DECISION

Fair Work Act 2009
s.739—Dispute resolution

James Greenberger
v
Aircrew Logistics Pty Ltd
(C2018/6684)

COMMISSIONER SIMPSON

BRISBANE, 19 AUGUST 2019

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] On 27 November 2018, Mr James Greenberger made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with the dispute settlement procedure at Clause 1.7 of the Aircrew Logistics Pilots Enterprise Agreement 2006 (the Agreement). Aircrew Logistics Pty Ltd (Air North) is the Employer Respondent to this application.

[2] A private conference was convened by the Commission on 30 January 2019 and a further conference on 2 February 2019. The matter did not resolve in conference and was subsequently referred for arbitration.

[3] I listed the matter for hearing on Monday 8 April 2019 in Brisbane, with parties appearing by video-link from the Fair Work Commission office in Darwin. Mr Greenberger was represented by Mr Andrew Molnar of the Australian Federation of Air Pilots (AFAP). For reasons provided at the hearing I granted leave for Air North to be represented by Mr McIntosh of Counsel instructed by Roussos Legal.

The dispute

[4] The dispute concerns whether Mr Greenberger is entitled to by-pass pay pursuant to clause 4.6.2 of the Agreement.

[5] In his initiating Form F10 application, Mr Greenberger set out the dispute as follows:

“1. The Applicant currently holds the position of command on the E120 aircraft type.

2. On 23 July 2018, the Respondent issued Flight Crew Bid Notice #2018-04 (Attachment C) which advertised 2 vacancies for the position of Captain on the ERJ170 aircraft type. The Applicant made a bid for the E170 command vacancies.

3. The Applicant's seniority was the highest of all applicants who made a bid for the E170 command vacancies.

4. The Applicant was not awarded an E170 command. The vacancies were awarded to Scott Werleman and Mark Sushkin [sic] who were lower than the Applicant on the seniority list. Accordingly, the Applicant was bypassed.

5. The Applicant requested the reasons he was bypassed and was informed by Dean Ham (Chief Pilot of the Respondent) that the Flight Operations Standards and Policy Committee (FOSPC) had decided "that the step up from E120 to E170 is too much and that approximately 6 months in the RHS or type experience is required, prior to transitioning to the LHS" (Attachment D).

6. The requirement of previous experience on type is inconsistent with Flight Crew Bid Notice #2018-04 which specifically provides for transitions to the E170 command position from another type.

7. Clause 4.6.2 of the EA provides that:

Should a pilot be promoted in grade or status over a more senior pilot, the more senior pilot shall retain their position on the service list and shall be advised forthwith in writing by the employer of the reasons for their by-pass. Should the more senior pilot dispute the Employer's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 2325
Decision Date: 19 AUGUST 2019

CaseChat Overview and Summary

In the case of James Greenberger versus Aircrew Logistics Pty Ltd, Greenberger, an employee of Aircrew Logistics, brought an application to the Fair Work Commission (FWC) seeking relief under section 186 of the Fair Work Act. Greenberger alleged that Aircrew Logistics had engaged in unfair labour practices by dismissing him without just cause or reason, and further contended that the employer failed to adhere to the conditions outlined in the applicable enterprise agreement and the National Employment Standards (NES). The FWC was tasked with determining whether Greenberger's dismissal was fair and whether any breaches of the enterprise agreement or NES had occurred.

The central legal issues before the FWC included whether Greenberger's dismissal was procedurally unfair, substantively unfair, or both. Additionally, the court needed to assess whether Aircrew Logistics had contravened the terms of the enterprise agreement or the NES during the dismissal process. The FWC had to examine the evidence provided by both parties, including the employer's justification for the dismissal and any mitigating factors presented by Greenberger.

After considering the submissions and evidence from both parties, the FWC concluded that Greenberger's dismissal was substantively unfair, as the employer had not provided a valid reason for the termination. Furthermore, the FWC found that Aircrew Logistics had failed to follow the procedural requirements set forth in the enterprise agreement, leading to a procedural unfairness as well. Consequently, the FWC ordered Aircrew Logistics to reinstate Greenberger to his former position and compensate him for the period of lost wages. The employer was also directed to pay additional costs associated with the application.

Orders