Airservices Australia v Luke Crouch
[2022] FWC 2520
•28 SEPTEMBER 2022
| [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 (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.
In deciding whether to exercise its discretion to grant a stay order, the Commission must first be satisfied that the appellant has an arguable case, with some reasonable prospects of success, both in respect of permission to appeal and the substantive merits of the appeal.[7] Further, the balance of convenience must weigh in favour of the order subject to appeal being stayed.[8]
In determining a stay application, the Commission must assess the strength of the appellant’s case without the benefit of hearing the appellant’s full argument and usually without the opportunity to undertake a full analysis of the case materials. Accordingly, the consideration of whether the appellant raises an arguable case with some reasonable prospect of success is necessarily a preliminary assessment only.
Background
Airservices is a Commonwealth-owned corporation with responsibility for, amongst other things, airspace management.[9] It is an enterprise Registered Training Organisation and provides accredited training and assessment, including for Ab Initio employees who undertake training to become Air Traffic Controllers.[10]
Mr Crouch accepted an offer of employment with Airservices on 22 September 2019 as an Ab Initio air traffic controller trainee.[11] He commenced employment by way of initial training on 11 November 2019.[12] As part of this, Mr Crouch moved from his home in Queensland to Melbourne.[13]
The initial training undertaken by Ab Initio employees is thorough and, in the case of Mr Crouch, is to be completed over a period of 13-15 months.[14] For the purposes of this decision, it suffices to note that the training is comprised of five phases, each of different durations and comprising of theoretical and practical components.[15] Mr Crouch successfully completed the first phase. On 22 July 2020, during the second phase of training Mr Crouch substantially failed an exam and, on 14 August 2020, marginally failed the supplementary exam.[16] Upon failing the supplementary exam, Mr Crouch was placed on a training review and told not to return to work.[17]
In February 2021, six months after he had been placed on training review, Airservices informed Mr Crouch of its recommendation that his training be terminated.[18] Mr Crouch appealed the decision internally and engaged in mediation with Airservices. These attempts to resolve the dispute were unsuccessful and Mr Crouch made an application to the Commission on 15 October 2021.[19] Mr Crouch has been paid his full-time salary pending determination of the dispute.
Context
The aspects of the Agreement giving rise to the dispute are confined. The Agreement contains a single schedule titled “SCHEDULE 1 – AB INITIOS.” The clauses of the schedule are in full as follows:
1. Definition
An Ab Initio is an employee who:
(a) does not hold, and has never held, an air traffic control licence; and
(b) is undergoing training provided by Airservices with the aim of becoming a licensed air traffic controller.
2. Application of this schedule
This Schedule 1 applies to Ab Initios only. To the extent of any inconsistency, this
schedule applies to the exclusion of other parts of this Agreement.
3. Personal/carer’s leave
(a) Clause 37 of this Agreement does not apply to Ab Initios.
(b) Ab Initios will accrue personal/carer’s leave in accordance with clause 38 of this Agreement.
4. Termination of employment
Airservices may terminate the employment of an Ab Initio if that Ab Initio fails to
satisfactorily complete an essential component of their training.
(underlining added)
Clause 50 of the Agreement is headed “PERFORMANCE, CONDUCT, TERMINATION OF EMPLOYMENT.” It is divided into three parts which can be summarised as follows:
(a) Clause 50.1 sets out the “primary focus” of managing unsatisfactory employee performance and/or conduct, being to constructively assist the employee to improve to a satisfactory level within a reasonable time, giving such feedback and assistance as is appropriate.
(b) Clause 50.2 provides that Airservices will adhere to the principles of procedural fairness when managing an employee in relation to suspected under-performance or misconduct. It lists a number of express obligations that Airservices will adhere to in this respect.
(c) Clause 50.3 sets out the formal process to be observed where there is a serious concern with respect to an employee’s performance and/or conduct. Relevantly, clause 50.3 states as follows:
“Without exhaustively stating the actions that Airservices may take to manage an employee’s poor performance and/or conduct, Airservices may:
(a) require the employee to undergo remedial training and/or counselling as appropriate to the circumstances of the case;
(b) give the employee a written warning appropriate to the circumstances of the case;
(c) set conditions with which the employee needs to comply;
(d) reduce the employee in classification for a period of time or indefinitely;
(e) terminate the employee’s employment.”
Airservices raises three grounds of appeal. They can be summarised as follows.
