Duck v Airservices Australia (No 2) [2019] FCA 1148

Duck v Airservices Australia (No 2) [2019] FCA 1148

Clauses excluding employees 'employed under an individual contract of employment' in the Airservices Australia Collective Agreement 2009-2013 and Airservices Australia Enterprise Agreement 2013-2017 operated to prevent coverage of the applicant and group members who entered such individual contracts. The agreements' text and the historical context confirm this interpretation, and Fair Work Act s 194(ba) does not affect the operation of these exclusion clauses, as they do not provide an opt-out mechanism but merely stipulate who is covered.

Jurisdiction
Australia
Judgment Date
26 July 2019
Procedural Posture
Class Action (employment/industrial Law) / Determination of a Separate Question Prior to Trial; Final Dismissal of Application
Outcome
Application dismissed; answer to separate question 'yes'; potential orders on costs to be decided upon application.
Legal Topics
['enterprise Agreements' 'individual Contracts' 'coverage of Industrial Instruments' 'redundancy Entitlements']
['employment Law' 'industrial Relations'] ['enterprise Agreements' 'individual Contracts' 'coverage of Industrial Instruments' 'redundancy Entitlements']

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Procedural Posture

Class Action (employment/industrial Law) / Determination of a Separate Question Prior to Trial; Final Dismissal of Application

Legal Issues

  1. 1 ['Whether certain clauses in enterprise agreements excluded employees on individual contracts from coverage' 'Interpretation of enterprise agreement exclusion clauses for individual contract employees' 'Validity of enterprise agreement exclusion clauses in light of Fair Work Act 2009 (Cth) s 194(ba)']

Ratio Decidendi

Clauses excluding employees 'employed under an individual contract of employment' in the Airservices Australia Collective Agreement 2009-2013 and Airservices Australia Enterprise Agreement 2013-2017 operated to prevent coverage of the applicant and group members who entered such individual contracts. The agreements' text and the historical context confirm this interpretation, and Fair Work Act s 194(ba) does not affect the operation of these exclusion clauses, as they do not provide an opt-out mechanism but merely stipulate who is covered.

Court Disposition

Application dismissed; answer to separate question 'yes'; potential orders on costs to be decided upon application.

Orders

  • ["The answer to common question 1 is 'Yes'—the relevant clauses operated to exclude applicant and group members from coverage." 'The further amended originating application is dismissed.' 'Respondent may make any application for costs within 14 days.']