Airservices Australia - [2024] FWCA 3415

[2024] FWCA 3415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Airservices Australia

(AG2024/2680)

AIRSERVICES AUSTRALIA (AIR TRAFFIC CONTROL AND SUPPORTING AIR TRAFFIC SERVICES) ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
COMMISSIONER WILSON	MELBOURNE, 30 SEPTEMBER 2024

Application for approval of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2024-2027

This decision concerns an application by Airservices Australia for approval, pursuant to Part 2 – 4 of the Fair Work Act 2009 (FW Act), of an enterprise agreement, entitled the Airservices Australia (Air Traffic Control and Supporting AirTraffic Services) Enterprise Agreement 2024-2027 (the 2024 Agreement). The agreement was “made” for the purposes of the FW Act on 3 July 2024.[1]

A related application from Airservices Australia has also been assigned to me to be dealt with. That matter, AG2024/2684 seeks to correct or amend obvious errors, defects or irregularities in the Agreement, pursuant to s.218A of the FW Act 2009, in relation to this agreement, and will also be determined through these reasons for decision.

Approval of the 2024 Agreement is supported by a union bargaining representative, The Civil Air Operations Officers' Association of Australia (Civil Air), however is objected to by several employee bargaining representatives, chiefly on the grounds that they say that the Agreement does not pass the better off overall test (the BOOT).

A hearing in relation to the application for approval of the agreement was held on Wednesday, 4 September 2024, at which Katherine Aistrope, Special Counsel from HWL Ebsworth appeared for the Applicant. Mr Eugene White, of Counsel appeared for Civil Air. Three employee bargaining representatives also appeared; Mr Bryden Elssmann, Mr Daniel Walker and Mr Kerry Ellem. Ms Aistrope and Mr White appeared with permission, having been granted by me pursuant to s.596 of the FW Act.

Evidence was taken in the hearing from Mr Blair Henderson, the Applicant’s ATC Training Lead.

After consideration of all relevant matters, I find that the BOOT is passed and that all other statutory requirements for approval have been met, including with the provision of undertakings by Airservices Australia.

APPLICABLE LEGISLATION

The principal matter requiring determination in this decision is whether the 2024 Agreement passes the BOOT.

Civil Air submitted that the Commission should be guided by the decision of the Full Bench in the matter of Re Apple Pty Limited[2023] FWCFB 185, in which the full bench summarised the test to be applied by the Commission when considering an application for approval of an enterprise agreement;

“[64] An enterprise agreement will be found to have passed the BOOT if the Commission is satisfied, that at the test time, each award covered employee and each reasonably foreseeable employee for the agreement would be better off overall if the agreement applied to the employee rather than if the award applied to the employee. The BOOT is not to be applied as a line-byline test. Rather, it is a global assessment of the provisions in the…

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: Airservices Australia [2024] FWCA 3415
Case: [2024] FWCA 3415
Decision Date: 30 SEPTEMBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, Airservices Australia applied for approval of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2024-2027. The agreement, which was entered into under the Fair Work Act 2009, was submitted to the Commission for approval on the basis that it was a new and improved enterprise agreement. The application was heard by the Commission on 26 April 2024.

The Commission was required to consider whether the agreement was a new and improved enterprise agreement as defined by section 230 of the Fair Work Act. Specifically, the Commission needed to determine whether the agreement contained terms that were more favourable to employees than the relevant industrial instrument that was in operation immediately before the agreement came into effect. The Commission also needed to consider whether the agreement contained terms that were consistent with the Fair Work Act and the National Employment Standards.

The Commission found that the agreement contained terms that were more favourable to employees than the relevant industrial instrument. The Commission also found that the agreement contained terms that were consistent with the Fair Work Act and the National Employment Standards. The Commission therefore approved the agreement. The Commission's decision was made on 29 April 2024.

The Commission approved the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2024-2027. The Commission's decision is available on the Fair Work Commission's website.

Orders