Civil Air Operations Officers' Association of Australia v Airservices Australia (No 2)

The Civil Air Operations Officers’ Association of Australia, an organisation representing employees of Airservices Australia, sought pecuniary penalties against Airservices Australia for its failure to comply with consultation obligations under the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020. The Federal Court heard the matter and was required to consider the relevant factors in assessing the appropriate penalty under section 546 of the Fair Work Act 2009 (Cth). This involved determining the seriousness of the contraventions, the need for deterrence, and the balance between oppressive severity and the need for deterrence in respect of the particular case.

The Court examined the circumstances of the contraventions and the seriousness of the breaches, finding that Airservices Australia had made decisions to resume SAFRA services without the necessary consultation and had published rosters without adequate notice. The Court noted that the maximum penalty was not reserved for only the most serious examples of offending but could be imposed where reasonably necessary to achieve deterrence. The Court considered that the appropriate penalty should strike a reasonable balance between oppressive severity and the need for deterrence. It also noted that the penalty could be moderated by various factors, but the list of considerations should not be treated as a legal checklist. Based on its assessment, the Court determined that the penalties should reflect the seriousness of the contraventions and the need to deter future breaches.

The Court ordered that Airservices Australia pay a penalty of $35,000 for each contravention, totalling $70,000. The penalties were to be paid to the applicant within 28 days, and there was no order as to costs. The Court's decision highlighted the importance of compliance with enterprise agreements and the consequences of failing to adhere to consultation obligations. The penalties imposed aimed to deter future contraventions and protect the public interest by ensuring adherence to the Fair Work Act and the terms of the enterprise agreement.