Pilots who move interstate to take up redeployed roles at National Jet Express are transferring at the company’s direction rather than at their own request, the Fair Work Commission has found. Clauses 47.2 and 47.3 of the pilots’ enterprise agreement therefore apply, and the cost of the move falls on NJE.
The fleet goes, and twelve seats are left
NJE’s contract with Qantas for freight operations ends on 1 October 2026, and the company has decided to retire its BAe146 fleet. The roles of the 19 pilots who fly the aircraft are at risk of redundancy.
By 19 August 2026 NJE had identified 12 alternative positions: six in Perth flying E190 aircraft and six flying Q400 aircraft out of Adelaide, Brisbane or Perth. Pilots were asked to lodge an expression of interest covering matters including their qualifications, training history and operational performance, with NJE to choose between them if applicants outnumbered the roles. Pilots who miss out are likely to be made redundant. Some of the positions would require a move to a base in another state.
47.1 A Pilot when transferring from one base to another at the Pilot’s request will bear all expenses associated with that transfer. However, at the request of the Pilot the Employer may meet all such costs incurred and subsequently recover such costs by salary sacrifice of a mutually agreed amount.
47.3 A Pilot when transferring from one base to another at the Employer’s direction shall receive payment from the Employer for expenses resulting from the removal as follows:
The Australian Federation of Air Pilots notified the dispute on 7 July 2026 under clause 8 of the agreement, using section 739 of the Fair Work Act 2009, which allows the Commission to deal with a dispute under an agreement’s own dispute settlement procedure. The Transport Workers Union, also covered by the agreement, supported the notification. Conciliation ran on 4, 18 and 27 August 2026 and settled a number of issues, including the selection criteria and the timing of communications to employees about the expression of interest process. Liability for relocation costs remained unresolved, and the parties agreed the Commission should arbitrate that question under clause 8.5.2 and decide it on the papers.
NJE first told pilots that anyone applying for an interstate role would be treated as if they had requested the transfer, bringing clause 47.1 into play so that the pilot met the cost. The company offered to pay the money up front and recoup it from wages over time. After conciliation, in correspondence dated 20 August 2026, NJE dropped the description of the move as one requested by employees but held to its position that it would not pay.
NJE also told employees that if they were offered a redeployed role and turned it down, it would apply to the Commission under s.120 of the Act, which allows an employer to seek an order reducing the redundancy pay it must give, for an order cutting their entitlements to zero.
NJE said the pilots chose to move
that clause 47 allocates relocation costs to whoever initiates the transfer, and that the need to move arose from NJE’s own business decisions. An employee “who identifies a preference among alternatives created by NJE does not thereby initiate the need for a transfer”. There is no third category in the agreement allowing NJE to “convert the resulting transfer into the pilot’s request by asking the pilot to express a preference from NJE-selected vacancies”.
that while its decision to cease the BAe146 operation triggered the redundancies, that “does not mean NJE directed the subsequent transfer of each Pilot”. Two thirds of applicants “explicitly accepted NJE’s relocation position in their EOIs”, showing an “active, informed and documented choice”. It said the AFAP’s construction would leave clause 47.1 with no work to do, and that a reading which “imposes massive relocation liabilities on every interstate redeployment on top of substantial unbonded training costs renders the mitigation process punitive and commercially detrimental”.
that clause 47.1 still has work to do where a pilot seeks a transfer outside a redundancy process, and that “[t]o characterise pilot’s submissions of EOIs as a voluntary transfer made at their own request deliberately ignores the context in which they submitted the EOI”. The TWU, like the AFAP, also challenged NJE’s assertions about how many expressions of interest had been received and how many pilots had accepted its relocation position, noting that NJE filed no evidence.
that the genesis of the need to transfer was NJE’s decision to cease BAe146 operations, that NJE had acted consistently with its obligations under clause 48 to mitigate redundancies by offering transfers where suitable vacancies exist, and that in doing so “NJE has initiated the transfers”. Clause 47.2 best fits the facts.
Why the choice at the end of the process did not count
The Commissioner adopted the reasoning in the 2015 Darwin Base decision, Australian Federation of Air Pilots v National Jet Systems Pty Ltd T/A Cobham Aviation Services [2015] FWC 8588, in which the employer was found liable for relocation expenses because the “essence of the change” was dictated by the employer’s “business circumstances”. The AFAP submitted that the decision construed a materially equivalent transfer clause. The Commissioner found the substance of the matter, being the likely redundancies and the nature of the actual choice open to employees, had to override the form, which the decision described as “the purported choice given to the employees at the very end of a process, otherwise directed by the employer”.
NJE’s attempt to distinguish that decision, on the basis that the pilot involved had actively protested his relocation and marked his expression of interest “without prejudice”, was rejected.
“In my view, whether the employer or the employee is responsible for relocation expenses depends on how the Agreement is framed, not on whether an employee has indicated a willingness to meet the expenses in circumstances where the employer has said they do not intend to pay them.”
Commissioner Thornton, [2026] FWC 3621
The Commissioner also gave no weight to NJE’s reliance on practice elsewhere in the Cobham group, including the Surveillance Australia Pilot and Observer enterprise agreement, which expressly puts relocation costs on an employee who transfers in response to a formal expression of interest. The decision records: “There is no such clause in this Agreement.” NJE’s submission that clause 47.1 requires a pilot to demonstrate genuine commitment to a new role was also rejected, the Commissioner agreeing with the TWU, which had submitted that the clause “simply determines who must pay for the transfer in specific circumstances”.
At a glance
- Parties: Australian Federation of Air Pilots v National Jet Express Pty Ltd, supported by the Transport Workers Union
- Citation: [2026] FWC 3621 (C2026/8502), Commissioner Thornton, Adelaide, 22 September 2026
- Provisions: s.739 Fair Work Act 2009; clauses 8.5.2, 47.1, 47.2, 47.3 and 48 of the National Jet Express Pty Ltd Pilot Enterprise Agreement 2022-2026
- Outcome: transfers found to be at the direction of NJE; clauses 47.2 and 47.3 apply
- Who it affects: 19 BAe146 pilots at NJE facing redundancy or redeployment
Forty-eight hours to walk away
The parties had agreed that if the Commission found NJE was not liable for relocation expenses, any pilot who had nominated for a redeployed role could withdraw within 48 hours of the decision being published, without NJE then relying on that nomination in an application under s.120 to reduce their redundancy entitlements.
The determination is binding on the parties under clause 8.5.2(b), and clause 8.5.2 gives the parties a right of appeal. The matter was dealt with urgently because NJE has secured places in a training course starting on 5 October 2026, with further places in a course starting on 19 October 2026, and says significant costs will follow if those places are not taken up.
Source: [2026] FWC 3621
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