Fair Work Act 2009

s.225 - Enterprise agreement

Application for termination of the Aero-Care Collective Agreement 2012 - employer's application to adjourn hearing of this application until a decision is issued in Federal Court of Australia matter no. NSD1814/2017 - application to adjourn granted.

1. This is an application by the Transport Workers' Union of Australia (TWU) to terminate the Aero-Care Collective Agreement 2012[1] (the Agreement) under s.225 of the Fair Work Act 2009 (Cth). Aerocare Flight Support Pty Ltd (Aerocare), the employer covered by the Agreement, opposes the application.

[2] On 15 January 2018, I indicated to the parties that I was not willing to grant an application to adjourn this application pending the decision of the Federal Court of Australia in matter no. NSD1814/2017 (the Federal Court matter), at least at that stage. I subsequently issued directions for the parties to file outlines of submissions and the evidence upon which they wished to rely.

[3] I indicated that Aerocare was at liberty to make a further application for an adjournment after the TWU had filed its evidence and submissions.

1. The Federal Court matter is an application by Aerocare for a declaration concerning the proper construction of the Airline Operations - Ground Staff Award 2010[2] in relation to the issue of 'split shifts'.

[5] In my interlocutory decision of 15 January 2018, I noted that the factors I need to consider in the matter currently before me appeared to be significantly different from the issues the Federal Court was being asked to deal with, and that I was not - at that stage - persuaded that the proper construction of the award provisions dealt with in the Federal Court proceedings were likely to be a central consideration in the application for termination of the Agreement.

[6] On 28 March 2018, Aerocare made a further adjournment application.

[7] Since my decision of 15 January 2018, the TWU has filed its submissions and the evidence it intends to rely upon in the termination application. I am now 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 I will need to consider in dealing with the termination application.

[8] The Federal Court of Australia has now issued directions and an indicative timetable for hearing Aerocare's application.

[9] In these circumstances, I consider that it would be appropriate to grant the Aerocare's application to adjourn the application to terminate the Agreement until the hearing and determination of proceedings before the Federal Court of Australia in matter no. NSD1814/2017 or further order.

[10] The directions I issued on 15 January 2018 for the respondent to file its outline of submissions and evidentiary material are also cancelled.

A Howell of counsel with W Carr for the Transport Workers' Union of Australia.

F Parry QC with M Follett of counsel for Aerocare Flight Support Pty Ltd.

1. [1] AE899834.
2. [2] MA000048.

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