[2017] FWC 3406

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aerocare Flight Support Pty Ltd T/A Aerocare Flight Support
(AG2017/1424)

COMMISSIONER WILSON

MELBOURNE, 26 JUNE 2017

Application for approval of the Aerocare Collective Agreement 2017 - Orders for the production of documents.

[1] An application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Aerocare Flight Support Pty Ltd and Aero-Care Flight Support Unit Trust (collectively referred to as Aerocare) for the Fair Work Commission to approve the Aerocare Collective Agreement 2017.

[2] In support of the application Aerocare has filed the requisite Form F16 setting out the basic information about the agreement and the bargaining representatives and has also filed the Form F17, the Employer Statutory Declaration in support of the application. The material filed by Aerocare indicates that there were two union bargaining representatives, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) and the Transport Workers’ Union (the TWU), and one employee bargaining representative. The material filed by Aerocare also indicates that there will be 1,370 employees to be covered by the agreement; that 1,207 employees cast a valid vote and, of those, 1,001 voted in favour of the making of the agreement. The same material also sets out that all of the 1,370 employees are classified as part-time and that none are classified as casual.

[3] Soon after Aerocare made its application, both the TWU and ASU filed Form F18 Statutory Declarations advising that while each was a bargaining representative in the negotiations leading to the making of the agreement, neither union supported the approval of the agreement by the Fair Work Commission.

[4] In this regard, the ASU put forward that the Commission cannot be satisfied that the agreement pass the better off overall test when compared to the applicable modern award, the Airline Operations—Ground Staff Award 2010, and that the agreement cannot be regarded as having been genuinely agreed to by the employees covered by it for the reason that it does not cover casual employees.

[5] The ASU put forward in the alternative that, if the Commission accepts casual employees are not covered, it cannot be satisfied that the employees to be covered by the agreement were fairly chosen for the reason that Aerocare, it is said, presently employs “at least hundreds of employees on a casual basis, who are covered by the predecessor agreement to the 2017 agreement” and that the casual employees are not operationally or organisationally distinct and thereby should not be excluded from the coverage of the agreement.

[6] The TWU argues that the Commission cannot be satisfied that the agreement passes the better off overall test and that it cannot be satisfied that the group of employees to be covered by the agreement was fairly chosen.

[7] Having received the foregoing documentation, the Commission’s staff undertook, in accordance with usual practice, an analysis of the application which was documented in a report to me, entitled Agreement Analysis Summary. That summary has been circulated to the parties upon my direction, but on the basis that it is an internal working document of the Commission which does not represent any decided view of the Commission. In providing the summary to the parties, a direction was given that, because of its status as an internal working document, it must not be circulated beyond those parties appearing in the matter, and their instructors, and must not be copied, distributed or published by them, or by any person to whom they give a copy, in any manner inconsistent with my direction.

[8] Each of the TWU and ASU have made applications to the Commission for the issuing, pursuant to s.590 of the Act, of orders requiring the production by Aerocare of certain documents. The applications are in the following terms;

“1. A copy of the electronic roster for all of the employees of Aerocare Flight Support Pty Ltd in the classifications of Airline Service Agent, Advanced Airline Service Agent, and each of the Specialist Duties classifications identified in the Aero-Care Collective Agreement 2012 (AE899834), who worked at the Sydney International Airport for each day of the entire roster period or periods, covering the months of March and April 2017.

2. A copy of a job description for each position in which an employee of the Applicant is employed or engaged, at the Sydney International Airport.

3. A copy of the “company standard operating procedures” referred to in cl 6.2.2 of the Agreement, as they existed during the “access period” as defined in cl 180(4) of the Act (ie in the seven days from 7 April 2017);

4. A copy of any:

a. “safety announcement”

b. “client notice”

c. client SOP,

d. “publications”

e. “memoranda

referred to in cl 6.2.3 of the Agreement, as they existed during the “access period” as defined in cl 180(4) of the Act (ie in the seven days from 7 April 2017);

5. A copy of any “performance management or disciplinary procedures” referred to in cl 7.9 of the Agreement, as they existed during the “access period” as defined in cl 180(4) of the Act (ie in the seven days from 7 April 2017);

6. A copy of any:

a. “code of practice”; or

b. “protocol”

relating to fatigue management and implemented by the Applicant, as existing during the “access period” as defined in cl 180(4) of the Act (ie in the seven days from 7 April 2017).

7. The Documents used or relied upon by Mr Gregory Luke Shelley to assist or form his belief as to the truth and accuracy of the Statutory Declaration declared by him on 24 April 2017, and in particular with respect to the answer to question “3.6 Do you think the agreement passes the better off overall test?”.

