Mr Andrew Rule v Civil Aviation Safety Authority

[2010] FWA 9014

[2010] FWA 9014

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

Fair Work Act 2009
s.739—Application to deal with a dispute

Mr Eion Edmonds; Mr Robert Prater; Mr Andrew Rule
v
Civil Aviation Safety Authority
(C2010/577)

Airline operations
COMMISSIONER SMITH	MELBOURNE, 3 DECEMBER 2010

Dispute arising under the Civil Aviation Safety Authority Enterprise Agreement 2010-1011.

[1] The following decision, now edited, was issued during proceedings conducted on 22 November 2010.

[2] This is an application by three members of the Association of Professional Engineers Scientists and Managers Australia (APESMA) to determine the proper application of clause 25.4 of the Civil Aviation Safety Authority Enterprise Agreement 2010-2011 (the Agreement).

[3] Briefly, the factual circumstances are that the three employees have been advised that their workplace will no longer be at Moorabbin but now be in the Melbourne central business district (CBD). On behalf of the three individuals, APESMA argue that clause 25.4 is enlivened as it provided that where an employee is transferred to a new location, clause 73 of the agreement is attracted. It is argued that the CBD is a new location and such use of language should be given its ordinary and natural meaning.

[4] APESMA submit that clause 73 of the agreement applies and for persons who are to be declared excess to requirements, there are certain pre-conditions to be met. The Civil Aviation Safety Authority (CASA) submit, on the other hand, that the location referred to in the clause did not mean the change which had occurred from Moorabbin to the CBD.

[5] To support this proposition CASA referred to a decision of His Honour, Marshall J in Australian Municipal Administrative Clerical and Services Union v. The Treasurer of Commonwealth of Australia and the Minister for Industrial Relations for the Commonwealth and the Community and Public Sector Union CPSU. 1 In addition CASA argue that should I find that clause 25.4 does not apply then clause 73.2.1(iii) is not enlivened because the three preconditions are not met.

[6] Those three preconditions are:

• Firstly that there is a different locality;



• Secondly that the employee is not willing; and



• Finally CASA has determined that the employee is excess.

[7] It is submitted that even if there is a different view about locality it can be clear that CASA has not determined any employee to be excess. I have examined clause 25.4. It is important when construing instruments to read the instrument as a whole, including its context and setting. In this instance there is a historical context in terms of public sector regulation.

[8] It is clear that when read as a whole clause 25.4 of the Agreement cannot be given the narrow meaning as sought to be attributed to it by APESMA. The clause comprehends changes which bring into focus the possible use of a relocation payment. That focus is not evident here.

[9] I am fortified by my conclusion by the decision of Marshall J referred to earlier as the context is very similar, if not identical. It follows, that I am satisfied, that in the particular circumstances before me there has been a proper application of the agreement by CASA.

COMMISSIONER

Appearances:

T Tran for the applicants.

N Harrington of Counsel on behalf of the Civil Aviation Safety Authority.

Hearing details:

2010.

Melbourne:

November, 22.

 1   VI 1296 of 1997

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