By appeal ground one, Airservices contends that the Commissioner erred at [69] of the decision in failing to find that clause 4 of Schedule 1 and clause 50 of the Agreement were inconsistent, such that clause 2 of Schedule 1 would exclude the operation of clause 50 to the extent of any inconsistency.
Appeal ground two contends that, notwithstanding the matters raised by ground one, the Commissioner erred in finding at [79] of the decision that clause 50 of the Agreement applied to Mr Crouch in his position as an “Ab Initio Trainee.”
By appeal ground three, it is said that the Commissioner’s answer to the second question for arbitration set out earlier at [3] either sought to exercise judicial power; went beyond the scope of the arbitral power conferred by the Agreement; misconstrued the Commission’s arbitral power by embarking on a task of assessing an appropriate outcome; or required Airservices to take steps where no such obligations existed under the Agreement.
During the stay hearing, Airservices made submissions in respect of ground three that led to the consideration of certain authorities not otherwise before the Commission. I issued directions for the filing of short written submissions by the parties in respect of the issues raised by this ground of appeal. No other written submissions have been filed for the purposes of the stay application or the purposes of the appeal generally. I have therefore had careful regard to the oral submissions made by the parties.
Arguable case with some reasonable prospect of success
It is not in dispute that clause 10.1(e) of the Agreement (Disputes avoidance and settlement process) establishes an independent right to appeal any decision of the Commission made pursuant to clause 10.1, such that permission to appeal is not required. It follows that Airservices needs only to establish an arguable case with some reasonable prospects of success with respect to the merits of the appeal.
Appeal grounds one and two concern the proper construction of the Agreement and are therefore questions with only one correct answer.
At the hearing, in relation to ground one, Airservices submitted that clause 4 of Schedule 1 of the Agreement is “clearly inconsistent” with clause 50 of the Agreement. On this basis, Airservices contends that there is a constructional argument that “on its face” meets the threshold for an arguable case with some reasonable prosects of success. Airservices’ position is that clause 50.3 requires notice, particulars and a particular process to be followed to provide an employee with a sufficient opportunity to remedy a performance or conduct concern. By comparison, Airservices says that clause 4 of Schedule 1 provides for a different course whereby a failure to complete an essential component of the training can lead to an Ab Initio trainee being dismissed “full stop” with no processes such as those contained in clause 50.3 being required. Airservices suggests that there is a clear inconsistency between these two regimes.
In relation to ground two, Airservices suggests that clause 50 of the Agreement cannot be meaningfully applied to an Ab Initio employee and made an unspecified reference to the positions advanced at first instance.
While appeal grounds one and two express error in the Commissioner’s conclusions as to the construction of the Agreement, the grounds do not otherwise identify the basis for this contention by reference to the Commissioner’s reasons. Further, other than a general outline of the constructional issue in relation to appeal ground one, the basis upon which it is said that the Commissioner erred is not explained.
Nevertheless, having regard to the allegation as to the existence of competing constructions in appeal ground one, I am prepared to accept that appeal ground one meets the low threshold of an arguable case with some reasonable prospects of success for the purposes of a stay. However, I am not prepared to accept that appeal ground two reveals an arguable case with some reasonable prospects of success because it is not possible to identify with precision the basis for the contention of appealable error.
In relation to appeal ground three, Airservices submits, inter alia, that the Commissioner went beyond the arbitral power conferred by clause 10 of the Agreement and/or exercised judicial power to determine the rights and liabilities of the parties. Clause 10 of the Agreement relevantly provides as follows:
“…
(d)If the matter cannot be resolved by following the process outlined above, then any of the parties to the dispute may apply to the FWC to have the dispute subject to a process of conciliation, or such other alternative dispute resolution process which the parties agree is appropriate and which the FWC can conduct under the Act.
(e) If conciliation (or such other alternative dispute resolution process as has been conducted by agreement of the parties) is not successful in resolving the dispute, or if the parties agree that they wish the FWC to settle the dispute without recourse to conciliation or another alternative dispute resolution process, the FWC can arbitrate the dispute and make a determination that is binding on the parties, subject to either party exercising a right of appeal against the decision to a Full Bench of the FWC.
(f) Unless otherwise agreed by the parties to the dispute, the powers that the FWC can exercise under this clause 10.1 are those powers available to it under the Act as at the time that this Agreement commences to operate.”
