Aero Care Flight Support Pty Ltd

[2016] FWC 59

[2016] FWC 59

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 and s 319- Application for orders relating to instruments covering new employer and transferring employees and new employer and non-transferring employees.

Aero Care Flight Support Pty Ltd
(AG2015/6296)

AVIATION GROUND HANDLING ENTERPRISE AGREEMENT

Airline operations
COMMISSIONER SIMPSON	BRISBANE, 9 FEBRUARY 2016

Application for an order relating to instruments covering new employer and transferring employees and new employer and non-transferring employees

[1] This is an application pursuant to s.318 and s.319 of the Fair Work Act 2009 by Aero Care Flight Support Pty Ltd (the Applicant) seeking orders from the Fair Work Commission (the Commission) relating to a transferrable instrument.

[2] The Application has been made in the context of the Applicant having recently acquired Aviation Ground Handling Pty Ltd as a wholly owned subsidiary/related corporate entity. (AVGH). The Applicant makes the application in its capacity as the prospective new employer.

[3] The matter was listed for directions 16 December 2015. Directions were issued for the filing of statements and submissions following the Australian Municipal, Administrative, Clerical and Services Union (ASU) indicating its opposition to the orders being granted. Material was subsequently filed by the Applicant and the ASU.

[4] The ASU was to notify chambers by 28 January as to whether it required a hearing or if it consented to the matter being determined on the papers. Correspondence from the ASU requesting a hearing. The matter was listed for hearing on 8 February 2016. . The Applicant was represented by Mr Stephen Hughes of Piper Alderman Lawyers and the ASU by its Industrial Officer Mr Justin Cooney.

[5] The Applicant submitted that it intends to make offers of employment to AVGH employees.

[6] The Applicant sought the following orders:

A. An order pursuant to s.318(1)(a) of the Fair Work Act 2009(Cth) (FW Act) the Aviation Ground Handling Enterprise Agreement (AG2015/3742) (AVGH 2015 Agreement) does not and will not coverthe new employer and any transferring employees;

B. An order pursuant to s.318(1)(b) of the Act that the Aero-Care Collective Agreement 2012 [AG2012/12949] (Aero-Care Agreement) will cover any transferring employees; and

C. An order pursuant to s.319(1)(a) of the Act, that the AVHG Agreement does not and will not cover any non-transferring employees as defined in the Act.

[7] After the commencement of the hearing on 8 February 2016 the parties agreed to adjourn into conference. Following discussions in conference the Applicant provided to the Commission a number of undertakings on transcript. The Applicant in accordance with a request from the Commission also provided these undertakings in writing following the conclusion of the hearing. On the basis of these undertakings, the ASU advised the Commission that it withdraw its objection.

[8] The undertakings provided by the Applicant to the Commission are as follows;

1. The Applicant undertakes that all workers transferring from AVGH to Aero-Care will be classified for experience at no less than Airline Service Agent (ASA) level 0; and that the Applicant otherwise recognise the following correlation:

Level A – Airline Service Agent

Level B – Airline Service Agent

Level C – Advanced Airline Service Agent

Level D – Leader 1

Level E – Leader 3

2. The Applicant undertakes that all AVGH workers will be subject to re-evaluation no later than three months after commencement with the Applicant; and should such re-evaluation result in an assessment of experience greater than their commencement level, the worker will be reclassified to the higher classification and paid accordingly.

3. The Applicant undertakes that any AVGH employee will have recognition of their length of service in their classification when initially graded into the Aero-Care Collective Agreement 2012.

4. The Applicant agrees that all AVGH employees who choose to transfer their employment from AVGH to the Applicant in accordance with the preceding 3 undertakings will be engaged by the Applicant.”

[9] Section 318 and 319 of the Act sets out the circumstances in which an order may be made by the Commission relating to instruments covering a new employer and transferring employees in the case of s.318, and a new employer and non-transferring employees in the case of s.319.

[10] I have had regard to all of the material filed in support of the application and the matters that must be taken into by the Commission as set out in s.318(3), and s.319(3) respectively with regard to the three separate orders sought. I have also had regard to the undertakings that have been made by the Applicant to the Commission, and the withdrawal of opposition to the application by the ASU on the basis of those undertakings.

[11] Having considered all the relevant facts and circumstances including the undertakings made, and the matters required to be taken into account in deciding whether to make the orders under s.318 and s.319, I am satisfied it is appropriate to grant the orders. Separate orders will issue with this decision.

COMMISSIONER

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