National Union of Workers v Qantas Airways Ltd

Case [2013] FCA 976

FEDERAL COURT OF AUSTRALIA

National Union of Workers v Qantas Airways Ltd [2013] FCA 976

Citation: National Union of Workers v Qantas Airways Ltd [2013] FCA 976
Parties: NATIONAL UNION OF WORKERS v QANTAS AIRWAYS LTD (ACN 009 661 901)
File number: NSD 1828 of 2012
Judge: COWDROY J
Date of judgment: 27 September 2013
Catchwords: INDUSTRIAL LAW – employees of respondent company formerly engaged under an enterprise bargaining agreement re-engaged under a new workplace determination as a result of a company restructure – applicant union alleging that such employees are more properly covered by the enterprise bargaining agreement – scope of industrial instruments – whether the enterprise bargaining agreement or the workplace determination prevails – employees duties following restructure characterised as more properly the subject of the workplace determination
Legislation: Fair Work Act 2009 (Cth) ss 3, 21, 52, 54, 55, 224, 227, 266, 267, 277, 278
Cases cited: Amcor v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241
Australian Broadcasting Commission v Australasian Performing Rights Association Ltd (1973) 129 CLR 99
Carpenter v Corona Manufacturing Pty Ltd (2002) 122 IR 387
Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia (NSW Branch) (2001) 106 IR 217
J Fenwick & Company Pty Ltd v Merchant Service Guild of Australia (1973) 150 CAR 99
Kanes Hire Pty Ltd v Mitchell (2010) 203 IR 37
Kucks v CSR Limited (1996) 66 IR 182
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
Transport Workers’ Union of Australia v Qantas Airways Limited [2012] FWAFB 6612
Date of hearing: 5, 7, 8, 22, 27 March 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 101
Counsel for the Applicant: Mr A Joseph
Counsel for the Respondent: Mr R S Warren
Solicitor for the Applicant: Slater & Gordon
Solicitor for the Respondent: Ashurst

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1828 of 2012
BETWEEN:

NATIONAL UNION OF WORKERS
Applicant
AND:

QANTAS AIRWAYS LTD (ACN 009 661 901)
Respondent

JUDGE:

COWDROY J

DATE OF ORDER:

27 SEPTEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The parties have liberty to make an application for costs within 21 days.

3.Should no application be made under order 2 above, there be no order as to costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1828 of 2012
BETWEEN:

NATIONAL UNION OF WORKERS
Applicant
AND:

QANTAS AIRWAYS LTD (ACN 009 661 901)
Respondent

JUDGE:

COWDROY J

DATE:

27 SEPTEMBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The applicant (‘the NUW’) seeks declaratory relief against Qantas Airways Ltd (‘Qantas’). The application is made under the provisions of the Fair Work Act 2009 (Cth) (‘the FW Act’) and is made with the object of determining the relevant industrial agreement or agreements to apply to the…

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National Union of Workers v Qantas Airways Ltd [2013] FCA 976
Case
[2013] FCA 976
Decision Date

CaseChat Overview and Summary

In the matter of National Union of Workers v Qantas Airways Ltd, the applicant, the National Union of Workers (NUW), sought declaratory relief under the Fair Work Act 2009 (Cth) to determine the relevant industrial agreements applicable to certain employees engaged at the Sydney Freight Terminal (SFT) by the respondent, Qantas Airways Ltd. The dispute centred on whether the Qantas Airways Limited (National Union of Workers) Enterprise Agreement 9 applied to employees classified as Airline Services Operators at the SFT, engaged in freight operations post-10 October 2012. The NUW argued that the same agreement should continue to apply to these employees while the Enterprise Agreement remained in force.

The primary legal issue before the Court was to ascertain which industrial instrument—either the NUW EBA or the TWU Determination—correctly applied to the employees' duties at the SFT. The Court had to establish the scope of duties covered by each agreement and determine which agreement, if any, governed the re-engaged employees' roles. The Court considered the statutory provisions of the Fair Work Act 2009 (Cth) that outline when an enterprise agreement or workplace determination applies to an employee. Given that no specific provision addressed the overlap between an enterprise agreement and a workplace determination, the Court had to interpret the relevant sections to resolve the conflict.

