Transport Workers’ Union of Australia
[2019] FWC 897
•12 FEBRUARY 2019
| [2019] FWC 897 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Transport Workers’ Union of Australia
(AG2017/4329)
Aero-Care Collective Agreement 2012
[AE899834]
| Airport operations | |
| SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 12 FEBRUARY 2019 |
Application for termination of the Aero-Care Collective Agreement 2012 – employer’s application to adjourn these proceedings until determination of matter no. AG2018/2008 – adjournment application refused – originating application to proceed – directions issued.
The respondent, Swissport Australia Pty Ltd (previously named Aerocare Flight Support Pty Ltd) has applied to the Fair Work Commission (the Commission) for an adjournment of proceedings to deal with the application by the Transport Workers’ Union of Australia (the applicant) to terminate the Aero-Care Collective Agreement 2012 (the 2012 agreement) until matter no. AG2018/2008 is determined. AG2018/2008 is an application by the respondent for approval of the Aerocare Collective Agreement 2018 (the 2018 agreement). That matter is currently before Wilson C and is listed for hearing in June 2019.
The respondent submitted a set of draft directions it proposed I should issue if the adjournment application were denied. These proposed directions provide for the filing and serving of material in accordance with a timetable in which the last material would be filed and served on 23 August 2019. The respondent’s proposed directions provide that the matter would be listed for a hearing on a date to be fixed, not before 30 August 2019.
The respondent’s application was heard on 12 February 2019. At the conclusion of that hearing, I indicated that I would not grant the respondent’s adjournment application and that directions would be issued, with the final material to be filed and served on 16 April 2019. I also asked the parties to consult about hearing dates, with the expectation that the matter would be heard in late April or early May 2019. A copy of the directions that were subsequently issued by my chambers is attached to this decision.
These are my reasons for the decision to refuse the respondent’s adjournment application, and for not issuing directions in accordance with the respondent’s request.
The originating application in this matter was made on 20 September 2017. On 10 April 2018, I granted the respondent’s application to adjourn the application to terminate the 2012 enterprise agreement until the hearing and determination of proceedings before the Federal Court of Australia in matter no. NSD1814/2017. At that stage, the applicant had already filed and served its material in this matter on the respondent.
The Federal Court delivered its judgment in NSD1814/2017 on 25 January 2019.
The reasons for the respondent’s current adjournment application and its fall-back application concerning its preferred directions include the following:
· If the 2018 agreement is approved by the Commission, the 2012 agreement will cease to apply to the relevant employees and can never apply to them again.
· It follows that if the 2018 agreement is approved by the Commission and commences prior to any decision in these proceedings, then these proceedings will be rendered nugatory and any work undertaken by the parties and the Commission will have been wasted.
· It is likely that the application for the approval of the 2018 agreement will be resolved prior to the determination of the application to terminate the 2012 agreement.
· There is overlap on key issues in both these proceedings and the application before Wilson C.
· There will be a large amount of work for the parties in preparing for the hearings in both matters. It will be difficult for the parties to work on both matters at the same time.
· The current matter will require consideration of the views of the relevant employees and a survey would need to be conducted, which would be complicated and would take a considerable period of time.
· If the application to terminate the 2012 agreement is successful, the respondent will need to apply award conditions to its employees. This will require major changes to the respondent’s rostering and payroll systems, which will be a costly and time-consuming exercise. Some employees will also end up with less take home pay (because they will end up working fewer hours) and will need time to re-organise their finances.
In deciding to refuse the adjournment application, I have had regard to the following:
· Section 577 of the Fair Work Act 2009 (Cth) requires, inter alia, that the Commission must perform its functions and exercise its powers in a manner that is, inter alia, fair and just, and is quick, informal and avoids unnecessary technicalities.
· The primary obligation on the Commission is to afford the parties a fair hearing.[1]
· There should be no presumption that the application to approve the 2018 agreement will be successful. Therefore, little weight should be given to the proposition that the work of the parties in the present matter will be ‘wasted’.
· There should be no presumption that the application to terminate the 2012 agreement would not be dealt with and determined prior to the application for approval of the 2018 agreement.
· While there is some overlap in the issues involved in the two matters, the statutory criteria to be applied are significantly different.
· There is no requirement that an employee survey of the kind envisaged by the respondent be conducted. It is a matter for the parties what evidence they bring concerning the views of the affected employees.
· The issues the respondent raises about the impact of terminating the 2012 agreement on the employer and the affected employees are more properly dealt with as part of the substantive proceedings; they might, for example, be relevant to the date of effect of any decision to grant the application, as well as to whether the application itself should be granted at all.
· There is nothing especially unusual about the current matter such that it cannot be determined in accordance with the usual processes of the Commission.
There is nothing especially unusual about the circumstances involved in the current application. In particular, it is not especially unusual for an application for termination of one enterprise agreement to be on foot alongside an application for the approval of a new enterprise agreement that would replace the first. In some cases, the parties may agree that it would be preferable to deal with the approval application prior to agitating the termination application. However, that is not the case here. The applicant objects both to the adjournment application and the alternative timetable proposed by the respondent. It is entitled, as a matter of fairness, to have its application dealt with in the way such applications are ordinarily dealt with by the Commission.
Accordingly, I refused the respondent’s application for an adjournment and issued the directions reproduced in attachment A.
SENIOR DEPUTY PRESIDENT
Appearances:
A Howell, counsel, with W Carr for the Transport Workers’ Union of Australia
M Follett, counsel, with L Mummé, solicitor, for Swissport Australia Pty Ltd.
Hearing details:
Sydney.
2019.
February 12.
<PR704854 AE899834 >
Attachment A
[1] Visy Board Pty Ltd T/A Visy Board v Rustemovski & Ahmadyar[2018] FWCFB 1255.
Printed by authority of the Commonwealth Government Printer
0
0
0