Civil Air Operations Officers Association of Australia v Airservices Australia

Civil Air Operations Officers Association of Australia brought this proceeding against Airservices Australia seeking declarations and pecuniary penalties for contraventions of an enterprise agreement. The Court was asked to decide whether it had jurisdiction to hear the proceeding. The Court found that it did, and dismissed the interlocutory application by Airservices. The Court found that the Fair Work Commission’s decision to arbitrate the dispute did not extinguish the justiciable controversy between the parties, and that the Court therefore had jurisdiction to hear the proceeding. The Court also found that Civil Air had not made an election between inconsistent courses of conduct by notifying the dispute to the Fair Work Commission and subsequently asking that it be arbitrated. The Court found that Civil Air was entitled to seek declarations and pecuniary penalties for contraventions of the enterprise agreement as found by the Fair Work Commission. The Court found that the arbitral award was final and conclusive only in relation to the issues determined by the arbitration, and that the Fair Work Commission had no power to make declarations of contravention of s 50 of the Fair Work Act 2009 or to impose pecuniary penalties under s 546. The Court found that it could not and did not decide any questions as to whether it is appropriate for declarations of contravention to be made or to impose pecuniary penalties as such questions could only be decided by a court of competent jurisdiction. The Court found that the arbitral award did not deal with or determine the entirety of the justiciable controversy between the parties and that there remained a “matter” arising under the Fair Work Act. The Court found that Civil Air’s right or entitlement under the Fair Work Act to seek declarations in relation to contraventions of s 50 of the Fair Work Act based in Airservices’ failures to comply with clauses of the enterprise agreement, as found by the Fair Work Commission, and to seek the imposition of pecuniary penalties for such contraventions, was not extinguished by the Fair Work Commission’s Decision.

The Court ordered that the Respondent’s interlocutory application dated 8 July 2019 be dismissed.