before the annual leave because the primary position in Clause 44.1.3 is
that simulator or route check could not be rostered until at least seven days after returning to

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 [2017] FWC 2268

work after annual leave. Without the check Mr Albouni could not fly in service during the
seven day period following his annual leave. There was no possibility of the check being
organised prior to annual leave given that the expiry happened when off work the day before
annual leave.

[15] It is accepted that Mr Albouni was scheduled to do the Cyclic SIM early in 2017 but it
had to be deferred due to illness. Mr Albouni tried to get it rescheduled prior to his return
from leave but Jetstar was unable to organise this.

[16] The parties agree that in the circumstances of this case there is a requirement that Mr
Albouni will be rostered for an appropriate ‘return to work’ flying /simulator training
program as determined by the Training and Check Department.

[17] AFAP argue that there is no ability for the Training and Check Department to decide
not to roster for a return to work simulator training program. AFAP argue that if this was the
meaning of the Clause then it would have said “may” and not “will”. AFAP argues that the
Department has discretion about the nature of the program including its length having regard
to the circumstances but it does not have discretion to not roster any program at all. The word
“appropriate” means that discretion should be exercised about the length and nature of the
program having regard to the particular circumstances of the pilot and his or her period of
leave.

[18] AFAP argue that to interpret the Agreement as allowing for no training period would
be to rewrite the Agreement.

[19] AFAP argue that it is important to understand the context of the clause that if a pilot
fails a simulator flight check on three attempts then it can result in termination. This is set out
in Clause 64.3 of the Agreement and I agree that the provision must be considered in this
context. Any failure of a test forms part of the employee record.

[20] Jetstar argues that the words “an appropriate” and “as determined by” mean that the
Training and Check Department have absolute discretion to determine whether or not a return
to work flying/simulator training program is required and if it is required then the nature and
duration of that program. An appropriate program may be no program at all. Jetstar say that
provided that the discretion is exercised in a reasoned, reasonable and non-arbitrary manner it
has met its obligations under the clause and the Commission cannot interfere.

[21] Jetstar argue that if the AFAP argument is correct then it would place pilots whose
simulator currency expired whilst on leave in a more advantageous position than pilots
undergoing their checks as per normal. They say that this is not consistent with the purpose of
Clause 44.1.3.

[22] In the alternative Jetstar argue that Day 1 of the Cyclic SIM is capable of forming an
appropriate “return to work flying/simulator training program”. Mr Duncan gave evidence
that exercises which form part of the Day 1 program can be repeated without being graded
until proficiency is met. However, performance on Day 1 is not without consequences as the
pilot will not progress to Day 2 until proficiency is met. Jetstar argue that the contention that
part of the Cyclic SIM may be regarded as training is supported by Clause 44.6 which
provides that a pilot can be required to perform a certain amount of flight time prior to
simulator duty on the same day, “provided that the simulator duty is a training session only.”

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[23] Jetstar submit that they are required to operate in accordance with OM3, the check and
training manual. Section 7.3 of OM3 sets out the content and frequency of the Cyclic SIM.
Mr Duncan gave evidence that Section 7.6 of OM3 deals with pilot training requirements in
circumstances where a pilot has been absent from duty. Table 7-4 of the OM3 details that
there is a required additional training simulator session if there has been an absence of more
than 90 days. Mr Duncan considered that additional return to work training was not required
because Mr Albouni’s absence was less than 90 days.

[24] Mr Duncan gave evidence that Jetstar did not traditionally roster additional simulator
training sessions for absences of less than 90 days. I am satisfied that this is evidence of the
subjective intention of a party and it is not evidence of the mutual intention of the parties.

[25] I consider it self-evident that the requirement in Clause 44.1.3 that a pilot is not
required to do a simulator or route check within seven days of returning from annual leave
which has lasted for seven days or more is a beneficial term to protect the interests of pilots. I
note that a consequence of the term may be that pilots are less likely to have time to prepare
whilst on holiday and that they have a period of practice/experience of flying in service in
advance of the simulator or route check. It is neither necessary nor appropriate that I make a
finding that this was the mutual intention of the parties. I am simply noting as a contextual
consideration that this is a possible consequence of the term. All three sub-clauses of 44.1
provide for notice requirements for simulator checks and the second sentence of Clause 44.1.3
must be considered in that context.

