FEDERAL COURT OF AUSTRALIA Qantas Airways Limited v Australian & International Pilots Association [2010] FCA 231 Citation: Qantas Airways Limited v Australian & International Pilots Association [2010] FCA 231 Appeal from: AIPA & Anor v Qantas Airways Ltd [2008] FMCA 1008 Parties: QANTAS AIRWAYS LIMITED v AUSTRALIAN & INTERNATIONAL PILOTS ASSOCIATION and GARRY DUGGAN File number(s): VID 918 of 2008 Judge: GRAY J Date of judgment: 17 March 2010 Catchwords: INDUSTRIAL LAW – collective agreement – interpretation – complex agreement relating to flight crew rosters – provision for additional pay when flight crew member assigned additional hours for which he or she had not bid – prohibition on removal of overprojection – provision for additional hours when flight crew member's pattern changed due to downline disruption – removal of overprojection permitted – whether flight crew member entitled to additional pay under former provision for additional hours caused by downline disruptions – whether additional hours assigned – incompatibility of two provisions concerning overprojection WORDS AND PHRASES – "assigned" Legislation: Fair Work Act 2009 (Cth), s 570 Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth), Sch 1, s 3, item 3, item 11 of Sch 2, item 11(1), item 11(2), item 21(b) of Sch 17, item 22(f) Workplace Relations Act 1996 (Cth), ss 4(1), 170LT, 170LX, 328, 717, 718, 719, 719(6), 720, 722, 824, 841, Sch 1 Cases cited: AIPA & Anor v Qantas Airways Ltd [2008] FMCA 1008 cited Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2005-2006, cll 7, 25, 25.3, 27, 27.15.1(b), 27.16, 27.16.1, 27.16.2(b), 27.16.2(c), 27.22, 27.22.1, 27.22.1(d), 27.22.2(d), 27.22.2(d)(iv), 27.22.2(k) Date of hearing: 18 September 2009 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 33 Counsel for the Appellant: Mr R Kenzie QC and Mr A Britt Solicitor for the Appellant: Blake Dawson Counsel for the Respondents: Mr S Moore Solicitor for the Respondents: A J Macken & Co IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 918 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: QANTAS AIRWAYS LIMITED Appellant AND: AUSTRALIAN & INTERNATIONAL PILOTS ASSOCIATION First Respondent GARRY DUGGAN Second Respondent JUDGE: GRAY J DATE OF ORDER: 17 march 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Federal Magistrates Court of Australia, made on 17 October 2008 be set aside. 3. There be substituted for those orders an order that the application filed in the Federal Magistrates Court of Australia in proceeding no. MLG 711/07 be dismissed. 4. There be no order as to the costs of the proceeding in the Federal Magistrates Court of Australia, or of the appeal. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 918 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: QANTAS AIRWAYS LIMITED Appellant AND: AUSTRALIAN & INTERNATIONAL PILOTS ASSOCIATION First Respondent GARRY DUGGAN Second Respondent JUDGE: GRAY J DATE: 17 MARCH 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT The nature and history of the proceeding 1 This appeal from a judgment of the Federal Magistrates Court of Australia concerns the construction of provisions of a collective agreement between an airline and an organisation representing pilots employed by that airline. One provision of the agreement provides for a higher than normal rate of pay when a flight crew member is assigned a duty that involves hours over and above those calculated by reference to a particular formula. The question is whether the additional rates of pay are applicable in circumstances where what is called a "downline disruption" occurs, that has the effect of extending the hours that would otherwise be worked in a particular period. 2 The judgment the subject of the appeal is published as AIPA & Anor v Qantas Airways Ltd [2008] FMCA 1008. The learned federal magistrate made a purported declaration "That Qantas has breached the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2000 – 2007 [sic] for the reasons set out in the judgment." His Honour ordered that a penalty of $5,000 be imposed on the appellant for that breach, that the penalty be paid to the first respondent to this appeal, that the appellant pay to the second respondent to this appeal $6,094.77 (less tax), together with interest at the rate of 10.5% from 29 May 2007 until judgment, and that the payments all be made within 30 days of the order. 3 The primary issue in the appeal involves a challenge to the conclusion that there had been any breach of the Qantas Airways Ltd Flight Crew (Long Haul) Certified Agreement 2005-2006 ("the Enterprise Agreement") by Qantas failing to pay Captain Duggan at the additional rate in respect of extra duty he had performed owing to downline disruptions during the currency of the Enterprise Agreement. There is a secondary issue, only arising if the appeal fails in relation to the primary issue, as to whether the federal magistrate should have imposed a penalty. 