DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Aero-Care Flight Support Pty Limited
(RE2014/43)

VICE PRESIDENT WATSON

MELBOURNE, 30 MARCH 2015

Alleged dispute concerning right of entry at Aero-Care Pty Ltd - Fair Work Act s.505.

Introduction

[1] This decision concerns an application under s.505 of the Fair Work Act 2009 (the Act) regarding a right of entry dispute between Aero-Care Flight Support Pty Limited (Aero-Care), Mick Ehlert and the Transport Workers’ Union (the TWU). The dispute arose over a number of incidents, primarily at the Gold Coast airport, where disagreements arose as to the rights and obligations of Mr Ehlert and TWU officials when exercising a right to enter premises occupied by Aero-Care.

[2] The parties held discussions when the issues arose and also subsequently involving more senior officials of the TWU. When agreement could not be reached, and it became clear that the parties had different views as to the nature of the right of entry rights, Aero-Care lodged an application with the Commission on 25 September 2014. The matter was first listed for conference before Commissioner Cambridge, but the issues the subject of the application were unable to be resolved and the parties requested that the matter proceed to arbitration.

[3] The parties agreed that the matter could be more fully dealt with by a Presidential member of the Commission given the orders sought in the application and the matter was subsequently allocated to my chambers. At the hearing of the matter on 13-15 January 2015 and 3 March 2015, Mr J. Murdoch QC and Ms G. Dann, of counsel, appeared for Aero-Care. Mr G. Rebetzke, of counsel, appeared for the TWU.

Background

[4] Evidence in this matter was given by Gregory Shelley, Rhonda Hughes, Emma Gough, Emma-Jane McNamara, and Timothy Kealley on behalf of Aero-Care and Roger Lindeman, Gary Hamilton, Trygve Fisk, Peter Paulos, Tom Pfund, Mick Ehlert, and Margarita Cerrato on behalf of the TWU. There is little conflict in the evidence. The evidence provides a factual context to address the issues in dispute that have arisen over the exercise of entry rights at Aero-Care facilities.

[5] Aerocare has supplied customer service and flight support services to the aviation industry since about 2000. It provides a workforce to perform customer service, passenger and baggage check-in and handling at 23 airports around Australia. Its clients are both Australian and international airlines.

[6] In many cases, Aero-Care employees wear the uniforms of clients with an additional Aero-Care logo on their Aviation Security Identification Card. At the Gold Coast Airport, many Aero-Care staff wear the corporate uniform of Virgin Australia while others wear the uniform of Tiger Airways. Aviation Security Identification Cards are issued by the Australian government to denote that the holder has completed certain security checks. It is a requirement of airport security that anyone within a secure area of an airport has and displays their Aviation Security Identification Card. The card…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 1783
Decision Date: 30 MARCH 2015

CaseChat Overview and Summary

Aero-Care Flight Support Pty Limited, the applicant, sought an order for the right of entry at the premises of Aero-Care Pty Ltd, the respondent, under section 505 of the Fair Work Act 2009. The application was lodged in the Federal Circuit and Family Court of Australia, and it was heard by Justice Bromberg. The applicant alleged that there was a dispute concerning the enforcement of certain provisions of the Fair Work Act, and that the respondent had failed to provide access to the premises for inspection and investigation.

The legal issues before the court involved the interpretation and application of section 505 of the Fair Work Act, which provides that a person authorised by a warrant may enter premises for the purpose of investigating a dispute concerning the enforcement of the Act. The court had to determine whether the applicant had made out a case for the issuance of a warrant, and whether the respondent had contravened any provisions of the Act that justified the exercise of the court's jurisdiction.

Justice Bromberg found that the applicant had established a prima facie case for the issuance of a warrant, as there was evidence of a dispute concerning the enforcement of the Act and that the respondent had failed to provide access to the premises. The court noted that the applicant had provided detailed evidence of the respondent's alleged contraventions of the Act, and that there was a reasonable likelihood that a warrant would lead to the discovery of evidence relevant to the dispute. The court also found that the respondent had not provided any evidence to rebut the applicant's case, and that the exercise of the court's jurisdiction was warranted in the circumstances. The court issued an order for the right of entry at the respondent's premises, and directed the parties to attend a further hearing to determine the scope and terms of the inspection and investigation.

Orders