Transport Workers’ Union of Australia

[2018] FWC 295

[2018] FWC 295

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Transport Workers’ Union of Australia
(AG2017/4329)

Airport operations
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 15 JANUARY 2018

Application for termination of the Aero-Care Collective Agreement 2012 – application by Aerocare Flight Support Pty Ltd to adjourn originating application indefinitely pending conclusion of Federal Court proceedings – adjournment application dismissed – directions to issue.

[1] On 20 September 2017, the Transport Workers’ Union (TWU) filed an application to terminate the Aero-Care Collective Agreement 2012 (the 2012 agreement). The TWU agreed not to progress its application to terminate the 2012 agreement until there was a decision on the appeal 1 against a decision of Wilson C, which refused to approve the Aerocare Collective Agreement 20172 (the 2017 agreement).

[2] On 4 January 2018, a Full Bench dismissed that appeal. 3 On 8 January 2018, the TWU indicated that it would like to press its application to terminate the 2012 agreement. A notice of listing was issued later that day, advising that the TWU’s application was listed for mention on 15 January 2018.

[3] The mention was held by telephone earlier today. Prior to the mention, the respondent to the application to terminate the 2012 agreement, Aerocare Flight Support Pty Ltd (Aerocare), filed an application for the matter to be stayed or otherwise adjourned pending the hearing and determination of proceedings in the Federal Court. These relate to an application for declarations about the proper construction of the Airline Operations – Ground Staff Award 2010 (the Award) in relation to split shifts, and in particular, whether such split shifts attract overtime or related penalties under the Award, 4 and to a planned application for judicial review of the Full Bench decision dismissing the appeal against Wilson C’s decision.

[4] I indicated to the parties during the mention that I was not willing to grant the application to adjourn the application to terminate the 2012 agreement, at least at this stage. The Fair Work Act 2009 (Cth) (the FW Act) indicates at s.226 the factors that I need to consider in deciding whether or not to terminate the 2012 agreement. They appear to me to be significantly different from the issues that the Federal Court is being asked to deal with. I note, in particular, that while I am required under the FW Act to have regard to the circumstances of the employees covered by the 2012 agreement and the likely effect that termination of the agreement would have on them, I am not at this stage persuaded that the proper construction of the award provisions dealt with in the Federal Court proceedings is likely to be a central consideration in the matter before me. Moreover, the Full Bench decision of which Aerocare proposes to apply to the Federal Court for judicial review dealt with the issue of whether the employees covered by the 2017 agreement were ‘fairly chosen’: a matter that has no obvious bearing on the issues I will need to consider.

[5] Accordingly, the TWU’s application will proceed. Directions for the filing of written material will issue concurrently with these reasons. I have, however, indicated that the respondent is at liberty to make a further application for an adjournment after the TWU has filed its submissions and evidence.

SENIOR DEPUTY PRESIDENT

Appearances:

W Carr for the Transport Workers’ Union of Australia.

F Parry QC with M Follett of counsel and L Mumme, solicitor, for Aerocare Flight Support Pty Ltd.

Hearing details:

Sydney via telephone.

2018.

January 15.

 1   Fair Work Commission matter no. C2017/5221.

 2   [2017] FWC 4311.

 3   [2018] FWCFB 59.

 4   Federal Court of Australia matter no. NSD1814/2017.

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