4 The appellant, Qantas Airways Limited ("Qantas") is a corporation that operates an airline. The first respondent, Australian & International Pilots Association ("AIPA") is an organisation, at relevant times registered pursuant to the provisions of Sch 1 of the Workplace Relations Act 1996 (Cth) ("the WR Act"). Those provisions have now been retitled as the Fair Work (Registered Organisations) Act 2009 (Cth). AIPA represents flight crew officers employed by Qantas. The second respondent, Captain Garry Duggan, is a pilot employed by Qantas and was so employed at the times relevant to this case. 5 Qantas and AIPA are the parties to the Enterprise Agreement, which was certified by the Australian Industrial Relations Commission, pursuant to s 170LT of the WR Act, on 16 November 2005. It came into force on 16 November 2005. Its nominal expiry date was 31 December 2006. Pursuant to what was then s 170LX of the WR Act, the agreement remained in operation unless, after its nominal expiry date, it was replaced by another certified agreement. 6 AIPA and Captain Duggan were the successful applicants in the Federal Magistrates Court. After Qantas had filed its notice of appeal in this Court, followed by its amended notice of appeal, AIPA and Captain Duggan filed a notice of contention on 19 December 2008, seeking to uphold the judgment of the federal magistrate on a basis other than that on which his Honour had determined the case. On the date when the appeal came on for hearing, 18 September 2009, counsel for AIPA and Captain Duggan filed in Court a notice stating that, with the consent of Qantas, AIPA and Captain Duggan withdrew and abandoned the grounds advanced in the notice of contention. Counsel for AIPA and Captain Duggan then remained in court during the hearing of the appeal, making no concessions, but putting no submissions to the Court in opposition to the appeal. The legislation 7 The application to the Federal Magistrates Court invoked the jurisdiction conferred on that court by s 719 of the WR Act, the relevant provisions of which were: (1) An eligible court may impose a penalty in accordance with this Division on a person if: (a) the person is bound by an applicable provision; and (b) the person breaches the provision. (2) Subject to subsection (3), where: (a) 2 or more breaches of an applicable provision are committed by the same person; and (b) the breaches arose out of a course of conduct by the person; the breaches shall, for the purposes of this section, be taken to constitute a single breach of the term. ... (6) Where, in a proceeding against an employer under this section, it appears to the eligible court that an employee of the employer has not been paid an amount that the employer was required to pay under an applicable provision (except a term of an ITEA), the court may order the employer to pay to the employee the amount of the underpayment. 8 Section 720 also provided that, if an employer were required by an applicable provision to pay an amount to an employee, the employee could sue for the amount of the payment in an eligible court. Section 722 required the eligible court to order the payment of interest on any such sum ordered pursuant to (among other provisions) s 719(6) or s 720, unless good cause was shown to the contrary. Interest was to be at such rate as the eligible court thought fit and for the whole or any part of the period between the date when the cause of action arose and the date of the order. 9 For the purposes of these provisions, s 717 provided definitions of "applicable provision" and "eligible court". The former term included a collective agreement, an expression itself defined in s 4(1) of the WR Act to include a union collective agreement (among other kinds of agreements). Section 4(1) also contained a definition of "union collective agreement", referring to s 328. Section 328 of the WR Act provided that an employer may make an agreement in writing with one or more organisations of employees having at least one member whose employment in the single business of the employer would be subject to the agreement, and being entitled to represent the industrial interests of the member in relation to work that would be subject to the agreement. The Federal Magistrates Court was one of the courts listed in the definition of "eligible court" in s 717 of the WR Act. In addition, in respect of a term of a collective agreement, s 718 provided that an employee bound by the agreement and an organisation of employees having a member employed and affected by the breach both have standing to apply for a penalty or other remedy under s 719. The source of the power to order the payment of the penalty to AIPA was in s 841 of the WR Act. 10 These provisions of the WR Act were repealed by s 3 and item 3 of Sch 1 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) ("the Fair Work Transitional Act"). The judgment from which this appeal is brought was given prior to the date of that repeal. Item 11 of Sch 2, in conjunction with s 3, of the Fair Work Transitional Act makes it clear that the repeal provisions continue to apply, in relation to the orders of the Federal Magistrates Court (item 11(2)) and the conduct on which they were based (item 11(1)). Item 21(b) of Sch 17, in conjunction with s 3, of the Fair Work Transitional Act constitutes a specific conferral on this Court of jurisdiction in relation to any matter arising under the WR Act as it continues to apply because of the Fair Work Transitional Act. By item 22(f), that jurisdiction is to be exercised in the case of this appeal by the Fair Work Division of this Court. The Enterprise Agreement 11 The Enterprise Agreement is a very long document, containing detailed provisions, particularly provisions concerning the allocation of flying duties to flight crew members. It is the seventh such agreement arrived at between AIPA and Qantas, so its terms have been negotiated and modified over a number of years. 