Civil Air Operations Officers Association of Australia v Airservices Australia [2019] FCA 1542

File number:

VID 1198 of 2017



Date of judgment:

20 September 2019


INDUSTRIAL LAW – pecuniary penalty – admitted contravention of s 50 of the Fair Work Act 2009 (Cth) – consideration of relevant factors in assessment of penalty – penalty imposed


Air Services Act 1995 (Cth) s 8

Evidence Act 1995 (Cth) s 191

Fair Work Act 2009 (Cth) ss 50, 546(3), 557(1)

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498

Australian Building and Construction Commissioner v Gava [2018] FCA 1480

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97

Date of hearing:

10 April 2019




Fair Work Division

National Practice Area:

Employment & Industrial Relations



Number of paragraphs:


Counsel for the Applicant:

Mr C W Dowling SC

Solicitor for the Applicant:

Civil Air Operations Officers’ Association of Australia

Counsel for the Respondent:

Mr R Dalton SC with Mr M Minucci

Solicitor for the Respondent:

Ashurst Australia


VID 1198 of 2017










20 september 2019


1.    By requiring Airservices Australia employees Tristan Bell and Orazio Lo Castro to take recreation leave during 2015/2016, being a period during which Airservices Australia implemented a Christmas/New Year shut down, Airservices Australia did not comply with clause 36.8(b) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2012-2015, being a single contravention of section 50 of the Fair Work Act 2009 (Cth).


2.    The respondent pay a penalty in the sum of $12,000, such penalty to be paid to the applicant.

3.    The proceeding against the respondent is otherwise dismissed.

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



1    The parties to this proceeding, in which the applicant alleges the respondent has contravened s 50 of the Fair Work Act 2009 (Cth) (FW Act), ultimately reached an agreement on the question of liability and proposed final orders, save for the question of the appropriate penalty amount, which the Court has been asked to determine. Both parties have acted efficiently and cooperatively in the proceeding and I have taken the respondent’s cooperation into account in weighing the appropriate penalty. I have fixed a penalty in the sum of $12,000 and otherwise accept the parties’ proposed final orders are appropriate.

Factual background

When a settlement was reached

2    The parties did not reach a resolution of the proceeding until earlier this year, despite the proceeding having been filed in late 2017. The agreed contravention relates to two employees of the respondent. Initially, the applicant’s amended statement of claim covered a wider range of alleged contraventions, in respect of a larger number of employees. A mediation was conducted on 28 May 2018, but the matter did not resolve. An interlocutory application filed by the applicant on 24 July 2019 was determined in part by the Court and in part by agreement of the parties at a hearing on 27 July 2019. As a result, the respondent was given leave to file and serve an amended defence, which it did in early August 2018. In that amended defence, the respondent maintained its denials of all allegations. Outlines of evidence were filed by the parties in August and October 2018, and the matter was listed for trial in December 2018. Due to an urgent matter requiring hearing, the Court had to vacate the December 2018 hearing dates, and it was after this event that the parties reached an agreement, culminating in the filing of an agreed statement of facts on 8 February 2019. The purpose of setting out this chronology is to indicate that it was not until February this year that the respondent formally made the admissions which now found the Court’s assessment of appropriate penalty.

What was agreed

3    The parties agreed statement of facts was admitted pursuant to s 191 of the Evidence Act 1995 (Cth). At the penalty hearing, the applicant read an affidavit of Joel Francis Winters sworn 20 March 2019, without objection by the respondent. Both parties sought to rely on correspondence annexed to that affidavit, which I outline below. After some questions from the Court about [30] of the respondent’s written submissions, and the balance of an evidentiary basis for what was, in the Court’s opinion, a relevant submission, the parties agreed a further fact for the purpose of the penalty hearing. I return to that fact below.

4    There are no material facts which remain in dispute, however there are disputes as to the characterisation of the respondent’s conduct, and about the correct characterisation of the contravention, in terms of its gravity. It is these disagreements which have led to the competing submissions on penalty.

5    The parties are agreed that the maximum penalty which can be imposed for the contravention is $54,000. The applicant submits a mid-range penalty of $20,000 should be imposed, and should be paid to the applicant pursuant to s 546(3) of the FW Act. The respondent submits a low-range penalty is appropriate, and submits $10,000 is appropriate. It does not object to the making of an order under s 546(3).

