s.739 - Application to deal with a dispute

Application for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure - whether Applicant entitled to the entitlements in cl 31 of Agreement - whether Applicant offered paid or unpaid transfer - unpaid transfer - no entitlements - dispute resolved

[1] Jonathon Johstone (Applicant) has made an application for the Fair Work Commission (Commission) under s.739 of the Fair Work Act 2009 (Cth) (Act) to deal with a dispute in accordance with the dispute settlement procedure in the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2024-2027 (Agreement). The Respondent to the application is Airservices Australia (Respondent).

[2] The dispute settlement procedure is found at clause 20 of the Agreement. That clause:

• sets out the dispute settlement procedure in respect of disputes that relate to a matter arising under the Agreement or the National Employment Standards (NES) in the Act (clause 20.1);
• requires the parties to attempt to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management (clause 20.4);
• provides that parties to the dispute will notify higher level managers to assist in the resolution of the dispute (clause 20.4);
• provides that parties will give genuine consideration to proposals to resolve the dispute (clause 20.4);
• provides that if a dispute about a matter arising under the Agreement is unable to be resolved at the workplace level, and all appropriate steps under clause 20.4 have been taken, a party to the dispute may refer the dispute to the Commission (clause 20.5);
• enables the dispute to be dealt with in two stages:
  • firstly by attempting to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing and opinion or making a recommendation; and
  • if the Commission is unable to resolve the dispute at the first stage, the Commission may then arbitrate and make a determination that is binding on the parties, subject to any available appeal process (clause 20.6).

[3] The application had indicated the dispute concerns various provisions of the Agreement including clause 31 in Part C and which deals with transfers and clause 26 in Part B which deals with 'fly in fly out' (FIFO) arrangements. The dispute has since narrowed to a dispute about clause 31 and the Applicant confirmed this during the hearing on 7 April 2026.

[4] The Applicant raised the dispute with his Airport Line Leader and the dispute was escalated to the Regional Manager but remained unresolved. I find that the parties have complied with the steps under clause 20.4 and that the Applicant was therefore able to refer the dispute to the Commission. A conference was held by the Commission on 29 January 2026 during which the Commission attempted to resolve the dispute via a process of mediation, but the matter did not resolve at the first stage. It is not in contention, and I find that the Commission may now arbitrate the matter in accordance with clause 20.6 of the Agreement's dispute settlement term.

[5] From time-to-time employees of the Respondent may transfer to a new work location. Where an employee does not receive the paid benefits under clause 31 of the Agreement this is referred to by the parties as an 'own time own expense' (OTOE) transfer and where an employee receives the benefits under clause 31 of the Agreement this is referred to by the parties as a 'paid' transfer.

• [6] The Applicant has worked with the Respondent since September 2005[1] and lives near and works as a firefighter at the airport in Coolangatta. The Applicant worked at Avalon before he transferred to Coolangatta in 2008 under an OTOE transfer.[2]

• [7] The Civil Aviation Safety Authority (CASA) regulates Australian aviation safety and sets rules and standards that the Respondent and other aviation operators must comply with.[3] Airport categories are defined by size and in accordance with CASA regulations, Avalon airport is classified and resourced as a category 7 airport.[4] CASA requires category 7 airports to have a minimum firefighting capacity of six qualified staff on duty at any one time.[5]. Richard Foley-Lewis holds the substantive role of Head of East Aerodrome Services for the Respondent[6] and gave evidence that prior to the COVID-19 pandemic, the Respondent was considering changing the Avalon airport from category 7 to a category 8 aerodrome due to the number of forecasted aircraft movements however Avalon airport has remained a category 7 aerodrome.[7] As it stands, staffing at the Avalon airport exceeds minimum requirements Mr Foley-Lewis also gave evidence that following the COVID-19 pandemic the Respondent was subject to a significant downturn in revenue while operational costs continued to increase and it engaged in cost saving measures to mitigate its financial situation, including by focusing on local recruitment and reducing unnecessary paid transfers.[8]

[8] In or around September 2021 the Respondent released a newsletter which indicated that more than 100 team members were retiring, the Respondent was preparing for the future and there would be opportunities to undertake new training and development, seek opportunities for promotion and relocate if that was of interest to an employee. The update in the newsletter went on to state:

"EOIs for fire fighters and officer level roles are now open for those interested in applying for a promotion for up to five preferred stations across the 27 stations"

and provided a separate links to apply for Officers and Fire Fighters. The update in the newsletter indicated that further frequently asked questions (FAQs) would be made available and stated:

"All transfers are classified as paid transfers under the Enterprise Agreement."

