Aero-Care Flight Support Pty Ltd - [2013] FWCA 965

[2013] FWCA 965

FAIR WORK COMMISSION

DECISION

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

Aero-Care Flight Support Pty Ltd
(AG2012/12949)

AERO-CARE COLLECTIVE AGREEMENT 2012

Airport operations
VICE PRESIDENT WATSON	SYDNEY, 12 FEBRUARY 2013

Application for approval of the Aero-Care Collective Agreement 2012 - whether agreement passes better off overall test - Fair Work Act 2009 ss.185, 186, 187, 188 and 193.

Introduction

[1] An application has been made for approval of an enterprise agreement known as the Aero-Care Collective Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aero-Care Flight Support Pty Ltd (Aero-Care).

[2] There is a significant history leading to the making of this Agreement. Aero-Care has operated for many years providing ground support services to airlines at a variety of Australian airports. For the majority of that time it has conducted its operations pursuant to enterprise agreements approved under relevant legislation. The agreement that has covered the employment of its ground service employees since 2008 is the Aero-Care Collective Agreement 2008 (the 2008 Agreement).

[3] Agreement was reached between Aero-Care and its employees in December 2011 for a replacement agreement for the 2008 Agreement. By decision handed down on 24 April 2012 Deputy President Sams found that the agreement did not pass the tests for approval under the Act. 1 The decision to decline approval of the 2011 Agreement gave rise to further efforts by Aero-Care to develop an agreement that complied with the requirements of the Act.

[4] In June 2012 the ASU sought bargaining orders under s.229 of the Act regarding the negotiation of the 2012 Agreement. This ultimately led to orders for the provision of material relating to the Agreement to be provided to representatives of the ASU and the TWU under confidentiality arrangements determined by the tribunal. 2 The material provided constituted representative data of a prospective four week roster under a draft enterprise agreement, a comparison of costs between the roster under the Agreement and the Airline Operations - Ground Staff Award 20103(the Award) and a summary page of the cost comparisons. The material was subsequently made available to the two unions in September 2012. Hearings regarding the negotiations and the provision of the material were held before me on 14 August, 19 September and 11 October 2012.

[5] The application for approval of the Agreement was made on 12 December 2012 following a vote of employees conducted between 7 to 11 December 2012. Approximately 1014 employees were engaged under by Aero-Care at the time of the vote. Of the 930 employees who cast a valid vote, 900 employees voted in favour of the approval of the Agreement. Approximately 382 employees are engaged on a part-time basis and 604 employees are casuals. Approximately 155 employees are under the age of 21.

[6] The Australian Municipal, Administrative, Clerical and Services Union (ASU) and Transport Workers’ Union of Australia (TWU) oppose…

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 [2013] FWCA 965
Case: [2013] FWCA 965
Decision Date: 12 FEBRUARY 2013

CaseChat Overview and Summary

In the case of Aero-Care Flight Support Pty Ltd, the Fair Work Commission was called upon to approve a collective agreement between the employer and the employees. The nature of the dispute centred on whether the agreement met the statutory requirements under the Fair Work Act 2009, specifically whether it passed the better off overall test. This test requires that the agreement provides employees with terms and conditions that are at least as good as the applicable award or registered agreement.

The legal issues that the Fair Work Commission had to address involved interpreting and applying sections 185, 186, 187, 188 and 193 of the Fair Work Act. These sections mandate that any proposed agreement must be assessed to ensure that it does not disadvantage employees compared to existing conditions and must provide for fair and reasonable terms and conditions of employment. The Commission needed to determine if the agreement fulfilled these statutory criteria.

Upon reviewing the collective agreement, the Commission found that the agreement provided terms and conditions that were at least as good as those provided by the applicable award. It was noted that the agreement included provisions that enhanced employee entitlements in areas such as leave, redundancy payments and shift differentials, thereby satisfying the better off overall test. The Commission concluded that the proposed agreement complied with the statutory requirements and approved it accordingly.

No further orders were made beyond the approval of the collective agreement. The decision reinforces the importance of ensuring that collective agreements not only meet but also potentially exceed existing minimum standards set by awards or other registered agreements.

Orders