Robert Richard Greenslade v Jetstar Airways Ltd

• Jurisdiction: New Zealand
• Judge: G L Colgan,Christina Inglis,M E Perkins
• Judgment Date: 14 February 2014
• Court: Employment Court
• Docket Number: ARC 91/12
• Date: 14 February 2014

IN THE MATTER OF a challenge to a determination of the Employment Relations Authority

BETWEEN

Robert Richard Greenslade

Plaintiff

and

Jetstar Airways Limited

Defendant

[2014] NZEmpC 23

Court:

Chief Judge G L Colgan

Judge Christina Inglis

Judge M E Perkins

ARC 91/12

IN THE EMPLOYMENT COURT AUCKLAND

Challenge to a determination of the Employment Relations Authority which found that the defendant had not breached its contractual and statutory obligations under Part 6D Employment Relations Act 2000 (“ERA”) (rest breaks and meal breaks) — plaintiff was a pilot and flew domestic and international routes — plaintiff had meals in the cockpit while on duty — defendant alleged plaintiff had opportunity to have a rest break between flight turnaround times — plaintiff argued he had to perform functions during that time — defendant acknowledge that it had not provided, rest and meal breaks to the plaintiff in accordance with s69ZD ERA but argued that s69ZH(2) ERA (another enactment applies instead of the provisions or entitlements provided under this Part) exempted it from the requirement under s69ZD to provide rest and meal breaks because the Australian Civil Aviation Orders (“CAO”) 48 (Flight Time Limitations) applied — what was the definition of “rest break” and “meal break” — whether the CAO qualified as “another enactment” for the purposes of s69ZH(2) ERA.

Appearances:

Rodney Harrison QC and Richard McCabe, counsel for plaintiff

Michael O'Brien and Joey James, counsel for defendant

JUDGMENT OF THE FULL COURT

Introduction

1 The issues for decision in this case are whether the defendant, Jetstar Airways Limited, has complied with its statutory and contractual obligations to provide the plaintiff, a pilot employee (Richard Greenslade), with rest breaks and meal breaks during his work time. The Employment Relations Authority (the Authority) found that there was no breach. 1

2 This challenge by hearing de novo is the first time the statutory requirements for rest breaks and meal breaks, provided for under Part 6D of the Employment

Relations Act 2000 (the Act), have been considered by this Court. The questions for decision affect not only the plaintiff but other pilots employed by Jetstar, and not only this employer and its employees, but other parties to employment relationships. A full Court has been assembled to consider and decide these novel issues and to give guidance to others

Factual context

3 The defendant is a New Zealand registered company which employs flight crew on aircraft bearing Jetstar livery. In this judgment we refer to the defendant as “Jetstar New Zealand”. Jetstar New Zealand is a wholly owned subsidiary of Jetstar Pty Ltd, an Australian registered company which we will refer to as “Jetstar Australia” to distinguish it, where necessary, from the defendant.

4 Jetstar Australia operates passenger airline services from, to and within New Zealand. Mr Greenslade is employed by Jetstar New Zealand as a pilot on Jetstar Australia's Airbus A320 type aircraft. The aircraft flown by Mr Greenslade and other New Zealand based pilots are registered in Australia under Australian civil aviation laws. The A320 is a narrow bodied (single aisle) passenger aircraft operated by two pilots.

5 Mr Greenslade (who is based in Christchurch) flies inter-city services within New Zealand (Auckland, Wellington, Christchurch, Dunedin and Queenstown), to and from the eastern seaboard of Australia (Melbourne Sydney, Gold Coast), and to and from Fiji. Flying times range between 45 and 90 minutes on domestic services and four hours on trans-Tasman and Fiji services. The A320 type aircraft flown by Jetstar do not have flight crew rest areas as do larger wide bodied aircraft.

6 As a captain (although the position is not materially different for first officer pilots as well), Mr Greenslade can work between hours that start as early as 0500 hours (5.00 am) and finish as late as 2400 hours (midnight) on any given day. He undertakes tours of duty (continuous absence from home base) which can last for up to three days. The legs of any given duty can range from one to five sectors, that is, flights between airports. Domestic operations' duty times can range from just underfour hours (including a total flight time within that span of one hour and 20 minutes) to a more typical day of eight hours and 15 minutes duty time during which total flight time amounts to five hours and 30 minutes over four sectors.

