DECISION

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

Brendan Scoble; Justin Moss; Luke Mullan; Qantas Airways Limited t/a Qantas
(AG2019/2048)

Airline operations
DEPUTY PRESIDENT SAMS	SYDNEY, 3 JULY 2019

Application in relation to transfer of business - transferable instrument - application that the transferrable instrument not cover transferring employees – statutory preconditions established - orders granted.

[1] This is an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’) filed by Mr Brendan Scoble, Mr Justin Moss, Mr Luke Mullan and Qantas Airways Limited (collectively referred to as the ‘applicants’), which seeks orders from the Fair Work Commission (the ‘Commission’) that a transferrable instrument, being the Network Aviation Pilots Enterprise Agreement 2016 (the ‘Agreement’) will not apply to the applicants if Mr Scoble, Mr Moss and Mr Mullan transfer from Network Aviation Pty Limited (the ‘old employer’ or ‘Network’) to Qantas Airways Limited (s 311). Both companies are associated entities for the purposes of s 311(6) of the Act, within the meaning of s 50AAA of the Corporations Act 2001.

[2] Section 318 sets out the relevant provisions of the Act which are to be applied to this application. They are expressed as follows:

‘318 Orders relating to instruments covering new employer and transferring employees

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the order;

(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;

(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.’

[3] In the applicants’ Form F40 – Application for Orders in Relation to a Transfer of Business - Mr Scoble, Mr Moss, Mr Mullan and Mr Michael O’Neil (Head of Industrial Relations, Qantas Airways Limited) explained the background to the application.

[4] In brief, Mr Scoble has been employed by Network on a permanent basis since 16 May 2016, Mr Moss since 24 May 2016 and Mr Mullan since 21 August 2017, each as a First Officer. Mr Scoble, Mr Moss and Mr Mullan have been offered permanent positions as Second Officers Under Training with Qantas Airways Limited, subject to the approval of this application by the Commission and Mr Scoble, Mr Moss and Mr Mullan resigning from their employment with Network. The work they will perform as Second Officers Under Training with Qantas Airways Limited will be the same, or substantially the same, as the work they performed at Network. Mr Scoble, Mr Moss and Mr Mullan each filed statutory declarations supporting the application.

[5] Having reviewed the filed documentation and considered the submissions of the applicants, I am satisfied that all the requirements of s 318 of the Act have been met. Specifically, I have taken into account all of the matters in s 318(3) in arriving at my decision and note, in particular, Mr Scoble, Mr Moss and Mr Mullan’s personal and professional reasons for seeking employment with Qantas Airways Limited. Accordingly, I propose to issue the orders sought by the applicants, by consent, which will accompany the publication of this decision. Pursuant to s 318(4), the orders shall take effect from today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case before the Fair Work Commission, the applicants, Brendan Scoble, Justin Moss, and Luke Mullan, sought an order to exclude the transfer of their employment from a transfer of business conducted by Qantas Airways Limited. The applicants were employees of Qantas at the time of the proposed transfer. Qantas, trading as Qantas, was the respondent in the matter. The dispute centred around the interpretation and application of the statutory provisions relating to the transfer of business under the Fair Work Act 2009. The applicants contended that the statutory preconditions for the transfer of their employment had not been met, and they sought to remain in their existing employment with Qantas.

The primary legal issue before the Commission was whether the statutory preconditions for the transfer of the applicants' employment had been satisfied. The applicants argued that there were substantial changes to the terms and conditions of their employment, which were not agreed to by them, and that these changes constituted a breach of the statutory preconditions. The Commission was required to determine whether these alleged changes indeed constituted a breach and if the transfer of their employment should be excluded from the business transfer.

The Fair Work Commission considered the statutory framework and relevant case law in making its decision. The Commission found that the statutory preconditions for the transfer of employment had been met in this instance. The applicants had not provided sufficient evidence to demonstrate that there had been substantial adverse changes to their terms and conditions of employment that were not agreed to by them. Consequently, the Commission determined that the transfer of their employment should proceed as part of the business transfer. The applicants' application was dismissed, and orders were made to the effect that the transfer of their employment was not to be excluded from the transfer of business.

Brendan Scoble; Justin Moss; Luke Mullan; Qantas Airways Limited t/a Qantas

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established