Qantas Airways Limited T/A Qantas

[2020] FWC 249

[2020] FWC 249

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.318—Transfer of instrument

Qantas Airways Limited T/A Qantas
(AG2019/5155)

Airline operations
DEPUTY PRESIDENT BINET	PERTH, 31 JANUARY 2020

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

[1] Qantas Airways Limited T/A Qantas (Qantas) has made an application (Application) for an order pursuant to section 318 of the Fair Work Act 2009 (FW Act) that the Network Aviation Pilots Enterprise Agreement 2016 (Agreement) which currently covers Mr Lloyd Casey (Casey) in his employment with Network Aviation Pty Ltd (Network) will not cover Qantas or Mr Casey if Mr Casey transfers his employment from Network to Qantas (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 October 2020. The parties to the Agreement are Network and pilots employed by Network. The Agreement covers the Australian Federation of Air Pilots (AFAP), Australian and International Pilots Association (AIPA) and the Transport Workers’ Union of Australia (TWU).

[3] Mr Casey is currently employed by Network as a First Officer. Qantas have offered Mr Casey a position as a Second Officer under Training on terms and conditions set out in a letter of offer dated 20 December 2019. Mr Casey accepted the offer on 23 December 2019. Mr Casey’s employment with Network is scheduled to terminate on 3 February 2020 and Mr Casey’s employment with Qantas is due to commence on 4 February 2020.

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

[5] Qantas asserts that it and Network 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 Casey perform for Qantas is substantially the same as the work he currently performs for Network.

[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] Qantas seeks an order from the FWC that the Agreement does not cover Mr Casey or Qantas.

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

[9] The Application was supported by statutory declarations made by Mr Casey (Casey Declaration) and the Head of Group Pilot Resourcing Ms Charlotte Lambie (Lambie Declaration).

[10] Section 318(3) sets out the matters which the FWC must take into account when deciding to make the order sought by Qantas 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] The workplace instrument which covers Qantas and the other pilots which it employs is the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2015 (Qantas EA). The employment arrangements contained in the Qantas EA vary significantly from those set out in the Agreement.

[12] Qantas have made the Application to ensure consistency in the rostering, seniority progression and 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.

[13] According to Qantas, there is no business synergy between the Agreement and the Qantas EA. Qantas submit that the order is necessary to operate its business in a way that meets the specific needs of the international market in which it operates which differs significantly from the domestic market in which Network as a regional airline operates.

[14] While the initial effect of the order would be to reduce Mr Casey’s income, Mr Casey supports the Application because it provides an opportunity for career progression in his chosen field and for larger increases in salary than if he remained employed by Network.

[15] The nominal expiry date of the Agreement is 31 October 2020.

[16] In Directions issued on 9 January 2020, Qantas were directed to file evidence that the Application had been served in accordance with Rule 41 and Schedule 1 of the Fair Work Commission Rules 2013 (Cth) on all parties to the Agreement and any employee organisation which normally represents the industrial interests of Mr Casey.

[17] Qantas were further directed to provide a copy of the Directions to Mr Casey, all parties to the Agreement and any employee organisation which ordinarily represents the industrial interests of Mr Casey and file a statutory declaration confirming that this had occurred. Those employee organisations were invited to contact Chambers by 4pm Thursday 23 January 2020 if they wished to be heard with respect to this Application.

[18] On 16 January 2020 Qantas filed a statutory declaration confirming that the Directions had been complied with.

[19] On 21 January 2020 Ms Therese Walton of the TWU notified Chambers that the TWU had no interest in the Application. As at the date of this decision neither the AFAP or the AIPA have indicated that they wished to be heard in relation to the Application.

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

[21] In light of the above, I am satisfied that it is appropriate to make the order sought by Qantas. An order to this effect (PR715977) will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE415326  PR715976 >