Facts relevant to the admitted contravention

6    In this part of my reasons I make findings based on the agreed statement of facts and Mr Winter’s affidavit, as well as any inferences which fairly arise from that material.

7    The applicant is an employee organisation within the meaning of the FW Act, and represents the industrial interests of employees of the respondent, who are involved in the respondent’s business of supplying air traffic control services and air traffic control training services across Australia.

8    The respondent is a statutory corporation established under the Air Services Act 1995 (Cth). Its functions are set out in s 8 of that Act, and include providing services and facilitiesrelating to the safety, regularity or efficiency of air navigation, whether in or outside Australia”.

9    At the time of the alleged contravention the respondent employed approximately 4,500 employees. Around 1,000 of those employees were employed as Air Traffic Controllers. The remainder were employed in administrative, support and training roles, including employees who occupied the positions of Simulator Support Officers (SSOs) and Airways Data Technicians (ADTs). The Air Traffic Controllers worked from a variety of locations around Australia, with the two major air traffic services centres located in Melbourne and Brisbane. Air Traffic Controllers also worked fromTerminal Control Units in Sydney, Perth, Adelaide and Cairns and in 29 control towers at international and regional airports across the country. The respondent is also accredited as a registered training organisation and delivers training to its employees, including at tower simulator facilities in Perth and Brisbane. It is in relation to this training that the SSOs are employed, to operate the simulators used by the trainees.

10    The subject-matter of the proceeding concerns events over the Christmas/New Year period in 2015-2016, in relation to two employees of the respondent, one of whom (Mr Bell) was then located in Perth and one of whom (Mr Lo Castro) was then located in Melbourne. Mr Bell was employed as an SSO and Mr Lo Castro was employed as an ADT.

11    In approximately September or October 2015, the respondent notified its employees, including Mr Bell and Mr Lo Castro, of the arrangements for recreation leave over the Christmas/New Year period. Those arrangements included the imposition of a “shut down period” for administration and support areas, which would occur between 19 December 2015 and 3 January 2016.

12    Relevantly, SSO employees were required to take recreation leave during the shut down period if no training was booked in their simulator during that period. ADT employees were also required to take recreation leave during the shut down period. Employees were to receive an additional day of special leave, which was not deducted from their recreation leave balance, on 29 December 2015. In fact, no simulator training was booked in Perth during this period, and the respondent required Mr Bell and Mr Lo Castro, as well as its other Perth SSOs and Melbourne ADTs, to take recreation leave during the shut down period. Neither Mr Bell nor Mr Lo Castro wanted to use their recreation leave at these times, because they had other plans about when they wanted to take their leave.

13    However, because they were required to, each of them did in fact take leave during this period:

(a)    Mr Bell took recreation leave on 21, 22, 23, 24, 30 and 31 December 2015 and the respondent deducted an amount equivalent to six working days from Mr Bells accrued recreation leave balance; and

(b)    Mr Lo Castro took two days of recreation leave and the respondent deducted an amount equivalent to two working days from Mr Lo Castro s accrued recreation leave balance.

Industrial agreement

14    At the relevant time, the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2012-2015 applied to both the applicant and the respondent. I will call this the 2012 Agreement in these reasons. The applicable terms of the 2012 Agreement concerning leave were cll 36.1 and 36.8, which provided:

Depending on an employee’s recreation leave entitlement, an employee must take a minimum of the days held in excess of the following accrual credit within three (3) months, or Airservices may direct an employee to take leave:

    288 hours (“Monday to Friday” day worker);

    360 hours (“Seven day” day/afternoon shift worker);

    432 hours (“Seven day” day/afternoon/night shift worker).

Leave utilisation

(a)    Consistent with Work Health and Safety principles and fatigue management initiatives, annual leave is to be acquitted in the year in which it accrues.

(b)    An annual leave program will be developed and implemented in consultation with an employee. Development and implementation of the leave program (including long service leave refer Clause 46) will be published on a fourteen (14) month rolling cycle.

(c)    Employees shall request recreation leave allocations to acquit annual leave accrual. Allocation of such leave will be in consultation with staff affected, in accordance with locally documented procedures.

(d)     An employee’s leave will be allocated in defined blocks with one (1) minimum block of two (2) weeks leave to be allocated and taken annually.

(e)     Where an employee’s requested leave is unable to be allocated within the leave plan, further consultation with the affected employee will occur to seek an acceptable alternative arrangement. If following this process an agreed arrangement for leave remains unresolved Airservices may allocate recreation leave to acquit the annual entitlement.

