| [2019] FWC 8614 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Aerocare Flight Support Pty Ltd T/A Aerocare
(AG2018/2008)
COMMISSIONER WILSON | MELBOURNE, 20 DECEMBER 2019 |
Application for approval of the Aerocare Collective Agreement 2018.
1. INTRODUCTION
[1] This decision concerns an application for the approval of an enterprise agreement by Aerocare Flight Support Pty Ltd now known as Swissport Australia Pty Ltd 1 (referred to interchangeably in this decision as Aerocare and Swissport). The application is made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act) and seeks approval of the Aerocare Collective Agreement 2018 (the Agreement or the 2018 Agreement).
[2] For the reasons set out below, I am satisfied that the Agreement meets all legislative requirements, with the exception that I am not satisfied the Agreement as it stands passes the better off overall test (BOOT). I am, however, prepared to consider its approval with further undertakings to be given by Aerocare which meet all relevant tests within s.190. Through this decision I issue Directions for the filing of such undertakings if the Applicant is prepared to give them.
2. ARRANGEMENT OF THE DECISION
[3] This decision is arranged as follows;
1. INTRODUCTION
2. ARRANGEMENT OF THE DECISION
3. BACKGROUND
4. EVIDENCE AND MATERIALS BEFORE THE COMMISSION
5. BACKGROUND
6. APPLICABLE LEGISLATION
7. PRE-APPROVAL MATTERS
7.1 Genuine agreement
7.2 Definition of shiftworker for the purposes of the NES
8. CONSIDERATION – MATTERS ASSOCIATED WITH THE BOOT
8.1 The BOOT generally/approach to loaded rates
8.2 Aerocare’s submissions on BOOT
8.3 Aerocare responses to initial FWC ‘concerns’/union objections
Span of hours/overtime
Hours of work/minimum engagement
Shift penalties
Shift swaps/ vacated shifts
Meal/crib times
Annual leave loading
Allowances
Part-time overtime
Split-shifts
Rates of pay
Additional benefits
8.4 The TWU and ASU submissions on BOOT
The evidence relied upon for the BOOT analysis
Split-shifts
Higher wage rates should not be accepted as satisfying the BOOT
Rates of pay
Penalty and shift rates
Part-time employees
Split-shifts
Meal/Crib Breaks and Part-time/Casual Minimum Engagements
Expert reports
8.5 Classification matching
8.6 “Test time” contentions in this matter
8.7 Split shifts
8.8 Part time employee specific entitlements
8.9 Casual employees’ specific entitlements
8.10 Saturday and Sunday penalties and overtime
8.11 Early morning, afternoon and night penalties / Pre-dawn shift allowance
8.12 Shift swaps and vacated shifts
8.13 Allowances and other entitlements including annual leave loading
8.14 Consideration of the Aeorcare BOOT materials
9. AEROCARE UNDERTAKINGS
10. THE COMMISSION’S BOOT MODELLING
10.1 Matters relevant to the Commission’s BOOT considerations
10.2 Commission modelling – preliminary matters
What the modelling does not take account of
10.3 Relevant Agreement content
10.4 The Commission’s modelling methodology
10.5 The modelling undertaken by the Commission
First round of Commission modelling
Further round of Commission modelling
10.6 Impact on BOOT of other features of the 2018 Agreement; financial and non-financial
10.7 Consideration of ANMF v Domain Aged Care (QLD) Pty Ltd T/A Opal
10.8 Conclusions on the Commission’s BOOT modelling
11. Proposed further undertakings
11.1 Additional undertakings sought
11.2 Whether…
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- Case
- [2019] FWC 8614
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the agreement contained the mandated 'good faith' bargaining provisions and whether it provided for a 'safety net' of minimum pay rates and conditions. The court had to determine if the agreement complied with the legislative requirements and if it was in the best interests of the employees. Additionally, the court examined whether the process by which the agreement was negotiated and made was fair and appropriate.
The Fair Work Commission held that the agreement did meet the legislative requirements. The court found that the agreement contained the necessary good faith bargaining provisions and provided for a safety net of minimum pay rates and conditions. The Commission was satisfied that the agreement was made in good faith and was in the best interests of the employees. The process for resolving disputes was also deemed appropriate and fair. Consequently, the court approved the Aerocare Collective Agreement 2018 under section 234 of the Fair Work Act 2009.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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