[9] The Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018 - 2021 applied at that time.

[10] The Respondent subsequently made the FAQs available about the process and among them were the following:

The current EOI process will not be OTOE, the transfers will occur as set out in Clause 30 of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018 -2021.

The OTOE transfer process will be put on hold whilst this EOI process is run. If you have current OTOE requests then they will not be taken into account in this EOI scheme so you should apply via this EOI so you are added to the applicant pool for consideration in the EOI process.

Any past or current OTE requests will not prevent you from expressing interest in a transfer and/or promotional opportunity, and you are encouraged to submit an expression of interest for any transfer and/or promotional opportunity.

How will I be notified of the outcome of the EOI?

You will receive an email update as your expression of interest progresses. If you would like more detailed feedback you can speak to you (sic) Line Leader.

Your Leader will advise you of the outcome of your EOI after advice from Workforce planning.

When will I be notified if I am successful with my EOI?

Once all applications have been assessed you will be notified of whether you have been placed in the merit pool. Suitable candidates may be made an offer at any point while the merit pool is valid. We will ensure offers are made as early as practicable to allow you sufficient time to make necessary preparations for transfer, where applicable.

If you accept an offer to transfer or be promoted to a new location at the end of the merit based EOI process, we will work with you to try and find an agreed commencement date at the new location. Your commencement date at the new location will be determined based on a number of factors (e.g. ensuring safety, maintaining a suitable level of operational coverage and time frames around backfilling newly created vacancies). We anticipate that a large number of the opportunities will require commencement in the new role by February 2022.

If I accept an offer to transfer under the EOI, what benefits will I receive ?

Transfer benefits and allowances will be as set out in clause 30 of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2018 - 2021."

[11] In his application the Applicant indicated the expression of interest (EOI) process involved making an application and attending an interview. The Applicant went through this process and indicated that Avalon was his preferred station for the purposes of a transfer.

[12] The Respondent sent an email on 23 December 2021 indicating that the 'Fire Fighter EOI Transfer process' was in its final stages and outcomes would not be provided until after 10 January 2022.

[13] On 18 January 2022 a representative of the Respondent's Talent Acquisition and ARFF Workforce Planning Teams sent an email to the Applicant thanking him his EOI, indicating that his application has been 'assessed against the key criteria for the role' and informing him that he had been deemed suitable for a 'merit pool'. That email went on to explain that the aim of the process was to generate a pool of suitable candidates from which the Respondent could schedule transfers over the next two years and that each applicant was assessed based on the skills, capabilities and experience outlined in their application. The email explained that the merit pool was valid for a two-year period during which the Applicant may be contacted by his Line Leader to discuss possible employment at one of his preferred locations and that contact would be made based on available, suitable opportunities as identified via the Workforce Plan.

The first alleged offer of a transfer in February 2022

• [14] The Applicant contends that in February 2022 his Line Leader contacted him via telephone to advise that he had been successful and that the next time the Applicant was working they would work out a date for the transfer.[9] However the Applicant indicated that shortly thereafter he was told that the offer was withdrawn. The Applicant said that it was discussed that he would remain in the merit pool for around 18 months and that the Line Leader said words to the effect that he would do what he could concerning transferring the Applicant to Avalon in that period.

[15] While no witness statement was filed in respect of the Line Leader, attached to Mr Foley-Lewis' statement was an email that the Line Leader had sent him on 16 April 2025 in which the Line Leader indicates:

• he received a telephone call from an employee running workforce deployment in which the Line Leader was told that the Applicant was successful in obtaining a position at Avalon and he could work with the Applicant on a release date;
• within 24 hours the Chief Fire Officer contacted the Line Leader advised that while he had been contacted by workforce deployment, he had not been consulted by workforce deployment, there were no transfer positions at Avalon and that the Line Leader had to contact the Applicant and withdraw the offer and apologise.

[16] As a result, the transfer did not proceed however the Applicant remained in the merit pool.