(f)     To ensure such allocations are meaningful in terms of rest and recuperation, Airservices’ allocations will be made in minimum blocks of one (1) weeks leave.

(g)     On employee application, Airservices may allow recreation leave to be accrued over a two (2) year period, for specific purposes.

(h)     Changes to leave allocations, once published, may only be made with consultation.

(i)     The development and maintenance of the leave program shall be a standing item for consultation at the LCC meetings provided for in this Agreement.

The applicant’s complaint about the respondent’s conduct

15    On or around 18 December 2015 the applicant formally notified a dispute to the respondent, to the effect that the 2012 Agreement did not entitle the respondent to require SSO employees to take recreation leave during the 2015-2016 shut down period.

The contravention

16    It is an agreed fact, and I find, that by requiring Mr Bell and Mr Lo Castro to take recreation leave during the shut down period, the respondent “developed and implemented an annual leave program without consultation with employees, in contravention of cl 36.8(b) of the 2012 Agreement.

17    It is an agreed fact, and I find, that the respondent’s conduct constitutes a single contravention of s 50 of the FW Act, being a course of conduct constituted by a single management decision to require the relevant employees to take annual leave during the shut down period. The applicant accepted, and I agree, that in the circumstances s 557(1) of the FW Act is engaged to the benefit of the respondent.


18    The difference between the parties in terms of the appropriate amount of penalty is $10,000, and it may well be the case that it cost the parties more than that to argue the matter.

Applicable principles

19    I have recently set out the principles applicable to the fixing of an appropriate penalty under the FW Act in Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Geelong Grammar School Case) (No 2) [2019] FCA 1498 at [14]-[18]. I refer also to the Full Court’s discussion of the applicable principles in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non-Indemnification Personal Payment Case) [2018] FCAFC 97 at [19]-[22]. With respect, I also agree with the summary given by White J in Australian Building and Construction Commissioner v Gava [2018] FCA 1480 at [16]:

The object of the imposition of a civil penalty is deterrence, both specific and general: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482 at [55]; Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 351 ALR 190 at [116]. The Court is to determine penalties which are proportionate to the contravening conduct and to the contravener’s circumstances by a process of instinctive synthesis after taking into account all relevant factors. Those factors include the nature, character and seriousness of the conduct; the loss and damage caused (if any); the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; any co-operation with the regulator; and contrition: The Non Indemnification Personal Payment Case at [20].

Nature of the contravention

20    As the agreed facts disclose, the admitted contravention involves a failure to consult two employees. It is important to note, as the respondent submitted, that although the notice by the respondent about the shut down period and the respondent’s expectation its staff would take leave during that period applied to a wider range of employees, the parties have resolved this matter in a way where the only relevant facts, and the only admitted contravention, relates to two employees – Mr Bell and Mr Lo Castro. During the hearing, senior counsel for the respondent accepted the relevant notification went out to about 80 SSOs and about 10 ADTs, but emphasised that the respondent’s admission of a failure to consult relates to only two employees.

21    I accept the Court must fix a penalty on the basis that what has been admitted, and what the Court can take as proven, is that the respondent failed to consult with Mr Bell and Mr Lo Castro about the development and implementation of the leave program over the shut down period. Clause 36.8(b) is expressed as an obligation to consult with “an employee”, and casts a duty on the employer to consult with each employee about the leave program which affects that employee. However, I acknowledge that the Court’s focus must necessarily be on the admitted breach of that obligation by the respondent in respect of two employees only.

22    As the respondent also submits, it could still have been the case that, after any consultation, its employees were required to take their leave in accordance with the respondent’s “preferred plan”. On the other hand, the applicant submits – correctly in my view – that the purpose of consultation is to ensure that the employer substantively takes the views of its employees into account, and factors them into any decision. The applicant emphasises that the affected employees “were entitled to an opportunity to influence the decision and were entitled to that opportunity regardless of whether they were likely to be successful”. Further, the applicant submits that it is not possible to assume what impact, if any, consultation would have had in the circumstances of this case. I accept that submission.

23    I accept the applicant’s submissions that, having been given notice by the applicant of a possible contravention of the 2012 Agreement on or around 18 December 2015, the respondent nonetheless went ahead with its proposal to force its employees to take their leave in the way that suited it, and consciously chose not to engage in any consultation.

