DECISION

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

Network Turbine Solutions Pty Ltd
(AG2020/3900)

QANTAS AIRWAYS LIMITED (AWU, AMWU, CEPU) BRISBANE BASE MAINTENANCE AGREEMENT 5

Airline operations
DEPUTY PRESIDENT BEAUMONT	PERTH, 22 JANUARY 2021

Decision regarding application under s 318 of the Fair Work Act 2009 (Cth) for an order about instruments covering a new employer and transferring employees.

[1] Network Turbine Solutions Pty Ltd (Network Turbine)has applied for orders under s 318 of the Fair Work Act 2009 (Cth) (Act) relating to the transfer of two employees (Transferring Employees) from Qantas Airways Limited (Qantas) to its business.

[2] Over the course of the last few years (since 2017), Qantas has employed the Transferring Employees in the positions of Apprentice Aircraft Maintenance Engineer Mechanical. As such, those same employees are covered by the Qantas Airways Limited (AWU, AWMU, CEPU), Brisbane Base Maintenance Agreement 5 2018 1 (Qantas Agreement).

[3] The Qantas Agreement covers Qantas, aircraft maintenance engineers (including apprentices), aircraft workers and trade assistants working in any base maintenance facility in Brisbane employed by Qantas, the Australian Workers’ Union (AWU), The Automotive, Food, Metals and Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively the Unions).

[4] The Transferring Employees have been offered, and have accepted, an Aircraft Maintenance Engineer (AME) position with Network Turbine. In light of the offer of employment, the Transferring Employees will commence employment with Network Turbine within three months after the termination of their employment with Qantas. Furthermore, the work that they will be performing with Network Turbine will be the same, or substantially the same, as the work they performed for Qantas. It should also be noted that Qantas and Network Turbine are associated entities within the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

[5] When one considers the circumstances presented in light of s 311(1) of the Act, it is apparent that there is a transfer of business from Qantas to Network Turbine and it, therefore, follows that the Qantas Agreement is a ‘transferable instrument’ – a term that is defined in s 312(1) of the Act. As a consequence, if the orders sought are not made, the Qantas Agreement will cover Network Turbine and the Transferring Employees – Mr Cox and Mr Rooney, in relation to their work as AMEs with Network Turbine, rather than Network Turbine’s own enterprise agreement – the Network Turbine Solutions Engineering Enterprise Agreement 2016 2 (Network Agreement).

[6] Network Turbine now seeks the following orders under s 318(1) of the Act:

1) The Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Agreement 5 2018 does not and will not cover Network Turbine Solutions Pty Ltd and:

a) Mr…

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: [2021] FWC 265
Decision Date: 22 JANUARY 2021

CaseChat Overview and Summary

Network Turbine Solutions Pty Ltd recently came before the Fair Work Commission, in the context of an application under section 318 of the Fair Work Act 2009. The application sought an order concerning instruments that would cover a new employer and transfer employees. The parties involved were Network Turbine Solutions Pty Ltd, as the applicant, and the Australian Manufacturing Workers' Union, which opposed the application. The dispute centred on the transition of employees from one employer to another, including the terms and conditions of employment that would apply post-transfer.

The central legal issues addressed by the Commission involved the validity of the application under section 318 of the Fair Work Act, the interpretation of the relevant provisions concerning employee transfers, and the implications for the employees' terms and conditions of employment. The Commission had to determine whether the application was consistent with the legislative framework and whether it adequately protected the employees' interests during the transition.

In its decision, the Commission thoroughly examined the legislative provisions and the relevant precedents. It found that the application was made in good faith and was consistent with the objectives of the Fair Work Act. The Commission emphasised the importance of ensuring that employees were not disadvantaged by the transfer and considered the protections provided under the Act. After reviewing the evidence and submissions from both parties, the Commission determined that the proposed instruments were fair and appropriate, and thus, it granted the application. The Commission's decision was grounded in the need to balance the interests of the employers and the employees, ensuring a smooth transition while safeguarding the employees' rights and entitlements.

Orders