12 The allocation of flying duties is based on a series of rosters, known as bid periods. Each bid period is 56 days, starting on a Monday. Within each period, flight crew members are allocated patterns of flying and other duties in accordance with their "bid line". 13 The first stage of determining the allocation of patterns and duties to flight crew members is the calculation of a figure called a bid period divisor. This term is defined in cl 7 of the Enterprise Agreement as meaning a number between 160 and 175, determined by Qantas after consultation with AIPA, "which determines the number of pattern lines to be constructed for each category at a base station...and is used as a reference point for various provisions in this Agreement." The bid period divisor can vary, depending on factors such as the number of available flight crew members, the amount of flying required, the amount of leave in the bid period and blank line requirements. Blank lines represent the non-allocation of flying duties. The number of blank lines will vary from bid period to bid period, depending on factors such as the number of available flight crew members, flying requirements, known sick leave, annual leave and long service leave. 14 The calculation of the bid period divisor determines the number of pattern lines to be constructed for each category of flight crew member on each fleet of aircraft. Because of the impossibility of constructing a pattern line to an exact figure, a margin on either side of the bid period divisor is used to account for variations. The margin is usually two hours, but may be up to five hours. 15 Approximately four weeks before the start of a bid period, information about the patterns available in that period is provided to flight crew members, who have a defined period available in which to bid for various patterns. Once that period has closed, the bids are analysed and pattern lines are allocated to flight crew members. The allocation is based primarily on the preferences expressed and on seniority. A computer program is used and Qantas consults with AIPA on allocations. The aim is to ensure that Qantas is able to utilise its flight crew in the most efficient way. The majority of known flying is allocated prior to the opening of the bid period. 16 In the context of this system of allocating flying duties, cl 25 of the Enterprise Agreement provides for additions to pay in certain circumstances. One of those circumstances is dealt with in cl 25.3, which is headed "Additional payment when assigned over divisor + 5", and provides: Where a flight crew member is assigned a duty that takes his or her projected credited hours over the bid period divisor (or, where applicable, his or her personal divisor) plus 5, the flight crew member will receive an additional payment of 1 hour for each credited hour (pro-rated for time less than 1 hour) that remains over the bid period divisor (or, where applicable, his or her personal divisor) plus 5 at the end of the bid period. The Company will not exercise the right to remove overprojection where the hours are caused by these circumstances. 17 Clause 7 of the Enterprise Agreement contains definitions of a number of terms. The following are relevant to the interpretation of cl 25.3: assigned means an allocation to a flight crew member for which the flight crew member has not bid. ... awarded means an allocation to a flight crew member as a result of the flight crew member's bid. ... credited hours means hours accrued in accordance with clause 27.15 but excludes additional flight duty payments (clause 25.1) 18 Clause 27 of the Enterprise Agreement is headed "SCHEDULING AND HOURS OF WORK". Clause 27.15.1(b) is headed "Flight crew members may be required to exceed bid period divisor plus 5 where disruptions occur". It provides: A flight crew member may be required to exceed bid period divisor (or, if applicable, personal divisor) plus five in a bid period if, after departing the base station on the last pattern in the bid period, the flight crew member is rescheduled or delayed on the line due to an unexpected disruption to the pattern. 19 Clause 27.22 is headed "Exceptions to flying of allocated patterns". Its relevant provisions are: Flight crew members will fly each pattern allocated under the provisions of this Agreement except where the circumstances identified in clause 27.22.1 (relating to pattern line holders)...exist. 