Characterisation of the respondent’s conduct

24    The applicant says it is an aggravating circumstance that the respondent was on notice that its conduct was potentially in breach of the 2012 Agreement through communications from the applicant. A letter from the applicant to the respondent was adduced in the penalty hearing through the affidavit of Mr Winter.

25    The letter was dated 18 December 2015 and addressed to Ms Lawton, the ATS Operational Training Manager. It relevantly stated:

Re: Forced leave over Christmas period - SSO

I refer to a concern and possible dispute regarding forcing SSOs in Brisbane Centre to take leave over the pending Christmas period.

This correspondence is to formalise that the dispute avoidance and settlement procedure has been enacted. Given the information provided to staff in email correspondence of 3 December 2015 it appears that there is a difference of understanding in relation to the ability of Airservices to force staff to take leave.

The relevant employee group (SSOs) are covered by the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2012-2015 (“the Agreement”). Under the Agreement, employees can only be directed to take leave when they are in excess of accruals (refer clause 36.1). An annual leave program is to be developed and maintained in consultation with employees (refer clause 36.8). Furthermore, “Changes to leave allocations, once published, may only be made with consultation” (refer clause 36.8(h)). We are concerned that a number of elements of the Agreement have not been complied with and the organisation may be in breach of the Agreement.

We understand that the first step in the disputes avoidance and settlement process, set out at clause 10.1(a) of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2012-2015 (“the Agreement”) has already occurred as Phil Ware, the Civil Air delegate, had a meeting with you on 7 December 2015.

As the matter remained unresolved following that meeting, Civil Air regarded it as appropriate to utilise clause 10.1(b) and raise this matter immediately with more senior levels of management. To that end, the Civil Air President, Daryl Hickey contacted you on 11 December 2015. During that conversation, Mr. Hickey had the strong impression that you undertook to consult with your staff as is required under the Agreement.

The latest advice received from the SSO group is that a new roster was published on 16 December 2015 that changed the leave arrangements and stood down staff for Public Holiday and recreation leave. There are up to twenty affected staff members who remain unhappy about being forced on leave over this period. The original notification regarding changed arrangements was provided on 3 December. Before we list a dispute, we seek your urgent reconsideration of this matter.

Finally, we note that While a concern or dispute is being dealt with, work will continue as normal being the status quo save for any bona fide safety concerns.” (Clause 10.1(h))

(Original emphasis.)

26    The applicant contends, and I accept, that the third paragraph of the letter set out what the applicant needed to do, in order to abide by the terms of cl 36.8(b) of the 2012 Agreement.

27    The letter also refers to two communications: one on 7 December 2015 and one on 11 December 2015, during which the applicant had attempted to draw the respondent’s attention to its obligations under the 2012 Agreement. There is no debate that these communications occurred, and that the respondent did not take any steps to comply with cl 36.8(b) after these communications, or after the 18 December 2015 formal notification of a dispute.

28    Ms Lawton replied to this correspondence, but not until 8 January 2016: that is, not until after the contravention had occurred and Mr Bell and Mr Lo Castro had been forced to take their leave when they did not wish to do so. Her reply was in the following terms:

Thank you for your letter dated the 18 December 2015, referring to the matter of the Christmas leave period for Simulator Support Officer (SSO) staff working in Brisbane. I contacted the Simulator Team Leaders on receipt of your letter to ascertain the issues, and obtained email correspondence. I then met with the SSO cohort as a group as a matter of priority on my return to work on 4 January 2016. A large number of staff attended and a healthy exploration of the issues ensued.

An annual leave program is in place for Brisbane ATS Operational Simulator and is developed and maintained in consultation with the employees. A further improvement to that program is captured in the Simulator Annual Leave System of Approval (SALSA), developed by the staff group and approved by the ATS Operational Training Manager.

The Airservices Shutdown period applies to all non-operational staff, including the ATS School simulators; this business requirement and dates being communicated on numerous occasions to the employees via corporate communication channels. The default position therefore for all SSO staff was that a combination of leave and public holiday stand down would occur for the Christmas Shutdown period. Accrued Time Off in Lieu could also be used if required.

In response to ATC requests for training bookings during the Christmas Shutdown period, GM LA approved essential training to continue. SSO volunteers were sought to work to support the training. A number of staff volunteered to forgo taking their leave and support the training. Correspondence to staff on 22 November 2015 conveyed that some bookings were tentative, and if the booking were not confirmed or subsequently cancelled, that the staff would revert to the default position of leave during this time.

