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

1. 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]

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.

1. 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).

1. 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.

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

1. 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

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

1. 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 agreement compared to the relevant awards taking into account those provisions that are less beneficial and weighing them against those provisions that are more beneficial.”

BACKGROUND

1. Bargaining for the Agreement commenced on 19 October 2023 and concluded on 3 July 2024. 1097 employees voted in the ballot which made the Agreement, of 1210 eligible employees. 681 employees voted in favour of the Agreement being made.

1. When the Agreement was lodged in the Commission for approval, objections were received from three people covered by the Agreement, not being employee bargaining representatives, who sought to remain anonymous. Each of these people were informed by the Commission that if they wished to pursue their objections they would need to be willing to go on the record, however failing that, the Commission would undertake to provide a summary of their concerns to the formal bargaining representatives for their response. None of the three employees sought to be identified by the Commission to the Applicant and other bargaining representatives.

1. Civil Air, a union bargaining representative for the Agreement, filed a Form F18 declaration advising that it supported approval of the Agreement. One of seven employee bargaining representatives, Mr Bryden Elssmann, filed a Form F18A declaration advising that he objected to approval of the Agreement as did Mr Paul Sutherland, another employee bargaining representative.

1. As is usual in such matters, at the early stage of the application having been assigned to me, the formal bargaining representatives were provided with a summary of concerns seeking their response. Because of the nature of the concerns raised by the anonymous employees, the concerns correspondence also referred briefly to the anonymous employee concerns.

1. The correspondence to formal bargaining representatives on 1 August 2024 included the following;

“PRELIMINARIES

Related application: AG2024/2684 has also been assigned to the Commissioner, however that application is not dealt with to any extent in this correspondence. AG2024/2684 seeks to correct or amend obvious errors, defects or irregularities in the Agreement, pursuant to section 218A of the Fair Work Act 2009, in relation to this agreement. The errors appear to be typographical and formatting errors, specifically spacing between words.

Concerns expressed by employees of Airservices Australia: Three individual employees, who are not bargaining representatives, have written to the Commission expressing concerns about the making and approval of the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2024-2027. The Commissioner has chosen not to forward their correspondence to you at this time, or to identify the people concerned. A copy of this correspondence will be provided to each of these people. The Commissioner has informed each of the three employees that each is welcome to provide a response to this correspondence or to make further submissions about their concerns. They have been informed that, if they chose to do so, anything which is provided back to the Commission will, for reasons of procedural fairness and transparency, be copied to the recipients of this email, that is the Applicant and bargaining representatives. Unless they seek, and the Commissioner grants, a confidentiality order in respect of their submissions each will be identified as having made the submissions.

In summary, the matters referred to by the three employees include;

-Any previous instances of "their unions" has been replaced with "the Union" which is defined as Civil Air Operations Officers Association of Australia.

-"Union delegate" has been defined to mean "a member of the Union..."

-The consultation clauses (8) now refer to consultation with "The Union".

-Clause 14.2 now refers to Airservices and "the Union..." and clause 18 refers to an "employee representative" which, as above, has been redefined to a member of "the Union...".

-Other unions have been excluded, thus inducing employees to be a member of Civil Air and thereby contravening the Freedom of Association provisions of the Fair Work Act. s336 clearly states that persons should be free to be represented by industrial associations and not be discriminated against as a result of contraventions of the Act.

-Furthermore, the wording of Union has changed to implied exclude other unions and thereby coerce employees to be a member of only one Union (Civil Air) in order to be effectively heard, represented and/or be consulted with. This is said to contravene the Freedom of Association provisions of the Fair Work Act.

-In addition it is noted that:

oClause 18.4 has an incorrect document reference.

oClause 24.15 states that further work will be done to develop a procedure for payment of a new multi skill allowance. It seems strange that this procedure/payment is not agreed upon prior to submission and is potentially unfair to employees.

oThere is nothing in the document that states where employees will translate to in the pay table upon certification, despite Airservices insisting a Level 9 employee who has served longer than 12 months will commence at Level 10. (Internal documentation can be provided to substantiate this.)

·The agreement contravenes the Freedom of Association provision of the Fair Work Act (Section 336) by effectively requiring me to only be a member of one Union – Civil Air (The Union per the EA definition clauses 2.1, clause 8 on consultation, clause 14.2, and clause 18 where employee representation has been defined as Civil Air ).