8. A copy of any document (including but not limited to any letter, memorandum, email, or file note) recording advice provided by the consultancy “first ir consultancy pty ltd” to Aerocare Flight Support Pty Ltd in the period between 27 January 2017 (when the first NERR was issued by the company) and 25 April 2017, as to whether the Aerocare Collective Agreement 2017 passed the better off overall test outlined in s 193 of the Act.”

ASU (as amended)

“1. A copy of the electronic roster for all of the employees of Aerocare Flight Support Pty Ltd in the classifications of Airline Service Agent, Advanced Airline Service Agent and each of the Specialist Duties classifications identified in the Aero-Care Collective Agreement 2012 (AE899834), who worked at Sydney international Airport, Sydney Domestic Airport, Brisbane Airport, Coolangatta Airport, Melbourne Airport and/or Perth Airport for each day of the entire roster period or periods, covering the months of March and April 2017.”

[9] The applications made by each of the TWU and ASU are strenuously resisted by Aerocare, who submit that the applications made by each of the unions are late in terms of the overall process before the Commission; that certain of the material sought by the two unions is confidential and that it ought not be the subject of an order from the Commission; that other parts of the information sought by the unions is voluminous in nature or is oppressive and that in some cases there are no documents to be produced.

[10] In respect of confidentiality, the case made by Aerocare is set out in an affidavit of Gregory Shelley, its General Manager Employee Relations, who deposed the following about the company’s rostering system, Aeronet;

“16. Aeronet represents a significant investment in the creation of intellectual property of Aerocare as its rostering is generated by a proprietary IT algorithm and software system. Aerocare has developed its business, market share and current client base over a period of 24 years by operating this unique proprietary software modelling manpower requirements across its workplaces and using essentially what is referred to as 'just in time' resourcing methodology which calculates Aerocare's customer baggage handling requirements in advance of flight arrivals and departures.

17. The leaking of our rosters to competing entities would expose Aerocare to competing organisations better understanding how our system of workflow operates. This in turn would be better positioned to prepare competing competitive tenders. In this case, I both Unions have their significant membership numbers in organisations that compete with Aerocare.

18. Further, the TWU has publically stated and continues to publically state on its Facebook page that Aerocare should not be allowed to operate in Australian airports and the airlines should not be engaging them for their work.” 1

[11] Mr Shelley’s affidavit puts forward that he regards each of the unions as a competing entity. Mr Shelley also refers to an earlier affidavit in earlier proceedings before the Commission in 2012 in which it was deposed by another person, Darren Michael, an investigator and forensic technology practitioner, that provision of electronic rosters, with the consequential access to Aeronet’s coding, “could enable the recipient to reverse engineer those codings and allow the recipient to avoid the significant cost, time, and trial and error in recreating the system or creating a similar system.” 2

[12] In relation to the volume of material sought under the unions’ applications for orders for the production of documents, Aerocare points to its operations being across 26 airports and the head office in all states and territories and that with there being 30 combinations of classifications of employees and levels of employees arising from the Aerocare Collective Agreement 2017, the estimated likely volume of rosters that would be required to be produced in conformity with the unions’ orders would be in the vicinity of 3000 pages of materials.

[13] In relation to oppression, Aerocare put forward that it would be inappropriate to require the provision of material relating to the communications between First IR Consultancy and Aerocare since that would require the disclosure of confidential advice to Aerocare related to the bargaining process. Aerocare also put forward that at least some of the TWU’s request seeks documents for the purposes of cross-examination of Mr Shelley. While not protected by legal professional privilege, Aerocare nonetheless put forward that communications to and from First IR Consultancy is analogous to communications to and from the head of the union in relation to its industrial strategy, which has been held in the past as not being in a category of information that should be disclosed. Aerocare also submits that neither union has identified specific employees who will be worse off under the Aerocare Collective Agreement 2017 or any of its members who are alleged to be worse off under the better off overall test.

[14] Aerocare also submit, at least in respect of the class of documents sought by the TWU regarding codes of practice or protocols, that the codes of practice are legislative instruments and thereby part of the public record and that in the event the Commission obliged Aerocare to produce the protocols referred to in the TWU’s application, there are no such documents in that class.

[15] At the hearing of the unions’ applications for these orders, Aerocare submitted that it would be prepared to consent to a limited provision of information to the unions, but only in the event that they were prepared to commit to appropriate undertakings from each as to confidentiality.