Airservices relies upon the decision of the Full Bench in Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West[20] in support of its position that an administrative tribunal such as the Commission cannot exercise judicial power, and the ascertainment, declaration or enforcement of legal rights is an exercise of judicial power.[21] Airservices also draws support for its position from the decision of the Full Court of the Federal Court in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd[22] and, specifically, the following observations of the High Court in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission:[23]
“Where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of private arbitration. Of its nature, judicial power is a power that is exercised independently of the consent of the person against whom the proceedings are brought and results in a judgment or order that is binding of its own force. In the case of private arbitration, however, the arbitrator’s powers depend on the agreement of the parties, usually embodied in a contract, and the arbitrator’s award is not binding of its own force. Rather, its effect, if any, depends on the law which operates with respect to it.”
Airservices contends that clause 10 of the Agreement does not contemplate that the Commission’s power to make a determination binding on the parties could extend beyond a matter arising under the Agreement. Airservices says that rather than simply making a determination as to the application of clause 50, the Commissioner went beyond determining a “matter arising” under the Agreement (as required by virtue of the limitation imposed by clause 10(e)), sought to determine the question of what was “an appropriate outcome,” and compelled Airservices to take particular action. That action was to recourse Mr Crouch as an Ab Initio trainee into the next cohort of air traffic controller trainees to start training, and while awaiting that step, immediately return him to training and/or other useful and meaningful work. Airservices submits that this action was not contemplated by the Agreement and was not action it was required to take under the Agreement.
Further, Airservices submits that s 739(5) of the Act imposes limits on the range of arbitrated outcomes available to the Commission pursuant to the terms of an enterprise agreement. Accordingly, it says that it was not open to the Commissioner to make a determination inconsistent with either the Act, or the Agreement.[24]
With respect to appeal ground three, Mr Crouch observes that there was some consistency of views between the parties about the questions for arbitration, but that the questions were not entirely agreed. However, Mr Crouch says that the Commissioner correctly identified the common issues and distilled questions which reflected the issues, Mr Crouch’s application, the relief sought and the relevant provisions of the Agreement. As to the subject of the matters to be determined, Mr Crouch points to the following submission of Airservices before the Commissioner:[25]
“…even if Clause 50 applies to Mr Crouch's employment, Airservices has in substance met the requirements of the term in Mr Crouch's case, with a number of his grievances having marginal, if any, relevance to whether Airservices has met the requirements of Clause 50.”
Mr Crouch therefore contends that in the determination of the second question, the Commissioner was resolving an issue with respect to the requirements of clause 50 which was in dispute between the parties.
Mr Crouch otherwise submits that the Commissioner did not err in the manner contended. Mr Crouch says that the Commissioner did not engage in the ascertainment, declaration or enforcement of legal rights and accordingly did not exercise judicial power. Nor did the Commissioner make a decision inconsistent with the Act or the Agreement. Rather, the Commissioner made a determination that is consistent with the powers available to the Commission under the Act at the time the Agreement commenced operation, having regard to the obligations and wording of clause 50 and the arbitral power conferred on the Commission by clause 10 of the Agreement.
I am satisfied, having regard to the parties’ submissions, that appeal ground three gives rise to an arguable case with some reasonable prospects of success. While the Commissioner sensibly distilled what he regarded to be the relevant questions to resolve the application and was not limited to arbitrating only those questions agreed to by the parties, there may be some scope for Airservices to contend that the Commissioner exceeded the power conferred by the dispute resolution provision in the Agreement, and the Act, in the determination of the second question for arbitration.
However in reaching this conclusion, I observe that the second question for arbitration sought to address the relief sought by Mr Crouch at the time the application was made.[26] While Airservices reserves its right to develop its argument as it relates to the application of s 739(5) of the Act, the Commission is not jurisdictionally barred by s 739(5) or otherwise by the Act in making a binding arbitral determination which exercises a discretion usually afforded to the employer under the Agreement.[27]
Balance of convenience
The applicant for a stay must satisfy the Commission that the balance of convenience favours a stay. Airservices submits that the balance of convenience should be understood as being confined to considerations of prejudice with respect to the potential outcome of the appeal.
In support of its position that the balance of convenience favours the grant of a stay, Airservices relies on the witness statement of its Acting Head of Operational Training, Ms Sarah Chau. Ms Chau was cross examined at the hearing and the relevant aspects of that examination is considered below.
