The attached document replaces the document previously issued with the above code on 4 October 2018.

By amending the appearances of Ms E. Gaske to the Australian Municipal, Administrative, Clerical and Services Union.

[2018] FWC 6159

Fair Work Act 2009

s.185 - Enterprise agreement

Application for approval of the Aerocare Collective Agreement 2018.

[1] Through application made to the Fair Work Commission on 15 May 2018 Aerocare Flight Support Pty Ltd (Aerocare) sought approval under Part 2 - 4 of the Fair Work Act 2009 (the Act) of an enterprise agreement to be known as the Aerocare Collective Agreement 2018 (2018 Agreement).

[2] To date the matter has been the subject of preliminary dealings through the Commission's team of enterprise agreement staff and has also been the subject of objections raised for various reasons by the Transport Workers' Union of Australia (TWU) and the Australian Municipal Administrative and Clerical Services Union (ASU).

[3] After these initial dealings the matter was assigned to me in the usual manner for determination.

[4] The two unions raise a number of matters as reasons the Commission should not approve the 2018 Agreement including that it does not pass the better off Overall test (BOOT) as well as the Commission being unable be satisfied that the 2018 Agreement has been genuinely agreed to by the employees who would be covered by it. Amongst other matters argued by the TWU it puts forward that one matter that would lead the Commission to find that the BOOT has not been passed is that the 2018 Agreement provides for split shifts which is "not a feature of the Award and their inclusion in the agreement results in a BOOT failure".[1]

[5] After writing to Aerocare, the TWU, the ASU and known employee bargaining representatives about the Commission's preliminary assessment of the ability for the 2018 Agreement to be approved as well as the then understood objections on the part of the TWU and ASU, and identifying a date for a mention hearing for the purposes of programming or at least gaining a better understanding of the matters in contention, solicitors acting for Aerocare wrote to the Commission proposing that its consideration of the application be adjourned until after determination by the Federal Court of proceedings brought by Aerocare in relation to the Ground Staff Award.[2] In addition to this development, the TWU and ASU each made applications to the Commission for orders for the production by Aerocare of certain documents said to be relevant to these proceedings as well as the capacity of each union to test the claims made by Aerocare that the 2018 Agreement is capable of approval by the Commission.

[6] In the course of the hearing on 3 October 2018 Aerocare confirmed that it sought the adjournment of this application pending determination of the Federal Court proceedings before it. Aerocare submitted that the proceedings were listed for final submissions on 20 November 2018 and that the application before the Court related directly to matters that would likely be relevant to determination of these proceedings. In particular, Aerocare argued that the Court had been invited to make declarations to the effect that the proper construction of the ground Staff Award included:

• That 'a "split shift" when utilised by the Applicant for its part-time permanent secure employees does not amount to work on more than one shift in a 24-hour period' and 'is not otherwise prohibited or prevented by any provisions of the award'; [3]

• That 'the second period of work in a "split shift" when utilised by the Applicant for its part-time permanent secure employees' is neither 'overtime' or 'recall' within the meaning of those terms in the award and further does not attract overtime penalties;[4] and

• That '"split shift" means a rostered shift comprising of two periods of work duty separated by period of non-work duty' starting and finishing within the same 24 hour period and being of at least four hours and not more than 12 hours duration.[5]

[7] In its submissions Aerocare also pointed to the decision of Senior Deputy President Hamberger to adjourn the TWU's application to terminate the Aero-care Collective Agreement 2012 (2012 Agreement) until the hearing and determination of the Federal Court proceedings[6] including for the reason that His Honour was "satisfied that whether employees working split shifts are entitled to be paid overtime if the award were to be applied is a significant issue" that he will need to consider in dealing with the termination application.[7] Although not explicitly couched as such, I took this to be an argument by Aerocare that adjournment of these proceedings would be in comity with SDP Hamberger's decision and that proceeding with determination of this application would not.

[8] Aerocare also submitted that there would be some difficulties in proceeding to determine its application for approval of the 2018 Agreement without there being finality from the Court.

[9] In relation to the potential centrality of the proceedings before the Court, Aerocare referred to the interlocutory decision of Jagot J dealing with applications brought by the ASU and TWU in relation to its Federal Court application, NSD 1814 of 2017, in which it was contended by the two unions that the proceeding should be dismissed or permanently stayed. There had been an earlier application by Aerocare to the Commission to stay or adjourn the 2012 Agreement termination proceedings which was initially refused and the interlocutory proceedings were then brought by the unions in the Court arguing there was an abuse of process by Aerocare. In her interlocutory decision Jagot J found:

"[27] The Unions' interlocutory applications are to be resolved recognising that the FWC did not determine or resolve the issues which are the subject of Aerocare's originating application but considered those or similar issues in a particular context and for its particular statutory purposes. The manifest difference in the role of the FWC and of this Court was described in Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147 at [17]- [18] and [81]-[84]. Other cases, such as Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033, recognise that the FWC might be called upon to decide issues for its purposes which are also within the jurisdiction of this Court. In Teys, which involved an application to restrain the FWC from dealing with a dispute by arbitration when a party had filed an originating application for a declaration in this Court, Bromberg J concluded the issue would be best determined in this Court and gave the FWC an opportunity to reconsider its refusal to adjourn the matter before it. In so concluding Bromberg J made this point at [31] which applies in the present case:

First, this court's specialist function is the determination of controversies concerning existing rights and liabilities, including under the FW Act. Conversely, that is not the traditional function of the FWC. True it is that the FWC has been given some ability to address rights and liabilities through its capacity as a private arbitrator, but that is not its specialist function. I recognise that the FWC does deal with the interpretation of enterprise agreements and their consistency with provisions of the Act. But, that is different to the final determination of the legal rights of the parties under the FW Act, that being the specialist function of this court. Second, and relatedly, the FWC is an inferior tribunal. It will be assisted by the reasons for judgment of superior courts of record such as this court.

[28] In the present case, the FWC did not purport to determine the rights and liabilities of Aerocare and its employees under the Award. Further, the fact the Award does not apply to Aerocare or its employees for so long as the 2012 Agreement remains in force does not mean that the proceeding in this Court has utility only for the purpose of the FWC proceedings. As Aerocare's evidence demonstrated it cannot effectively negotiate with its employees about a further enterprise agreement unless it and its employees know what the Award requires.

[29] There is no oppression in the Unions having to deal with this proceeding merely because the FWC resolved not to approve the 2017 Agreement and will resolve whether to terminate the 2012 Agreement. The Unions opposed any adjournment of the termination proceedings and thus, to the extent, there is any overlap of issues, are responsible for that occurring. In any event, the FWC is free to revisit the adjournment application having regard to these reasons for judgment if it considers it appropriate to do so at any time. Nor is there a real risk of the administration of justice being brought into disrepute. This Court alone, and not the FWC, has jurisdiction to determine the proper construction of the Award and whether Aerocare's rostering is permitted under the Award or not, as well as the potential consequences for overtime. The FWC was not purporting to make any such determination in refusing to approve the 2017 Agreement and cannot do so in deciding whether or not to terminate the 2012 Agreement."[8]

[10] In their arguments to the Commission, the TWU and ASU objected to the adjournment of the 2018 Agreement approval proceedings or at least adjournment of the proceedings without there being a determination of the unions' applications for the production of documents by Aerocare. The arguments put forward in relation to the potential adjournment of the 2018 Agreement approval proceedings included that employees deserved the certainty that would flow from the Commission's approval decision; that control of the 2018 Agreement approval proceedings as well as the Court proceedings were in Aerocare's hands and that granting an indefinite adjournment to the 2018 Agreement approval proceedings made little sense given that it had been Aerocare which had lodged the application for approval of the 2018 Agreement on 15 May 2018. It was also argued that the union's objections to approval of the 2018 Agreement could be progressed even without the finality of the Court proceedings in the event the Court does not specifically address the matters that Aerocare now contends. The unions also submitted that even if the Commission were minded to adjourn the 2018 Agreement approval proceedings that did not necessarily mean that the document production applications could not be progressed, determined and responded to.

[11] In response to the unions' argument that the Commission should proceed with determination of the unions applications for orders for the production of documents, it was argued by Aerocare that there would be some difficulty in meaningfully dealing with the subject without knowing the final views of the Court.

[12] Having considered the submissions and the material before the Commission I was persuaded that in all the circumstances it was appropriate to adjourn the 2018 Agreement approval application without putting in place directions or determining the TWU and ASU applications for the production of documents. I was persuaded that the matters to be determined by the Court would in fact be centrally relevant to the matters which need to be determined in these proceedings and that further it would be inappropriate to determine the applications for orders for the production of documents. In this latter regard my view was that any determination to be made by the Court would likely influence the scope of documents requested for production; the respective submissions likely to be made by the parties for consideration by the Commission, as well as the consideration likely to be given by the Commission to the respective arguments on each class of documents.

[13] As a result, the Commission's consideration of the application for approval of the 2018 Agreement will be adjourned until the hearing and determination of proceedings before the Federal Court of Australia in matter number NSD 1814 of 2017 or further order.

[14]

Liberty to apply at short notice for the resumption of these proceedings is given to each party should any relevant circumstance change.

Mr F. Parry QC and Mr M. Follett of Counsel instructed by Johnson Winter and Slattery Lawyers for Aerocare Flight Support.

Mr M. Norrie, Ms J. Knight and Ms E. Gaske for the Australian Municipal, Administrative, Clerical and Services Union.

Ms W. Carr for the Transport Workers' Union of Australia.

[1] Form F18 Statutory Declaration of the TWU filed on 29 May 2018, Attachment A, [2].

[2] Federal Court reference number NSD1814 of 2017.

[3] Exhibit Aerocare 1, Amended Originating Application dated 17 August 2018, [1] - [2].

[6] [2018] FWC 2056.

[8] Aerocare Flight Support Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2018] FCA 128.

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