[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…

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.

Keep reading for free

Create a free CaseChat account to read Aerocare Flight Support Pty Ltd T/A Aerocare and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 8614
Decision Date: 20 DECEMBER 2019

CaseChat Overview and Summary

Aerocare Flight Support Pty Ltd, trading as Aerocare, applied to the Fair Work Commission for the approval of the Aerocare Collective Agreement 2018. The application was made under section 234 of the Fair Work Act 2009, which allows for the approval of a new or amended enterprise agreement. The applicants were Aerocare Flight Support Pty Ltd, and the respondents included various unions representing the employees. The dispute centred around whether the proposed agreement met the legal standards for approval, particularly focusing on the provisions regarding pay rates, conditions of employment, and the process for resolving disputes.

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