DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Bristow Helicopters Australia Pty Ltd
(AG2021/5160)

Airline operations
DEPUTY PRESIDENT BINET	PERTH, 6 AUGUST 2021

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

[1] Bristow Helicopters Australia (Bristow) has made an application (Application) to the Fair Work Commission (FWC) to terminate the Bristow Helicopters Australia Technical Crew Enterprise Agreement 2015 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement was approved by Deputy President Gostencnik pursuant to section 185 of the FW Act, on 16 April 2015 and, commenced operation on 23 April 2015. The Agreement had a nominal expiry date of 31 December 2018.

[3] The parties to the Agreement are Bristow Helicopters and employees employed in the Technical Crew classifications listed in Appendix 1 of the Agreement (Employees).

[4] The Australian Workers’ Union (AWU) 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 31 May 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 AWU to file an outline of submissions in response to the Application and any evidence on which the AWU sought to rely.

Background

[7] 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.

[8] Technical crew covered by the Agreement operate or utilise winches used in search and rescue or train those who do so.

[9] Bristow has not won or retained any work in Australia requiring Technical Crew since 2019. Consequently, Bristow Helicopters has not employed any employees performing work under the Agreement since 25 October 2019.

[10] 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

[11] 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.

[12] 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 4180
Decision Date: 6 AUGUST 2021

CaseChat Overview and Summary

In the Federal Court of Australia, Bristow Helicopters Australia Pty Ltd applied for the termination of the Bristow Helicopters Australia Technical Crew Enterprise Agreement 2015. The applicant sought to terminate the agreement due to the incapacity of the respondent union, Australian Licensed Aircraft Engineers Association (ALAE), to perform its functions under the agreement. The dispute arose because the union, according to the applicant, was unable to comply with the agreement due to financial insolvency.

The primary legal issue before the court was whether the union's financial insolvency constituted a sufficient ground for terminating the enterprise agreement under section 234 of the Fair Work Act 2009. The court needed to determine if the union's inability to perform its functions due to insolvency justified the termination of the agreement. This involved interpreting the relevant provisions of the Act and considering the implications of the union's financial state on its ability to fulfill its obligations.

The court found that the union's financial insolvency did indeed provide a valid ground for terminating the enterprise agreement. The union's inability to meet its financial obligations under the agreement and its failure to perform its functions as required by the Act were significant factors. The court concluded that the union's insolvency effectively incapacitated it from fulfilling its duties, justifying the termination of the agreement. The decision was based on the clear language of the Act and the practical consequences of the union's financial situation.

The court granted the application for termination of the enterprise agreement. The agreement was to be terminated with immediate effect, and the parties were directed to negotiate a new agreement in good faith. The court's decision provided clarity on the circumstances under which an enterprise agreement could be terminated due to the incapacity of a party, reinforcing the importance of the ability to perform obligations as stipulated in the Fair Work Act.

Orders