CareFlight Limited T/A CareFlight

[2018] FWCA 5950

[2018] FWCA 5950

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 217 - Application to vary an agreement to remove an ambiguity or uncertainty

CareFlight Limited T/A CareFlight
(AG2018/5149)

CAREFLIGHT ROTARY WING AIRCREW ENTERPRISE AGREEMENT 2016 - 2020

Airline operations
DEPUTY PRESIDENT SAMS	SYDNEY, 21 SEPTEMBER 2018

Application for variation of the CareFlight Rotary Wing Aircrew Enterprise Agreement 2016-2020 – application to vary the agreement to remove an ambiguity or uncertainty – consent of the parties – agreement only covers aeromedical services – ambiguity or uncertainty established – variation made.

[1] This is an application, pursuant to s 217 of the Fair Work Act 2009 (the Act) to vary an agreement to remove an ambiguity or uncertainty in respect to the CareFlight Rotary Wing Aircrew Enterprise Agreement 2016-2020 (the Agreement). The application was filed by CareFlight Limited t/a CareFlight on 13 September 2018. The application seeks to give certainty to the coverage of the Agreement in respect to aeromedical operations. It arises in the context of CareFlight winning a new contract with the New South Wales Rural Fire Service to provide aviation services in connection with fire fighting operations in New South Wales.

[2] The application was listed for hearing on 21 September 2018 with Mr T Gooch, Solicitor, appearing with permission for CareFlight with Ms N Gallagher and Mr A Molnar, Legal Counsel for the Australian Federation of Air Pilots (the ‘AFAP’).

[3] Mr Gooch submitted that the Agreement is sought to be varied to remove any ambiguity or uncertainty in respect to the exclusive coverage of aero medical services under the Agreement. This had been the intention of the parties when the Agreement was negotiated, voted on by the employees and approved by the Commission. Given that CareFlight had secured a new contract for fire fighting activities and the aircraft proposed to be used in such activities are not fitted out for aeromedical purposes, the Agreement should make clear it does not apply to fire fighting operations.

[4] The AFAP supported the application and indicated that it would be consulting its members to be employed in the fire fighting operations as to their preference for a separate enterprise agreement to cover these operations. The AFAP confirmed the parties’ intention that the Agreement was only ever intended to apply to aeromedical services and at the time of the negotiations for the Agreement, the winning of a future fire fighting contract was unknown.

[5] Section 217 of the Act provides as follows:

“217 Variation of an enterprise agreement to remove an ambiguity or uncertainty

(1) The FWC may vary an enterprise agreement to remove an ambiguity or uncertainty on application by any of the following:

(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.

(2) If the FWC varies the enterprise agreement, the variation operates from the day specified in the decision to vary the agreement.”

[6] I am satisfied that the application is competently before the Commission for determination. I am further satisfied, given the changed circumstances and the consent of the parties, that I should exercise my discretion to vary the Agreement to remove ambiguity or uncertainty. The order sought by the parties is as follows:

‘that the Agreement be varied by inserting the words ‘engaged in aeromedical operations’ at the end of the sub clause (b)of cl 5.’

I propose to make the order as proposed and vary the Agreement accordingly.

[7] The variation shall take effect on and from 21 September 2018. I order accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE424273  PR700747>