Qantas Airways Limited

[2020] FWC 1177

[2020] FWC 1177

FAIR WORK COMMISSION

DECISION

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

Qantas Airways Limited
(AG2020/248)

Airline operations
DEPUTY PRESIDENT SAMS	SYDNEY, 3 MARCH 2020

Application in relation to transfer of business - transferable instrument - application that the transferrable instrument does not cover transferring employees - orders granted.

[1] This is an application, pursuant to s 318 of the Fair Work Act 2009 (the ‘Act’) filed by Qantas Airways Limited (the ‘applicant’), which seeks orders from the Fair Work Commission (the ‘Commission’) that a transferrable instrument, being the Sunstate Airlines (QLD) Pty Limited Pilots Enterprise Agreement 2015 [AE415326](the ‘Agreement’) will not apply to Mr Christopher Davis, Ms Hayley Wood, Mr Travis Silvester and Mr Matthew Hooper (together, the ‘transferring employees’) and Qantas Airways Limited, when transferring from Sunstate Airlines (QLD) Pty Limited (the ‘old employer’ or ‘Sunstate’) to Qantas Airways Limited (s 311). Both companies are associated entities for the purposes of s 311(6) of the Act, within the meaning of s 50AAA of the Corporations Act 2001.

[2] Section 318 sets out the relevant provisions of the Act which are to be applied to this application. They are expressed as follows:

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

Orders that the FWC may make

(1) The FWC may make the following orders:

(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a transferring employee because of paragraph 313(1)(a) does not, or will not, cover the new employer and the transferring employee;

(b) an order that an enterprise agreement or a named employer award that covers the new employer covers, or will cover, the transferring employee.

Who may apply for an order

(2) The FWC may make the order only on application by any of the following:

(a) the new employer or a person who is likely to be the new employer;

(b) a transferring employee, or an employee who is likely to be a transferring employee;

(c) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement;

(d) if the application relates to a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b).

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.

Restriction on when order may come into operation

(4) The order must not come into operation in relation to a particular transferring employee before the later of the following:

(a) the time when the transferring employee becomes employed by the new employer;

(b) the day on which the order is made.’

[3] In the applicants’ Form F40 – Application for Orders in Relation to a Transfer of Business, Ms Catherine Russo, Senior Associate, Herbert Smith Freehills, Legal Representative for the applicants, explained the background to the application.

[4] In brief, the applicants have been employed by Sunstate on a permanent basis 14 May 2007 and 15 April 2012. Between 7 January 2020 and 4 February 2020, the transferring employees commenced employment with Qantas Airways Limited as Second Officers under Training. The Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2015 covers the work of Second Officers under Training, Second Officers and other pilots within Qantas’ long haul operations. The work the transferring employees will perform as Second Officers under Training with Qantas Airways Limited will be the same, or substantially the same, as the work they performed at Sunstate. Each of the transferring employees, and Ms Charlotte Lambie, Head of Operations Planning and Operations Centres Digital of Qantas Airways Limited, filed signed statements supporting the application.

[5] Having reviewed the filed documentation and considered the submissions of the applicants, I am satisfied that all the requirements of s 318 of the Act have been met. Specifically, I have taken into account all of the matters in s 318(3) in arriving at my decision and note, in particular, the transferring employees’ personal and professional reasons for seeking employment with Qantas Airways Limited. Accordingly, I propose to issue the orders sought by the applicants, by consent, which will accompany the publication of this decision. Pursuant to s 318(4), the orders shall take effect from today.

DEPUTY PRESIDENT

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<AE415326  PR717227 >