Andrew Mark Merwood v Regional Express Holdings Limited [2024] FWC 1712

1 Fair Work Act 2009 s.739—Dispute resolution Andrew Mark Merwood v Regional Express Holdings Limited (C2024/2498) REGIONAL EXPRESS PILOTS’ AGREEMENT 2022 [AE5518491] DEPUTY PRESIDENT HAMPTON ADELAIDE, 15 JULY 2024 Dispute about matters arising under the enterprise agreement – dispute to be determined by the Commission – whether terms regulating out of base layovers are limits and whether exclusions apply – determination made. 1. What this decision is about [1] Captain Andrew Merwood (Applicant) is a Pilot with Regional Express Holdings Limited (REX) and has made an application under s.739 of the Fair Work Act 2009 (Act) seeking that the Commission determine a dispute concerning the proper application of the Regional Express Pilots’ Agreement 2022 (2022 Enterprise Agreement). [2] The dispute arises from a provision of the 2022 Enterprise Agreement (clause 42.9) which sets out a series of ‘out-of-base layover’ limitations, including terms for additional payments and days in lieu (DIL) when specified conditions apply, and a series of exceptions (clause 42.9.5) that exclude certain circumstances from being counted towards the limits in that provision. In general terms, an out-of-base layover occurs when a Pilot is performing a duty outside of their normal base network which requires that they stay away from that normal base between sign-off and sign-on time for a period exceeding 9 hours (clauses 3.35 and 3.42). [3] Stated briefly, Captain Merwood contends that the exceptions do not apply to the calculation of the layovers for the purposes of the additional payments or DIL – which he describes as being set out in subclauses that represent ‘thresholds’ and not ‘limits’. REX contends that all of the provisions that specify out-of-base layover restrictions, including those which also provide for additional payments or DIL, are ‘limits’ that are excluded in the defined circumstances set by the terms of the provision. [4] The application relies upon the dispute resolution provisions set out in clause 35 of the 2022 Enterprise Agreement, combined with s.739 of the Act, to provide the jurisdiction and [2024] FWC 1712 DECISION -- 1 of 13 -- [2024] FWC 1712 2 power for the Commission to determine the dispute. This is agreed by REX and I am satisfied that this is so. [5] I have conducted a hearing to deal with the application and have now determined the matter. [6] I observe that the Australian Federation of Air Pilots (AFAP), which is covered by the 2022 Enterprise Agreement and were provided with the application and the opportunity to participate in the matter, did not seek to be heard. [7] For reasons that are set out below, I have found, in effect, that REX’s construction of the 2022 Enterprise Agreement is correct. 2. The Agreed question [8] In the lead up to the hearing I proposed a question that might form the basis for the determination of this dispute. The parties subsequently agreed to the following: Under the terms of the Regional Express Pilots’ Agreement 2022, do the exceptions provided by clause 42.9.5 apply to the: • Entitlement to payments under clauses 42.9.1(b) and 42.9.2(b) and/or • Entitlement to days in lieu under clause 42.9.4? 3. The immediately relevant provisions of the 2022 Enterprise Agreement [9] The 2022 Enterprise Agreement covers1 Captain Merwood (and other relevant Pilots), REX and the AFAP. [10] By virtue of clause 5, the 2022 Enterprise Agreement does not rely upon or incorporate any other instrument as follows: “5 RELATIONSHIP TO THE AWARD This Agreement is a comprehensive agreement and replaces all awards and enterprise agreements made in accordance with the provisions of the Act. It does not exclude State laws dealing with work/occupational health and safety, workers compensation, apprenticeship, traineeships and long service leave.” [11] Clause 42 of the 2022 Enterprise Agreement establishes various provisions concerning periods of duty for the Pilots concerned. Clause 42.9, which is at the heart of the dispute, provides as follows: “42.9 Out of Base Layover Limitations 42.9.1 A Pilot conducting duties in an aircraft: -- 2 of 13 -- [2024] FWC 1712 3 a) Will not be required to perform more than 12 out-of-base layovers in any 3 consecutive roster periods; b) Will be entitled to a payment of $140.94 (indexed to CPI) for each out- of-base layover performed in excess of 8 layovers in any 3 consecutive roster periods; c) Will not be required to perform more than 4 consecutive out-of-base layovers The above provisions (a), (b) and (c) may be varied by mutual consent between the Company and the Pilot. 