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

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 14 September 2022
• Neutral Citation: [2022] FCA 1077
• Date: 14 September 2022

Federal Court of Australia

Civil Air Operations Officers’ Association of Australia v Airservices Australia (No 2) [2022] FCA 1077

File number:	VID 1132 of 2018
Judgment of:	SNADEN J
Date of judgment:	14 September 2022
Catchwords:	INDUSTRIAL LAW – contraventions of s 50 of the Fair Work Act 2009 (Cth) – failure to consult on changes to policy – where failure amounted to contraventions of enterprise agreement – whether contraventions warrant declaratory relief and/or imposition of penalties – utility in making declarations – determination of appropriate penalty – whether permissible and appropriate to impose a single penalty in respect of multiple contraventions – significance of further contraventions committed later in time – nature and seriousness of contravening conduct – impact of conduct on employees – contrition and corrective measures – course of conduct – declaratory relief not appropriate – penalties imposed
Legislation:	Air Services Act 1995 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) ss 50, 539, 545, 546, 557 Federal Court of Australia Act 1976 (Cth) s 21
Cases cited:	Australian Building and Construction Commissioner v Australian Workers’ Union [2022] FCAFC 143 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (College Crescent Case) (2020) 295 IR 446 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) (2017) 254 FCR 68 Australian Building and Construction Commissioner v Pattinson (2022) 175 ALD 383 Civil Air Operations Officers Association of Australia v Airservices Australia [2021] FCA 1313 Civil Air Operations Officers’ Association of Australia v Airservices Australia (No 2) [2021] FCA 993 Civil Air Operations Officers’ Association of Australia v Airservices Australia (No 2) [2021] FCA 993 Civil Air Operations Officers’ Association of Australia v Airservices Australia [2019] FCA 1542 Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1030 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 Construction, Forestry, Maritime, Mining and Energy Union v Milin Builders Pty Ltd [2019] FCA 1070 Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 Temple v Powell (2008) 169 FCR 169 Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) (2018) 267 FCR 40
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	65
Date of hearing:	23 March 2022
Counsel for the Applicant:	Mr C Dowling SC with Ms S Kelly
Solicitor for the Applicant:	The Civil Air Operations Officers’ Association of Australia
Counsel for the Respondent:	Ms R Preston
Solicitor for the Respondent:	Ashurst Australia

ORDERS

		VID 1132/2018
BETWEEN:	CIVIL AIR OPERATIONS OFFICERS’ ASSOCIATION OF AUSTRALIA Applicant
AND:	AIRSERVICES AUSTRALIA Respondent

order made by:	SNADEN J
DATE OF ORDER:	14 September 2022

THE COURT ORDERS THAT:

1. The respondent pay pecuniary penalties totalling $12,750.00.

2. The sum referred to in order 1 be paid to the applicant within 28 days.

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

REASONS FOR JUDGMENT

SNADEN J:

Introduction

1. The respondent, Airservices Australia (“Airservices”), employs (amongst others) air traffic controllers (“ATCs”) throughout Australia. It is a statutory authority established pursuant to the Air Services Act 1995 (Cth). The applicant, the Civil Air Operations Officers’ Association of Australia (“Civil Air”), is an employee organisation registered as such pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth).

2. Airservices maintains a policy known as the “ATC Career Model” (hereafter, the “Policy”) and has done so for some time. It has been subject to multiple iterations. The Policy records processes by which ATCs can monitor and manage their career progression, and identifies levels of skill and experience required for potential career development within Airservices. In March 2015, Airservices introduced some changes to what was then “version 2” of that instrument. It did so without first consulting with its employees or Civil Air. That failure sounded in Airservices’ contravening provisions of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2012-2015 (the “2012 EA”); and, thereby, in its contravention of section 50 of the Fair Work Act 2009 (Cth) (the “FW Act”). As much was determined by the judgment of this court in Civil Air Operations Officers’ Association of Australia v Airservices Australia [2021] FCA 1030 (hereafter, the “Liability Judgment”; Snaden J).

3. The court is now called upon to determine what remedies might appropriately be imposed in respect of Airservices’ contraventions of s 50 of the FW Act (hereafter, the “Contravening Conduct”). That question was the subject of separate submissions and a separate penalty hearing, scheduled after the Liability Judgment was pronounced. As is usually the case in matters such as this, two species of remedy assume particular significance: declaratory relief and the imposition of pecuniary penalties.

4. Civil Air invites the court to:

1. impose upon Airservices a penalty set at 50 to 75 per cent of the maximum available for a single contravention under the FW Act; and to

2. grant relief in the form of declarations consistent with what the Liability Judgment determined.

5. Airservices submits that the court should impose declaratory relief only. In the alternative, it submits that any penalty or penalties that the court might impose should be set at the “lower end” of what the FW Act permits.

6. For the reasons that follow, I am satisfied that it is appropriate to impose upon Airservices pecuniary penalties in the sum of $12,750.00 (being 25 per cent of the maximum available under the FW Act for a single contravention of s 50). I am not satisfied that there is any utility in granting—which is to say that I do not consider it appropriate to grant—declaratory relief additional to the penalties that I consider to be appropriate. That being so, none shall be granted.

Background

7. The nature of the Contravening Conduct is explored in the Liability Judgment. In the analysis that follows, some familiarity with that judgment is assumed; but, by way of summary, it suffices to note that:

1. in March 2015, “version 3” of the Policy took effect, introducing various changes;

2. those changes were of kinds sufficient to trigger consultation requirements imposed upon Airservices by cll 7 and 8 of the 2012 EA; and

3. Airservices did not consult with its employees or their representatives about those changes.

8. By the Liability Judgment, the court drew the following conclusions (at [167]):

However generous cll 7 and 8 of the 2012 EA might appear, their application is clear enough. Airservices was not at...