The Court found that the duties of the re-engaged employees fell within the scope of the TWU Determination rather than the NUW EBA. The evidence indicated that the employees' roles, particularly those involving the handling and movement of freight within the SFT, were classified as "on-airport work," which was explicitly covered by the TWU Determination. Consequently, the Court declined to grant the declaratory relief sought by the NUW and dismissed the application. The Court held that the TWU Determination was the appropriate industrial instrument governing the employees' employment conditions at the SFT.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant (‘the NUW’) seeks declaratory relief against Qantas Airways Ltd (‘Qantas’). The application is made under the provisions of the Fair Work Act 2009 (Cth) (‘the FW Act’) and is made with the object of determining the relevant industrial agreement or agreements to apply to the employment of certain persons who are engaged at the Sydney Freight Terminal (‘the SFT’) located at Kingsford Smith Airport, Sydney. The relief sought is as follows:1.A Declaration pursuant to section 21 of the Federal Court Act 1976 (Cth) that the Qantas Airways Limited (National Union of Workers) Enterprise Agreement 9 applies to the employment of persons engaged by the respondent in the classification of Airline Services Operator, at the Sydney Freight Terminal engaged in freight operations on or after 10 October 2012.2.A Declaration pursuant to section 21 of the Federal Court Act 1976 (Cth) that the Enterprise Agreement named in order 1 shall continue to apply to the employment of those persons referred to in order 1 whilst that Enterprise Agreement remains in force pursuant to section 52 of the Fair Work Act 2009 (Cth).BACKGROUND Qantas Freight, a division of Qantas, is a cargo terminal operator which has operations in Sydney (namely at the SFT), Melbourne, Brisbane, Perth and Los Angeles. Following a recent merger between Qantas Freight and Australian air Express, Qantas Freight now also operates in Adelaide. The SFT is made up of three airport freight handling facilities at Sydney, namely an on-airport facility which processes international air freight (‘SFT1’); the Express Handling Unit (‘EHU’) which is a dedicated express facility located adjacent to the SFT1 and which processes express international air freight; and the Mail Handling Unit (‘MHU’) which is similarly located and which processes international mail. The area between the ramp and the SFT1 is generally known as the ULD transfer area. Two other cargo terminal operators are located at Sydney airport. One is Menzies International Cargo Terminal which is located at the Sydney domestic airport approximately 1.85 km from the SFT1. The other operator is Toll Dnata, with its International Cargo Terminal which is located only 125 metres from the SFT1. Qantas Freight handles all of the incoming and outgoing freight for all international Qantas flights, Jetstar and Jetstar Asia aircraft. It also manages a fleet of four Boeing 747-400F and one B767-300F freighter aircraft which provide international services. Qantas freight also provides a freight service on behalf of third party airlines. Prior to October 2012, the terms and conditions of the employment of persons engaged at the SFT1 were governed by the Qantas Airways Limited (National Union of Workers) Enterprise Agreement 9 (‘the NUW EBA’). The persons whose employment was governed by the NUW EBA undertook duties in and around the SFT1 which included receipt, dispatch and storage of loose freight, and the handling of all freight containers entering into or leaving the SFT1. The NUW EBA 9 did not apply to persons engaged in the MHU and the EHU. Their employment conditions were regulated under a TWU industrial instrument.