42.9.2 Pilots receiving additions to salary under clause 68 will be subject to the above limits, except where conducting training and/or checking duties in an aircraft. Where this occurs, the above limits will be increased as follows: a) Pilots will not perform more than 14 out-of-base layovers in any 3 consecutive roster periods; b) A payment of $140.94 (indexed to CPI) shall apply for each out-of- base layover performed in excess of 10 in any 3 consecutive roster periods; and c) Pilots will not be required to perform more than 5 consecutive out- of- base layovers. Where a Pilot performs 5 consecutive out-of-base layovers in any roster period under this subclause, no other out-of- base layover consisting of duties in an aircraft will be rostered for the remainder of that roster period. The above provisions (a), (b) and (c) may be varied by mutual consent between the Company and the Training and/or Check Captain. 42.9.3 Where a tour of duty includes an out-of-base layover, except where that layover is associated with simulator duties, all consecutive layovers in that tour of duty will be considered out-of-base layovers. 42.9.4 A Pilot who performs more than 4 out-of-base layovers consisting of duties in an aircraft in any one roster period shall be granted a Day In Lieu (DIL) for each additional out-of-base layover. Where payment is due under paragraphs 42.9.1(b) and 42.9.2(b), this will be in addition to any DIL granted under this subclause. The provisions in this clause may be varied by mutual consent between the Company and the Pilot. Where a DIL is granted under this clause, the DIL may be rostered as an additional RDO, or otherwise credited to the pilot for future use. 42.9.5 Exceptions -- 3 of 13 -- [2024] FWC 1712 4 Out-of-base layovers that are performed under the following circumstances are excluded from counting towards the limits of clauses in 42.9: a) where the pilot is undergoing checking and/or training due to being SOC, or as required to become checked to line in a new equipment assignment, or for First Officer or Command training; or b) where the pilot’s tour of duty includes simulator training or checking but does not include operating or check duties in an aircraft that require additional out-of-base layover(s); or c) where a pilot agrees to a casual day or an extension of duty which results in additional out-of-base layovers; or d) for a period of 180 days from the first day of flight operations from a new Rex flight crew base for out-of-base layovers in the new base network; or e) for a period of 270 days from commencement of operations in a new crew base which is crewed entirely by internal upgrades and transfers in accordance with seniority, and where one or more of those internal upgrades are pilots who do not meet the experience requirements to hold a command prior to commencing upgrade training, for out-of-base layovers in that new crew base network; or f) for a period of up to 180 days upon introduction of a new aircraft type to the Rex fleet and from a date chosen by the company; and being no sooner than the commencement of training of existing Rex pilots on that type, and no later than the commencement of scheduled operations of that aircraft type at Rex, for out-of-base layovers performed on the new aircraft type; or g) Out-of-base layovers in a base network that has a shortfall of at least 30% compared to Establishment of checked-to-line pilots of the same classification as the pilot being rostered. 42.9.6 The Company will provide to the RexPC2 the formula for the calculation of Establishment numbers that can be applied anytime to determine the authenticity of the calculation for when clause 42.9.5(g) is required to be utilized. [12] The following definitions in clause 3 of the 2022 Enterprise Agreement also inform the meaning of this provision: “3.28 “Establishment” means the target number of pilots of a given classification in any given flight crew base to cover all scheduled flying duties from that base, including normal levels of cover for reserve, training, annual leave and long service leave. … … -- 4 of 13 -- [2024] FWC 1712 5 3.35 “Layover” means any occasion a Pilot is away from their Home Base, or base of temporary transfer, between sign-off time and sign-on time for a continuous period exceeding nine hours. … … 3.41 “Out-of-base duty” means a duty performed by a Pilot outside of their normal base network or base of temporary transfer, that would normally be assigned to a Pilot of another crew base. Simulator checks are not considered an out-of- base duty. 3.42 “Out-of-base layover” means a layover that results from a Pilot undertaking an out-of-base duty.” [13] Clause 62 of the 2022 Agreement provides for the payment of an hourly allowance and potentially other benefits for Pilots when performing out-of-base duties. These are not impacted by the present dispute. 