[16] The Commission’s principles in relation to the making of orders pursuant to s.590 of the Act have recently been summarised in the Full Bench decision in Re: Penelope Vickers;

“[8] The principles applying to the issue of orders for production by the Commission under s.590(2)(c) are well established. The power conferred by s.590(2)(c) is a discretionary one to be exercised for the purpose of the Commission informing itself as to a matter before it. The Commission will be guided in the exercise of its discretion by the practice followed by courts in civil proceedings when issuing subpoenas. The documents sought must have apparent relevance to the issues in the proceedings. 3 Access to the documents sought must be for the purpose of supporting a case which is intended to be advanced, not to explore if there is a supportable basis for a case that might potentially be advanced.4 The documents required to be produced must be described with sufficient particularity, and the burden of producing them must not be oppressive.5”6 (Original references included)

[17] The matter ultimately to be determined by the Commission upon Aerocare’s application is whether or not it should approve the Aerocare Collective Agreement 2017. In addition to making that ultimate decision, the Commission may also do the other things contemplated within Chapter 2 – Part 2 – 4, Division 4 of the Act dealing with the approval of enterprise agreements, which include whether or not the Commission may seek an undertaking pursuant to s.190 in respect of any concerns it may hold that the agreement does not meet the requirements set out in ss.186 and 187. It may also require the inclusion in the agreement of the model consultation term or the model flexibility term (contemplated in Division 5 of Part 2 – 4).

[18] Preliminary consideration of the application, having taken into account the material set out in the Agreement Analysis Summary prepared by Commission staff, leads to the view that it will be necessary for the Commission to understand, with better particularity, the workings of the agreement and especially in respect of the effect of the agreement on certain classifications of employees performing work on weekends or on public holidays. I consider it is necessary and desirable for the Commission to have further information in this respect. Some, but potentially not all, parts of the information proposed by Aerocare as a consent order (if there were to be undertakings given by the unions) address that need. However without yet having seen that information it is impossible at this time to determine whether that material may satisfy the Commission’s needs.

[19] In all the circumstances, I consider it both necessary and desirable that there be an order requiring Aerocare to produce documents to the Commission that set out the better off overall analysis in respect of employees generally, but also in respect of certain categories of employees who may be called upon to work weekends or public holidays, to the extent that the general information does not deal with their particular circumstances.

[20] Both the Aerocare Collective Agreement 2017 and the agreement presently operating, the Aero-Care Collective Agreement 2012 7 provide for Supplementary Hours, Altered Hours and Employee Nominated Hours (noting that there are some differences between the two agreements both as to the content and names of these provisions).

[21] In the Aerocare Collective Agreement 2017, Supplementary Hours are those that an employee requests to work in addition to the hours they may work in a day or a roster period, and which are then paid at the rate of time and half of the Monday to Friday ordinary hours rate.

[22] Altered Hours are requests made by Aerocare that an employee change the start or finish times or both of a rostered shift to meet last-minute changes in operational circumstances.

[23] Employee Nominated Hours deal with the circumstance in which “an overwhelming number of employees have indicated a desire to have the opportunity to maximise their income by undertaking work outside the provisions of clause 9”, which deals with the ordinary hours of work to be worked in a day or a roster period. Employee Nominated Hours are then treated as ordinary time.

[24] I consider there is presently insufficient information before the Commission for me to be satisfied that these provisions, in conjunction with the other features of the 2017 agreement, would mean that each employee is better off overall.

[25] Accordingly an Order will be made for the provision by Aerocare of documents relating to its overall use of these forms of hours as they exist under the Aero-Care Collective Agreement 2012.

[26] I have considered each of the TWU and ASU applications and decide each of the classes of documents sought by them as follows;

The TWU Application

1. A copy of the electronic roster for all of the employees of Aerocare Flight Support Pty Ltd in the classifications of Airline Service Agent, Advanced Airline Service Agent, and each of the Specialist Duties classifications identified in the Aero-Care Collective Agreement 2012 (AE899834), who worked at the Sydney International Airport for each day of the entire roster period or periods, covering the months of March and April 2017.

While this class has apparent relevance to the matters to be determined by the Commission, I accept Aerocare’s arguments in respect of the volume of material to be produced and its confidentiality. I consider the class goes beyond the matters that the Commission requires in order to determine the application. I consider the Commission’s need in this regard can be satisfied with an order in the more limited terms proposed by Aerocare in respect of the information Mr Shelley had available to him when he formed the view the agreement met the better off overall test.

2. A copy of a job description for each position in which an employee of the Applicant is employed or engaged, at the Sydney International Airport.

This class of documents has apparent relevance and an order in this regard will be made, but in respect of all Aerocare’s job descriptions and not restricted to employment at Sydney International Airport.

This class of documents has apparent relevance and an order in this regard will be made.

