Bristow Helicopters Australia Pty Ltd

[2021] FWCA 4181

[2021] FWCA 4181

FAIR WORK COMMISSION

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:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

[14] As the Agreement has passed its nominal expiry date and Bristow is an employer covered by the Agreement, I find that Bristow has standing to make the Application pursuant to section 225(a) of the FW Act.

[15] Section 226 of the FW Act states:

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

Is it contrary to the public interest to termination the Agreement?

[16] Section 226(a) requires the FWC to be satisfied that it is not contrary to the public interest to terminate the Agreement.

[17] This requires the FWC to consider how the termination of the Agreement might foreseeably affect the public as a whole, such as the impact on the achievement or otherwise of the various objects of the Act, employment levels, inflation and the maintenance of proper industrial standards. 1

[18] The object of the FW Act is set out in section 3 of the FW Act, as follows:

“3. Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

…

(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders;

…

(f) achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action;

…”

[19] The specific objects in section 171 of the FW Act inform how the general object in section 3 of the FW Act is to be satisfied in the context of matters dealt with in Part 2-4 of the FW Act:

“171. Objects of this Part

The objects of this Part are:

(a) to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and

(b) to enable the FWC to facilitate good faith bargaining and the making of enterprise agreements, including through:

(i) making bargaining orders; and

(ii) dealing with disputes where the bargaining representatives request assistance; and

(iii) ensuring that applications to the FWC for approval of enterprise agreements are dealt with without delay.”

[20] The ascertainment of what is not in the public interest does not involve the mere identification of a consequence of the termination of the agreement that is arguably contrary to the public interest. The ascertainment of the public interest may involve balancing countervailing public interests. 2

[21] There is no positive onus on the applicant to persuade the FWC that there are positive benefits to the public interest arising from the termination. In Geelong Wool Combing Ltd (AIRC) 5 September 2003, Commissioner Wheelan said:

“… the Commission must be persuaded that termination is contrary to the public interest [and] in the absence of any effect of termination which is contrary to the public interest it is not necessary to persuade the Commission that there are positive benefits to the public interest arising from the termination.”

[22] The public interest is distinct in nature from the interests of those covered by the agreement. The views of those covered by an agreement may be relevant to the exercise of the discretion if they shed light on the effect of the termination on public interest but those views should not be given any independent weight. 3

[23] Bristow submits that there are no matters contrary to the public interest in terminating the Agreement. To the contrary Bristow say that it is in the public interest to terminate the Agreement because it would allow Bristow to re-enter the Australian market and invest in local infrastructure and provide training opportunities to Australian workers.

[24] Bristow submit that the termination of Crew Agreement is in keeping with the objects of the FW Act because:

a. the Agreement contains terms and conditions of employment that are no longer market competitive in the helicopter industry;

b. the Agreement contains terms and conditions of employment which are restrictive and prone to inefficiency and act as an impediment to the Bristow operating in a commercial and cost-efficient manner;

c. termination of the Agreement would enable Bristow to pursue new commercial opportunities on a competitive footing with other operators in the helicopter industry, should it choose to do so in the future and should suitable opportunities arise; and

d. termination of the Agreement would enable Bristow to generate employment opportunities in the helicopter industry, should it tender for and win work in the future.

[25] Based on the submissions of Bristow and the evidence before me, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

What are the views of the Employees covered by the Agreement?

[26] Bristow does not currently employ any pilots performing work covered by this Agreement and does not intend to do so in the immediate future because it has no work available for pilots and does not intend to tender for any work while bound by the Agreement.

What are the views of the Employee Organisation covered by the Agreement?

[27] The Agreement covers the AFAP. Directions were issued on 1 June 2021 seeking the views of the AFAP by 17 June 2021. The AFAP indicated that it did not oppose the Application.

What are the views of the Employer covered by the Agreement?

[28] Bristow wish to terminate the Agreement.

What are the circumstances of the Employee Organisation covered by the Agreement?

[29] In the circumstances the AFAP do not oppose the Application.

What are the circumstances of the Employer covered by the Agreement?

[30] The evidence suggest that the Agreement was made at a time where the economic and competitive environment was fundamentally different. Bristow submit that the Agreement is not suited to the present workplace and economic environment both in terms of cost and work practices. Bristow say that the Agreement places it at a significant disadvantage when compared to its competitors in the Australian market due to its restrictive terms and conditions and rates such as the higher salaries and allowances and the conditions on rostering of tours, recruitment, flexibility, seniority in respect redundancy and re-training requirements, leave accruals, travel and accommodation standards.

Is it appropriate to terminate the Agreement taking into all the circumstances?

[31] In assessing the views and circumstances of the parties it is important to remember that:

“Taking into account the views and circumstances of the parties involves far more than an expression of their views in support or opposition to termination. It should involve a reason for their views and the validity of their concerns.” 4

[32] I am satisfied that the views of Bristow Helicopters and the AFAP that the Agreement should be terminated are valid.

Conclusion

[33] For the reasons enunciated above, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[34] Taking into account all the circumstances, including the views and circumstances of Bristow and the AFAP, I am satisfied that it is appropriate to terminate the Agreement.

[35] Accordingly, the Agreementis terminated. The termination is to take effect on and from the date of this Decision. An Order to this effect will be issued in conjunction with this Decision. 5

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE419471, PR731744>

 1   Re Kellogg Brown and Root, Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34, 40 – 41.

 2   Kellogg Brown & Root Pty Ltd & Ors and Esso Australia Ltd (2005) 139 IR 34 referred to the decision of the High Court of Australia in Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393.

 3   Ibid.

 4   Energy Resources Australia Ltd v Liquor, Hospitality and Miscellaneous Union[2010] FWA 2434, [16].

 5   PR731745.