4. The positions advanced by the parties 4.1 Captain Merwood [14] Captain Marwood’s position is that the answer to the agreed question should be no. The exclusions do not apply. [15] Captain Merwood contends that only the provisions of clause 42.9.1 and 42.9.2, which establish actual limits on the number of relevant layovers that can be performed, are limits that are subject to the exclusions in clause 42.9.5. The additional payment provisions in clauses 42.9.1(b) and 42.9.2(b) and the TIL provision in clause 42.9.4 are thresholds and not limits. [16] That position was based on the submission that a limit is a point or level by which something does not or may not extend or pass. Those provisions, which state that Pilots “will not be required to”, meet this requirement and are limits. A threshold is a point, level or value above which a statement is true or will take place and below which it is not or will not. Those provisions which create an entitlement (the additional payment provisions in clauses 42.9.1(b) and 42.9.2(b) and the TIL provision in clause 42.9.4) are consistent with this notion and are not limits. [17] Captain Merwood also contends that REX’s reliance on the terms of the clause 42.9.2 does not extend to the TIL provision in clause 42.9.4, which appears later and is not changed in that subclause. [18] Captain Merwood further contends that the apparent purpose of the provisions was to provide an incentive for REX to avoid or reduce the extent of relevant layovers and that the employer’s approach effectively meant that none of the limitations or thresholds applied in practice to do so. He also contends, in effect, that some of the exchanges leading to the making of the 2014 Agreement did not reinforce the approach urged by REX. -- 5 of 13 -- [2024] FWC 1712 6 [19] Captain Merwood provided a statement3 which largely went to the steps he had taken to raise his dispute with REX in a manner which complied with the relevant dispute resolution procedure. He was not required for cross-examination, and I accept his evidence. 4.2 REX [20] REX’s position is that answer to the agreed question should be yes. The exclusions do apply. [21] REX contends that the provisions which include the entitlement to payments in clauses 42.9.1(b) and 42.9.2(b) and the TIL provision in clause 42.9.4 are limits as contemplated in clause 42.9.5. Further, that as a result, where the relevant circumstances in 42.9.5 apply, those layovers do not count to produce an entitlement to additional payments or DIL. [22] REX also contends that its approach accords with the ordinary meaning of text of the 2022 Enterprise Agreement and with a common understanding that exists between the parties to the instrument. [23] In relation to the ordinary meaning of the text, REX submits that the following elements support its approach: • Clause 42.9 is titled ‘Out of Base Layover limitations and the provisions contained in the subclause should be considered to be limits; • The paragraphs of clauses 42.9.1 and 42.9.2 contain hard limits (prohibitions) and soft limits (payments if exceeded) but they are all limits and it would be narrow and pedantic to consider that only the prohibitions were limits; • Clause 42.9.2 uses the concept of limits by express reference to the earlier provision that deals with the making of a payment (clause 42.9.1(b)) and changes the limit to be applied; • The DIL provision in clause 42.9.4 is the same kind of clause, and limit, as seen in clauses 42.9.1(b) and 42.9.2(b) and the same result is intended; and • Clause 42.9.5 refers to the limits of clause 42.9 without limitation. [24] It further submits that this common understanding is confirmed by the evidence that establishes: • The terms of the 2022 Enterprise Agreement are relevantly the same as those originally agreed under the Regional Express Pilots’ Agreement 2014 (2014 Agreement); • During negotiations, and in the explanation provided to the employees at the time of approval for the 2014 Agreement, all of the operative terms of what is now clauses 42.9.1, 42.9.2 and 42.9.5 were described as limits; -- 6 of 13 -- [2024] FWC 