Duck v Airservices Australia (No 2)

In Duck v Airservices Australia (No 2), the Federal Court of Australia addressed a class action seeking to recover the difference between entitlements under individual contracts and entitlements under enterprise agreements. The applicant, Ms Duck, argued that the clauses of the agreements operated to the effect that employees on individual contracts were not covered by the agreements. The court was required to decide whether the clauses of the 2009 Agreement and the 2013 Agreement effectively excluded employees on individual contracts from the scope of those agreements.

The court found that Ms Duck’s argument regarding the utility of all employees being on "individual" contracts was not tenable. The court determined that Ms Duck was not employed under an individual contract of employment until she entered into the 2010 Contract, and subsequently the 2013 Contract, both of which fell within the exclusion phrase in the agreements. As a result, neither the 2009 Agreement nor the 2013 Agreement applied to Ms Duck. The court concluded that the answer to the separate question was "yes", meaning Ms Duck was not covered by either agreement. Consequently, the court dismissed the proceeding.

The court's orders included that the answer to the separate question be "yes", the further amended originating application be dismissed, and the respondent to make any application for costs within 14 days. This decision clarifies the scope of the enterprise agreements and the exclusion of employees on individual contracts from such agreements.