4. A copy of any:

a. “safety announcement”

b. “client notice”

c. client SOP,

d. “publications”

e. “memoranda

referred to in cl 6.2.3 of the Agreement, as they existed during the “access period” as defined in cl 180(4) of the Act (ie in the seven days from 7 April 2017);

I am not persuaded this class of documents has apparent relevance to the matters that need to be determined by the Commission, but note that Aerocare, to some extent at least, does not object to provision of its own standard operating procedures, although it does object to the provision of client standard operating procedures. An Order consistent with the extent to which Aerocare is prepared to go with a consent order is made by me, being for documents which I do consider have apparent relevance.

After consideration of the terms of clause 7.9 of the agreement, I do not consider this class has apparent relevance to the matters that need to be determined by the Commission at this time.

6. A copy of any:

a. “code of practice”; or

b. “protocol”

relating to fatigue management and implemented by the Applicant, as existing during the “access period” as defined in cl 180(4) of the Act (ie in the seven days from 7 April 2017).

I do not consider this class has apparent relevance to the matters that need to be determined by the Commission.

I consider the subject matter of this class, but not its precise formulation, to have apparent relevance to the matters the need to be determined by the Commission. I have had regard to the proposal made by Aerocare for a consent order in the event undertakings in a suitable nature could be provided by the unions and consider that Aerocare’s formulation requiring it to provide the better off overall analysis undertaken by Mr Shelley satisfies the Commission’s needs. Accordingly an Order consistent with that formulation will be made by me.

I do not consider this class to have apparent relevance to the matters to be determined by the Commission. The class is a fishing expedition. While not covered by legal professional privilege, it is likely that the communications are confidential. No order will be made by me in respect of this class.

The ASU’s amended application;

1. A copy of the electronic roster for all of the employees of Aerocare Flight Support Pty Ltd in the classifications of Airline Service Agent, Advanced Airline Service Agent and each of the Specialist Duties classifications identified in the Aero-Care Collective Agreement 2012 (AE899834), who worked at Sydney international Airport, Sydney Domestic Airport, Brisbane Airport, Coolangatta Airport, Melbourne Airport and/or Perth Airport for each day of the entire roster period or periods, covering the months of March and April 2017.

While this class has apparent relevance to the matters to be determined by the Commission, and I accept Aerocare’s arguments in respect of the potential volume of material to be produced and its confidentiality, I consider the class goes beyond the matters that the Commission requires in order to determine the application. I consider the Commission’s need in this regard can be satisfied with an order in the more limited terms proposed by Aerocare in respect of the information Mr Shelley had available to him when he formed the view the Agreement met the better off overall test.

[27] As recorded above, Aerocare argue strongly that much of the material that is sought to be produced by the unions is or should be confidential and that to some extent the material represents its intellectual property as well as its commercial advantage. It also argues that the unions cannot be respected as a neutral party in respect of its commercial situation and that instead each must be regarded as a competing entity. Mr Shelley’s affidavit puts forward that “[b]ecause of its intrinsic intellectual property, I cannot hand over copies of the Shelley BOOT Analysis to the Unions as possession of a copy would enable an IT expert to extract the Aerocare rosters which are very commercially valuable.” 8

[28] While I do not accept the sweeping breadth of these contentions at face value, noting that in order for them to be accepted by me I would require detailed evidence on the subject, I accept that nonetheless there is at least some commercial advantage to be had by Aerocare in not disclosing to full public gaze its innermost commercial workings. Accepting for a minute that there is in fact some deep intellectual property in the company’s rosters, which provides a commercial edge for Aerocare beyond that which could be generated by any competent management, it would be inappropriate for the Commission to proceed in a manner which forced a diminution of its competitive edge. Having formed that view, I accept that the Commission should tread carefully in respect of anything which may potentially diminish Aerocare’s commercial standing. Plainly the decisions required to be made by the Commission in respect of the approval of the application do not require more than the Commission to be satisfied of the tests in the Act and particularly within Part 2 – 4.

[29] In all the circumstances, I consider it appropriate to seek undertakings from both the TWU and the ASU that, should they obtain access to the documents required to be produced, they will treat the information as confidential and ensure that it is not distributed beyond those people directly involved in the Commission’s proceedings.

[30] Having considered these matters, the Commission proposes to make orders in these terms;

1. Aerocare Flight Support Pty Ltd and Aero-Care Flight Support Unit Trust, the Applicants in this matter, are ORDERED to provide to the Fair Work Commission the documents, records and other information specified in the Schedule to this order before the Fair Work Commission at its Brisbane Registry by 5 PM on Tuesday, 27 June 2017 (the Produced Documents) and to use their best endeavours to ensure that a further two copies of the Produced Documents are received in the Commission’s Melbourne Registry by 9 AM on Wednesday, 28 June 2017 and a further one copy is received in the Sydney Registry by the same time. In each case, the Produced Documents are to be bound in indexed ring folder(s) and are to be page-numbered.