·Clause 24.15 has an incomplete Multi skill allowance only in consultation with Civil Air;

·Clause 27.2 makes special allowance for exceptional circumstance for preventing someone doing the requirements who is progressing through the pay levels, however no such allowance exists for those remaining on level 10, only “progressing”.

COMMISSIONER WILSON’S CONCERNS

Upon review of the application the Commissioner has asked that the below concerns please be addressed as soon as possible but not later than close of business Tuesday, 6 August 2024.

FORM
Agreement: Clause 18.4 contains an Error reference in relation to Rights and responsibilities of employee representatives and union delegates. Section 586 correction may be applicable to include the correct clause reference.

PRE-APPROVAL
NERR: The NERR titles the agreement as ‘Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2023-2026’ which is inconsistent with clause 1 of the agreement which titles the agreement as ‘Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2024-2027’. Seek submissions or S188(5) may be an applicable consideration provided that employees are not disadvantaged.

NES
The following term(s) have been raised as contrary to the National Employment Standards (NES). While it is noted that the Agreement contains an NES precedence clause at clause 4.2 of the Agreement, the Commissioner invites undertakings specifically addressing these concerns so that a lay person reading the Agreement understands their entitlements and can genuinely agree to such provisions.

Notice of Termination: Clause 60.6 of the Agreement states permanent employees are required to give at least 14 calendar days notice of termination, or forfeit 14 calendar days pay in lieu of notice, unless a lesser period is agreed. This is inconsistent with s117 of the Act for Notice of Termination. Seek an undertaking or rely on the NES precedence clause”

1. Importantly, it is to be noted that the initial concerns raised by the Commission did not refer to matters associated with the BOOT, although Mr Elssmann and Mr Sutherland’s Form F18As did put forward that the BOOT had not been met.  This is because I did not at that time hold a concern about those matters.

1. Following provision of this material to the bargaining representatives on 1 August 2024, Airservices Australia responded on 6 August 2024.

1. On 7 August 2024, Mr Elssmann communicated with the Commission and the other bargaining representatives, pressing a number of the matters about which he was concerned, including matters associated with the BOOT. He argued that “The proposed agreement does not pass the BOOT. Employees, particularly those in ATC salary classification: Ab Initio, Field Trainee, Level 1, and Level 2 positions, are financially disadvantaged compared to the current Award. The removal of certain allowances and penalty rates further exacerbates this issue.”[2] Mr Elssmann also argued for there to be financial adjustments in order for the BOOT to be passed or alternatively, for restrictions on when the more junior employees could work.

1. Through its correspondence to the Commission, dated 8 August 2024, Civil Air argued against Mr Elssmann’s position.

1. On 16 August 2024, the Commission again wrote to the parties, this time dealing with the responses given by each, with the correspondence setting out the following;

“The Commissioner has considered the response given by Airservices Australia on 6 August 2024 to his original “concerns” correspondence and accepts the submissions provided by the Applicant within its reply. With respect to the matters set out in that correspondence under the heading "Form" the Commissioner is prepared to accept that there is a typographical error capable of correction under s.586 of the Fair Work Act 2009.

The Commissioner has also given further consideration to the matters raised by anonymous employees of Airservices Australia. He does not consider any of those matters require further consideration. In particular, the matters raised in relation to identification or involvement of “the union”, namely Civil Air Operations Officers Association of Australia, do not disclose any matters that would impede the approval of the Agreement. While there is within the Agreement, the right of Civil Air to be involved in certain stages of consultation and other matters, there are also protections given to employees generally to be represented by an alternative to Civil Air.

The Commissioner has also given greater consideration to the matters set out within the Form F18 (sic) provided by Mr Ellssmann. In particular, he has requested the Commission’s Agreement Services Team to undertake modelling of the contentions raised by Mr Ellssmann.”

1. The reference to Mr Elssmann’s Form F18A is to the answers given by him to questions in the form in two respects; first, Question 6, asking whether the declarant supports approval of the agreement by the Commission and second, Questions 8 and 9, as to whether it is agreed that the agreement passes the better off overall test. In those respects, Mr Elssmann put forward that the agreement “fails the Better Off Overall Test (BOOT) as employees are significantly worse off financially when compared to the award. For example, Ab Initio, Field Trainees, Level 1, and Level 2 Air Traffic Controllers are disadvantaged due to the absence of award conditions, namely allowances and penalty rates”. He also puts forward certain modelling which would suggest the BOOT has not been passed.