Staff were notified on 3 December 2015 and 14 December 2015 of the progressive updates to the bookings, including cancellations. In the first instance, staff preferences were sought regarding leave, noting that only the minimum number of staff required to support training were approved to work during this period. Where no staff preference was notified, leave was allocated equally across the remaining staff; all staff were aware that swapping of shifts was supported between staff.

The SSO cohort have reflected in discussion and email that there was confusion of operational versus non-operational unit status, what constituted essential training, and how roster changes for this period needed to be conveyed. There did not appear to be consistent understanding across the group of the default Christmas Shutdown period for the simulators. The outcomes from the discussion with the staff yesterday are focussed on providing clarity for staff in terms of role and requirements, and the method and timing for communication to changes to training requirements and rosters. I confirmed that ATS Operational Training is considered a non-operational group and as such Christmas Shutdown periods apply.

A summary of agreed actions is listed below:

1.    ATS Operational Training Simulators will not accept bookings over the Christmas Shutdown Period.

2.    The Brisbane leave program (SALSA) rules to be reviewed to be more explicit regarding ensuring staff factor the Christmas Shutdown period into their leave balances.

3.    ATC short notice training requests for essential training to support business continuity (e.g. post-incident remediation) will be addressed through the following process:

a.    ATC contacting ATS Operational Training Manager (OTM) for short notice training request;

b.    OTM to refer to a call out list of staff willing to support short-notice training,

c.    Call out to be covered by AD/ED as appropriate.

4.    Agenda for the SSO staff meeting on 24 February 2016 to include Communication and Consultation methods and timing for roster changes.

5.    OTM to communicate and reinforce Corporate Requirements directly with the SSO cohort via email and/or briefings.

6.    OTM to work with the Simulator Team Leaders on ensuring quality communication, courtesy and consultation in the work place (informed by outcomes of the 24 February 2016 meeting).

The staff present at the 4 January 2016 meeting were welcoming and supporting of these agreed actions and therefore I am confident that these actions will alleviate any future confusion relating to the management of leave during the Christmas Shutdown period.

We are prepared to engage in further discussion with you as per the dispute avoidance and settlement procedure.

29    There was some debate during the hearing about what inferences should be drawn from Ms Lawton’s reply, especially in the context of the respondent having admitted a contravention of s 50 of the FW Act. Having considered the parties’ submissions, I make the following findings:

(a)    this is an explanation given by Ms Lawton after the conduct giving rise to the contravention, and indeed at a time when there was no point in consulting Mr Bell and Mr Lo Castro, as they had taken their leave as they had been required to do;

(b)    the view expressed that the shut down period could apply to the SSOs (because they are “non-operational staff”) is contrary to the respondent’s subsequent admission of a contravention of cl 36.8(b); and

(c)    Ms Lawton does propose some “agreed actions” going forward, to avoid a similar situation arising again.

30    While it might be said there is a basis disclosed in this correspondence for the respondent’s view, expressed through Ms Lawton, that what it had done was not in breach of cl 36.8(b), it is far from clear how the respondent (or Ms Lawton) could have reached that view on the face of cl 36.8. This correspondence does nothing to indicate any consciousness by the respondent, or any acceptance, that it should have been consulting each of its employees about the leave program, where it affected them.

31    In my opinion, the relevant evidence on this matter (which does not go beyond these two pieces of correspondence and the agreed facts) does disclose a conscious decision by the respondent to ignore what the applicant had sought to draw to its attention, and to press on with its plan to require Mr Bell and Mr Lo Castro to take their leave when the respondent wanted them to take it, over the shut down period. The evidence is that the respondent only addressed the applicant’s complaint after it was too late to do anything about it, insofar as the two affected employees were concerned. The evidence about the “amends” later made by the respondent tends to support this inference.

32    The applicant’s submissions used the word “flagrant” to describe the respondent’s breach of the 2012 Agreement, but I consider that is, on the evidence, something of an exaggeration. There is no direct evidence to support a finding of flagrancy, which in my opinion suggests more than deliberateness, and instead some kind of consciousness that what is being done is wrong, and deeply or significantly wrong. In my opinion the evidence does not support a characterisation of the respondent’s conduct in that way.