2. For the purposes of the Commission only, in addition to providing the Produced Documents as a hard-copy, they are also to be filed electronically as a PDF document, with the requirement that the PDF document properties/security must allow for printing, document assembly, content copying, page extraction and Optical Character Recognition.

3. Should the TWU or ASU wish to have access to any or all of the Produced Documents, they are to provide to the Commission by no later than 5 PM on Tuesday, 27 June 2017 an undertaking signed by the Secretary of the respective union that it agrees that all Produced Documents to which it has access are and will remain confidential and that no officer, employee, agent, contractor or legal representative of the union will publish or disclose any part of the Produced Documents except where it is done for the purposes of these proceedings. At the same time as the union provides its undertaking it will nominate by name and position its counsel, solicitors and instructing representatives who it seeks have access to the Produced Documents. Upon receipt of an undertaking in these terms the Commission will issue a further Order granting access to the union or unions to the Produced Documents, provided that such access will be limited to inspection of the material at the Commission’s Brisbane, Melbourne or Sydney Registries by the union or union’s nominated counsel, solicitors and instructing representatives.

SCHEDULE

For the purposes of this Order, “document” has the same meaning as in the Evidence Act 1995 (Cth), and it shall be compliance with this Order for names and other personal information to be redacted from any document provided to the Commission.

1. The document prepared by Gregory Luke Shelley being an analysis of the Better Off Overall Test to support the matters at paragraph 3.6 of the Statutory Declaration signed by him on 24 April 2017 (the Form F17).

2. To the extent that the following matters are not considered within item 1 above, any document that shows the Better Off Overall analysis for each of the following;

a. Airline Service Trainee (Modern Award classification Level 1, Clerical, Administration and Support stream), in respect of Saturday, Sunday and Public Holiday work;

b. Airline Service Agent (Modern Award classification Level 4, Aviation Transport Workers stream, and Level 2 Clerical, Administration and Support stream), in respect of Sunday and Public Holiday work;

c. Advanced Airline Service Agent (Modern Award classification Level 3 Clerical, Administration and Support stream) in respect of Saturday work;

d. Advanced Airline Service Agent (Modern Award classification Level 4, Aviation Transport Workers stream, and Level 3 Clerical, Administration and Support stream) in respect of Sunday and Public Holiday work;

e. Special Duties classifications (Modern Award classification Level 7, Aviation Transport Workers stream, and Level 5 Clerical, Administration and Support stream), in respect of Sunday and Public Holiday work.

1. Job descriptions for each classification in the Aerocare Collective Agreement 2017 as set out in that agreement’s Schedule A (Classifications & Remuneration Table);

2. The standard operating procedures of Aerocare Flight Support Pty Ltd and Aero-Care Flight Support Unit Trust.

3. Any document that shows any of the following for 2016 and/or in 2017 until 31 May 2017;

a. The number of employees covered by the Aero-Care Collective Agreement 2012 (2012 Agreement) who worked Supplementary Hours (within the meaning of the 2012 Agreement); the number of Supplementary Hours that each worked; and/or the Supplementary Hours payments made to each employee.

b. The number of employees covered by the Aero-Care Collective Agreement 2012 (2012 Agreement) who worked Altered Hours (within the meaning of the 2012 Agreement); the number of Altered Hours that each worked; and/or the Altered Hours payments made to each employee.

c. The number of employees covered by the Aero-Care Collective Agreement 2012 (2012 Agreement) who worked Nominated Hours (within the meaning of the 2012 Agreement); the number of Nominated Hours that each worked; and/or the Nominated Hours payments made to each employee.

COMMISSIONER

Appearances:

Mr J Murdoch QC, with Ms G Dann, of Counsel, for Aerocare.

Mr T Howell, of Counsel, for the TWU.

Ms E Gaske and Mr J Cooney on behalf of the ASU.

Hearing details:

2017.

Melbourne (by telephone)

16, 22 June.

1 Exhibit A2, Affidavit of Gregory Shelley, [16]-[18].

2 Ibid Attachment GLS-1 [23].

3 Clermont Coal Operations Pty Ltd v Brown & Dews and Others [2015] FWCFB 2460 at [19].

4 Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [19].

5 Esso Australia Pty Ltd v AWU and ors [2017] FWCFB 2200 at [6].

6 [2017] FWCFB 3131 [8].

7 AE899834.

8 Exhibit A2 [26].

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