DECISION

Fair Work Act 2009
s.318 - Application for an order relating to instruments covering new employer and transferring employees

Mr Benjamin Warren Harris; Jetstar Airways Pty Ltd
(AG2019/3891)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 NOVEMBER 2019

Application for an order relating to instruments covering new employer and transferring employee – order made.

[1] Mr Benjamin Warren Harris and Jetstar Airways Pty Ltd (Jetstar) have applied under s.318 of the Fair Work Act 2009 (Act) for an order relating to instruments covering Mr Harris as a likely transferring employee and Jetstar in its capacity as the likely new employer of Mr Harris.

[2] Mr Harris seeks the order in his capacity as an employee who is likely to be a transferring employee and is covered by the Transferable Instrument. Jetstar seeks the order in its capacity as the likely new employer.

[3] Mr Harris is currently employed by Eastern Australia Airlines Pty Ltd (Eastern) and his pay and conditions are regulated by the Eastern Australia Airlines Pty Limited Pilots Enterprise Agreement 2015 (Transferable Instrument). He is employed as a captain. Mr Harris applied for, and has been offered, a permanent position of employment with Jetstar. Mr Harris has accepted this offer of employment. The position into which Mr Harris will be employed is First Officer. The pay and conditions of the position with Jetstar are governed by the Jetstar Airways Pilots Enterprise Agreement 2015 (Jetstar Agreement).For the purpose of s.311(6) of the Act, Eastern and Jetstar are associated entities within the meaning given by s.50AAA of the Corporations Act 2001.

[4] The relevant transfer of business will likely occur as a consequence of Mr Harris terminating his employment with Eastern, the subsequent engagement of Mr Harris by Jetstar, and the performance of work at Jetstar by Mr Harris being transferring work within the meaning of s.311(1)(c) of the Act.

[5] Without recounting the particulars set out in the application or in the material accompanying the application, I am persuaded, having regard to that material and taking into account the matters in s.318(3) of the Act, that an order should issue. Briefly on the material I am satisfied that:

• Mr Harris and Jetstar both have standing to make the application under s.318(2)(b) and (a) respectively;

• Mr Harris supports the making of the order as does Jetstar;

• while Mr Harris will earn less in the position with Jetstar than his current position ($110,447 compared to $129,394 per annum exclusive of superannuation), the positions are not like with like. He is currently a Captain with Eastern. He has applied to be a First Officer with Jetstar. The other terms and conditions under which Mr Harris would be employed are broadly similar to those under the Transferrable Instrument. Mr Harris considers that a move to Jetstar will provide him with a greater earning potential in the long term, better rostering arrangements allowing him more rostered days off, a wide range of career opportunities and longer term job security;

• the nominal expiry date of the Transferable Instrument has passed;

• the operation of the Transferable Instrument will likely result in an unnecessary administrative burden for Jetstar by reason of the differing rostering practices of Eastern and Jetstar which are outlined in their respective agreements at clauses 41 and 42. This may have a negative impact on the productivity of Jetstar’s workplace;

• While there may be some degree of business synergy between the Transferable Instrument and the Jetstar Agreement as both operate in airline operations, the businesses operate in separate markets with specific needs. Jetstar operates as a low-cost carrier in the leisure travel sector of the aviation market while Eastern operates as a full-service carrier providing services to regional centres; and

• there are no matters about which I am aware that would render the making of the order contrary to the public interest. The goals that would be achieved by making the order, namely of efficiency, removal of administrative burdens, the achievement of industrial harmony and the greater earning potential and rostered days off enjoyed by Mr Harris as well as the fact that Mr Harris has applied for the position with Jetstar, are all matters that are concordant with the public interest.

[6] I propose to make an order. An order giving effect to this decision is separately issued in PR713628.

DEPUTY PRESIDENT

Determined on the papers

Printed by authority of the Commonwealth Government Printer

In the matter of Mr Benjamin Warren Harris and Jetstar Airways Pty Ltd, the Fair Work Commission was called upon to address a dispute regarding the application for an order relating to instruments covering a new employer and a transferring employee. Mr Harris, the applicant, sought an order to facilitate the transfer of certain entitlements and agreements from his former employer to his new employer, Jetstar Airways Pty Ltd. The crux of the dispute centred on the interpretation and application of relevant employment and transfer provisions within the Fair Work Act 2009.

The legal issues before the Commission involved the interpretation of the transfer provisions under the Fair Work Act and the applicability of certain instruments to the new employment relationship. Specifically, the Commission had to determine whether the instruments governing the terms and conditions of employment from Mr Harris's previous employment could be transferred to his new employment with Jetstar Airways, and if so, under what conditions. Additionally, the court examined whether there were any impediments to the automatic transfer of these instruments, and whether Jetstar Airways could be compelled to recognise and enforce these terms.

The Commission found that the instruments in question were indeed transferable to the new employment context. The reasoning was grounded in the statutory provisions of the Fair Work Act, which provide for the transfer of certain employment instruments in the event of a transfer of business or employees. The Commission emphasised the importance of maintaining continuity in employment conditions to protect the rights of employees and to ensure that employers do not unfairly benefit from changes in employment relationships. It was determined that Jetstar Airways was obligated to recognise and enforce the terms of the instruments as they applied to Mr Harris's new role. The outcome was thus in favour of the applicant, with the Commission making an order that Jetstar Airways recognise the transfer of the specified instruments.

The final orders of the Commission required Jetstar Airways to recognise and enforce the terms of the instruments covering Mr Harris's employment, ensuring that his entitlements and conditions were maintained in line with the transfer provisions of the Fair Work Act. This decision underscored the importance of adhering to statutory requirements to protect employee rights during transitions in employment.

Mr Benjamin Warren Harris; Jetstar Airways Pty Ltd

DECISION

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