Virgin Australia Airlines Pty Ltd Summary

[2013] FWC 6539

FAIR WORK COMMISSION

DECISION

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

Virgin Australia Airlines Pty Ltd
(AG2013/2180)

THE TOLL DNATA AIRPORT SERVICES PTY LIMITED & AUSTRALIAN SERVICES UNION (ASU) PASSENGER SERVICES VICTORIA ENTERPRISE AGREEMENT 2010
(ODN AG2010/12332) [AE879945]
THE TOLL DNATA AIRPORT SERVICES PTY LIMITED EMPLOYEE PASSENGER SERVICES ENTERPRISE AGREEMENT 2010 TO 2013 NEW SOUTH WALES
(ODN AG2010/14926) [AE881660]
THE TOLL DNATA AIRPORT SERVICES PTY LTD BRISBANE PASSENGER SERVICES ENTERPRISE AGREEMENT 2011
(ODN AG2011/12781 [AE888912]

Airline operations
COMMISSIONER SIMPSON	BRISBANE, 5 SEPTEMBER 2013

[1] An Application for an order relating to an instrument covering the new employer and transferring employees was filed by Virgin Australia Airlines Pty Ltd.

[2] The Application has been made in the context of the Applicant in-sourcing its international airline guest services operation, which has previously been conducted by Toll Dnata Airport Services Pty Ltd.

[3] If the Order sought is granted, the following agreements will not cover the Applicant in respect of any former employee of Toll Dnata Airport Services Pty Ltd (Toll);

(a) The Toll Dnata Airport Services Pty Limited & Australian Services Union Passenger Services Victoria Enterprise Agreement 2010;

(b) The Toll Dnata Airport Services Pty Ltd Employee Passenger Services Enterprise Agreement 2010 to 2013 New South Wales; and

(collectively, the Agreements).

[4] The Agreements will not cover the Applicant in respect of any former employee of Toll;

(a) who is a Transferring Employee employed by the Applicant to perform Transferring Work; and

(b) whose employment is covered by any of the Agreements.

[5] Instead the Virgin Blue Ground Crew Agreement 2010, and any such subsequent agreement approved under the FWA, will cover the Applicant in respect of such employees. Directions were issued 7 August 2013 directing the Applicant ensure that employees who would be affected by the proposed order are made aware of the application, the notice of listing, and the terms of the order sought.

[6] The Directions invited any person wishing to be heard, to make submissions or make an objection to the Application to advise Fair Work Commission by 4pm Wednesday 21 August 2013. The Australian Services Union (ASU) provided a brief submission which included that the ASU did not support or oppose the application. No other responses were received.

[7] Virgin Australia Airlines Pty Ltd provided written submissions in support of the application together with statutory declarations from Robert D’Alessio, Manager of operations at Sydney Airport for the applicant and also Melanie Rowntree, Leader of payroll for the Applicant.

[8] I have considered the matters set out in s.318(3) of the Act and in light of the submission and statutory declarations provided I am satisfied the order should be issued. The Order [PR541230] will come into operation on 10 September 2013.

COMMISSIONER

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CaseChat Overview and Summary

Virgin Australia Airlines Pty Ltd sought an order from the Fair Work Commission in relation to instruments covering a new employer and transferring employees in agreements. The applicant, Virgin Australia Airlines, had in-sourced its international airline guest services operation, which had previously been conducted by Toll Dnata Airport Services Pty Ltd. The application was made in the context of transferring employees from Toll Dnata to Virgin Australia Airlines. If the order sought was granted, certain agreements would not cover the applicant in respect of any former employee of Toll Dnata who was a transferring employee employed by the applicant to perform transferring work and whose employment was covered by any of the agreements.

The legal issues the court was required to decide were whether the agreements should cease to apply to the transferring employees, and whether the Virgin Blue Ground Crew Agreement 2010, or any subsequent agreement approved under the Fair Work Act, should cover the applicant in respect of such employees. The court had to consider the submissions and statutory declarations provided by Virgin Australia Airlines, as well as any objections or submissions from other parties.

The court considered the matters set out in section 318(3) of the Fair Work Act and, in light of the submissions and statutory declarations provided, was satisfied that the order should be issued. The Australian Services Union did not support or oppose the application, and no other responses were received. The court found that the order should come into operation on 10 September 2013.

The final orders of the court were that the Toll Dnata Airport Services Pty Limited & Australian Services Union Passenger Services Victoria Enterprise Agreement 2010, the Toll Dnata Airport Services Pty Ltd Employee Passenger Services Enterprise Agreement 2010 to 2013 New South Wales, and the Toll Dnata Airport Services Pty Ltd Brisbane Passenger Services Enterprise Agreement 2011 would not cover the applicant in respect of any former employee of Toll who was a transferring employee employed by the applicant to perform transferring work and whose employment was covered by any of the agreements. Instead, the Virgin Blue Ground Crew Agreement 2010, or any subsequent agreement approved under the Fair Work Act, would cover the applicant in respect of such employees. The order came into operation on 10 September 2013.

Virgin Australia Airlines Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established