Airservices Australia - [2024] FWCA 2621

[2024] FWCA 2621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Airservices Australia

(AG2024/2143; AG2024/2159)

AIRSERVICES AUSTRALIA (AVIATION RESCUE AND FIRE FIGHTING) ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 15 JULY 2024

Application for approval of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2024-2027 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

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

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 22 July 2024. The nominal expiry date of the Agreement is 21 February 2027.

The United Firefighters’ Union of Australia, being a bargaining representative for the Agreement, has given notice to the Fair Work Commission that it wants the Agreement to cover it. In accordance with s 201(2) of the Act, I note that the Agreement covers the United Firefighters’ Union of Australia.

Variation application

An application was also made pursuant to s 218A of the Act to vary the Agreement to correct or amend an obvious error, defect or irregularity in the Agreement.

The Applicant submits that the Agreement contains an obvious error, defect or irregularity, the details of which are set out and considered below. The employees covered by the Agreement were given a chance to be heard in relation to the proposed variations to the Agreement but did not provide any comments or concerns. The United Firefighters’ Union of Australia – Aviation Branch, a bargaining representative for the Agreement, indicated that they agree with the Applicant’s application to vary the Agreement.

Statutory Provisions

Section 218A, which came into effect on 7 December 2022 as part of the reforms contained within the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, provides for the variation of an enterprise agreement 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.”

The Explanatory Memorandum (EM) that supports the above-referred Bill relevantly states as follows;

“772. This part would remove unnecessary complexity in the agreement-making process…

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.

Continue reading Airservices Australia

Details

AGLC: Airservices Australia [2024] FWCA 2621
Case: [2024] FWCA 2621
Decision Date: 15 JULY 2024

CaseChat Overview and Summary

Airservices Australia, the Commonwealth entity responsible for providing air traffic control and other aviation services, applied for approval of the Airservices Australia (Aviation Rescue and Fire Fighting) Enterprise Agreement 2024-2027. The application was heard by the Fair Work Commission (FWC), Australia’s workplace relations tribunal, with the decision delivered by Commissioner Cowen. The agreement pertains to the employment conditions of Airservices Australia's aviation rescue and fire fighting employees.

The primary legal issue before the FWC was whether the proposed agreement met the requirements of the Fair Work Act 2009 (Cth), specifically the provisions that mandate the agreement must be in the best interests of the employees it covers and not prejudicing the employees’ capacity to resolve enterprise disputes. The FWC needed to assess if the agreement appropriately balanced the rights and interests of the employees, employers, and the public. The commission also had to consider if the agreement provided for minimum workplace conditions and whether it contained any clauses that might be considered detrimental to the employees' rights or the resolution of future disputes.

The FWC found that the agreement met the necessary requirements under the Fair Work Act. The commission was satisfied that the agreement was in the best interests of the employees and would not prejudice their capacity to resolve disputes. The FWC noted that the agreement provided for minimum workplace conditions and that the proposed terms and conditions were fair and reasonable. The commission also concluded that the agreement appropriately balanced the rights and interests of all parties involved. Consequently, the FWC approved the application and registered the agreement, making it legally binding from 1 April 2024.

No additional orders were made beyond the approval and registration of the enterprise agreement. The agreement, as approved by the FWC, will govern the employment conditions for the specified period until it is either renegotiated or expires.

Orders