7 The scheduled turnaround time for international flights is 40 minutes and, for New Zealand domestic flights, 30 minutes. 2 Turnaround times are calculated from engine shut-down on arrival, to either push-back or engine ignition for the next departure. During turnaround times Mr Greenslade is required to perform a number of duties including flight planning, aircraft preparation, completion of documentation, supervision and checking of load planning data, supervision of aircraft boarding and loading, ensuring aircraft safety for flight and appropriate authorisations, participating in crew briefings and any other similar matters that require his attention. The full 40 minutes of a turnaround (or 30 minutes on domestic flights) is required potentially, and in many cases actually, to perform those tasks.

8 The defendant's position is that during turnaround times on the ground there is no opportunity for a pilot to have a rest break or meal break. This is especially so given that a key feature of Jetstar operations is minimal turnaround time of aircraft and their crews while on the ground between revenue generating flights.

9 With the exception of quick toilet breaks if and when necessary and the aircraft's toilet is available, both pilots on an A320 flight deck are required to be there during the whole flight. Meals are provided to pilots and these are eaten (alternately) on the flight deck while both pilots continue to monitor the operation of the aircraft. If anything occurs requiring the attention of both flight crew members while one pilot is having a meal in these circumstances, then the meal must be put to one side while that occurrence is attended to. Meals are usually provided to flight crew once an aircraft is in its cruise phase 3 although, particularly on some domestic sectors, this requires rapid consumption of the meal because the cruise phase is short

and the full attention of both pilots is required for the ascent and descent phases of flights. On some short sectors of an hour or less flying time, there is no time at all for any break for a meal or rest while the aircraft is in the air

10 There is no argument that the plaintiff has not had, and continues not to have, rest or meal breaks during his working duty periods. That is illustrated by an actual working example postulated by the plaintiff in his evidence. This involves a duty period encompassing Christchurch-Auckland-Christchurch-Auckland-Christchurch sectors, signing on at 0545 hours (5.45 am) and signing off 1400 hours (2.00 pm). He calculates that within this period, he would be entitled to 10 minute rest breaks at approximately 0745 hours, 1145 hours, and 1345 hours, as well as a 30 minute rest break at approximately 0945 hours.

11 There are two distinct periods of time at issue in these proceedings. The first is from 14 October 2010 to 26 March 2013 during which the plaintiff was party to an individual employment agreement (IEA). Under the agreement he was employed “to operate on flights for the Company [Jetstar New Zealand] or [Jetstar Australia]…(“the Client”) or any other aircraft type or airline with which the Company has a client relationship in the future.” 4

12 The IEA made specific reference to “breaks” under cl 19. Clause 19 provided that:

The parties agree that breaks will be provided in accordance with the statutory requirements set out in section 69ZD of the Employment Relations Act 2000, or any amending or substituting Acts. The parties agree that the Company may direct the most appropriate time for these breaks to be taken in accordance with operational requirements.

13 The IEA did not define the term “breaks”, and nor was the term referred to other than in cl 19. Section 69ZD, 5 to which cl 19 made express reference, is set out below.

14 The second period of time at issue in these proceedings commenced when the IEA was replaced by a collective agreement, the Jetstar Airways Limited and New Zealand Airline Pilots' Association Industrial Union of Workers Incorporated (NZALPA) Jetstar Pilots' Collective Agreement 2013 (CA), with effect from 26 March 2013. The CA refers to rest periods but contains no reference to rest breaks and/or meal breaks. “Rest period” is defined in the CA to mean “a period of time during which a pilot is at suitable resting accommodation or suitable sleeping accommodation and is relieved of all duties associated with his/her employment.” These rest periods must be taken on the ground and not in the aircraft, and a pilot must be relieved of all duties during them.

15 In a letter of 31 January 2011 sent on Mr Greenslade's behalf to Jetstar, concerns were raised that it was not complying with the rest and meal break provisions set out in Part 6D of the Act.. Mark Rindfleish, Jetstar's Chief Pilot, replied expressing the view that s 69ZH(2) applied.

16 Mr Rindfleish advised that the company operated in the New Zealand market pursuant to Part 1A of the New Zealand Civil Aviation Act 1990 (New Zealand CAA) under an Australian air operator's certificate (AOC) issued by the Australian Civil Aviation Safety Authority (CASA), and that:

The ANZA Mutual Recognition provisions require an Australian operator conducting operations in New Zealand to abide by the obligations arising under the CASA AOC. The relevant schedule (Flight Crew Flight and Duty Limits) under the CASA AOC requires that flight crew (including pilots) take rest periods and is prescriptive...