Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support v Transport Workers' Union of Australia Australian Municipal, Administrative, Clerical and Services Union
[2017] FWCFB 6555
•8 DECEMBER 2017
| [2017] FWCFB 6555 |
| FAIR WORK COMMISSION |
STATEMENT AND DIRECTIONS |
Fair Work Act 2009
s.604 - Appeal of decisions
Aerocare Flight Support Pty Ltd t/a Aerocare Flight Support
v
Transport Workers' Union of Australia
Australian Municipal, Administrative, Clerical and Services Union;
(C2017/5221)
VICE PRESIDENT HATCHER |
|
Appeal against decision [2017] FWC 4311 of Commissioner Wilson at Melbourne on 31 August 2017 in matter number AG2017/1424.
[1] Aerocare Flight Support Pty Ltd (Aerocare) has applied for permission to appeal and appealed a decision of Commissioner Wilson issued on 31 August 2017. 1 Aerocare’s notice of appeal contained three grounds of appeal. In a decision issued on 27 November 20172, we dealt with the first ground of appeal only. The reason why that course was taken is set out in paragraphs [2]-[4] of our decision. We determined to granted permission to appeal with respect to Aerocare’s first ground of appeal, and then considered and rejected that ground. We then concluded by saying:
“[38] As earlier stated, the Commission’s satisfaction under s 186(3) that the group of employees covered by an enterprise agreement was fairly chosen is a requirement for approval of the agreement. We have found that the Commissioner did not err in concluding that this approval requirement was not satisfied. There is no challenge in Aerocare’s appeal to the Commissioner’s further conclusion that this could not be remedied by the provision of an undertaking.
[39] That would appear to result in a position whereby the determination of Aerocare’s other appeal grounds would have no utility because, even if Aerocare were to succeed on those appeal grounds, this could not lead to the 2017 Agreement being approved. However that is only a provisional view and we will give Aerocare and the two unions an opportunity to make submissions about the further disposition of the appeal in light of our conclusions with respect to appeal ground 1. We direct that such submissions be made in writing and filed on or before 5.00pm Monday 4 December 2017.”
[2] The direction in paragraph [39] of our decision was intended to give the parties an opportunity to be heard in relation to the disposition of the appeal following the rejection of the first appeal ground. Aerocare, the Transport Workers' Union of Australia (TWU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) lodged written submissions pursuant to the direction contained in paragraph [39] of our decision. The TWU and the ASU submitted that there was no utility in determining the remaining appeal grounds, and that either permission to appeal should be refused in relation to those grounds or the appeal should be dismissed in its entirely. However Aerocare’s submissions (in the form of correspondence addressed to the presiding member dated 4 December 2017) relevantly stated:
“In its submissions and during the hearing, Aerocare confirmed that casual employees would be provided benefits on the approval of the 2017 Agreement, including a 5% backdated pay increase and casual employees no longer needing to pay the car parking co-contribution. (See: Outline of Submissions of the Appellant, paragraph 19(f), 19(g), Transcript PN226, PN231, PN248)
In accordance with the above, we are instructed that our client seeks the opportunity to address the Full Bench on whether an undertaking giving effect to the above commitments to casual employees address the “fairly chosen” finding. [sic] ”
[3] Aerocare seems not to have understood that the direction in paragraph [39] represented its opportunity to be heard in relation to the further disposition of the appeal having regard to the provisional view which we expressed. In any event, we will provide Aerocare with an opportunity to address us in relation to the matter identified in the above passage of its correspondence by way of written submissions. We direct as follows:
(1) Aerocare shall file and serve written submissions concerning the matter identified in the last paragraph of its correspondence to the Commission dated 4 December 2017 by 5.00pm Friday 15 December 2017.
(2) The TWU and the ASU shall file any written submissions in reply by 5.00pm Friday 22 December 2017.
VICE PRESIDENT
1 [2017] FWC 4311
2 [2017] FWCFB 5826
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