Evidence

Evidence Before The Court

Inbound and outbound express international freight is handled in the EHU. Such freight may arrive loose or in a ULD. If the freight is in a ULD, the freight is transported to an SFT freight collection/deposit area where it is deposited for onward movement. Loose freight arriving at the EHU is processed inside that unit, then loaded onto containers which are similarly transported out to a place for collection. EVIDENCE NUW Witnesses The NUW primarily relied on the evidence of three employees, each of whom were employed pursuant to the NUW EBA but accepted ASO 4 positions following the announcement of the restructure, namely John Philip Preston, Glen Alan Scott and James Moanaroa Ranui. Paul Richardson, the Assistant National Secretary of the NUW, also testified. Mr Preston was classified as a level 4 storeperson under the NUW EBA from 1997 until 2012 when he accepted an ASO 4 position under the TWU Determination. Mr Preston states that he was informed by Mr Lugton that Qantas ramp staff would continue to transfer freight to the aircraft at the international terminal after the restructure and that there would be no area designated for the ‘drop off and pick up of freight’. Mr Preston states that he did not wish to take the voluntary redundancy that was offered, and accordingly decided that he would apply for the position of an ASO 4. Mr Preston stated that amongst his former duties he would ‘tag-up’ inbound ULDs with stickers for identification and further transport instructions. He would also be required to drive a tug towing inbound freight from designated areas on the tarmac to the SFT1 where it would be pushed inside for import breakdown or to be held at Nobby. On occasions he would tow outbound freight from Tarmac 1 to a holding area on the ramp at the SFT. In the months immediately preceding Mr Preston being engaged as an ASO4, he was moved to the ULD storage area (near the Import Bypass Area). Mr Preston claims that following the restructure he continued to perform his previous duties in the ULD storage area. After redundancies at the SFT took effect he was transferred back to the work he had been performing on the tarmac, including tug driving and ‘tagging up’ inbound ULDs. Mr Preston said that he was not aware of the definition of a ‘white line’, but acknowledged that there were variable areas for the deposit or collection of freight. Mr Preston maintains that since the restructure, the system for handling freight has not changed. He states that ‘freight is still being moved from tarmac 1 [in the SFT] (for dispatch) to the drop area and a different person comes and picks up the profiles as needed for loading into the plane.’ Mr Preston also stated that prior to restructure, NUW members would tug freight out to the aircraft from time-to-time. He also states that following training from 14 November 2012 to 27 November 2012 he has worked on approximately five freighter aircraft. Mr Scott had been employed at the SFT as a level 3 storeperson under the NUW EBA. He recalls a presentation being given on about 18 July 2012 when the restructure was announced. Mr Scott remembers a statement being made either by Mr Lugton or by Frank Ridolfo, Manager of the SFT, to the effect that all machine work, which he understood to include Alpha, Bravo, Charlie, Tarmacs 1, 2 and 3, and Nobby, was going to be allocated to staff under the TWU Determination in the future.

Decision

Reasons for decision

In these circumstances the Court declines to answer the specific issues proposed by the parties, save as to decline to grant the declaratory relief sought in the application by the NUW.CONCLUSION Additionally, the Court notes that some evidence was led by the NUW concerning pay rates and conditions for the employees covered by the NUW EBA compared to those engaged under the TWU Determination. In view of the Court’s decision it is unnecessary to refer to such evidence. For the above reasons the Court dismisses the application.

Ratio Decidendi

Legal Principle Established

Mr Smith stated that based on his experience as an Industrial Relations Manager with the responsibility, inter alia, for freight and airports, the words ‘in and around Freight Terminals’ operate as a geographical restraint on the operation of equipment referred to in the classification descriptors and that at the SFT, freight specific functions are performed in the warehouse area and in the immediate area up to the ‘white line’. Mr Smith stated the ‘white line is a term used to describe the physical location at which the NUW covered work stops, and the TWU covered “on airport” work starts’. He said that the work covered by the new category ASO 4 is ‘on-airport work’.CONSIDERATION To address the relief sought by the NUW, the Court must undertake two tasks. The first is to establish the duties which are covered by each of the NUW EBA and by the TWU Determination. The second is to ascertain which duties are presently being undertaken by the re-engaged employees. It is necessary to consider the relevant statutory provisions relating to enterprise agreements and workplace determinations. Section 52 of the FW Act relevantly provides:When an enterprise agreement applies to an employer, employee or employee organisation When an enterprise agreement applies to an employee, employer or organisation (1) An enterprise agreement applies to an employee, employer or employee organisation if: (a) the agreement is in operation; and (b) the agreement covers the employee, employer or organisation; and (c) no other provision of this Act provides, or has the effect, that the agreement does not apply to the employee, employer or organisation. … Section 277 of the FW Act, which operates with respect to workplace determinations, is expressed in similar terms:Employers, employees and employee organisations covered by a workplace determination Employers, employees and employee organisations (1) A workplace determination covers an employer, employee or employee organisation if the determination is expressed to cover the employer, employee or employee organisation. … The effect of such sections in respect of the present application may be put simply: the re-engaged employees will either be covered by the NUW EBA or the TWU Determination depending upon the duties they undertake. If the duties fall within the terms of the NUW EBA then the employee will be bound by that agreement. If however, the duties are more properly covered by the TWU Determination, then its terms will apply to the re-engaged employees. The FW Act readily resolves the issue of competing industrial instruments where two enterprise bargaining agreements apply to the same employment, or where a workplace determination and a subsequent enterprise bargaining agreement apply to the same employment. In relation to both scenarios, the subsequent enterprise bargaining agreement will apply (see ss 58 and 278 of the FW Act respectively). However the FW Act makes no provision for the situation in which an enterprise bargaining agreement and a subsequent workplace determination cover the same employment duties. This is presumably because a determination is only made when enterprise bargaining fails: see Pt 2-5 of the FW Act.