DECISION

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

Qantas Airways Limited
(AG2016/4513)

VICE PRESIDENT WATSON

MELBOURNE, 4 AUGUST 2016

Application by Qantas Airways Limited – Transferrable instruments – Application that transferrable instrument will not cover transferring employees – Fair Work Act 2009, ss.311, 312, 317 and 318.

Introduction

[1] This decision concerns an application by Qantas Airways Limited (Qantas) for an order under s.318 of the Fair Work Act 2009 (the Act) which relates to instruments covering a new employer and transferring employees in the context of a transfer of business.

[2] This application concerns cadet and non-cadet pilots within the Qantas Group who have applied for a position with Qantas as a Second Officer under Training. Qantas seeks an order that the Jetstar Airways Pilots’ Enterprise Agreement 2015 (Jetstar EA), Express Freighters Australia Operations Pty Limited Enterprise Agreement 2014 (EFA EA) and Network Aviation Australia, Collective Workplace Agreement (CWA) for Pilots (Network Collective Agreement) will not cover an employee previously covered by one the instruments when the employee commences employment with Qantas Airways Limited as a Second Officer Under Training (SOT).

[3] The circumstances in which Qantas seeks such an order are where the employee has voluntarily resigned from employment at Jetstar Airways Pty Limited, Express Freighters Australia (Operations) Pty Limited or Network Aviation Pty Ltd and the employee has been provided with a letter of offer of employment from Qantas that clearly specifies that upon commencement of employment of Qantas, the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2015 will apply to Qantas and the employee.

[4] For the purpose of s.311(6) of the Act, Qantas, Jetstar, Express Freighters and Network are associated entities as that term is defined in s.50AAA of the Corporations Act 2001.

Background

[5] Qantas wishes to recruit pilots to operate in its long haul operations. As the first step in the recruitment process, Qantas will give preference to pilots who are currently employed in other group companies, those pilots being either former cadet pilots or non-cadet pilots (the transferring employees).

[6] Qantas is only prepared to employ the transferring employees within 3 months of their employment ending with Jetstar, EFA or Network if the Fair Work Commission issues an order under s.318 of the Act that the Jetstar EA, EFA EA or Network Collective Agreement will not apply to Qantas or the transferring employees during the transferring employees’ employment with Qantas.

[7] At the time of making the application, the transferring employees were participating in the Qantas long haul recruitment process. If the Commission makes the order that is sought prior to the completion of the recruitment process, then the successful applicants will be offered employment as a SOT with Qantas to commence employment as soon as possible. If the application is still pending at that time, then the successful applicants will be offered employment as a SOT with Qantas, subject to either…

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.

Continue reading Qantas Airways Limited

Details

AGLC: Qantas Airways Limited [2016] FWC 4913
Case: [2016] FWC 4913
Decision Date: 4 AUGUST 2016

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Qantas Airways Limited for a determination that transferrable instruments would not cover transferring employees. The dispute arose under the Fair Work Act 2009, specifically sections 311, 312, 317, and 318, which relate to the transfer of business and the implications for employee entitlements. The crux of the application was whether the transferrable instruments, which were part of the business restructuring, included provisions for the transferring employees or if they were excluded from the scope of the instruments.

The central legal issue before the Commission was whether the transferrable instruments explicitly excluded the transferring employees from the protection and benefits provided by the instruments. The interpretation of the terms of the transferrable instruments was pivotal, as was the application of the relevant sections of the Fair Work Act. The Commission had to determine whether the instruments, as drafted, effectively excluded the transferring employees or if they were inadvertently included within the scope of the instruments.

In its decision, the Fair Work Commission considered the plain language of the transferrable instruments and the context in which they were issued. The Commission found that the language of the instruments did not explicitly exclude the transferring employees, and that the instruments, by their nature, should include all employees affected by the business transfer. Consequently, the Commission determined that the transferrable instruments did indeed cover the transferring employees. The application by Qantas Airways Limited was dismissed, and the Commission held that the transferrable instruments were inclusive of the transferring employees.

The Fair Work Commission issued a determination that the transferrable instruments in question would cover the transferring employees, affirming that the instruments did not exclude them from the protection and benefits intended by the Fair Work Act. This decision underscores the importance of clear drafting in business restructuring documents to avoid unintended consequences for employees.

Orders