1. The further modelling referred to in the Commission’s email to the parties on 16 August refers to modelling provided by the Commission to the parties for their consideration. The modelling was undertaken by the Agreement Services team, in respect of Mr Elssmann’s contentions and provided for comment on 16 August 2024. It showed broadly that the BOOT may not have been met and the applicant and other bargaining representatives were invited to make submissions about the subject. The material provided to the parties about this further modelling included the following summary;

2. “Summary

   Mr Ellssmann highlights concerns in relation to ATC salary classification: Ab Initio, Field Trainee, Level 1, and Level 2 positions, specifically the removal of certain allowances and penalty rates. Mr Ellssmann has provided an annualised representation of the financial disadvantage of employees at Ab Initio, Field Trainee, Level 1, Level 2 and current roster breakdown examples for a Field Trainee and Level 1.

   Penalty Rates
   We have tested both roster patterns excluding allowances which have resulted in an Ab Initio Trainee and Field Trainees being worse off.

   ·Ab Initio Trainees: Schedule 1.4 provides a safeguard for Ab Initio Trainees stating they are not required to work night shifts or perform ordinary hours on Saturdays or Sunday. This safeguard ensures that Ab Initio employees are better off with respect to penalty rates.

   ·Field Trainees: Field Trainees appear to be $14.47 worse off in Model 1 (night shift and ordinary hours on weekends) and $406.69 in Model 2 (consecutive night shifts and ordinary hours on weekends) if these roster patterns are found to be worked under the agreement. Member may consider seeking submissions or an undertaking.

   Night Shift

   ·As the agreement provides for a night shift definition that attracts night shift leave where an employee works night shifts, or shifts that start or end between the hours of 001 and 0459 (clause 53.1) which accrue an additional 2 hours. Clause 16.2 of the award provides night shift loadings of 115% where any part of the shift falls between 7 am and 7 pm Monday to Friday or 130% where the shift falls within 7 pm and 7 am and is worked for a period exceeding 4 weeks. The differing shift definitions result in employees being excluded from any night shift penalties when working the roster patterns provided by Mr Ellssmann.

   Allowances
   Mr Ellman’s has included the below allowances within his submissions;

   -Surveillance Advisory – 5% of salary (Clause 12.9)

   -Simultaneous Operations Allowance – 9% - 18% of base salary (Clause 12.10)

   -Complexity Allowance ranging between $1,792.40-$4,007.11 per year (Clause 12.8(a))

   -Loss of income insurance - $1,194- $1,347 per year (Clause 12.12)

   The agreement does not appear to provide for the above allowances. We note the allowances are conditional and therefore may not apply to all employees simultaneously.

   We have undertaken modelling with the inclusion of the above allowances in the following Models (Ab Initio Trainees do not appear to attract any of the above allowances, therefore no modelling for allowances in relation to Ab Initio Trainees have been conducted):

   ·36 hour week

   oA level 1 employee is $109.07 below the award rates of pay

   ·Model 1: Employee working night shift (example provided by Mr Ellssmann)

   oA Field Trainee is $144.29 below and a level 1 is $321.84 below the award rates of pay per fortnight

   ·Model 2: Employee working continuous night shift (example provided by Mr Ellssmann)

   oA Field Trainee is $434.14 below, level 1 is $788.09 below and a Level 2 if $214.18 below the award rates of pay per fortnight”

1. The focus of Airservices’ submissions and evidence to the Commission in the hearing on 4 September 2024 was to demonstrate that the patterns of work considered by the Commission did not align, either with the work as undertaken, or as permitted by the enterprise agreement. Further, Airservices put forward that assumptions made about the payment of allowances that would otherwise have to be paid to the employees if they were working under the relevant award, being the Airservices Australia Enterprise Award 2016 which is excluded by clause 6.1 of the agreement, were also incorrect. The nature of these incorrect assumptions on the part of the modelling by the Commission were such that the modelling showed a BOOT failure when none was present.

