Fair Work Act 2009

Section 739 - Application to deal with a dispute

Surveillance Australia Pty Ltd T/A Cobham Aviation Services Australia - Special Mission

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]

[1] On 19 November 2020 the Australian Federation of Air Pilots (AFAP, Applicant) applied to the Commission to deal with a dispute between the AFAP and Surveillance Australia Pty Ltd trading as Cobham Aviation Services Australia - Special Mission.

[2] The dispute notification was made under section 739 of the Fair Work Act 2009 (FW Act) and clause 1.12 (Dispute Resolution Process) of the Surveillance Australia Pilot and Observer Enterprise Agreement 2016 (the Agreement).

[3] The employer respondent to the dispute is Surveillance Australia Pty Ltd trading as Cobham Aviation Services Australia - Special Mission (Cobham, Respondent).

[4] The dispute concerns a proposal by Cobham to cease fly-in fly-out (FIFO) arrangements pertaining to certain pilots who are members of the AFAP being pilots conducting surveillance operations under a contract between Cobham and a Commonwealth agency, Australian Border Force. The AFAP asserted, amongst other matters, that Cobham failed to meet its consultation obligations under clause 1.9 (Consultation) of the Agreement.

[5] Cobham responded to the dispute notification in writing on 24 November 2020. It asserted that its proposal to cease fly-in fly-out (FIFO) arrangements had been the subject of consultation, that the proposal was lawful, that all relevant obligations under the Agreement had been satisfied, and that the employer should be permitted to implement what it considers a necessary change to operations, and to do so without further delay.

[6] To date, the proposed change has not been implemented on account of a status quo provision in clause 1.12.2 of the Agreement:

"It is a term of this agreement that while the dispute resolution procedure is being conducted work shall continue normally, unless a employee has a reasonable concern about an imminent risk to his or her health or safety, and the subject matter of the dispute shall be preserved so as to maintain the status quo pending the resolution of the dispute."

[7] Both the AFAP and Cobham accept that the Commission has, under the terms of the Agreement, jurisdiction to conciliate and arbitrate the dispute. Clause 1.12 of the Agreement relevantly provides:

"1.12.6 If the matter is not resolved by the General Manager, a party to the dispute may refer the matter to the Fair Work Commission (FWC).

1.1 2.7 Fair Work Australia may deal with the dispute in 2 stages:

1.12.7.1 FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion, making a recommendation; or issuing interim orders; and

1.12.7.2 if FWC is unable to resolve the dispute at the first stage, FWC may then:

(b) make a determination that is binding on the parties.

Note: If FWC arbitrates the dispute, it may also use the powers that are available to it under the Act.

1.12.9 The parties to the dispute agree to be bound by a decision made by FWC in accordance with this term."

[8] Cobham has expressed a view that the relief sought from the Commission by the AFAP is not available in a dispute concerning compliance with consultation obligations under the Agreement.

[9] The dispute before the Commission is separate to dispute matter C2020/4069. In its originating application, the AFAP indicated:

"the dispute must be considered in the context of the history and the proceedings in C2020/4069".

[10] Matter C2020/4069 is at an advanced stage of arbitration before Commissioner Hampton. The dispute in matter C2020/4069 concerns the home base of pilots engaged by Cobham who, during a COVID-19 period, undertook extended deployments.

[11] Extensive conciliation proceedings have been conducted on this application. Leaving aside multiple private discussions and correspondences between the parties, over a six month period, eight conferences and report backs were conducted, two lengthy in-person conciliations, and one recommendation issued.

[12] Conciliation was conducted as a private, off the record, process. By agreement, an audio of joint conciliation sessions was taken for reference by the Commission as background information to progress conciliation, or to inform another Member of the Commission should the file be re-allocated for further conciliation purposes. It was not a record taken for arbitration purposes.

[13] A conference was conducted on 25 November 2020.

[14] The parties exchanged information on 26 November 2020.

[15] A further conference was conducted on 27 November 2020.

[16] A Recommendation was issued on 27 November 2020.

[17] The parties met and exchanged information between 27 November 2020 and 11 December 2020.

[18] A conference was held on 11 December 2020.

