PRINCIPLES OF ROSTERING CONTRAVENTIONS
FEDERAL COURT FINDS AIRSERVICES DIDN’T CONSULT WHEN CHANGING THE CAIRNS TCU ROSTER
On 27 October 2021, the Federal Court handed down its decision in relation to Civil Air’s application for contraventions for Airservices for breaching the Enterprise Agreement. The claim arose from a decision to include SAFRA shifts on the Cairns TCU roster without consultation.
Airservices were found to have breached the Fair Work Act 2009 in that they failed to consult with Cairns TCU employees prior to the decision to include SAFRA shifts and publish a new roster. During the last two rounds of Enterprise Agreement bargaining, Civil Air President, Tom McRobert, has been clear that any breaches to the Principles of Rostering (PoRs) provisions would be prosecuted.
This decision puts Airservices on notice that Civil Air will fight to protect its members rights and that employees will stand up and protect their PoRs.
Briefly, the Federal Court found that ASA had contravened section 50 of the Fair Work Act by breaching the following 11 provisions of the EA:
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1. Making the decision to implement the SAFRA service and deploy the Cairns TCU was made without consultation and in breach of clause 8.5 (as required by clause 8.3(a)) of the ATC EA.
2. Changing the published roster without consultation with the LRR (three or more alternate rosters, consult about alternative proposed rosters, give prompt and genuine consideration, seek to reach agreement and implement change in accordance with the LRR preference) breached clause 19.9 of the ATC EA.
3. In publishing the roster without consulting or complying with other requirements (roster inputs, draft roster based on those inputs and provide a draft roster highlighting any proposed significant changes), ASA breached clause 19.14 of the ATC EA.
4. Changing the base/master roster for the Cairns TCU employees (which was a change to the regular roster) without consultation as required by cl 8.10 was a breach of cl 8.3(b) of the ATC EA.
Key points of Justice Bromberg’s decision:
Airservices obligation under cl 8.3 is expressed as an obligation to consult about “changes” including proposed changes rather than a after a decision has been made and implemented.
Clause 8.3 requires consultation about the proposed change occur prior to a final decision.
CASA issued a Safety Finding on 25 May 2018.
Airservices’ need to comply with the CASA Safety Finding does not deny the need to consult.
By 19 September 2019, Airservices was of the view that training would likely be of no utility because there was a likelihood that an overnight SAFRA service would not be required.
Mr Wells gave evidence:
Airservices was hoping that it would never actually have to provide the [SAFRA] service because the “Airspace Modernisation Program” would take effect (despite CASA having recently issued a Safety Finding);
Training has been described as a box ticking exercise and undertaken on the basis of Airservices hoped it would not be required to provide the overnight SAFRA service;
That senior managers of Airservices met and decided they would “attempt to comply with [CASA’s] the new 31 October 2019 deadline”.
Mr Fitzgerald gave evidence that:
He understood training was postponed because Airservices would not have to provide the full SAFRA service.
He considered “that whilst it was a firm decision when made, the initial SAFRA decision had, by at least mid-September 2019, become highly conditioned by Airservices’ desire to avoid implementing a SAFRA service at all…”
There is no textual or contextual basis for the view that the consultative requirements made by cl19.9 were intended to be dispensable where the circumstances, including those of Airservices own making [failure to comply with the Safety Finding], made those requirements difficult to achieve in the time available.
Some of Mr Fitzgerald’s evidence is far from satisfactory. His Honour had doubt as to the reliability of Mr Fitzgerald’s evidence.
Penalties for the contraventions will be argued in due course and the Court will separately consider and make appropriate penalty orders.
The decision is available to view through the Federal Court of Australia’s website Civil Air Operations Officers' Association of Australia v Airservices Australia [2021] FCA 1313 (fedcourt.gov.au).
Published: 03 Dec 2021
Media Inquiries:
Peter McGuane, Executive Secretary, Civil Air
T 03 9647 9100