1. In its submissions, Airservices Australia argues neither of the model shift patterns used in the Commission’s modelling could actually be used;

“The two week shift pattern outlined in Model 1 is not capable of being worked under the Agreement. Clause 20.7 of the Agreement provides that the minimum number of consecutive rostered shifts will be three. Model 1 includes a Monday 2pm-10pm shift which is not preceded or followed by any other shift. The shift pattern is in breach of
clause 20.7 because it does not include a minimum number of three consecutive rostered shifts for each run of shifts.”[3]

“The two week shift pattern outlined in Model 2 is not capable of being worked under the Agreement. Clause 20.7 of the Agreement provides that the minimum number of consecutive rostered shifts will be three. Model 2 includes consecutive Saturday and Sunday 2pm-10pm shifts which are not preceded or followed by any other shift. Therefore the minimum three consecutive shifts requirement is not met.

The shift pattern in Model 2 would also breach clause 20.8(c) of the Agreement, which provides:

Two (2) clear days off will be rostered following a run of five (5) consecutive shifts or consecutive shifts totalling more than thirty (30) hours acquitted. (emphasis added)”[4]

1. Further, Airservices Australia made various submissions on the modelling, which I summarise as follows.

Model 1

Model 2

The assumed two week shift pattern is not capable of being worked under the Agreement since Clause 20.7 due to restraints on the number of consecutive rostered shifts.[5]

As for Model 1

Shift penalties were incorrectly calculated in the award coverage calculations since it was assumed penalty rates applied to the entire shift and not simply for the ordinary hours worked within the shift span (and not to hours worked outside of the shift span) (see Award Clause 16.2)

As for Model 1

The Surveillance Advisory Service (SAS) allowance provided for under the award does not apply to employees covered by the Agreement with the following being submitted;

“The allowance no longer arises in respect of the Applicant's operations. It applied where an employee was performing the SAS function "in addition, and at the same time, as their normal air traffic control functions". It was a separate function performed on a separate console. This no longer occurs”[6]

Not identified as a concern to Model 2

The Simultaneous Operations Allowance (SOA) provided for under the Award does not apply in the way assumed in the model; in particular;

“Relevantly, the SOA only applies to employees who are 'handling air traffic'. To handle air traffic, an employee must hold an air traffic controller licence. Field trainees do not hold air traffic controller licences (see the definition at A.1.3 of the Award). Field trainees are undergoing on the job training assessment. All actions a field trainee take are under supervision and instruction. In those circumstances, the Applicant submits that Field Trainees do not handle air traffic within the meaning of clause 12.10 of the Award and are not entitled to the SOA.”[7]

Not identified as a concern to Model 2

Loss of Income Insurance, provided for under the Award (see Clause 12.12) was incorrectly characterised in the model as an allowance;

“While the Award entitlement provides a benefit to employees, it is a contingent entitlement because the employee would be required to take out a relevant insurance policy. In those circumstances the Applicant submits that the value should not be equated to a cash value and is a matter to be taken into account in the holistic assessment of the benefits provided by the Agreement.

For the purposes of that holistic assessment, the Applicant notes that the other benefits provided by the Agreement which are more beneficial than the Award include paid breaks within shifts. An employee is entitled to 30 minutes of paid break for each 8 hour shift, as opposed to the 30 minute unpaid break under the Award. The Agreement also provides for paid sick leave as required, as opposed to limiting sick leave to the amount of personal/carer's leave accrued under the NES.”[8]

Not identified as a concern to Model 2

The model may have incorrectly included a component for annual leave loading. Employees are shift workers who have access to additional benefits because of their shiftwork status;

“In those circumstances, including annual leave in the modelling does not provide an accurate assessment of the value of the accrual. As the Agreement rate is significantly higher than the ordinary rate under the Award, the annual leave excluding shift penalties will have a significantly higher value than the ordinary rate for annual leave under the Award. If, as submitted, the Agreement rate also exceeds the Award rate when the Award shift penalty payments are taken into account, then the employee will also be better off overall when Annual leave is taken where the payment required under the Award would include shift penalties.”[9]

Not identified as a concern to Model 2

Not identified as a concern to Model 1

The model does not take into account the additional entitlement to annual leave which applies to nightshift employees.[10]

1. Seven matters of substance may be drawn from the above summary;

1. Whether a two-week roster can be worked under the Agreement.

I accept the Applicant’s submission about this matter, with it putting forward the following (which applies to Model 2 as much as Model 1);