1712 7 • Since the introduction of the 2014 Agreement, REX has consistently applied the disputed terms in the manner it now contends, and this included regularly advising both Pilots and the AFAP when the circumstances contemplated in clause 42.9.5 applied and the consequences for any layover claims; • There has been no dispute about that approach at any time prior to Captain Merwood raising the matter in late 2023; and • The 2022 Enterprise Agreement was negotiated and made in (relevantly) the same terms, without any claims to change the long-standing practice. [25] REX led evidence in the form of statements from the following: • Captain Paul Fisher, its General Manager of Flight Operations and Chief Pilot;4 and • Ms Paula Tran, its Human Resources Manager.5 [26] Captain Fisher’s evidence included the nature of REX’s operations, the background to the 2014 Agreement and its subsequent application in the workplace, and the nature of the circumstances contemplated by the exceptions referenced in clause 42.9.5. [27] Ms Tran’s evidence included the detailed negotiations of the 2014 Agreement, including the communications between REX and the AFAP and the information provided to the Pilots at the time, the implementation and operation of the provisions since that time, and the general context in which the 2022 Enterprise Agreement was made. [28] Captain Fisher and Ms Tran were not required for cross-examination, and I accept their evidence. 5. Consideration 5.1 The required approach to the construction of the 2022 Enterprise Agreement [29] The principles of interpretation of enterprise agreements are well established.6 The task of construing an industrial instrument begins with a consideration of the ordinary meaning of the words, read in context, and taking into account the evident purpose of the provisions or expressions being construed. Relevant context will include the provisions of the industrial instrument as a whole and the place and arrangement of disputed terms in the instrument. The underlying statutory framework may also provide relevant context, as might prior instrument(s) from which a particular term has been derived. Regard may also be had to relevant surrounding circumstances, for the purpose of determining whether there is any ambiguity in a provision of an industrial instrument. [30] Further, the language of an industrial instrument is to be understood in the light of its industrial context and purpose, and not in a vacuum or divorced from industrial realities. Context is not itself an end. While a purposive approach to interpretation, and not a narrow or pedantic approach, is appropriate, consideration of the language contained in the text of the instrument remains the starting point and the foundation of the task of construction. -- 7 of 13 -- [2024] FWC 1712 8 [31] The nature of the present task has also been emphasised by the Full Bench in DP World Brisbane Pty Ltd v The Maritime Union of Australia7 in the following terms: “[31] Importantly, the task of interpreting an enterprise agreement does not involve re-writing a provision in order to give effect to the Commission’s view of what would be fair and just, without regard to the terms of the agreement. As Madgwick J observed in Kucks v CSR Limited: ‘But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.’” [32] REX relies, at least in part upon the post 2014 Agreement conduct. In AMWU v Berri,8 the Full Bench of the Commission provided the following extensive summary of the approach to the post-agreement conduct of the parties when determining disputes about the proper application of enterprise agreements: “[101] The admissibility of the post-contractual conduct as an aid to the construction of a contract is a somewhat vexed issue, in respect of which no clear line of authority has emerged. [102] Some early High Court authority permitted the admissibility of post- contractual conduct as an aid to construction. But obiter in more recent High Court judgements tends to support the view that such evidence is inadmissible. [103] Further, in Agricultural and Rural Finance Pty Ltd v Gardiner, a majority of the High Court adopted the ‘general principle’ that ‘it is not legitimate to use as an aid to the construction of [a] contract anything which the parties said or did after it was made’. Of course, the expression ‘general principle’ is itself somewhat ambiguous, as Campbell JA observed in Franklins Pty Ltd v Metcash Trading Ltd (Metcash): ‘It might mean that it is a principle that applies in all cases, or that it is a principle that usually applies, though perhaps being subject to exceptions.’ [104] As Allsop P observed in Metcash (at [6]), ‘much ink has been spilt over the last 30 years on this topic’. There is a daunting array of intermediate appellate court judgements on the admissibility of post contractual conduct, but no clear consensus appears to have emerged. [105] The judgement of Santow J in Spunwill Pty Ltd v BAB Pty Ltd gave detailed consideration to whether subsequent conduct may be used as an aid to construction. Spunwill is a significant first instance judgement that has been considered, and cited with approval, in some of the intermediate appellate court judgements which have dealt with this issue. After considering the relevant authorities, Santow J concluded that the use of subsequent conduct as an aid to the construction of a contract: -- 8 of 13 -- [2024] FWC 1712 9 ‘… will be legitimate under the objective theory of contract in the limited circumstances where conduct evidences a clear and mutual subjective intention as to what the contract originally meant.’ [106] In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But, consistent with the view expressed by Santow J in Spunwill, the post-contractual conduct must be such as to found a common understanding – a settled interpretation accepted by the parties. [107] We also note that in Spunwill Santow J observed that in deciding on the weight to be given to extrinsic evidence of post contractual conduct as part of the surrounding circumstances, it was useful to refer to the following passage from the judgment of Lambert JA in the Canadian case of Re Canadian National Railways and Canadian Pacific Ltd: ‘In the case of evidence of subsequent conduct the evidence is likely to be most cogent where the parties to the agreement are individuals, the acts considered are the acts of both parties, the acts can relate only to the agreement, the acts are intentional and the acts are consistent only with one of the alternative interpretations. Where the parties to the agreement are corporations and the acts are the acts of employees of the corporations, then evidence of subsequent conduct is much less likely to carry weight. In no case is it necessary that weight be given to evidence of subsequent conduct.’ [108] In the present case, one of the parties to the 2014 Agreement is a corporation and, further, the post-agreement conduct amounted to little more than the absence of a complaint about the non-payment of a laundry allowance. Such evidence is insufficient to establish a common understanding. As Gray J observed in ALHMWU v Prestige Property Services Pty Ltd: “Care must be taken … to distinguish a common understanding from common inadvertence ... In order to have an understanding, it is necessary that there be a meeting of minds, a consensus. There can be no meeting of minds, no consensus, if no one has thought about the issue.” [33] In this regard, the following observations made by Wheelahan J in Australian Rail, Tram and Bus Industry Union v KDR Victoria Pty Ltd t/as Yarra Trams9 about the “common understanding” principle should also be borne in mind (citations omitted): “great care ... must be taken in drawing upon a suggested common understanding as an aid to construction ... The reasons for caution before regard may be had to a suggested common understanding commence from the premise that it is the instrument itself that is to be construed, and any recourse to industrial practices said to amount to a common understanding are no more than part of the context in which the text of the instrument is to be construed. Industrial practices do not take the place of the terms of the instrument. There is also the need to maintain coherence with other principles, including that: (1) usually, recourse to extrinsic matters cannot displace the clear meaning of text; (2) the subjective understanding of individuals is rarely relevant to objective meaning; (3) this is also the case in relation to collective agreements where surrounding circumstances might have to rise to the level of being notorious or known by those intended to be bound by the instrument ... and (4) parties cannot by words or -- 9 of 13 -- [2024] FWC 1712 10 conduct contract out of, or waive the terms of an enterprise agreement, which has statutory force ...” 