Fair Work Act 2009

s.739 - Application to deal with a dispute

Dispute about any matters arising under an enterprise agreement - alleged failure by employer to consult over changes to recruitment practices - jurisdictional objection - employees the subject of recruitment not covered by the enterprise agreement - whether consultation obligations arise in any event

• [1] The United Firefighters' Union of Australia - Aviation Branch ("UFUA") has made an application for the Fair Work Commission to deal with a dispute that it has with Airservices Australia ("Application").[1] The Application is made under section 739 of the Fair Work Act 2009.

• [2] The dispute as described in the Application may be summarised in this way:

(1) In May 2025, Airservices informed the UFUA that it had expanded the recruitment of people into Airservices Aerodrome Line Leader ("AALL") positions to external candidates, including candidates who may not have experience in Airservices' Aviation Rescue and Firefighting Service ("ARFFS"), and that it had initiated a national advertising campaign for AALL positions ("Decision").

(2) The Decision was a matter about which Airservices was required to consult with its employees and the union, under clause 15 of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2024-2027 ("Agreement"). However, Airservices made and implemented the Decision without any consultation.

• [3] The UFUA seeks an order from the Commission that Airservices cease implementation of the Decision until it has engaged in consultation with the union in accordance with the Agreement.

• [4] Airservices has raised a jurisdictional objection. In short, it submits that the circumstances described in the Application do not give rise to a "dispute" within the meaning of clause 20 (Dispute resolution) of the Agreement. It contends that as a result the UFUA was not able to refer the matter to the Commission under that clause, and the Commission is consequently not able to deal with the Application under section 739.

• [5] I have determined to dismiss the jurisdictional objection. These are my reasons.

• [6] Section 739 makes it plain that, in circumstances where an enterprise agreement provides a procedure for settling a dispute, the Commission's powers to deal with that dispute are limited by the relevant dispute resolution term.[2] It is necessary, then, to consider the relevant term.

• [7] Clause 20 contains the Agreement's dispute resolution provisions. The disputes the subject of the clause are defined in clause 20 in these terms:

(c) this clause sets out the procedure to settle the dispute."

• [8] It is common ground that the Decision does not relate to the National Employment Standards. It follows that the question I need to answer is whether the dispute as described in the Application is a "dispute [that] relates to a matter arising under [the] Agreement".

• [9] In construing that phrase I will apply the well-established principles relating to the construction of enterprise agreements.[3] As there was no controversy regarding those principles, I will not rehearse them.

• [10] In its submissions in chief on the jurisdictional objection, Airservices contended:[4]

"19. To properly characterise the dispute, the FWC must look to the text in the Applicant's dispute cited in the Form F10 application. In essence, this dispute can be broken down into 3-parts [sic], being:

b. the external AALL candidates do not have Airservices ARFFS experience; and

c. the external recruitment campaign was a national campaign for all open AALL candidates." (Underlining removed)

• [11] Airservices went on to submit that such a dispute was not a matter arising under the Agreement. This stemmed from the uncontroversial fact that the AALL position is not covered by the Agreement. Airservices contended that it followed that the Agreement said nothing about the process by which Airservices should recruit and select AALLs (internal or external), or the qualifications and experience that an AALL must possess. As a result, any concerns that the UFUA had regarding those matters could not be said to "arise from" the Agreement. Airservices submitted:[5]

"25. The industrial context and purpose of the Agreement is to govern the terms and conditions of the rank-and-file members of the ARFF business, not to provide rights to intervene on the terms and conditions of employment enjoyed by ARFF senior management, including the AALL position, and executive officers."

• [12] The UFUA submitted, and I accept, that Airservices did not properly grasp the nature of the dispute described in the Application. That is, the three matters identified by Airservices were relevant to the dispute, but were not the basis on which the dispute was raised. Rather, the dispute disclosed in the Application was whether Airservices had contravened clause 15 of the Agreement by failing to consult in respect of those matters.

• [13] Clause 15 of the Agreement relevantly provides as follows:

(c) major change that is likely to have a significant effect on employees;

(d) implementation of decisions that significantly affect employees;

(f) other workplace matters that are likely to significantly or materially impact employees.

15.9 In this clause, a major change is likely to have a significant effect on employees if it results in, for example:

(b) major change to the composition, operation or size of the employer's workforce or to the skills required of employees; or

(c) the elimination or diminution of job opportunities (including opportunities for promotion or tenure); ...

• [14] The UFUA submitted that the Decision attracted those provisions, for three reasons.

• [15] First, the training and skills required to perform as an AALL include completion of the Diploma in Public Safety (Fire Fighting Management). External candidates who do not hold that diploma, or who obtained the diploma other than through Airservices' ARFFS Academy, will not have demonstrated the necessary aviation-specific competencies. In this way, the Decision seeks to change the composition of Airservices' workforce and the skills required by introducing workers without the same degree of skills and experience as current ARFFS firefighters. That was said to engage clauses 15.4(c), (d) and (f) and 15.9(b) of the Agreement.

• [16] Second, the AALL role provides for internal promotion opportunities, as well as secondment and acting opportunities, for existing ARFFS firefighters. The Decision reduces those opportunities by widening the pool of candidates for a vacant AALL role. In this way, the Decision results in a diminution of job opportunities (including opportunities for promotion) for employees covered by the Agreement. That was said to engage clauses 15.4(c), (d) and (f) and 15.9(c) of the Agreement.