“The two week shift pattern outlined in Model 1 is not capable of being worked under the Agreement. Clause 20.7 of the Agreement provides that the minimum number of consecutive rostered shifts will be three. Model 1 includes a Monday 2pm-10pm shift which is not preceded or followed by any other shift. The shift pattern is in breach of clause 20.7 because it does not include a minimum number of three consecutive rostered shifts for each run of shifts.”[11]

The situation comes about because of the various constraints on the number of consecutive shifts set out within clause 20.7 of the Agreement and the practicalities associated with organising to fit those constraints;

“20.7 Consecutive shifts

(a) The minimum number of consecutive rostered shifts will be three (3).

(b) The maximum number of consecutive rostered shifts will be five (5).

(c) The maximum number of consecutive rostered shifts identified in 20.7(b) above can be varied by agreement between Airservices and an employee (or group of employees) to a maximum of six (6).

(d) The maximum number of hours acquitted that can be rostered in consecutive shifts will be forty eight (48).

(e) The maximum number of consecutive shifts worked, inclusive of additional duty or emergency duty, will be ten (10).

(f) The maximum number of hours acquitted in consecutive shifts inclusive of additional duty or emergency duty, will be eighty (80).”

It follows from the submissions on this matter that the modelling should be recast to a three-week roster.

1. Shift penalties only paid for the time within shift spans

Clause 16.2 of the Award clearly sets out that that penalty rates are applied only to the hours which are within the shift span, with the clause providing the following (so far as is relevant);

“16.2A shiftworker will be paid the following penalty rates for all ordinary hours worked by the shiftworker during the following periods:

Ordinary hours worked:		Penalty rate	Casual penalty rate
Ordinary span of hours—no penalty rate	See clause 9	ordinary rate (100%)	ordinary rate plus casual loading (125%)
Night	Where any part of the shift falls between 7.00 pm and 7.00 am, Monday to Friday	115%	140%

[remainder of clause omitted]” (underlining added)

I accept that the clause should be interpreted as providing that shift penalty payments are paid only for the time worked within the shift span, which in the case of the night shift reference above would only be for the time after 7 PM and before 7 AM, Monday to Friday.

1. Surveillance Advisory Service Allowance no longer in use

The allowance is provided for within clause 12.9 of the Award, which provides the following so far as is relevant;

12.9Surveillance Advisory Service (SAS) Allowance

(a)An air traffic controller who performs the function of providing surveillance advisory service (SAS), in addition, and at the same time, as their normal air traffic control functions, will be paid an allowance of 5% of their salary. This salary encompasses the base rate, complexity allowance and Simultaneous Operations Allowance.

[(b) and (c) omitted]

The evidence of Mr Henderson, Air Services Australia’s ATC Training Lead was that the allowance is no longer in use, with him stating;

“Due to changes in technology, the SAS function is no longer an additional function, which means that it is never being performed "in addition, and at the same time as their normal traffic control functions". The SAS function is historical only and a SAS allowance does not make any sense and has no application to today's technology.”[12]

While Mr Elssmann and Mr Walker argued to the contrary,[13] I accept the fundamental submissions made by Airservices Australia, that the function is no longer an additional one requiring the allowance to be taken account of in applying the BOOT.

1. Simultaneous Operations Allowance inapplicable to trainees

The Award provides, on the subject of the simultaneous operations allowance (as far as is relevant);

“12.10Simultaneous Operations Allowance

(a)The Simultaneous Operations Allowance is paid to those controllers who perform the function of handling air traffic that simultaneously utilise two intersecting runways.

[(b) omitted]”

Noting that the focus of the further modelling was on trainees, I accept what Airservices Australia has to say to the effect that employees at the trainee level do not handle air traffic as they are not licensed air traffic controllers. I accept therefore, that the allowance is not required to be take into account in determination of the BOOT.

1. Loss of income insurance

   I note the submission made by Airservices Australia to the effect that the Award’s provision of reimbursement of loss of income insurance (see Clause 12.12) is a contingent entitlement, which is then not required to be taken into account in relation to assessment of the BOOT.[14] While noting that submission, I do not determine the subject as it is not necessary for me to do so taking into account what the applicant has to say about other benefits provided for by the agreement which are more beneficial than the award. Such admission is capable of acceptance and no BOOT issue arises in respect of this allowance.