[19] A conference on a subset of the dispute (concerning the circumstances of a particular pilot) was held on 14 December 2020. Specific matters relating to that pilot were subsequently resolved (but not to the extent the pilot is impacted by the dispute a whole).

[20] Private discussions were held between the parties on three occasions between 11 December 2020 and 28 January 2021. Further information was exchanged.

[21] A conference was held on 28 January 2021.

[22] A meeting (by zoom) occurred between the parties between 28 January 2020 and 24 February 2021. Further information was exchanged.

[23] A conference was held on 24 February 2021.

[24] A meeting (by zoom), together with the exchange of certain other information (concerning mitigation), was conducted between 24 February 2021 and 23 March 2021.

[25] A conference was held on 24 March 2021 at which point the dispute appeared to have reached a stalemate. The Commission advised that it would conduct a further 'active conciliation' in advance of making a decision on an arbitration process. A conciliation conference was scheduled for 27 April 2021 with those persons able to do so, asked to appear in person. A direction was made that any material which a party intended to use during the active conciliation be provided by 9 April 2021 and responded to by 16 April 2021.

[26] A day-long in-person conciliation conference was conducted on 27 April 2021. A number of pilots appeared in person with the AFAP; a number of others by phone from interstate. Company officers attended in person, with Cobham's representative.

[27] In advance of that conference, positions and proposals were exchanged between the parties. The parties agreed to meet in advance of the Commission conciliation, and did so on 23 April 2021.

[28] The morning session of the conciliation on 27 April 2021 was conducted firstly in joint session (during which each party overviewed their position) and then private discussion between the Commission and each party.

[29] Over the course of a luncheon adjournment, a revised proposal was developed for consideration. The revised proposal did not resolve the dispute but provided a basis for further discussions.

[30] A half-day in person conciliation conference was then convened on 4 May 2021. Assisted by discussions between the parties in the days prior, an alternate revised proposal was developed and considered in the days that followed.

[31] Provisionally, hearing dates for arbitration by the Commission were scheduled for 12, 13 and 14 July 2021 if required.

[32] Further private discussions occurred between the AFAP and its members and then with Cobham between 5 and 9 May 2021 (inclusive).

[33] At a report back on 10 May 2021, the Commission was advised that substantial progress had been reached on an agreed package. Certain terms remained to be finalised.

[34] Further private discussions occurred between the parties between 10 and 14 May 2021.

[35] A hearing on 14 May 2021 was advised that an agreed package in settlement of the dispute had been reached in principle, with a final document recording the agreement being at an advanced stage of development.

[36] The parties have requested that the Commission formally endorse that outcome in accordance with its role under the dispute resolution provisions of the Agreement.

[37] The agreement resolves the dispute as notified (ceasing FIFO arrangements and in lieu establishing a fixed base arrangement involving relocation, with associated terms for pilots intending to leave the company).

[38] The terms of settlement have been provided to the Commission. I am satisfied that they form an appropriate, workable and fair basis for the resolution of matter C2020/8478 and are genuinely agreed. They are the product of many months of conciliation before the Commission and private discussion between the parties. The need for third party arbitration of a substantial issue affecting both Cobham and the pilots has been averted.

[39] The settlement does not resolve the matters being arbitrated by Commissioner Hampton in matter C2020/4069.

[40] Recognising the complexity of the dispute and that an agreed resolution at times appeared a distant prospect, the AFAP, its affected members and Cobham are to be congratulated on their willingness to work within the Commission processes as contemplated by the dispute resolution provisions of the underpinning Agreement to achieve this result. The Commission recognises the direct participation of pilots and company management in the Commission processes and in private discussions, and considers this to have been invaluable and materially contributed to the prospects of and ultimate settlement.

[41] The parties have appropriately recognised the professional assistance provided by staff and Associates of the Commission.

[42] The parties to this matter will now proceed to implementation of the terms of settlement.

[43] It is a term of the settlement that disputes (if any) arising from its implementation can be referred to the Commission under that auspices of this existing dispute notification (C2020/8478). This is an appropriate course.

[44] The dispute has been resolved on agreed terms. Those terms determine the dispute as notified. That being so, and subject to the agreed terms and their implementation, the status quo provision in clause 1.12.2 of the Agreement will cease to operate.

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