10 5.2 Findings about the context including the history of the provision [34] REX was established in 2002 and is the largest independent regional airline in Australia. It operates in New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania, with a fleet of approximately 115 aircraft including 9 Boeing 737, 57 SAAB 340 aircraft, and a range of smaller aircraft operated by REX's subsidiaries. REX operates the largest fleet of SAAB 340 aircraft in the world. [35] Captain Merwood is a SAAB 340 Pilot based in Adelaide. In recent times he has undertaken a relatively large number of out-of-base layovers. [36] The provision that lies at the heart of the present dispute is, at least as far as is relevant, identical to that set out in the 2014 Agreement. That term was negotiated and finally agreed during bargaining for that instrument. This occurred in the context of a claim by the AFAP seeking restrictions on how often crew members could be sent away to conduct out-of- base layovers. In particular, the AFAP wanted to include the limitations so that there would be a financial deterrent to Rex rostering higher than usual out-of-base layovers. For its part, REX sought specific exceptions to those limitations for matters beyond its control. [37] It is not necessary for present purposes to make findings about the detailed negotiations. It is sufficient to observe that the parties exchanged proposals around the limits and exceptions that might apply. In general terms, they described certain proposed restrictions as hard limits, and others, linked to additional payments or TIL, as soft limits. [38] More relevantly to the present matter, the explanation of the key changes provided to the Pilots as part of the employee approval process for the 2024 Agreement included the following concerning the new provision: “New clause 40.8 Out-Of-Base Layover limitations a. Limitations on out-of-base duty for Pilots conducting duties in an aircraft and Pilots employed as Training and/or Check Captains. b. Days in Lieu or additional payment included for pilots who go over the limitation.”11 [39] I observe that this is consistent with treating all of the restrictions and parameters of the new provisions as limitations. The explanation does not make reference to the exclusions in what is now clause 42.9.5 of the 2022 Enterprise Agreement. [40] The evidence confirms that REX has applied the 2014 Agreement and the 2022 Enterprise Agreement in manner that is consistent with its view of the requirements. In so doing, it has provided the basis of its calculations to the Regional Express Pilot Committee and disclosed the basis of its approach when dealing with any out-of-base layovers that are impacted by the exclusion in clause 42.9.5. There has been no challenge to this approach prior to Captain Merwood raising the issue. -- 10 of 13 -- [2024] FWC 1712 11 [41] There were no claims to amend any relevant part of what is now clause 42 as part of the negotiations leading to the 2022 Enterprise Agreement. The changes made,12 including the placement of the clause, the definition of out-of-base layovers, and the updating of the payments to reflect CPI, do not impact upon the determination of the present dispute. [42] The circumstances contemplated in the exceptions clause (42.9.5) occur with relative frequency. It is reasonably apparent that this provision was included by the parties in recognition of REX’s concerns about some matters being beyond its control, as expressed during bargaining for the 2014 Agreement. In Captain Merwood’s case, these circumstances have applied to all of his recent out-of-base layovers. [43] It is common ground that given the scope of the exceptions, the approach contended by REX has a practical impact that significantly effects the circumstances in which the (relevant) payments and days in lieu are provided.13 5.3 The proper construction of the 2022 Enterprise Agreement [44] I consider that the relevant terms, when considered as a whole, in the context of the 2022 Enterprise Agreement and the broader context set out above, are clear as to their intended meaning. [45] I understand the conceptual basis of Captain Merwood’s proposition, to distinguish between those provisions that seek to prevent the number of relevant layovers going beyond the defined circumstances as limits, from those where payments and DIL may be paid if the defined circumstances are exceeded, as thresholds. However, the text of the provisions when read as a whole does not make such a differentiation. This includes that: • Clause 42.9 is titled ‘Out of Base Layover Limitations’ and the provisions contained in the subclause that set limits or parameters might reasonably be considered to be limits; • The relevant paragraphs of clause 42.9.1 and 42.9.2 contain