2. Incorrect inclusion of annual leave loading

This issue was raised by Airservices Australia in respect only Model 1. I accept what the Applicant has to say in respect of the differences between the Agreement and the award and that when shift penalty payments are taken into account, employees will be better off overall notwithstanding the absence of annual leave loading.

1. Additional annual leave

Airservices Australia puts forward that Model 2 does not take into account in assessment of the BOOT that nightshift employees are entitled to additional annual leave.  I accept that submission.

1. It follows from these findings that the Further Modelling requires recalculation.   Reassessment of each of the models used to the earlier stage by the Commission now indicates that the BOOT is passed (see ATTACHMENT 1).

1. As a consequence of my consideration of this matter, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met.

1. The Civil Air Operations Officers' Association of Australia, 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) I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from

3 October 2024. The nominal expiry date of the Agreement is 3 October 2027.

VARIATION

1. Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

“(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2)The FWC may vary an enterprise agreement under subsection (1);

(a)on its own initiative; or

(b)on application by any of the following:

(i)one or more of the employers covered by the agreement;

(ii)an employee covered by the agreement;

(iii)an employee organisation covered by the agreement.

(3)If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”

1. In recent decisions of the Fair Work Commission[15] (the Commission), it has been noted that s.218A of the Act is akin to the slip rule found in s.602 of the Act which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The purpose of the section is to remove the complexity associated with varying enterprise agreements which contain an obvious error, defect or irregularity by creating a simpler process for corrections to be made.

1. Before an amendment under s.218A can be made, the Commission must first be satisfied that an obvious error, default or irregularity (whether in substance or form) exists. If it is found that such an error, default of irregularity exists, the Commission may (not must) vary the agreement.

1. The Applicant on 17 July 2024 made an application under s.218A of the Act to correct or amend obvious errors, defects or irregularities in various identified parts of the Agreement.

1. I sought the views of the Bargaining Representatives on the s.218A application. No Bargaining Representative objected to the variations being made.

1. For the reasons set out above, I am satisfied that the identified obvious errors, defects or irregularities fall within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act.

1. The variations sought will operate from the date the Agreement commences operation, 3 October 2024.

Order

1. I order, pursuant to s.218A of the Act, that the Agreement be varied as set out in the ATTACHMENT 2 to this decision.

COMMISSIONER

Appearances:

Ms K. Aistrope, for the Applicant.
Mr E. White, for the Civil Air Operations Officers' Association of Australia. 
Mr B. Elssmann, Employee Bargaining Representative.
Mr D. Walker and Mr Kerry Ellem.

Hearing details:

4 September.
2024.

ATTACHMENT 1

Model 1: Field Trainee

Agreement Ordinary Rate	$45.91	Field Trainee		Award Ordinary Rate	$35.02	ATC - Field Trainee
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary hours	153	100.0%	$7,024.23	Ordinary hours	153	100.0%	$5,358.06
Night Shift	55	100%	$2,525.05	Night Shift	55	115%	$2,215.02
Saturday	40	100%	$1,836.40	Saturday	40	150%	$2,101.20
Sunday	40	100%	$1,836.40	Sunday	40	200%	$2,801.60
Allowances	Amount	Value	Allowances	Amount	Value
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Totals	288.00	Hrs	$13,222.08	Totals	288.00	Hrs	$12,475.88
Agreement Total Weekly Rate			$13,222.08
Award Total Weekly Rate			$12,475.88
Dollar / Actual Percentage Difference			$746.20
			5.98%

Model 2: Level 1 - Air Traffic Controller

Agreement Ordinary Rate	$62.49	Level 1		Award Ordinary Rate	$41.63	ATC - Level 1
Hours	Loading	weekly total	Hours	Loading	weekly total
Ordinary hours	153	100.0%	$9,560.97	Ordinary hours	153	100.0%	$6,369.39
Night Shift	55	100%	$3,436.95	Night Shift	55	115%	$2,633.10
Saturday	40	100%	$2,499.60	Saturday	40	150%	$2,497.80
Sunday	40	100%	$2,499.60	Sunday	40	200%	$3,330.40
Allowances	Amount	Value	Allowances	Amount	Value
$0.00	$0.00
$0.00	$0.00
$0.00	$0.00
Totals	288.00	Hrs	$17,997.12	Totals	288.00	Hrs	$14,830.69
Agreement Total Weekly Rate			$17,997.12
Award Total Weekly Rate			$14,830.69
Dollar / Actual Percentage Difference			$3,166.43
			21.35%