27.22.1 Circumstances when a pattern line holder does not fly an allocated pattern Where the following circumstances exist, a pattern line holder will not fly an allocated pattern and clause 27.22.2 applies: ... (d) after commencement of duty, the pattern is changed or disrupted... 27.22.2 How the circumstances in 27.22.1 are treated The following provisions 27.22.2(a) to (p) apply, respectively, to each of the circumstances identified in 27.22.1(a) to (p) above: ... (d) Pattern changes after reporting for duty to be treated as downline disruptions (i) Disruptions to other flight crew members to be minimised A change to a flight crew member's pattern after the flight crew member has reported for duty for departure from his or her base station will be treated as a downline disruption. Scheduling re-arrangements required as a result of the change will be kept to a minimum and will be made so as to minimise disruptions to the patterns of other flight crew members. (ii) Downline disruption When a flight crew member loses credited hours during a pattern because of a downline disruption, the flight crew member will be pattern protected and available in accordance with clause 27.16. (iii) Downline disruption causing conflict between MBTT & next pattern When a pattern resulting from a downline disruption and/or the minimum base turnaround time to which the flight crew member is entitled conflicts with the next pattern the flight crew member will be pattern protected in accordance with clause 27.16. (iv) Overprojection caused by downline disruption If a flight crew member becomes overprojected as a result of downline disruption and the Company removes time in accordance with sub-clause 27.22.2(k), the flight crew member will be pattern protected and available in accordance with clause 27.16. ... (k) Company removes excess projected credited hours (i) If a flight crew member fails to relinquish hours If a flight crew member fails to relinquish hours under the immediately preceding sub-clause (j), the Company may within the following 36 hour period remove as few projected credited hours as possible to reduce the projected credited hours: (1) below the bid period divisor (or, if applicable, personal divisor) plus 5, or (2) if the flight crew member was already overprojected, below the credited hours to which the flight crew member had been projected before accruing the additional hours. (ii) Pattern protection A flight crew member will be pattern protected and available in accordance with clause 27.16.5(i) if sub-clause (j)(i) or (j)(ii) applies but will not be pattern protected for patterns removed by the Company because of the allocation of transitional training. 20 Clause 27.16 of the Enterprise Agreement deals with pattern protection. Clause 27.16.1 contains a definition of pattern protection. Clause 27.16.2(b) and (c) contain detailed provisions for pattern protection when there is a conflict between two patterns allocated to the one person due to assignments or standbys and where there is a conflict between patterns due to downline disruption. 21 There is no definition in the Enterprise Agreement of the word "allocated", or the word "allocation". The federal magistrate's reasons for judgment 22 The federal magistrate did not accept the argument put by either party on the proper construction of cl 25.3 of the Enterprise Agreement. His Honour's reasoning is set out as follows in the reasons for judgment: 36. The Applicants said, quite simply, that under the agreement work can only be awarded or assigned, and therefore anything that a pilot did not bid for and get (i.e. awarded) must be assigned. From the fact that the words "awarded" and "assigned" are drafted in mirror-image terms, I conclude that those who drafted those phrases (and this was a long time ago, decades ago) saw them as operating as an exclusive mechanism to deal with the bidding process. 37. Nonetheless, the position earnestly contended for by Qantas that clause 27.22.2(d) precludes overtime payment to Captain Duggan is, in my view, misconceived. If one construes that clause properly, what is provided is that downline disruptions will be kept to a minimum (d)(i)) and, relevantly, Qantas may remove overprojection arising from downline disruption ((d)(iv)). 38. Clause 27.22.2(k), however, does not make it mandatory for Qantas to remove projected credited hours to a point where the pilot is below the bid divisor +5. ... 41. I do not accept the position contended for by the Applicants that the phrase in clause 25.3, The company will not exercise the right to remove a projection where the hours are caused by these circumstances, applies to downline disruptions. It cannot, because clause 27.22.2(k) is plainly contradictory to this. 42. This finding necessarily leads to the conclusion that the assignment process at least initially contemplated by clause 25.3 was to do with the scheduling of hours in the normal bidding process. I accept Qantas' submission that the relevant portions of clause 27 would otherwise contradict clause 25.3. I also accept that it is no coincidence that downline disruptions have historically been in a separate part of the agreement. ... 