Aero Care Flight Support Pty Ltd - [2012] FWA 3227

[2012] FWA 3227

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Aero Care Flight Support Pty Ltd
(AG2011/3744)

DEPUTY PRESIDENT SAMS

SYDNEY, 24 APRIL 2012

Aero-Care Collective Agreement 2011 - application to approve enterprise agreement - overwhelming support of employees - no union involvement - whether agreement genuinely agreed - notice of employee representational rights - Better Off Overall Test - application dismissed.

Background

[1] This decision will determine an application, pursuant to s 185 of the Fair Work Act 2009 (the Act), filed by Aero Care Flight Support Pty Ltd (the ‘applicant’) which seeks the approval of Fair Work Australia (‘FWA’) of a single enterprise agreement to be known as the Aero Care Collective Agreement 2011 (the ‘Agreement’). The Agreement is to cover over 900 employees engaged in various airline related services including ground handling, cabin crew, baggage handling, aircraft marshalling and passenger services and is to operate in all States and Territories of the Commonwealth.

[2] The application for the approval of the Agreement was filed on 20 December 2011 following a vote of employees conducted between 13 - 15 December 2011, in which 709 out of the 822 employees who cast a valid vote, supported the Agreement’s approval. Accordingly, the 14 day time period from approval to filing, required by s 185(3) of the Act, has been met.

[3] Prior to the application being listed before FWA (20 February 2012), the Australian Municipal, Administrative, Clerical and Services Union (the ‘Union’) wrote to FWA and the applicant’s representative - Mr Peter Rochfort of Rochfort Associates Pty Ltd, identifying an alleged defect in the preapproval process, specifically in respect to the notice of employee representational rights, and also claiming that the Agreement contravened s 55 of the Act which deals with the interaction between the National Employment Standards (‘NES’) and an enterprise agreement. The Union had also filed a Declaration in relation to the application (Form F18) in which it claimed to be a bargaining representative for the Agreement and, while it did not support FWA’s approval of the Agreement, nevertheless gave notice that it wished to be covered by it (this notice was withdrawn when a fresh F18 was later filed).

First Hearing of the Application

[4] At a hearing of the application on 20 February 2012, Mr Rochfort with Mr G Shelley, General Manager - Employee Relations, appeared for the applicant and Mr J Cooney, appeared for the Union. Mr Cooney raised two further matters of concern to the Union; firstly, that the proposed Agreement did not satisfy the Better Off Overall Test (‘BOOT’) and secondly, that in the Employer’s F17 no relevant reference instrument had been identified. Mr Cooney said that the relevant reference instrument is the Airline Operations - Ground Staff Award 2010 [MA000048] (the ‘Award’). In addition, Mr Cooney put submissions as to the Union’s right to represent the industrial interests of the employees to be covered by the Agreement. However, Mr

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Aero Care Flight Support Pty Ltd [2012] FWA 3227
Case: [2012] FWA 3227
Decision Date: 24 APRIL 2012

CaseChat Overview and Summary

The case of Aero Care Flight Support Pty Ltd involved the company's application to approve an enterprise agreement under the Fair Work Act 2009. The dispute centred around whether the proposed agreement had been genuinely agreed upon by the employees, considering the absence of union involvement. The Federal Circuit Court was tasked with determining the validity of the application.

The legal issues before the court included whether the agreement had achieved overwhelming support from the employees and whether the company had adequately notified the employees of their representational rights. Additionally, the court needed to assess if the proposed agreement met the Better Off Overall Test, which requires that employees be no worse off and preferably better off under the new agreement.

The court found that although the agreement had received support from a significant majority of employees, there were concerns about the process through which the agreement was reached and the lack of union involvement. The court concluded that there were deficiencies in the notice provided to employees about their representational rights, which undermined the genuineness of the agreement. The court also found that the proposed agreement did not adequately satisfy the Better Off Overall Test. Consequently, the application to approve the enterprise agreement was dismissed.

Orders