Airservices Australia v Civil Air Operations Officers' Association of Australia [2022] FCAFC 172

FEDERAL COURT OF AUSTRALIA

Airservices Australia v Civil Air Operations Officers' Association of Australia [2022] FCAFC 172 Appeal from: Civil Air Operations Officers Association of Australia v Airservices Australia [2020] FCA 1665 Civil Air Operations Officers Association of Australia v Airservices Australia (No 2) [2021] FCA 993

File number(s): VID 527 of 2021

Judgment of: BROMBERG, O'CALLAGHAN AND SNADEN JJ

Date of judgment: 19 October 2022

Catchwords: INDUSTRIAL LAW – jurisdiction – where Fair Work Commission arbitrated dispute – where Fair Work Commission had no power to impose civil penalties under Fair Work Act 2009 (Cth) – where registered industrial association then commenced a proceeding in the Federal Court of Australia alleging contraventions of the Fair Work Act 2009 (Cth) and seeking penalties and declaratory relief – whether primary judge erred in deciding that there was a "matter arising under" the Fair Work Act 2009 (Cth) within the meaning of s 562 in respect of that proceeding – consideration of principles of arbitrability – whether a dispute in relation to s 50 of the Fair Work Act 2009 (Cth) was capable of being referred to arbitration – whether such a dispute was within the scope of the arbitration clause contained in the relevant enterprise agreement – whether such a dispute was within the scope of the arbitral referral – where primary judge held that the Federal Court of Australia had jurisdiction, made declarations of contravention and imposed penalties on employer INDUSTRIAL LAW – penalties – whether primary judge erred by making declarations – whether penalties imposed were manifestly excessive – whether primary judge erred in applying course of conduct and totality principles – whether primary judge erred in finding that employer "took the odds" – whether primary judge erred in deciding that the absence of an apology pointed to the need for specific deterrence – whether primary judge erred in deciding that the penalties should be sufficient to ensure that employer did not see conduct as a cost of doing business – whether primary judge erred in finding that employer continued to show insufficient appreciation of the seriousness of contraventions by reference only to its submissions – Held: the penalties imposed by the primary judge were manifestly excessive – appeal otherwise dismissed