Network Aviation Pty Ltd

[2018] FWC 5607

[2018] FWC 5607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Network Aviation Pty Ltd
(AG2018/4831)

Airline operations
DEPUTY PRESIDENT BINET	PERTH, 6 SEPTEMBER 2018

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

[1] Network Aviation Pty Ltd (Network) have made an application (Application) for an order pursuant to section 318 of the Fair Work Act 2009 (FW Act) that the Sunstate Airlines (Qld) Pty Limited Pilots Enterprise Agreement 2015 (Agreement) which currently covers Mr Greg Wallace (Wallace) in his employment with Sunstate Airlines (Qld) Pty Ltd (Sunstate) will not cover Network or Mr Wallace if Mr Wallace transfers his employment from Sunstate to Network (Order).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 31 December 2018. The parties to the Agreement are Sunstate and pilots employed by Sunstate in the classifications set out in clause 25 of the Agreement. The Agreement covers the Australian Federation of Air Pilots (AFAP).

[3] According to the Application Mr Wallace is currently employed by Sunstate as a Captain. Network have offered Mr Wallace a position as a Captain F100, with additional duties as a Simulator Check Pilot Category B F100, on terms and conditions set out in a letter of offer dated 4 July 2018. The offer of employment is conditional on the Agreement not applying to Mr Wallace’s employment with Network

[4] Pursuant to section 313 of the FW Act, the Agreement will cover Network and Mr Wallace provided that Sunstate and Network are related entities and if within three months of the termination of his employment with Sunstate, Mr Wallace is employed by Network to perform work which is the same or substantially the same as the work Mr Wallace performed for Sunstate.

[5] Network asserts that it and Sunstate are associated entities within the meaning given by section 50AAA of the Corporations Act 2001 (Cth) and that the work it is proposed that Mr Wallace perform for Network is substantially the same as the work he currently performs for Sunstate.

[6] Section 318(1)(a) of the FW Act provides that the FWC may make an order that an Agreement which would be likely to cover a new employer and a transferring employee due to the operation of section 313(1)(a) will not cover the new employer and the transferring employee.

[7] Network seeks an order from the FWC that the Agreement does not cover Mr Wallace or Network.

[8] Network has standing pursuant to section 318(2) of the FW Act to make the Application in its capacity as the likely new employer of Mr Wallace.

[9] The Application was supported by a Statutory Declaration made by Mr Wallace (Wallace Declaration).

[10] Section 318(3) sets out the matters which the FWC must take into account when deciding to make the order sought by Network as follows:

“318 Orders relating to instruments covering new employer and transferring employees

…

Matters that the FWC must take into account

(3) In deciding whether to make the order, the FWC 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.”

[11] Network have made the Application to ensure consistency in the terms and conditions of employment among employees performing similar work, thereby avoiding discontent between employees and minimising the administrative costs of applying different employment arrangements.

[12] Network state further that there is little business synergy between the Agreement which was intended to cover a regional domestic airline operating turbo-prop flights and Network’s operations providing jet airline and air charter services from Perth.

[13] Mr Wallace supports the Application because the role is located in Western Australia where he resides, it provides an opportunity for career progression in his chosen field, and will result in an increase in his salary. According to Network, Mr Wallace’s base salary per annum, exclusive of superannuation, will increase from $137,444 to $165,044.

[14] There is nothing to suggest that the order sought is contrary to the public interest.

[15] In light of the above, I am satisfied that it is appropriate to make the order sought by Network. An order to this effect (PR700135) will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE415326  PR700134 >