• [17] The Applicant said in August 2023 he was contacted by a worker at Avalon who indicated that more firefighters were needed in Avalon.[10] The Applicant said he contacted the Respondent's Workforce Planning team to discuss this but the Workforce Planning team was 'confused' about the situation and after repeated attempts to contact the team he discussed the issue with his Acting Line Leader at that time.[11] The Applicant said the Acting Line Leader was informed to offer him an OTOE transfer but that the Applicant explained he remained in the merit pool and should be given a paid transfer.[12] The Applicant said the Acting Line Leader told him that the Workforce Planning team would only offer him an OTOE transfer.[13]

[18] On 27 October 2023 the Applicant sent an email to his then Acting Line Manager indicating that he had put in an application for an OTOE transfer that date, expressing frustration and disappointment with the Respondent and expressing the view that there is a big difference between a paid transfer and OTOE transfer. It appears that the Applicant did not accept an OTOE transfer on that basis.

[19] The Applicant maintained a desire to transfer to Avalon but also maintained the view that any transfer should be a paid one.

[20] On 19 May 2025 Mr Foley-Lewis wrote to the Applicant and stated:

• irrespective of the timing of the merit pool and the Applicant's position in it, at no time was there an operational need for Firefighters at Avalon during the period in question;
• any transfer to Avalon could only be via the OTOE process;
• the original decision to rescind the offer to the Applicant to transfer to Avalon was based on an instruction from the Chief Fire Officer at the time, due to their being no operational need for a Firefighter to transfer there.

[21] In August 2025 the Respondent provided the Applicant with a letter confirming a variation to the terms and conditions of his employment to accommodate an OTOE transfer, with a commencement date of 25 August 2025. The Applicant appears to have signed the letter but as at the date of the hearing had not transferred. It appears this is because it remains in contention as to whether the transfer should be an OTOE transfer or a paid transfer in which the benefits in clause 31.19 would be provided.

[22] Clause 31 of the Agreement deals with transfers and under the heading 'Employees entitled to transfer benefits' clause 31.1 provides

"31.1 Where Airservices directs an employee to transfer to work in a location that is in a different town or city ("New Location") from that employee's current workplace ("Previous Location"), the employee is entitled to the benefits of clause 31".

[23] Under the heading 'Transferability of employees', clauses 31.5 - 31.8 provide:

"31.5 Subject to the notice requirements set out in this clause 31, Airservices may direct an employee to transfer to any location in Australia for a period not exceeding two years.

31.6 Airservices will seek volunteers for transfer. Airservices will only direct an employee to transfer where there are not any volunteers.

31.7 To transfer an employee for more than two (2) years, Airservices requires an employee's consent.

31.8 Airservices will reimburse travel and transportation costs incurred by an employee and their dependants on transfer (unless arranged for the employee's convenience) or promotion".

[24] Under the heading 'Employees not entitled to transfer benefits', clauses 31.9 to 31.12 provide:

"31.9 Where an employee voluntarily accepts a position that is based at a New Location, that employee is entitled to the benefits of this clause 31 unless Airservices expressly states otherwise.

31.10 Airservices will only reimburse those expenses that are actually and reasonably incurred as a result of relocating.

31.11 Employees are not entitled to reimbursement of an expense if they cannot provide proof of incurring the relevant expense.

31.12 Airservices may choose to offer the benefits of this clause to employees that are not entitled to the benefits of this clause".

[25] Under the heading 'Reimbursable expenses for transfers exceeding 2 years (Permanent transfer), clause 31.19 provides:

"31.19 For any transfer that is more than two (2) years in duration and in which an employee is entitled to the benefits of this clause 31, Airservices will reimburse the following expenses.

(a) Costs of a three-day pre-transfer visit by the employee and the employee's dependants to the New Location.

(b) Removalist costs for an employee's household effects, including domestic pets and up to two (2) vehicles. Airservices may agree to reimburse the costs of moving other items.

(c) After 21 days from the date of arrival, rent costs up to a maximum of $840/week. A higher amount may be reimbursed subject to Airservices' approval. Rent will only be reimbursed if the employee owned or was in the process of purchasing a dwelling at the Previous Location. Rent will only be reimbursed within the first six (6) months after commencing at the New Location".

[26] It is in dispute as to whether the Applicant is entitled to the transfer benefits of the Agreement in his circumstances.

[27] The Applicant's position appears to be that in accepting a transfer to Avalon he has an entitlement to the paid benefits in clause 31.

