Application by Aero Care Flight Support Pty Ltd

[2015] FWC 7902

[2015] FWC 7902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Application by Aero Care Flight Support Pty Ltd
(AG2015/6100)

Airline operations
VICE PRESIDENT WATSON	MELBOURNE, 4 DECEMBER 2015

Application by Aero Care Flight Support Pty Ltd for an order in relation to transfer of business - Transferrable instrument - Application that transferrable instrument not cover transferring employees - Fair Work Act 2009, ss. 311, 312, 317, 318 and 319.

Introduction

[1] This decision concerns an application by Aero Care Flight Support Pty Ltd (Aero Care) for an order under ss.318 and 319 of the Fair Work Act 2009 (the Act) which relates to instruments covering a new employer and transferring employees in the context of a transfer of business.

[2] The application concerns a number of employees who are currently employed by Skystar Airport Services Limited (Skystar) under the Skystar (Perth Airports) Collective Agreement 2015 (the Skystar 2015 Agreement). The terms of the order are sought under ss.318(1) and 319(1) of the Act and provide that:

• The Skystar 2015 Agreement does not and will not cover the new employer and any transferring employees;



• The Aero-Care Collective Agreement 2012 (the Aero-Care Agreement) will cover any transferring employees; and



• The Skystar 2015 Agreement does not and will not cover any non-transferring employees as defined by the Act.

Transfer of the Skystar 2015 Agreement

[3] I have dealt with the background and relevant legislative provisions of such matters in an earlier decision which relates to the Skystar 2012 Agreement. 1 The Skystar 2012 Agreement has now been replaced by the Skystar 2015 Agreement. As a result, Aero Care has sought that the proposed orders in this further application be made in order to facilitate the transfer of employees. I propose to apply the approach outlined in my previous decision to the determination of the issues in relation to this matter.

[4] Aero Care submits that despite enlivening the provisions of Part 2-8 of the Act, there is no sound basis for the Skystar terms and conditions of employment to transfer into the Aerocare business. It filed a statement of Greg Shelley, General Manager – Employee Relations, in support of its application. The TWU did not put any material to the Commission regarding this application given the decision in the earlier proceeding regarding an application in the same terms.

[5] Aero Care submits that it is in the public interest to grant the orders sought because:

• In September 2015, Aero Care was notified it had been awarded certain contracts for customer service and ground handling work at Perth Airport which are due to commence operation progressively from 31 October 2015;



• The employment of workers at Perth Airport performing work to be taken over by Aero Care will potentially be terminated or materially affected due to the loss of work; and



• Aero Care’s tendering for and acceptance of contract work in the aviation ground handling and flight support industry is predicated on a cost structure based on the Aero-Care Agreement and the imposition of other transferring instruments threatens its profit margins and overall profitability and impacts on its ability to employ the employees of former competitors who will otherwise be unemployed or lost to the industry.

[6] Apart from the different expiry date of the Skystar 2015 Agreement the relevant circumstances of this matter are effectively the same as those I have considered in the previous application. I have considered the evidence in relation to the various factors I am required to consider under the Act.

[7] Aero Care is a large national employer in this industry. It operates under formal enterprise agreements. It has been able to grow its business through flexible innovative employment arrangements. Its agreements have passed legislative approval tests. Failure to grant the application may damage the prospects of Skystar employees obtaining on-going employment at Perth Airport. It is unlikely that they would obtain employment without this order being made because the Skystar terms and conditions will negatively impact Aero Care’s operational model. In all of the circumstances I consider that it is appropriate to grant the application.

Conclusion

[8] For the reasons above I will make orders as sought in the application.

VICE PRESIDENT

Final written submissions:

Aero Care on 10 November 2015.

 1   [2015] FWC 7437.

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