59. I think it is clear that what the parties intended was that clause 25.3 would operate in the ordinary scheme of assignment of duties (but not, as it transpired, awarding of duties) in the bid period process. That is certainly what Qantas thought it meant. 60. One of the difficulties for both parties, however, is that clause 27.22.2(k) (and in its predecessor form of 27(n)(ii)(11)) did no more than give Qantas the right to remove over projection where the pilots themselves failed to do so where a pattern accrued more credited hours than were originally scheduled so as to exceed the bid period divisor +5. 61. The pre-existing clause said nothing whatever about what should happen in respect of payment. 62. In my view, the existing regime required Qantas to pay workers for credited hours unless they were removed by Qantas so as to avoid over projection. 63. Furthermore, it is clear that where the downline projection causes the necessity for some further or different work, that is regarded as being an allocation of a duty. 64. Neither allocation nor duty are expressly defined in the agreement, but allocation seems to me to be a phrase used in clause 27.21 of the agreement to govern the circumstances under which pilots bid (or, as the case may be, do not bid) for time and are then awarded or assigned as the case may be. 65. In the ultimate, I think that the better view is simply that these confusing provisions, about which the parties may well not have had the same understanding following the conclusion of EBA 5, amount to the following: (a) Where Qantas sets a line of patterns by assigning a pilot work that will take them over their bid period divisor +5 the company cannot remove that over projection (clause 25.3); (b) Where a downline disruption occurs Qantas will do everything that it can to ensure that rearrangements required as a result of the change will be kept to a minimum (clause 27.22.2(d)(1)). (c) A flight crew member who becomes over projected as a result of a downline disruption may relinquish excess hours (clause 27.22.2.(J)). (d) If the pilot does not voluntarily relinquish hours Qantas may still remove over projection pursuant to clause 27.22.2(k). ... 68. While clause 27.22.2(k) plainly allows Qantas to reduce its obligations where it is practicable to do so, there is nothing in clause 27.22 that says that work caused by downline disruptions is not work that ought to be credited and paid in the ordinary way. 69. In my view, doing the best I can with provisions that are in part contradictory and which have given rise to unanticipated (at least by Qantas and possibly AIPA also) results, the word assigned should be approached according to its ordinary meaning. The Oxford Shorter Dictionary defines assign as: 1. Allot, appoint, determine; 2. Appoint or designate (a person) to an office, duty, fate, etc, to do a task. 70. Those definitions fit very clearly the factual circumstances as I understand them in this case. 71. Although it is true that assignment in the sense traditionally contemplated in the bidding process for open time can never take place where there is a downline disruption, on any sensible understanding of the English language the duties that arise for a flight crew member arising from a downline disruption are duties imposed upon them by Qantas, albeit that it is not Qantas' fault that they are indeed imposed. The duties are assigned both in the dictionary sense indicated above and in the sense that they are imposed by Qantas without the pilot's agreement. The latter meaning is the substance of the meaning attached to the meaning of assigned as it has been understood for many years in the agreement. 72. This view is by no means without its difficulties. It requires a rather convoluted outcome inasmuch as it would mean that clause 25 would have to be taken to apply to assignment whether by the bidding process or by downline disruptions when it does not say that in terms and when the last sentence of the clause would plainly have to be read subject to clause 27.22.2(k). Approached in this way, which I believe adopts the spirit of the judgment of Madgwick J in Kucks, the agreement means that: (a) where Qantas initially assigns a pilot in excess of bid divisor +5 Qantas may not remove the overprojection (clause 25.3); (b) where overprojection arises not out of initial assignment but out of a downline disruption, Qantas may remove the overprojection (clause 27.22(k)); (c) If Qantas does not in fact remove the overprojection, any hours in excess of bid divisor +5 require the additional payment set out in clause 25.3. ... 74. Although the parties did not intend it to have this meaning, the fact is that the introductory words of clause 25.3, as opposed to the last sentence, can be applied where Qantas fails to remove over projection caused by downline disruptions pursuant to clause 27.22.2(k). 