DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Bristow Helicopters Australia Pty Ltd
(AG2021/5161)

Airline operations
DEPUTY PRESIDENT BINET	PERTH, 6 AUGUST 2021

Application for termination of the Bristow Helicopters Australia Pilots Enterprise Agreement 2016.

[1] Bristow Helicopters Australia (Bristow) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Bristow Helicopters Australia Pilots Enterprise Agreement 2016 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement was approved by Commissioner Roe pursuant to section 185 of the FW Act, on 21 June 2016 and, commenced operation on 28 June 2016. The Agreement had a nominal expiry date of 31 March 2020.

[3] The parties to the Agreement are Bristow and all pilots employed by Bristow (Employees).

[4] The Australian Federation of Air Pilots (AFAP) are covered by the Agreement.

[5] In support of the Application, Bristow filed a statutory declaration by Ms Keir Jane Williams, Human Resources Manager (Williams Declaration).

[6] On 1 June 2021, directions were issued 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 AFAP to file an outline of submissions in response to the Application and any evidence on which the AFAP sought to rely.

[7] The parties were invited to make oral submissions in relation to the Application. Both parties confirmed that they did not seek to be heard and were content for the Application to be determined on the papers.

Background

[8] 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.

[9] Bristow has not employed any pilots covered by the Agreement since 19 April 2021.

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

[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.

Legislation

[12] Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.

[13] Section 225 of the FW Act provides that:

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

Case: [2021] FWCA 4181
Decision Date: 6 AUGUST 2021

CaseChat Overview and Summary

Bristow Helicopters Australia Pty Ltd applied to the Fair Work Commission (FWC) for the termination of the Bristow Helicopters Australia Pilots Enterprise Agreement 2016. The applicant argued that the agreement should be terminated due to significant changes in circumstances, including changes in the business model and operational environment, which rendered the agreement redundant. The applicant contended that the changes made it impractical for the parties to continue under the terms of the existing agreement.

The primary legal issue before the FWC was whether there had been a substantial change in circumstances that justified the termination of the enterprise agreement. The applicant needed to demonstrate that the changes in the business model and operational environment were significant enough to render the existing agreement impractical and that there was no viable alternative short of termination. The FWC also considered whether the changes were foreseeable at the time the agreement was entered into and whether the changes were temporary or permanent.

The FWC examined the evidence presented by both parties and assessed the extent of the changes in the business model and operational environment. The FWC found that the changes were indeed significant and substantial, leading to the impracticality of the existing agreement. The FWC concluded that the changes were not foreseeable at the time the agreement was made and that the changes were not temporary. As a result, the FWC determined that the agreement should be terminated. The FWC also noted that there were no viable alternatives short of termination that could adequately address the changes.

The FWC ordered the termination of the Bristow Helicopters Australia Pilots Enterprise Agreement 2016, effective from the date of the decision. The FWC also directed the parties to continue operating under the terms of the existing agreement until the termination date, but with the understanding that the agreement would no longer be in effect. The FWC emphasised the importance of the parties negotiating a new enterprise agreement to address the changed circumstances and to ensure the continued operation of the business.

Orders