Civil Air Operations Officers Association of Australia v Airservices Australia (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 20 August 2021
• Neutral Citation: [2021] FCA 993
• Date: 20 August 2021

Federal Court of Australia

Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993

File number:	VID 628 of 2019
Judgment of:	MURPHY J
Date of judgment:	20 August 2021
Catchwords:	INDUSTRIAL LAW – alleged contraventions of s 50 of Fair Work Act 2009 (Cth) by reason of breaches of enterprise agreement found by the Fair Work Commission – contraventions established – whether appropriate to make declarations of contravention – relevant principles in relation to declaratory relief – declarations made – whether appropriate to order pecuniary penalties for contraventions – relevant principles in relation to pecuniary penalties – order for pecuniary penalties made – whether appropriate to order that pecuniary penalties be paid to the Applicant
Legislation:	Crimes Act 1914 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) Fair Work Act 2009 (Cth) ; Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017 -2020
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (“Cardigan St Case”) [2018] FCA 957 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2006] FCA 1730 Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; 201 FCR 378 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v SMS Global Pty Ltd [2011] FCA 855 Civil Air Operations Officers Association of Australia v Airservices Australia [2020] FCA 1665 Civil Air Operations Officers Association v Airservices Australia T/A Airservices Australia [2019] FWC 2136 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; 194 IR 461 Construction, Forestry, Mining and Energy Union v The Australian Industrial Relations Commission [2001] HCA 16; 203 CLR 645 Flight Centre Ltd v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 Forster v Jododex Australia Pty Limited [1972] HCA 61; 127 CLR 421 Mill v The Queen [1988] HCA 70; 166 CLR 59 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 299 IR 404 TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5; 251 CLR 533 Warrumunda Village Inc v Pryde [2001] FCA 61; 105 FCR 437
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	167
Date of hearing:	15-16 July 2021
Counsel for the Applicant:	Mr C Dowling SC and Ms S Kelly
Counsel for the Respondent:	Mr C B O’Grady QC and Mr B Avallone
Solicitor for the Respondent:	Ashurst Australia

ORDERS

		VID 628 of 2019
BETWEEN:	CIVIL AIR OPERATIONS OFFICERS ASSOCIATION OF AUSTRALIA Applicant
AND:	AIRSERVICES AUSTRALIA Respondent

order made by:	MURPHY J
DATE OF ORDER:	20 august 2021

THE COURT DECLARES THAT:

1. By failing to consult with its Air Traffic Controller employees in the Byron Group prior to withdrawing from use a set of guidelines regulating the use of “grey days” in the Byron Group roster (the Grey Day Guidelines) by no later than 13 May 2018, the Respondent failed to comply with cl 8 of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017 -2020 (the EA) and thereby contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act) (the Consultation Contravention).

2. By failing to maintain the status quo by not reinstating the use of the Grey Day Guidelines in the Byron Group roster by no later than 5 July 2018, after being notified by the Applicant of a dispute in relation to the withdrawal of those guidelines, the Respondent failed to comply with cl 10.1(g) of the EA and thereby contravened s 50 of the FW Act (the Status Quo Contravention).

THE COURT ORDERS THAT:

1. Pursuant to s 546 of the FW Act the Respondent pay a pecuniary penalty of:

   1. $40,950 in relation to the Consultation Contravention; and

   2. $31,500 in relation to the Status Quo Contravention.

3. Pursuant to s 546(3) of the FW Act, the pecuniary penalties in order 1 be paid to the Applicant within 28 days of this order.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1. The applicant in this proceeding, Civil Air Operations Officers’ Association of Australia (Civil Air), is a registered industrial association under the Fair Work (Registered Organisations) Act 2009 (Cth) which represents the industrial interests of civilian air traffic controllers (ATCs) and supporting staff. The respondent, Airservices Australia (Airservices), is an Australian Government statutory authority which employs civilian air traffic controllers and others. In 2017, the parties entered into an enterprise agreement under the Fair Work Act 2009 (Cth) (FW Act), the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017–2020 (the EA).

2. In mid-2018, a dispute arose between Civil Air and Airservices as to matters arising under the EA. Broadly, the dispute arose out of Airservices’ decision on 13 May 2018 to withdraw from use of a set of guidelines regulating the use of stand-by or “grey day” rosters in the rostering of ATCs for duty (the Grey Day Guidelines or the Guidelines). In brief terms, grey day rosters are provided for under cl 19.18 of the EA. They allow Airservices to roster employees to be on stand-by, for relief in the event that an employee who is rostered on duty is unavailable to work. To achieve this, the stand-by employee is rostered for a specific grey day shift, also known as a nominal shift, but is not required to attend for work unless called to do so. The employee must keep themselves available to be called in to perform duty for a period representing twice the length of the nominal shift and they are on-call for a period of nine hours or such other period as agreed. When rostered on stand-by, the employee is paid their ordinary rate of pay in respect of the nominal shift, regardless of whether or not they are required to attend for duty. The dispute essentially concerned whether cl 19.18 permitted Airservices to call ATCs rostered on a grey day shift in to work to...