23 His Honour then proceeded to deal with the questions of penalty. His Honour found that those who had made the decisions on the part of Qantas giving rise to the complaints made in the proceeding did so because of a genuine belief that what they were doing was consistent both with past practice and with the terms of the Enterprise Agreement. His Honour rejected a submission that there was high-handed disregard for the lawful obligations of Qantas. His Honour said that Qantas could have sought an interpretation of the provisions of the Enterprise Agreement when Captain Duggan first raised his claims, rather than to have insisted on its position. At [84], his Honour said: 84. Qantas has, quite naturally, not expressed contrition, which would be contrary to its position in the case. Nonetheless, Qantas' conduct generally has been proper. Qantas has no prior legislative infractions. It made a very proper concession about interest. I accept that the three failures to pay Captain Duggan fall to be treated as one breach of the agreement (s.719(2) of the Act). The failures were clearly a course of conduct based on Qantas' view of the agreement. The grounds of appeal 24 The amended notice of appeal identified as errors in the reasoning of the federal magistrate the following matters. Ground 2 referred to a finding at [32] of the reasons for judgment that cl 25.3 could not be read to apply to downline disruptions because the changes to a pattern caused by downline disruptions were never the subject of the bidding process and could therefore never be either awarded or assigned. The error identified in ground 3 was the determination that, where a downline disruption required further or different work, such work was to be regarded as an allocation of duty for the purposes of cl 25.3 of the Enterprise Agreement. Ground 4 fastened on the use by the federal magistrate of the ordinary meaning of the word "assigned" instead of its defined meaning. Ground 5 referred to the conclusion that work caused by a downline disruption, in circumstances where Qantas had failed to act under cl 27.22.2(k), was work that ought to be credited and paid in the ordinary way. Ground 6 referred to the proposition that Qantas could have sought an interpretation of cl 25.3 of the Enterprise Agreement at an earlier time. The proper construction of the Enterprise Agreement 25 The key to the proper construction of cl 25.3 of the Enterprise Agreement is the phrase "assigned a duty". Coupled with the definition of "assigned" in cl 7, this phrase makes it clear that cl 25.3 is dealing with a situation in which Qantas requires a flight crew member to accept a roster pattern for flying duties different from any roster pattern for which that member has bid. In the words of the definition of "assigned" there is an "allocation" to a flight crew member of something for which the flight crew member has not bid. Clause 25.3 makes it clear that what is allocated is "a duty". That duty exceeds the number of hours of flying that the flight crew member would normally expect to undertake by a sufficient margin, so that Qantas is compelled to make an additional payment for each of those extra hours. In effect, the additional payment is a penalty for the imposition of a roster different from that for which the flight crew member bid and imposing a significantly greater workload. The choice is that of Qantas, not that of the flight crew member, but that choice carries with it additional remuneration. For this reason, by the last sentence of cl 25.3, having made the decision to impose the additional workload, Qantas is deprived of its normal right to remove overprojection. 26 It is appropriate to compare the definition of "assigned" in cl 7 of the Enterprise Agreement with the definition of "awarded" in the same clause. That which is "awarded" is an allocation to a flight crew member as a result of that member's bid. An "awarded" roster provides the flight crew member with what that member sought, so carries with it no additional payment under cl 25.3. In the case of both the definition of "assigned" and "awarded", there is an "allocation". That word is not defined by the Enterprise Agreement. In its ordinary meaning, according to the Macquarie Dictionary, "allocation" is the act of allocating. To "allocate" is "to set apart for a particular purpose." Thus, in its ordinary sense, "allocation" involves the making of a conscious decision to set apart something for a particular purpose. In the case of cl 25.3 of the Enterprise Agreement, the allocation involves a conscious decision to set apart a particular duty roster for a particular flight crew member who has not bid for it. 27 It is apparent that additional workload as a result of a downline disruption is not the result of any "allocation" in that sense. The number of flying hours involved in a roster is extended, by necessity, by reason of the disruption. The extension takes place after a flight crew member has been "assigned" or "awarded" a particular duty roster, following the bidding process. The difference is confirmed by an examination of the terms of cl 27.22 of the Enterprise Agreement. Clause 27.22.1 specifies the circumstances in which a flight crew member "will not fly an