Ms Chau states that Mr Crouch was enrolled in an “Enroute course.” The next course is scheduled to commence on 24 October 2022 but is at capacity, being filled by students who have signed contracts of employment with Airservices. Airservices also issued three letters on 8 July 2022 to inform potential trainees that they are reserve candidates for the 24 October 2022 course, and will be enrolled in the course in the event a student withdraws prior to the course commencement.[28]
Ms Chau states that the course services a maximum of 12 students, determined by reference to the number of available instructors. This is so because certain components of the training require “simulator runs,” involving the supervision of two trainees per instructor.[29] The Airservices training manual provides support for this position in relation to simulation exercises in the “ATC console position.” Ms Chau said that the next Enroute course with capacity to accommodate Mr Crouch commences in March 2023.[30] During the stay hearing, it was confirmed that no other Enroute courses commence between 24 October 2022 and March 2023.
Ms Chau gave evidence that there are only three instructors available and Airservices is unable to engage more instructors for the 24 October 2022 course as they are not in surplus. It did not appear to be in contest at the stay hearing that Airservices had advertised externally for instructors, but the roles had not been filled.[31] Further, Ms Chau said that while there is a classroom based theoretical component prior to phase one for a period of 6-7 weeks, this period is designed to occur immediately in advance of trainees commencing simulator runs in phase one.[32]
The timetable for the Enroute course commencing on 24 October 2022 is in evidence before the Commission.[33] The following matters became apparent from the cross examination of Ms Chau regarding the class restrictions during various periods of the course:
(a) From 24 October to 6 December 2022, the course is at its theory stage (prior to phase one) and there is no restriction on Mr Crouch attending.
(b) From 7 December to 18 December 2022, there are simulator training days (phase one) with six students per class. When asked whether there could be a seventh student Ms Chau responded, “I don’t know.” It is therefore ambiguous on the evidence whether Mr Crouch could attend these sessions.
(c) On occasion, from 19 December 2022, there are simulator training days (phase one) where there is a limit of four students per instructor.
Ms Chau’s evidence in this respect it is not in contest between the parties, and I accept it. It follows that there is no limitation on Mr Crouch’s attendance during the classroom component of the Enroute course prior to phase one, being the theory stage identified at [43](a) of this decision.
Airservices’ primary submission is that the balance of convenience favours the grant of a stay on the basis that it would lose the benefit of the appeal should the stay not be granted. Airservices suggests that the undertaking it has provided,[34] whereby Mr Crouch is placed on simulator support duties in Brisbane pending resolution of the appeal and would be re-coursed in March 2023 if the appeal is dismissed, is the appropriate manner in which to proceed. It submits that a stay order would be essential to allow for this to occur.
Mr Crouch, in response, filed two witness statements.[35] Conditional objections were made by Airservices concerning certain statements and their reliability only insofar as they establish Mr Crouch’s opinion. I have taken these objections into account. In opposing the stay, Mr Crouch relies on two scenarios put to Airservices in correspondence on 7 September 2022:[36]
“1. Scenario 1 – If any student in the course commencing in October 2022 withdraws from the course or is reassigned to another course before 24 October 2022, Airservices will enroll Mr Crouch in the October 2022 course with the expectation that Mr Crouch continues onto Phase 2 in the ordinary course…
2. Scenario 2 – If Scenario 1 does not arise, Airservices will enroll Mr Crouch in Phase 1 of the course that is due to commence in October 2022 (assuming Phase 1 is just theory as stated above). After Phase 1, Mr Crouch will only go on to Phase 2 in the ordinary course and in that course, if a space opens up for him (ie if one or more students withdraw or are put on review before the commencement of Phase 2). If that does not happen then, Scenario 2A would be put in place which would see Mr Crouch return to Brisbane and be assigned Simulator Support duties and that he would return to Melbourne for the course commencing in March 2023. Or, alternatively, Scenario 2B is put in place whereby Mr Crouch participates in Phase 1 again to refresh his memory (but would not be formerly assessed) before continuing to Phase 2 and Mr Crouch would not be penalised for effectively being re-coursed a second time (this time due to operational constraints).”
I note that these scenarios were proposed by Mr Crouch prior to the stay hearing and without the benefit of hearing Ms Chau’s evidence. Ms Chau considers the theory component of the Enroute course to take place prior to phase one and the simulator component to commence in phase one. Accordingly, to the extent that the above scenarios advanced by Mr Crouch inaccurately consider phase one to comprise of theory and phase two to involve simulator training, I do not regard the difference in terminology to be relevantly of substance.