ATTACHMENT 2

1. The Fair Work Commission orders, pursuant to section 218A of the Fair Work Act 2009, that the Airservices Australia (Air Traffic Control and Supporting Air Traffic Services) Enterprise Agreement 2024-2027 (Agreement) be varied as follows: 

   The insertion of spaces into the typos identified throughout the Agreement:

oClause 2.2 states positioby, should be position by

oClause 4.1(b)(ii) states abovethat, should be above that 

oClause 11.9(a) states representativewho, should be representative who

oClause 11.14 states thedetermination, should be the determination 

oClause 12.3 states termsand, should be terms and  

oClause 20.21 states unreasonablefor, should be unreasonable for

oClause 20.27 states theemployee, should be the employee 

oClause 22.2 states notfit, should be not fit.

oClause 23.5 states issuedwith, should be issued with

oClause 24.9 states transferredto, should be transferred to 

oClause 26.6 states subjectto, should be subject to 

oClause 29.1 states willbe, should be will be

oClause 29.4 states fatiguemanagement, should be fatigue management

oClause 32.5 states employee'swritten, should be employee's written

oClause 34.5 states theadditional, should be the additional

oClause 38.5 states boththe, should be both the

oClause 38.8 states absencesdue, should be absence due. It also states includean, should be include an

oClause 47.1 states forthe, should be for the

oClause 47.2 states takenin, should be taken in. It also states reflectedin, should be reflected in 

oClause 50.19 states obtainapproval, should be obtain approval

oClause 58.3 states and/orconduct, should be and/or conduct. It also states ameeting, should be a meeting

oClause 62.2 states wasin, should be was in. It also states whichthose, should be which those   

oClause 62.4 states positionis, should be position is. It also states considertheir, should be consider their

oClause 62.6 states notifiedtheir, should be notified their 

oClause 62.13 states hasbeen, should be has been

oClause 62.15 states declaredsurplus, should be declared surplus. It also states Underthis, should be under this

oClause 64.7 states mayresult, should be may result 

oClause 64.9 states thenthe, should be then the

oClause 64.10 states an opportunity, matters are, employee’s classification, havetheir, immediately or, the action, leave and, these should be an  opportunity, matters  are, employee’s  classification, have their, immediately  or, the  action, leave  and

oClause 65.2 states toanother and personto, should be to another

oClause 65.9 states procedurethat, should be procedure that

oSchedule 1, 1(b) states alicensed, should be a  licensed

oSchedule 1, 6 states tosatisfactorily, should be to satisfactorily

oClause 2.1, has an extra set of quotation marks; it readds “”ADT””, but should be “ADT”

oClause 2.1, has a typo in the definition for DAS that reads knows instead of known 

oReplace the word preceding with following at clause 27.5, 27.24 and 27.35 

1. The variations listed above will operate from the date on which the Agreement commences operation, 7 October 2024. 

2. A copy of the Agreement incorporating the variations above will be published with the decision approving the Agreement.

[1] Notice of employee representational rights; Digital Hearing Book, p.202.

[2] Elssmann email 7 August 2024; DHB pp.957 – 958

[3] Airservices Australia correspondence, 23 August 2024; DHB, p.948

[4] Ibid, p.1003.

[5] Ibid, p.998.

[6] Airservices Australia correspondence, 23 August 2024; DHB, p.1000.

[7] Ibid, p.1001.

[8] Airservices Australia correspondence, 23 August 2024; DHB, p.1002.

[9] Airservices Australia correspondence, 23 August 2024; DHB, p.1002.

[10] Ibid, p.1003.

[11] Ibid, p.1003.

[12] Witness Statement of Blair Henderson, [26].

[13] See for example, Transcript, PN 173 – 174; 186.

[14] Airservices Australia correspondence, 23 August 2024; DHB, p.1002.

[15] See for example [2023] FWCA 844 per Gostencnik DP, and [2023] FWC 115 per Asbury DP (as Vice President Asbury then was).

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