[26] I consider that Clause 44.1.3 exempts those whose recency expires during their leave
from this requirement because to do otherwise would mean that Jetstar has to pay the pilot
without them being able to fly in service for seven days. This is a provision which is a
beneficial term for Jetstar however there may also be some benefits for the pilot in this
exemption. Associated with the exemption is the requirement that the pilot will be rostered for
an appropriate return to work flying simulator training program. I consider that this is a term
which provides a beneficial entitlement for the pilot. It may also provide some benefits for
Jetstar.

[27] AFAP submits that the purpose of this provision is to address the issues of having to
prepare whilst on holiday and the absence of a period of practice/experience of flying in
service. Mr Albouni gave evidence of his concerns about these two matters. It is neither
necessary nor appropriate to determine this question as part of the exercise of interpreting
Clause 44.1.3 because it relates to the subjective intentions of the parties. However, I do not
accept the argument that the pilot whose recency has expired and is required to undertake a
Cyclic SIM less than seven days after return from leave, is necessarily in a more beneficial
position because they have access to additional simulator training time than the pilot who has
seven days notice after return from annual leave but does not have access to additional
simulator training time.

[28] I am satisfied that the reference to “simulator or route check” in the first sentence of
Clause 44.1.3 includes the Cyclic SIM required by OM3. This is also the case in respect to the
sessions referred to in the earlier parts of Clause 44.1 and in Clauses 44.2. I am satisfied that
the reference to “'return to work' flying/simulator training program” in Clause 44.1.3 is not the
same thing as the Cyclic SIM. The placement of the marks around ‘return to work’ strongly
suggests that the program is distinguishable and of a different type from the program referred

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to earlier in the Clause as “a simulator or route check”. I do not consider that the fact that “a
simulator or route check” may include a training component or session alters or detracts from
the force of this conclusion. I consider that the reference to “a simulator duty” in Clause 44.6
to be a more generic term which covers any simulator duty whether or not it is the Cyclic
SIM.

[29] I am satisfied that the proper construction based on the plain words of Clause 44.1.3,
considered in the context of the clause as a whole, is that the “'return to work' flying/simulator
training program” which will be rostered is additional to the Cyclic SIM or “a simulator or
route check” referred to in the first sentence of Clause 44.1.3. For this reason the first part of
the Cyclic SIM cannot be in satisfaction of the requirement to “roster a 'return to work'
flying/simulator training program”

[30] I am not satisfied that the fact that the rostering of an additional “'return to work'
flying/simulator training program” is not required by OM3 means that the interpretation urged
by AFAP should be rejected. There is nothing inherently unlikely or unreasonable in an
enterprise agreement providing for a beneficial entitlement to additional training in a
particular circumstance. This is particularly the case where pilots in this particular
circumstance are denied the benefit of the usual seven days of normal flying duty before the
Cyclic SIM is rostered and where the consequence of failure in the Cyclic SIM are severe. In
making this particular comment I am considering the context generally and not making any
finding about the particular purpose of the provision.

[31] I am satisfied that the plain meaning of the words, considered in context of the
surrounding Agreement provisions, is that a “’return to work’ flying/ simulator training
program” will be rostered and that the program will be appropriate as determined by the
Training and Check Department. I am satisfied that the plain meaning of the words “will be
rostered” is that there is no option to not roster an appropriate program. The plain meaning
does not provide Jetstar with the discretion to not roster a program. The plain meaning cannot
be that the program is optional. I am satisfied that it is necessary to read additional or different
words into the sentence in order to achieve Jetstar’s construction. Effectively “will” must
become “may”, or “for an appropriate” must become “where appropriate”, or “as determined
by” must become “if determined by”. The word appropriate is about the nature of the
program not about whether or not there should be a program. If this were not the case then it
would not have to be rostered. It would be absurd to require that a non-existent program be
rostered.

[32] I am satisfied that there is no ambiguity or uncertainty in the meaning of Clause

44.1.3.

[33] In partial settlement of the dispute I must therefore determine that the answer to the
question; “can the Training and Check Department determine that no “return to work”
flying/simulator training program is required?” is “No”.

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COMMISSIONER

Appearances:

Ms C Larkins appeared for the Applicant.

Ms N Gaspar appeared for the Respondent.

Hearing details:

2017
Melbourne
April 19
Printed by authority of the Commonwealth Government Printer

<Price code C, PR592072>

i
[2014] FWCFB 7447’