Duck v Airservices Australia (No 2)

FEDERAL COURT OF AUSTRALIA

Duck v Airservices Australia (No 2) [2019] FCA 1148

File number:

ACD 97 of 2017

Judge:

BROMWICH J

Date of judgment:

26 July 2019

Catchwords:

INDUSTRIAL LAW – where class action sought to recover difference between entitlements under individual contracts and entitlements under enterprise agreements – whether clauses of agreements operated to the effect that employees on individual contracts were not covered by the agreements – held: answer to the separate question is ‘yes’ – application dismissed

Legislation:

Air Services Act 1995 (Cth) s 42

Civil Aviation Act 1988 (Cth) s 91

Civil Aviation Amendment Act 1990 (Cth)

Fair Work Act 2009 (Cth) ss 50, 194

Federal Court of Australia Act 1976 (Cth)

Public Service Act 1922 (Cth)

Cases cited:

Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241

CPB Contractors Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union [2019] FCAFC 70

Qube Ports Pty Ltd v Maritime Union of Australia [2018] FCAFC 72

Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829; 318 ALR 54

Date of hearing:

2 – 3 April 2019

Registry:

Australian Capital Territory

Division:

Fair Work Division

National Practice Area:

Employment & Industrial Relations

Category:

Catchwords

Number of paragraphs:

73

Counsel for the Applicant:

Mr T Lynch SC with Mr S Meehan

Solicitor for the Applicant:

Adero Law

Counsel for the Respondent:

Ms K Eastman SC with Mr A Hochroth

Solicitor for the Respondent:

Ashurst

ORDERS

ACD 97 of 2017

BETWEEN:

CATHERINE DUCK

Applicant

AND:

AIRSERVICES AUSTRALIA

Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	26 JULY 2019

THE COURT ORDERS THAT:

1.The answer to common question 1 in the further amended originating application, ordered on 24 August 2018 to be heard as a separate question under r 30.01 of the Federal Court Rules 2011 (Cth), and reproduced below, be “Yes”:

Common question 1/separate question

Did/does:

(1)   cl. 1.5.3 of the 2009 Agreement [Airservices Australia Collective Agreement 2009-2013]; or

(2)   cl. 1.4.3 of the 2013 Agreement [Airservices Australia Enterprise Agreement 2013-2017];

as the case may be, operate to the effect that the applicant and each group member was/is not covered by that agreement.

2.The further amended originating application be dismissed.

3.The respondent make any application for costs within 14 days, by way of an email to the associate to Justice Bromwich, together with proposed procedural orders.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1. This is an adjudication of a separate question in an employment law class action concerning the application or otherwise of certain enterprise agreements to the benefits and entitlements of certain public sector employees with “individual” contracts of employment in the field of civil aviation services.

2. From 1 July 1988 until 5 July 1995, both civil aviation services and civil aviation safety in Australia were the responsibility of the Civil Aviation Authority (CAA), pursuant to the