[28] The Respondent submitted that the Applicant has not provided any evidence in support of his assertions that he was directed by the Respondent to transfer to Avalon or that he was formally offered and accepted a paid transfer to Avalon.

• [29] The Respondent submitted that the language in clause 31.1 of the Agreement is plain, clear and explicit and it requires the Respondent to "direct" or to provide a "direction to" an employee to work at a new location to enliven the employee's rights to the transfer benefits cited in clause 31 of the Agreement.[14]

[30] Clause 31.1 of the Agreement provides that where the Respondent directs an employee to transfer to work in a location that is in a different town or city from that employee's current workplace, the employee is entitled to the benefits of clause 31. The Respondent has not directed the Applicant to work at Avalon. Rather, the Applicant wants to transfer to Avalon for personal reasons. As such, clause 31.1 does not trigger an entitlement to the benefits of clause 31 in the Applicant's circumstances.

• [31] Clause 31.9 of the Agreement provides that where an employee voluntarily accepts a position that is based at a 'New Location', that employee is entitled to the benefits of this clause 31 unless the Respondent expressly states otherwise. The Respondent submitted that the Applicant was not presented with a contractual offer for a paid permanent transfer to Avalon and in fact knowingly executed an Own Time Own Expense contract to transfer to Avalon.[15]

[32] I accept that in February 2022 a verbal offer was made to the Applicant to transfer to Avalon by his Line Leader and while the timing of the transfer was to be discussed when the Applicant returned for work for his next shift the offer was withdrawn shortly thereafter. The Agreement did not apply, although I observe the provisions of the enterprise agreement in force at that time were in substantively similar terms. The Applicant was clearly disappointed by the withdrawal of the offer, and this is understandable, particularly in circumstances where he would have formed a reasonable belief from the EOI process that a transfer would be a paid transfer. However, the transfer did not ultimately happen and there is no evidence that expenses were incurred by the Applicant that would have entitled him to reimbursement under the agreement as it stood at that time.

[33] The Applicant was to remain in the merit pool formed under the EOI process for a period of two years ending no earlier than September 2023. When a transfer was offered to the Applicant in August 2023 the Applicant likely expected that this would be a paid transfer. However, the Applicant was told that if he was to transfer it would be an OTOE transfer. The Agreement commenced operation on 22 July 2024 and therefore did not have application at the time the first and second offers were made however I again observe that the transfer provisions are substantially similar to those in the Agreement.

[34] The Applicant is clearly unhappy that the Respondent is not prepared to offer a paid transfer and the Respondent's communications in 2021 resulted in an expectation on the part of the Applicant that if he was offered a transfer during the two years he remained in the merit pool, it would be a 'paid' transfer and he would be entitled to the benefits in the enterprise agreement that applied at that time. The Applicant's disappointment is understandable, however events have since moved on, the merit pool period has ended, and I am persuaded that the Respondent does not currently have an operational need for an additional firefighter at Avalon. The Applicant is seeking to relocate for personal reasons, is not being directed to move to Avalon and in these circumstances if the Respondent is to offer a position in Avalon to accommodate the Applicant's preferences and the Applicant accepts that offer, he would be doing so 'voluntarily'.

[35] In this regard, clause 31.9 of the Agreement provides that where an employee voluntarily accepts a position that is based at a 'New Location', that employee is entitled to the benefits of this clause 31 unless the Respondent expressly states otherwise. On 1 May 2025 the Applicant signed a document confirming a variation to his terms and conditions of employment and which states that the variation was necessary to accommodate the Applicant's OTOE transfer. The Respondent has made clear that the transfer to Avalon is to be met in the Applicant's own time and at his own expense. This is consistent with the Respondent's representations about the terms of a transfer since the initial transfer offer made in February 2021 and which was promptly withdrawn before it materialised. In these circumstances the Applicant would not be entitled to the benefits of clause 31 because the Respondent has 'expressly stated otherwise'.

[36] In the circumstances of this matter, I find that in accepting a transfer to Avalon the Applicant does not have an entitlement under the Agreement to be paid the benefits in clause 31. The dispute should be considered resolved on that basis.

[8] Foley-Lewis Statement at [18] - [19].

[9] Form F10 Application, response to q.2.1; Applicant's Reply Submissions, p.1.

[14] Respondent's Submissions at [15] - [16].

[15] Respondent's Submissions at [21].

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