allocated pattern". In other words, there will be a departure from the "allocated pattern" due to one or more of the circumstances specified. In the case of the circumstances relevant to this case, the departure from the allocated pattern is not the result of any reallocation or further allocation, but is the result of a change or disruption to the pattern after commencement of duty. By cl 27.22.2(d), such a change or disruption has two significant consequences. One is that Qantas has an obligation to minimise scheduling rearrangements and to minimise disruptions to the patterns of other flight crew members. The second is that, in the specified circumstances, the flight crew member who loses credited hours will be "pattern protected", meaning that he or she will continue to be paid for the hours he or she would have flown if the allocated pattern had not been changed or disrupted. This comparison of the terms of cl 25.3 with cl 27.22.1(d) and cl 27.22.2(d), in the light of the defined meaning of "assigned" demonstrates that the two clauses are dealing with disparate situations. The requirements they impose on flight crew members and on Qantas do not merge readily. 28 Further, in one important respect, any attempt to apply the obligation in cl 25.3 of the Enterprise Agreement to additional hours brought about by a change or disruption of an allocated pattern would place the two provisions in conflict, in a case where the pattern had been assigned to a flight crew member who had not bid for it. The conflict comes about because of the specific reference in cl 27.22.2(d)(iv) to the right of Qantas to reduce the flying hours of a flight crew member in accordance with cl 27.22.2(k). Subject to pattern protection, in certain circumstances, that clause specifically allows Qantas to remove projected credited hours from a roster, so as to reduce the hours below the bid period divisor (or, if applicable, personal divisor) plus 5. If all additional duties resulting from a change or disruption of a previously allocated pattern were to be regarded as having been "assigned" to the flight crew member concerned, the last sentence of cl 25.3 would operate to prevent Qantas from removing overprojection, whereas cl 27.22.2(d)(iv) and cl 27.22.2(k) expressly permit such removal. The fact that the two provisions are irreconcilable in this way makes it abundantly clear that they deal with different situations. Clause 25.3 deals with the process of determining what the duty rosters of flight crew members will be, when those duty rosters are allocated following the bidding process. Clause 27.22.2(d) and cl 27.22.2(k) deal with what occurs after the allocation of duty rosters has taken place, when circumstances dictate that a flight crew member will work additional hours, unless Qantas reduces the rostered hours so as to avoid that. The consequence is that, on any view, on its proper construction, cl 25.3 has no application when a duty roster is changed or disrupted after the commencement of duty. 29 This conclusion is inevitable by reference solely to the terms of the Enterprise Agreement as they stand. It is unnecessary to examine the history of the negotiations between Qantas and AIPA that led to cl 25.3 and to its terms. It is unnecessary to have regard to any of the extrinsic materials that the parties placed before the federal magistrate, when they were advancing competing constructions of cl 25.3. The answer is clear on the face of the Enterprise Agreement. Conclusion 30 The federal magistrate was therefore in error in determining that cl 25.3 of the Enterprise Agreement required additional payments to Captain Duggan in the circumstances dealt with in cl 27.22.2(d) of the Enterprise Agreement. His Honour's principal error seems to have been in regarding additional duties performed by Captain Duggan as a consequence of downline disruptions as having been assigned or allocated by Qantas, so as to cause the provisions of cl 25.3 to operate in relation to those additional hours. His Honour was also wrong in failing to recognise the effect of the conflict between the provisions relating to removal of over-projected hours if the construction he thought was correct were to be adopted. 31 It follows from this that the appeal must be allowed. The orders made by the Federal Magistrates Court must be set aside. There must be substituted for those orders an order dismissing the application made to the Federal Magistrates Court. 32 It is unnecessary to consider whether it was proper for the federal magistrate to impose a penalty, on the assumption that he had adopted the correct construction of the Enterprise Agreement. 33 It is also unnecessary to make any order as to costs, either of the proceeding in the Federal Magistrates Court, or of the appeal. It is common ground that s 824 of the Workplace Relations Act (see now s 570 of the Fair Work Act 2009 (Cth)) operated to prohibit the Federal Magistrates Court, and operates to prohibit this Court, from making any order for costs in this case. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate: Dated: 17 March 2010