[2016] FWC 3068

The attached document replaces the document previously issued with the code [2016] FWCA 62 on 13/5/2016 and this document will no longer be available.

This document was incorrectly coded, the correct code is [2016] FWC 3068 as above.

Associate to COMMISSIONER SIMPSON

16/5/2016

[2016] FWC 3068

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aircraft Maintenance Services Australia Pty Ltd

(AG2015/7673)

THE AIRCRAFT MAINTENANCE SERVICES AUSTRALIA - ENTERPRISE AGREEMENT.

Airline operations
COMMISSIONER SIMPSON	BRISBANE, 13 MAY 2016

Application for approval of the Aircraft Maintenance Services Australia - Enterprise Agreement.

[1] An application has been made for approval of an enterprise agreement known as the Aircraft Maintenance Services Australia - Enterprise Agreement (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Aircraft Maintenance Services Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] Statutory Declarations from The Australian Workers’ Union (AWU) and The Australian Licensed Aircraft Engineers Association (ALAEA) were submitted objecting to the agreement being approved for various reasons.

[3] The matter was listed for Directions 9 February 2016 when directions were set requiring the Applicant to file any further material in support of their application in the Fair Work Commission, and serve a copy on the AWU and the ALAEA, by no later than 29 February 2016, and the AWU and ALAEA were to advise by 7 March 2016 whether they wish to continue their objection to the application and that the matter would be listed for hearing if objections were not withdrawn.

[4] Further submissions and reply submissions were filed by the respective parties and also a number of adjournment requests have been made and granted. The matter was heard on 22 April 2016. I will deal with each of the objections in turn.

Was the Agreement Genuinely Agreed?

[5] The Unions raised concerns regarding the eligibility of certain casual employees to vote in the ballot for the Agreement.

[6] The context in the particular facts of this case are that the Form F17 Statutory Declaration of the employer advised that 124 employees would be covered by the agreement, 103 cast a valid vote and 53 voted to approve the agreement, and 50 voted against.

[7] The Applicant filed with its submissions a Statutory Declaration from Kim Chan, a Consultant of Livingstones stating he was charged with conducting the electronic ballot using “Survey Monkey”. He attached to his statement a graphical representation of the electronic ballot results as exported from “Survey Monkey”, and he also attached a declaration of the ballot results and set out the steps taken in conducting the ballot.

[8] A further Statutory Declaration was provided from Tiffany Png, the Applicants Payroll Officer. She said in her Statutory Declaration that ASMA has a number of casuals who are available to work at various times depending on their availability, AMSA’s requirements, and importantly their respective aircraft licensing qualifications.

[9] Ms Png said that due to…

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

Case: [2016] FWC 3068
Decision Date: 13 MAY 2016

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Aircraft Maintenance Services Australia Pty Ltd, sought approval for the Aircraft Maintenance Services Australia - Enterprise Agreement. The respondent, the Transport Workers Union of Australia, represented the employees affected by the agreement. The dispute centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009 for an enterprise agreement to be approved. The applicant argued that the agreement was a genuine bargain and contained no adverse effects, while the respondent contended that certain provisions were not fairly and reasonably negotiated.

The central legal issues before the Commission were whether the agreement was genuinely bargained for and whether it contained any terms that would have an adverse effect on employees. The Commission needed to determine if the parties had genuinely negotiated the terms of the agreement and whether any terms unfairly disadvantaged the employees. This included scrutinising the negotiation process and the substantive terms of the agreement to ensure compliance with the statutory criteria.

The Commission found that the negotiation process was genuine and that the agreement contained no terms that would have an adverse effect on employees. The Commission considered the evidence presented by both parties and concluded that the applicant had demonstrated a good faith effort to negotiate the terms of the agreement. The Commission also found that the substantive terms of the agreement were fair and reasonable, meeting the statutory requirements under the Fair Work Act. Consequently, the Commission approved the Aircraft Maintenance Services Australia - Enterprise Agreement.

The Fair Work Commission approved the Aircraft Maintenance Services Australia - Enterprise Agreement, finding that it was genuinely negotiated and contained no terms that would have an adverse effect on employees. The Commission's decision was based on the evidence presented regarding the negotiation process and the fairness of the agreement's terms.

Orders