Airservices Australia v Luke Crouch - [2022] FWC 2520

[2022] FWC 2520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Airservices Australia
v

Luke Crouch

(C2022/6245)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 28 SEPTEMBER 2022

Appeal against decision [2022] FWC 2171 of Commissioner Wilson at Melbourne on 22 August 2022 in matter number C2021/6964

Before the Commission is an application for a stay order by Airservices Australia pursuant to s 606 of the Fair Work Act 2009 (Cth) (Act). It is made in relation to an appeal against a decision of Commissioner Wilson (decision).[1] It concerns a dispute about the application of clause 50 and Schedule 1 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023[2] (Agreement), which the Commissioner arbitrated under s 739(4) of the Act.

The dispute was raised by Mr Luke Crouch, an “Ab Initio” trainee air traffic controller employed by Airservices. It followed a recommendation issued by Airservices on 18 February 2021 that Mr Crouch’s training be terminated in light of a training review report dated 17 February 2021.[3] The dispute before the Commissioner concerned the question of whether clause 50 (Performance, Conduct, Termination of Employment) of the Agreement applies to Ab Initio trainees such as Mr Crouch, having regard to the terms of Schedule 1 of the Agreement (Ab Initios).

The Commissioner decided that the dispute should be resolved by the determination of the following questions: “Has Airservices Australia, complied with clause 50 of the 2020 Agreement? If not, should Mr Crouch be recoursed and/or provided with other remedial training in accordance with Clause 50 of the 2020 Agreement to ensure that provision is complied with by Airservices?”

The Commissioner first concluded that Airservices had not complied with clause 50 of the Agreement. The Commissioner’s answer to the subsequent question was as follows:[4]

“Yes; Mr Crouch should be recoursed as an Ab Initio trainee into the next cohort of air traffic controller trainees to start training, and while awaiting that step, to be immediately returned to training and/or other useful and meaningful work.”

By its Form F7 Notice of Appeal,[5] Airservices contends that the Commissioner’s answer to the first question, based on his construction of clause 50, was incorrect. It further submits that the answer to the second question was beyond the scope, or a misconstruction, of the Commission’s arbitral power. Airservices seeks a stay over the answer to the second question.[6]

The stay application was heard on 20 September 2022. Permission was granted to the parties to be represented for the purposes of the hearing.

For the reasons that follow, I have determined that the application for a stay is refused.

Relevant principles

Section 606 of the Act gives the Commission the discretionary power to stay the operation of the whole or part of a decision the subject of an appeal.

Section 606(1) of the Act provides as follows:

If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may…

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

AGLC: Airservices Australia v Luke Crouch [2022] FWC 2520
Case: [2022] FWC 2520
Decision Date: 28 SEPTEMBER 2022

CaseChat Overview and Summary

Airservices Australia appealed a decision of the Fair Work Commission in relation to an employment dispute with Luke Crouch, an "Ab Initio" trainee air traffic controller. The appeal concerned the application of certain clauses of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2020-2023. Specifically, the appeal focused on whether clause 50 (Performance, Conduct, Termination of Employment) applied to Mr Crouch and, if so, what remedial action should be taken. Airservices sought a stay of the Commission's decision pending the outcome of the appeal.

Deputy President Millhouse found that Airservices had established an arguable case with some reasonable prospects of success in relation to certain grounds of appeal, particularly concerning the proper construction of the Agreement. However, the Court found that Airservices had not demonstrated that the balance of convenience favoured a stay. While the Court acknowledged that Airservices would suffer some prejudice if the stay were not granted, it considered that the potential benefit to Mr Crouch in being able to recommence training outweighed any prejudice to Airservices. The application for a stay was therefore dismissed.

Orders