33    That said, it is relevant to describe the consequence of the respondent’s conduct as having real significance for Mr Bell and Mr Lo Castro: they were not able to implement the plans they each had to take leave at other times, and were forced to take it at a time that suited their employer. I accept, as the respondent submitted, that this might have been the outcome even after consultation. However, consultation means an employer is open to listening to its employees and acting on what it hears. The fact there was no simulator work booked in Perth during the shut down period is beside the point in terms of the cl 36.8(b) obligation, because the point of consultation is that there may have been other factors, relevant to those employees, which may have persuaded the respondent it should not require these two employees to take leave, despite the absence of simulator work in Perth, where Mr Bell was located.

34    The fact that cl 36.8(b) is expressed as an obligation owed to each employee, as an individual, suggests the 2012 Agreement contemplates that an employer will, in designing and implementing its leave program, bring an open mind, capable of persuasion, to consultation about when an individual employee should take her or his leave.

35    While I accept the periods of leave the two employees were forced to take were, in fact, quite small six days in the case of Mr Bell, and two days in the case of Mr Lo Castro each and every period of leave is important to an employee, who has a fixed amount of leave.

36    The respondent is a business of reasonable size. It is a statutory corporation. Its 2015-2016 and 2017-2018 annual reports were in evidence, without objection from the respondent, through Mr Winter’s affidavit. I infer it was sufficiently resourced to secure legal advice on its obligations under the 2012 Agreement, in the same way it has been ably resourced and represented in defending this proceeding. There is no evidence Ms Lawton or anyone else at the respondent sought such advice upon receipt of the applicant’s complaint. I am prepared to infer from the timing of the applicant’s complaint and the absence of any evidence about a response from Ms Lawton (or anyone else from the respondent) to the applicant before the shut down period, that the respondent simply decided to press on with the arrangement it had imposed on its employees. That may be because it believed the applicant’s interpretation of the 2012 Agreement was incorrect, or it may be because it decided to ignore the applicant’s complaint, despite knowing what it said was correct. There is no evidence upon which to make an express finding either way.

37    What can be said is that the respondent did press on and force these two employees to take leave at a time they did not wish to do so, in a way it now acknowledges was a contravention of its obligations under cl 36.8(b) of the 2012 Agreement.

General and specific deterrence

38    As the authorities indicate, deterrence is the principal objective of a civil penalty regime. However, the penalty must also be proportionate to the particular conduct involved.

39    The parties agree, and I accept, that the 2012 Agreement has now been replaced by the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2017-2020. However, that replacement agreement has a clause to the same effect as cl 36.8(b), and therefore some allowance for specific deterrence is warranted, as the respondent continues to have an obligation to consult with each employee about her or his annual leave program, before implementing it. The respondent, and its senior management, should understand that this is a legal obligation, and not something it can decide itself to opt out of doing.

40    Other employees, who hold entitlements under similar clauses, should also understand that consultation is a substantive and meaningful obligation which is of real industrial importance, and that an employer’s failure to consult means they are not giving their employees the opportunity they are supposed to receive in order to have real input into the timing of their leave. As cl 36.8(b) makes clear, each individual employee is entitled to this opportunity.

Factors in mitigation

41    I accept that the cooperation shown by the respondent in admitting a contravention, and agreeing the relevant facts supporting the contravention, are matters which weigh in its favour in considering what penalty is appropriate. To that extent, the respondent has shown consciousness of its contravention and the Court can assume this will affect the likelihood that it will not repeat such conduct. I note there is no evidence of previous contraventions by the respondent.

42    In the respondent’s favour I also note that there is a further agreed fact to the following effect:

As part of settlement of this dispute, Airservices Australia agreed to credit each currently employed SSO and ADT employee who was employed during the period 19 December 2015 to 3 January 2016 with 5 days recreation leave (pro rated for employees who worked part time during the relevant period).

43    Thus, the evidence is that the respondent implemented some compensation relating to its contravention which went beyond its contravention in relation to Mr Bell and Mr Lo Castro, and to that extent can be found to have shown some (somewhat belated) good faith, and some amends, in relation to its obligations under cl 36.8(b) of the 2012 Agreement.


44    Taking all of the factors above into account, my assessment of a penalty which is proportionate to the nature of the respondent’s conduct, in all the circumstances, is that it should be fixed at $12,000.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.


Dated:    20 September 2019