Bristow Helicopters Australia Pty Ltd

[2021] FWCA 4764

[2021] FWCA 4764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Bristow Helicopters Australia Pty Ltd
(AG2021/5277)

Airline operations
DEPUTY PRESIDENT BINET	PERTH, 17 AUGUST 2021

Application for termination of the Bristow Helicopters Australia Engineers Enterprise Agreement 2015.

[1] On 24 May 2021 Bristow Helicopters Australia Pty Ltd (Bristow) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 222 of the Fair Work Act 2009 (Cth) (FW Act) for the termination of the Bristow Helicopters Australia Engineers Enterprise Agreement 2015 (Agreement).

[2] The Application was supported by a statutory declaration by Ms Keir Williams (Williams Declaration).

[3] The Agreement was approved by Commissioner Roe pursuant to s 185 of the FW Act, on 29 February 2016 and commenced operation on 7 March 2016.

[4] The Agreement is a single enterprise agreement with a nominal expiry date 31 March 2018.

[5] The parties to the Agreement are Bristow and the engineers and engineering staff employed by Bristow in relation to its operations in Australia (Employees).

[6] The Australian Manufacturing Workers Union (AMWU) and the Australian Licensed Aircraft Engineers Association (ALAEA) are covered by the Agreement.

[7] On 3 June 2021, directions were issued to the Parties with respect to the Application (Directions). The Directions required Bristow to file an outline of submissions in support of the Application and any evidence on which Bristow sought to rely. The Directions required the AMWU and ALAEA to file an outline of submissions in response to the Application and any evidence on which the AMWU or ALAEA sought to rely.

[8] The Directions also required Bristow to provide a copy of the Application, the Williams Declaration and the Directions to all Employees. The Directions contained an invitation for any Employee who wished to be heard with respect to the Application, to contact the FWC by close of business on Thursday, 1 July 2021. The parties were advised that in the absence of any such contact being made, a conclusion about this Application may be reached on the material before me.

[9] The parties were invited to make oral submissions in relation to the Application. The parties did not seek to be heard and this Application has been determined on the papers.

Background

[10] Bristow is part of the Bristow group of companies which is a provider of industrial aviation services offering helicopter transportation, search and rescue (SAR) and support services to government and civil organisations. In Australia the market which was serviced by Bristow was predominantly the offshore oil and gas industry. Bristow entered the Australian market in 1965.

[11] Bristow currently only has 4 employees employed in its Australian operations down from a peak of 445 in January 2015. Following the termination of its only remaining contract in Australia in April 2021, Bristow has only two helicopters located in Australia, Leonardo AW139 aircraft, which are stored in Queensland. Bristow has been unsuccessful in the last two years in tendering for work, has no current contracts and does not presently intend to tender for any future work in Australia.

[12] Bristow had one Employee covered by the Agreement as at 24 May 2021.

[13] Bristow Helicopters does not propose to engage Employees under this Agreement in the future.

Relevant Statutory Provisions

[14] Sections 220, 221, 222 and 223 of the FW Act state:

“220 Employers may request employees to approve a proposed termination of an enterprise agreement

(1) An employer covered by an enterprise agreement may request the employees covered by the agreement to approve a proposed termination of the agreement by voting for it.

(2) Before making the request, the employer must:

(a) take all reasonable steps to notify the employees of the following:

(i) the time and place at which the vote will occur;

(ii) the voting method that will be used; and

(a) give the employees a reasonable opportunity to decide whether they want to approve the proposed termination.

(3) Without limiting subsection (1), the employer may request that the employees vote by ballot or by an electronic method.”

“221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

Multi-enterprise agreement

(2) If the employees of each employer covered by a multi-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees of each individual employer who cast a valid vote have approved the termination.”

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.”

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

Consideration

[15] Bristow submit that s.220(2)(a) of the FW Act has been complied with because in early November 2020, Mr Daniel Bowden, Area Manager and Ms Keir Williams, Human Resources Manager had initial discussions with the one remaining employee covered by the Agreement regarding an agreed termination of the Agreement.

[16] Bristow submit that s.220(2)(b) of the FW Act has been complied with because on 14 May 2021, Bristow gave the employee notice by email that a vote to approve the termination of the Agreement would occur on Tuesday, 18 May 2021 from 8am to 5pm and that the voting would occur via email.

[17] On 15 May 2021, Ms Williams provided answers to the Employee’s queries via email and provided the Employee with an updated contract. On 18 May 2021, Ms Williams extended the voting timeframe to 20 May 2021 to ensure the affected Employee had a reasonable opportunity to decide whether he wanted to approve the proposed termination. Ms Williams also explained to the Employee the voting process and that as he was the only employee that his vote would not be confidential.

[18] In these circumstances I am satisfied that the Employee understood the reasons for the Application and had a reasonable opportunity to consider whether they wished to approved the proposed termination of the Agreement.

[19] Bristow filed a copy of an email from the Employee dated 20 May 2021 confirming that he agreed to the termination of the Agreement.

[20] I am satisfied that the termination of the Agreement has been agreed to pursuant to section 221(1) of the FW Act, as the one Employee eligible to cast a vote voted in favour of terminating the Agreement.

[21] Bristow is a party to the Agreement I am therefore satisfied that Bristow have standing to make the Application. The vote occurred on 20 May 2021 and the Application was filed on 24 May 2021. I am therefore satisfied that the Application was made within 14 days of the vote. The Application was accompanied by the Williams Declaration. I am therefore satisfied, that section 222 has been complied with.

[22] For the reasons set out above I am satisfied that Bristow complied with subsection 220(2) of the FW Act and that the termination was agreed in accordance with subsection 221(1) of the FW Act.

[23] On 25 June 2021, Ms Williams filed a statutory declaration confirming that a copy of the Application, the Williams Declaration, the submissions filed by Bristow in support of the Application and the Directions had been provided to all the Employees.

[24] No applications to be heard were received by any Employee on or before close of business on Thursday, 1 July 2021.

[25] On 9 August 2021 in line with the Directions issued to the Parties, the AMWU and ALAEA made submissions with respect to the termination of the Agreement. The AMWU advised that it does not object to the termination of the Agreement. The ALAEA submitted that it held no objections to the termination of the Agreement.

[26] There is no evidence before me to suggest that there are reasonable grounds for believing the Employees have not agreed to the termination of the Agreement.

Conclusion

[27] Based on the material that is before me, and in the absence of any request from an employee or the AMWU or ALAEA to heard, I am satisfied that Bristow has complied with its obligations under subsection 220(2), that the termination was agreed to in accordance with subsection 221(1) and that there are no reasonable grounds for believing that the employees have not agreed to the termination. I have taken into account the views of the AMWU and ALAEA. In these circumstances I must approve the termination of the Agreement.

[28] The termination will come into effect on the date of this decision. An order to this effect will be issued with this Decision. 1

DEPUTY PRESIDENT

 1   PR732485.

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