Express Freighters Australia (Operations) Pty Ltd; Qantas Airways Limited; First Officer Damian Watt
[2012] FWA 4556
•4 JUNE 2012
[2012] FWA 4556 |
|
DECISION |
Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees in agreements
Express Freighters Australia (Operations) Pty Ltd; Qantas Airways Limited; First Officer Damian Watt
(AG2012/5523)
VICE PRESIDENT WATSON | SYDNEY, 4 JUNE 2012 |
Application in relation to a transfer of business - transferrable instrument - application that transferrable instrument not cover transferring employees – conditional offer of employment – application not opposed - Qantas Airways Limited - Fair Work Act 2009 ss.311, 317 and 318.
Introduction
[1] This decision concerns an application by Express Freighters Australia (Operations) Pty Limited (EFA), Qantas Airways Limited (Qantas) and First Officer Damien Watt for an Order under s.318 of the Fair Work Act 2009 (the Act) which relates to instruments covering a new employer and transferring employees in the context of a transfer of business.
[2] The application concerns First Officer Watt who is employed by Qantas under the Qantas Airways Limited Flight Crew (Short Haul) Workplace Agreement 2007 1 (the Short Haul Agreement). The terms of the Order are sought under s.318(1) and provide that in relation to First Officer Watt, where there is a transfer of business from Qantas to EFA within the meaning of Division 2, Part 2-8 of the Act, the Short Haul Agreement will not cover EFA.
[3] For the purpose of s.311(6) of the Act, Qantas and EFA associated entities or have a connection by virtue of their status as related bodies corporate, as that term is defined by s.50 of the Corporations Act 2001.
Background
[4] First Officer Watt has been employed by Qantas since September 2000, initially as a Second Officer and became a First Officer on 30 August 2002. He is also a Training Pilot who carries out training duties for Qantas.
[5] First Officer Watt has been offered employment by EFA as a Training Pilot, with an opportunity to undertake training for the rank of Captain. Once the training is complete he will have an opportunity of being based in Melbourne as a Captain, an opportunity which may not otherwise be available to him for a period of five years or more with Qantas. The employment with EFA has been offered for a three year period with an option to extend that period for a further three years. During this time First Officer Watt’s Qantas seniority will continue to accrue.
[6] Qantas has agreed to grant First Officer Watt a period of leave without pay in accordance with the Short Haul Agreement to enable him to take up the position with EFA. When the employment with EFA comes to an end, First Officer Watt will be able to return to Qantas.
The relevant legislation
[7] Part 2-8 of the Act describes when a transfer of business occurs and provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one employer to another employer.
[8] Section 311(1) contains the definition of transfer of business in a wider manner than the ordinary English or legal meaning of the term. The definition is:
“(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).”
[9] Sections 317 and 318 of the Act relevantly provide:
“317 FWA may make orders in relation to a transfer of business
This Division provides for FWA to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer.
318 Orders relating to instruments covering new employer and transferring employees
Orders that FWA may make
(1) FWA may make the following orders:
(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;
(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.
Who may apply for an order
(2) FWA may make the order only on application by any of the following:
(a) the new employer or a person who is likely to be the new employer;
(b) a transferring employee, or an employee who is likely to be a transferring employee;
(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;
(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).
Matters that FWA must take into account
(3) In deciding whether to make the order, FWA must take into account the following:
(a) the views of:
- (i) the new employer or a person who is likely to be the new employer; and
(ii) the employees who would be affected by the order;
(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;
(c) if the order relates to an enterprise agreement—the nominal expiry date of the agreement;
(d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace;
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;
(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;
(g) the public interest.
Restriction on when order may come into operation
(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:
(a) the time when the transferring employee becomes employed by the new employer;
(b) the day on which the order is made.”
Submissions
[10] In relation to the factors set out in s.318(3) of the Act, Qantas and EFA submit that the proposed orders should be made in order to facilitate the transfer of First Officer Watt and ensure his interests and the interest of Qantas and EFA are realised.
[11] It is submitted jointly by the applicants that First Officer Watt supports the orders being made. It is submitted that the transfer of First Officer Watt will facilitate his career aspirations and the decision to transfer between the companies is a decision he has made voluntarily.
[12] It is submitted that First Officer Watt will not be disadvantaged if the order is made, particularly where the role of Captain and Training Pilot at EFA provides for a three year tenure period prior to returning to Qantas. It is further submitted that EFA has an industrial agreement, the Express Freighters Australia Operations Pty Limited Collective Agreement 2009 2(the EFA Agreement), in place that provides comprehensive protections for pilots, is current and updated regularly.
[13] Qantas and EFA submit that the application of the Short Haul Agreement at EFA’s workplace would have a negative impact on EFA’s business because the Short Haul Agreement and the EFA Agreement contain different work rules and conditions particular to each sector. It is submitted that the work rules and conditions are not transferable as there is little commonality between domestic flying and freight services. The transfer of work rules and conditions would result in the EFA being unable to roster First Officer Watt in an efficient and economical manner. Qantas and EFA submit that due to the difficulties and restrictions that the transfer of instrument would create the transfer would not be permitted to take place.
[14] Qantas and EFA submit that there is no business synergy between the Short Haul Agreement and the workplace instruments that already cover EFA, the sectors of the aviation industry that each operates in are separate and the work rules and conditions governing performance of work in each of the sectors will become inefficient if transferred to EFA. It is submitted that the Short Haul Agreement has a nominal expiry date of 31 August 2012.
Transfer of the Short Haul Agreement
[15] I am satisfied that the Short Haul Agreement is a transferable instrument as described in s.312(1)(d) of the Act 3 and this circumstance is a transfer of business within s.311 of the Act as commencing employment with EFA may be regarded as the termination of employment with Qantas. The application has been made pursuant to s.318(1) of the Act, the matters that I am required to take into account when considering whether to grant an order in the terms sought are prescribed by s.318(3) of the Act, as set out above.
[16] I have considered the factors set out in s 318(3). I am of the view that it is appropriate to make orders in relation to the transfer of the First Officer Watt’s employment. I have given weight to the fact that First Officer Watt will undertake the transfer voluntarily, the transfer provides him with career progression opportunities and he supports the application. It is also significant that Qantas and EFA operate in distinct sectors of the aviation industry, efficiency would be compromised if the Short Haul Agreement was to apply to EFA and that the transfer is conditional on the non-coverage of the Short Haul Agreement.
Conclusion
[17] For the reasons above I will make an order that the Short Haul Agreement will not cover First Officer Watt during the period of his employment with EFA.
VICE PRESIDENT WATSON
1 AC309500.
2 AC325514.
3 As amended by Schedule 11, item 8 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR524495>
0
0
0