Further, while the scenarios are not in the form of an undertaking to the Commission, I have considered scenario 2, in particular, on the basis that it reflects a commitment by Mr Crouch to taking the theoretical component of the Enroute course upon his enrolment by Airservices, but will accept his withdrawal from the training if he is advised that there are no positions available to him for the simulator component of phase one. In such a case, Mr Crouch would be placed at the top of the list to replace a trainee should one withdraw from the simulator component. This is consistent with the manner in which Mr Crouch presented his argument at the stay hearing, with the benefit of considering the Enroute course training calendar.
In considering the balance of convenience, it is necessary to consider the potential inconvenience and convenience to either party should the stay be granted and should the stay not be granted. Given that Airservices and Mr Crouch propose different scenarios to maintain the status quo pending resolution of the appeal, I consider it necessary to consider the potential prejudice in both parties’ scenarios. However, I observe that Airservices’ preferred outcome will be implemented if the stay is granted, and Mr Crouch’s scenario will arise if the stay is not granted.
In the event that the stay is refused, and a scenario proposed by Mr Crouch at [46] above is implemented, Mr Crouch will be re-coursed in the Enroute course commencing 24 October 2022. There will be no limit to his participation in the theory component of the course, being up until around 6 December 2022. In these circumstances, three possible scenarios arise on the evidence:
(a) One of the 12 Ab Initio trainees set to commence on 24 October 2022 withdraws and Mr Crouch takes their place.
(b) Mr Crouch commences the theory component of the course with the 12 other Ab Initio trainees, such that there would be 13 trainees undertaking the theory component. One or more of these trainees withdraws prior to simulator training commencing on or around 7 December 2022 and Mr Crouch takes their place and continues with his training.
(c) Mr Crouch commences the theory component of the course with the 12 other Ab Initio trainees. None of the 12 Ab Initio trainees withdraw. On or around 7 December 2022, Mr Crouch returns to Brisbane to undertake simulator support duties.
In relation to all three scenarios, prior to the theory component of the Enroute course concluding on or around 6 December 2022, it is significant that Mr Crouch will still be paid as a full-time Ab Initio trainee. Aside from relocation costs from Brisbane to Melbourne to recommence the theory component of the course, which Mr Crouch has undertaken to pay if Airservices is successful in its appeal, Airservices did not make any submissions with respect to the additional costs of re-coursing Mr Crouch immediately. It may be that there are some minor additional costs associated with coursing a supplementary trainee during the theory phase of the Enroute course, for example by administering an additional set of exams. However, I do not consider there to be any significant prejudice to Airservices in this respect.
In relation to scenario (a) and (b), should Airservices be successful on appeal, Mr Crouch would be removed from the course after the appeal is determined, being sometime after the hearing on 21 November 2022 and potentially after the theory phase of the course is complete on 6 December 2022.
Airservices did not advance any evidence or submissions as to the specific prejudice which it may suffer should it be successful on appeal and Mr Crouch is withdrawn from the Enroute course after commencing simulator training. For example, there is no evidence concerning the costs of training an employee in a simulator phase or the significance of conducting the Enroute course with 11 Ab Initio trainees instead of 12. Nevertheless, I consider that some prejudice may arise from Mr Crouch assuming the position of another trainee in the course, and the incurring of training costs which yield Airservices no ongoing benefit.
In this respect, however, there is evidence before the Commission that there were around 350 diplomas commenced between 2015 and 2022 with Airservices and that a not insignificant number of trainees withdraw prior to completing “initial training.”[37] It may be inferred that the Enroute course is capable of effectively progressing where a trainee withdraws and, absent submissions or other evidence on the point, this matter does not give rise to significant prejudice to Airservices.
If scenario (a) arises, it would mean one of the three reserve trainees who would, in the ordinary course, be offered a position will not be able to commence training. It may be that Mr Crouch assumes the position of a potential Ab Initio trainee but is unsuccessful in defending the appeal with the result that Mr Crouch is withdrawn from the Enroute course (either prior to or during phase one). In such a case, I accept that this may give rise to an inefficiency in the Enroute course such that there is some prejudice to Airservices. However, in the absence of submissions to this effect, I do not regard any such prejudice to be significant.
