Airbus Australia Pacific Limited T/A Airbus Australia Pacific

[2024] FWCA 3019

[2024] FWCA 3019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Airbus Australia Pacific Limited T/A Airbus Australia Pacific

(AG2024/2838)

AIRBUS AUSTRALIA PACIFIC (EDINBURGH) ENTERPRISE AGREEMENT 2024

Airline operations
COMMISSIONER PLATT	ADELAIDE, 16 AUGUST 2024

Application for approval of the Airbus Australia Pacific (Edinburgh) Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Airbus Australia Pacific (Edinburgh) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Airbus Australia Pacific Limited T/A Airbus Australia Pacific (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 8 August 2024.

1. On 13 August 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. In respect of the Notice of Employee Representational Rights (NERR) deficiency, it appears a pre-reform version of the NERR was provided to employees.  I am satisfied taking into consideration s.188(5) of the Act, that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. There are four National Employment Standard (NES) issues that require comment:

·  Clause 33.14 provides that an employee is not entitled to carer’s leave where another person has taken leave to care for the same person. The NES does not impose such a restriction on the use of carer’s leave.

·  Clause 34 provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies, however it is silent in relation to compassionate leave for stillbirth/miscarriage provided by s.104(1)(b) and (c) of the Act.

·  Clause 41.5 states that where an employee fails to give notice of termination, the employer will have the right to withhold monies due to the employee for the period of notice not given. This clause appears to permit the employer to withhold monies owing to the employee under the NES.

·  Clause 48 states the amount of domestic violence leave provided to employees will be determined by the individual’s situation and through consultation with the employee and Human Resources. This is inconsistent with s.106A of the Act, which provides 10 days of paid family and domestic violence leave in a 12-month period.

1. Clause 4.2 of the Agreement acts as an effective NES precedence clause. As a result, the above clauses will not apply to the extent they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 13 August 2024. The undertaking deals with the following topics:

·  The delegates’ rights terms contained in the Airline Operations – Ground Staff Award 2020 and Storage Services and Wholesale Award 2020 are taken to be a term of the Agreement.

·  Overtime rates for casual employees will be calculated by adding the casual loading of 30% to the overtime rates outlined in the Agreement.

·  Further to Clause 23.14, any variations of a part-time employee’s hours of ordinary duty will be recorded in writing.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 July 2027.

COMMISSIONER

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