• [17] Third, the AALL is a critical role in Airservices' firefighting response operations, and requires a strong understanding of aviation-specific firefighting practices. Were an AALL to lack sufficient experience and training in aviation firefighting, it would create a risk to health and safety of workers and others at the workplace. The Decision increases those risks by introducing AALL candidates who do not have the same degree of aviation-specific firefighting skills, experience and training as existing ARFFS firefighters. That was said to engage clauses 15.4(d) and (f) of the Agreement.

• [18] In reply to these contentions, Airservices submitted as follows:

(1) Clause 15.9(b) had not been enlivened. The composition and size of the workforce remains unchanged. There has been no change to the skills required of "employees" within the meaning of the Agreement: that is, employees to whom the Agreement applies (clause 2(f)). In any event, there had been no change to the skills required of AALLs. The qualifications and training requirements for those positions are, and at all relevant times have been, determined by the regulator, the Civil Aviation Safety Authority ("CASA").

(2) Clause 15.9(c) had not been enlivened. Airservices had only implemented the Decision after efforts to fill AALL vacancies internally were unsuccessful. It was therefore difficult to comprehend how the Decision had adversely affected the job opportunities of employees to whom the Agreement applies.

(3) As clause 15.9(b) and (c) had no application, the requirements of clause 15.4(c) were not met.

(4) The health and safety concerns asserted by the UFUA were based on nothing more than the opinion that an AALL must have Airservices ARFFS experience. It is a matter for CASA to determine the criteria for appointment to an AALL position.

(5) In all of the circumstances, clauses 15.4(d) and (f) had also not been enlivened.

"17. The Applicant's submissions have focused on advancing that the consultation provisions are a gateway to the dispute resolution procedure however, the Applicant has not disputed the Respondent's submissions that:

a. the Agreement does not have coverage of the AALL position classification;

b. the recruitment and selection process or procedures of external AALL candidates is not a matter arising under the Agreement; and

c. the qualifications and training and experience requirements of a AALL is set and regulated by the regulator.

d. the qualifications and training and experience of an AALL is not a matter arising under the Agreement.

18. The clear absence of the Applicant disputing or challenging the Respondent's submissions dated 3 August 2025 should lend the FWC to give material weight to and accept [the] Respondents [sic] submissions in determining if it has jurisdictional power to determine the Applicant's dispute application."

"If the FWC determines that the matter in dispute, is not properly characterised as a matter arising under the Agreement, then the consultation provisions (the substantiative matter in dispute) of the Agreement cannot be enlivened and the application must be dismissed."

• [21] At the outset, I accept the UFUA's submission that on its terms the phrase "relates to a matter arising under this Agreement" is one of "wide import".[8] This flows from the use of the words "relates to" and "arising under".[9]

• [22] To my mind, Airservices' case on its jurisdictional objection did not properly reflect the case being advanced by the UFUA. The fact that the union did not challenge the matters listed at paragraph 17 of Airservices' submissions in reply (reproduced above) is of no consequence. The question is not whether those matters themselves arise under the Agreement, but whether they give rise to an obligation to consult under clause 15. Contrary to Airservices' submissions, there is nothing in that clause which requires that the subject of any consultation must itself be a matter arising under the Agreement. If the matter has the effect described clauses 15.4 and 15.9, that is sufficient.

• [23] That is not to "provide [the UFUA with] rights to intervene on the terms and conditions of employment enjoyed by ARFF senior management", as Airservices submitted. Consultation is for the purpose of, and subject to the terms of, clause 15.

• [24] Airservices' submissions in reply challenged the basis on which the UFUA contended that consultation under clause 15 was required. Those submissions conflated jurisdiction and merits.

• [25] Which leads to this: whether or not Airservices had or has an obligation to consult with its employees and the UFUA in respect of the Decision is itself a matter arising under the Agreement. To my mind, that is the short answer to Airservices' jurisdictional objection.

• [26] The jurisdictional objection is dismissed.

• [27] The proceedings will be listed for directions in due course.

[1] Form F10 - Application for the FWC to deal with a dispute in accordance with a dispute settlement procedure, filed 8 July 2025

[2] Transport Workers' Union v FedEx Express Australia Pty Ltd T/A FedEx [2025] FWC 1293 at [17]

[3] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union' known as the Australian Manufacturing Workers Union (AMWU) v Berri Pty Limited [2017] FWCFB 3005 at [114]. See also Linfox Armaguard Pty Ltd T/A Linfox Armaguard v Transport Workers' Union of Australia [2024] FWCFB 373 at [38]- [43]; WorkPac Pty Ltd v Skene (2018) 264 FCR 536; [2018] FCAFC 131 at [197]; Svitzer Australia Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union, The Australian Institute of Marine and Power Engineers and Another [2023] FWCFB 259 at [109]- [115]

[4] Respondent's Jurisdiction Objection Submissions, 3 August 2025

[5] Respondent's Jurisdiction Objection Submissions, 3 August 2025

[6] Respondent's Jurisdiction Objection Submissions in Reply

[7] Respondent's Jurisdiction Objection Submissions in Reply, par 6

[8] UFU Submissions Opposing the Respondent's Jurisdictional Objection, 11 August 2025, par 9

[9] "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v Thiess Degremont Joint Venture [2012] FWA 8420 at [11] and the cases there referenced

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