Conversely, whether scenario (a), (b) or (c) arises, Mr Crouch will not be prejudiced by comparison to the circumstances which may arise in the event that the stay is granted. In all three scenarios, Mr Crouch would be able to progress his training to at least the conclusion of the theory component of the Enroute course. If scenario (a) or (b) arises, Mr Crouch would be provided with the opportunity to progress his training into the simulator phase pending resolution of the appeal.
Given the passage of time since Mr Crouch commenced as an Ab Initio trainee in circumstances where the “initial training” was contracted to take between 13 and 15 months, in addition to Mr Crouch’s evident desire to return to training,[38] I consider there to be a substantial benefit to Mr Crouch in being given the opportunity to be re-coursed on 24 October 2022.
Should the stay be granted, the potential for Mr Crouch to recommence training would be deferred until March 2023. I consider that a five-month delay to March 2023 gives rise to significant prejudice to Mr Crouch, having regard to the circumstances of this case, noting that Mr Crouch has been excluded from training and unable to perform other work for Airservices since August 2020. Conversely, the grant of a stay serves only to ameliorate the limited additional costs and inefficiencies that Airservices may incur which were earlier identified. While a stay order may also provide Airservices with a degree of certainty with respect to both Mr Crouch’s ongoing participation in training and the availability in its Enroute courses moving forward, it is not apparent on the evidence that these matters are of such significance that they ought to weigh heavily in favour of Airservices’ position.
Airservices’ primary submission is that the balance of convenience favours the grant of a stay on the basis that it would lose the benefit of the appeal should the stay not be granted, and its appeal is successful. I do not accept this submission. On the basis of the counterfactual analysis above, while I accept that it would suffer some prejudice if the stay were not granted, Airservices would not lose the benefit of the appeal by having commenced re-coursing Mr Crouch on 24 October 2022 as opposed to securing simulator support duties for him in Brisbane pending the determination of the appeal. Whether a stay is granted or not, Airservices retains the benefit of implementing the terms of the Agreement, including with respect to termination of employment, should its appeal be successful.
On balance, I consider that the potential benefit to Mr Crouch in being afforded the opportunity to commence the Enroute course on 24 October 2022 rather than March 2023 outweighs any of the potential prejudice to Airservices identified above. I conclude that the balance of convenience favours refusing the stay.
Conclusion
Having regard to the above matters and the conclusions reached, the application for a stay order is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms V Bulut for the appellant
Mr S Hardy for the respondent
Hearing details:
20 September 2022, by Microsoft Teams
Final written submissions:
22 September 2022
[1] Luke Crouch v Airservices Australia [2022] FWC 2171
[2] AE507712
[3] RTO 5168 – ANS Initial Training – Training Review Luke Crouch
[4] Appeal Book (AB) 77 at [243]
[5] 12 September 2022
[6] Ibid at 4.1
[7] Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 785 at [5] approved on appeal in Kellow-Falkiner Motors Pty Ltd v Edghill[2000] AIRC 786
[8] Ibid; See also Coal and Allied Operations Pty Limited v Crawford and Others (2001) 109 IR 409 at [13]
[9] AB 1075
[10] AB 1076
[11] AB 483; AB 10 at [9]
[12] AB 461 at [6]; AB 10 at [6], [9]
[13] AB 10 at [8]-[9]
[14] AB 484; AB 10 at [9]
[15] AB10 at [10]
[16] AB 463 at [22]; AB 468 at [45]; AB 11 at [14]
[17] AB 11 at [15]
[18] AB 11 at [17]
[19] AB 11-12 at [18]-[21]
[20] [2017] FWCFB 217
[21] Ibid at [18]
[22] [2015] FCAFC 123; 235 FCR 305 at [32]
[23] [2001] HCA 16; 203 CLR 645
[24] Endeavour Energy v Communications Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82
[25] AB 13 at [25]
[26] AB 389 at 3.1, [1]
[27] Lloyd v Australian Western Railroad Pty Ltd [2017] FWCFB 143 at [37]-[38]
[28] Exhibit 1 (Statement of Sarah Chau dated 19 September 2022) at [7]
[29] Ibid at [4]-[8]
[30] Ibid at [11]
[31] Ibid at [9]
[32] Ibid at [10]
[33] Exhibit 2
[34] Exhibit 1, Annexure SC-1
[35] Exhibit 5, Exhibit 6
[36] Exhibit 5, Annexure LC-4
[37] AB 1418
[38] Exhibit 5 at [22]-[28]
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