restrictions, either by way of express prohibitions, or criteria which provides an entitlement to payments (if exceeded), and both of these forms are limits in a general sense; and • Clause 42.9.5 refers to the limits of clause 42.9 without restrictions. [46] Further and of some significance, Clause 42.9.2 uses the concept of limits by express reference to the earlier provision that deals with the making of a payment (clause 42.9.1(b)) and changes the limit to be applied. To differentiate between the relevant provisions, by applying the 2 concepts relied upon by Captain Merwood, would be directly inconsistent with how the 2022 Enterprise Agreement has used the term ‘limits’. [47] The DIL provision in clause 42.9.4 is the same kind of clause, and restriction or limit, as seen in clauses 42.9.1(b) and 42.9.2(b). I accept REX’s proposition that, objectively, the same result is intended. This, and the approach outlined above, is consistent with the explanation provided to the Pilots as part of the approval of the 2014 Agreement. Evidence of that kind is relevant to ascertaining the objective intention of the instrument.14 -- 11 of 13 -- [2024] FWC 1712 12 [48] Clause 42.9.5, and its exclusions, is objectively intended to apply to all of the limits in clause 42.9. This is the ordinary and natural meaning of the provisions when read in the entire context of the Agreement. [49] Given that finding, it is not strictly necessary for me to determine whether a common understanding exists in the workplace. Given the authorities outlined earlier in this decision, considerable care should be exercised in reaching such a conclusion. I observe that given the nature and prevalence of this issue and the open communications by REX about its approach to the disputed provisions, the circumstances evident here are more consistent with the notion of an objective common understanding than common inadvertence. In any event, the extrinsic material and the practice is consistent with the text of the provisions themselves. [50] In reaching this view, I have considered Captain Merwood’s contention that, in effect, the approach posited by REX undermines the incentive for the employer to limit the relevant layovers. However, for reasons set out earlier, whatever the merit of that proposition it does not permit the Commission to put aside, or vary, the evident meaning of the text itself. 6. Conclusions and Determination of the dispute [51] For reasons set out above, I consider that the exclusions set out in clause 42.9.5 are intended to apply to all of the limits set out in clause 42.9. Further, clauses 42.9.1(b), 42.9.2(b) and 42.9.4 are clauses that represent limits for present purposes. [52] The agreed question is as follows: Under the terms of the Regional Express Pilots’ Agreement 2022, do the exceptions provided by clause 42.9.5 apply to the: • Entitlement to payments under clauses 42.9.1(b) and 42.9.2(b) and/or • Entitlement to days in lieu under clause 42.9.4? [53] As a result, the determination of the Commission is Yes to both. DEPUTY PRESIDENT Appearances: A Merwood, the Applicant on his own behalf. -- 12 of 13 -- [2024] FWC 1712 13 L Meagher (of Counsel) with T Jones and I Armao of Clayton Utz, with permission, for Regional Express Holdings Limited, the Respondent. Hearing details: 2024 July 1 MS Teams Video Hearing. Printed by authority of the Commonwealth Government Printer <PR776541> 1 Clause 4 of the 2022 Enterprise Agreement. 2 Defined in clause 3 to mean the Regional Express Pilot Committee. 3 Exhibit 1. 4 Exhibit 2. 5 Exhibit 3. 6 Sydney International Container Terminals Pty Limited T/A Hutchison Ports v Construction, Forestry, Maritime, Mining and Energy Union [2023] FWCFB 87 at [36] and [37] and the authorities referenced by the Full Bench including James Cook University v Ridd (2020) 278 FCR 566 at [65], [2020] FCAFC 123, 298 IR 50 at [65], WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197]; [2018] FCAFC 131 at [197]; Australian Workers’ Union v Orica Australia Pty Ltd [2022] FWCFB 90 at [18]. 7 [2013] FWCFB 8557. 8 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005. 9 [2021] FCA 1377. 10 Ibid at [63]. As cited in FreshFood Management Services Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Another [2023] FWCFB 97 at [65]. 11 Exhibit 3 – document PT-15. 12 Outlined in the summary – exhibit 3 – document PT-16. 13 Transcript PN183. 14 See Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’ known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114] at 12, 13. -- 13 of 13 --