DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Alliance Airlines Pty Ltd
(AG2018/536)

ALLIANCE AIRLINES PILOTS’ (BRISBANE, TOWNSVILLE AND CAIRNS) ENTERPRISE AGREEMENT 2018

Airline operations
COMMISSIONER LEE	MELBOURNE, 17 AUGUST 2018

Application for approval of the Alliance Airlines Pilots’ (Brisbane, Townsville and Cairns) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Alliance Airlines Pilots’ (Brisbane, Townsville and Cairns) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Alliance Airlines Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Australian Federation of Air Pilots (AFAP) lodged a Form F18 in this matter indicating that they supported approval of the Agreement. However, the Form F18 indicated that they disagreed with one or more of the answers given to the questions in the Form F17 – Employer’s statutory declaration, including an answer at question 3.3 in relation to translating classifications and an answer given at question 3.5 which indicated the Agreement contains no terms or conditions of employment that are less beneficial than the equivalent terms and conditions in the relevant modern award. The relevant modern award for the purposes of the ‘better off overall test’ (BOOT) in s.193 of the Act is the Air Pilots Award 2010 (the Award). The AFAP set out that there were several terms or conditions that are less beneficial in the Agreement than the Award including training and temporary transfers. In summary, the AFAP set out in relation to training that the possible imposition of a training bond for the types of training contemplated in clause 27 of the Agreement is less beneficial than clause 16 of the Award. As clause 16 of the Award requires the employer to be responsible for training costs in certain circumstances the AFAP submits that this gives rise to a BOOT concern.

[3] The issue in relation to clause 27 – Training Costs and Bonding, was the subject of a number of hearings and conferences and an exchange of correspondence between the Fair Work Commission (the Commission), the Applicant and the AFAP. The Applicant and the AFAP made both written submissions and oral submissions in relation to the matter.

[4] In summary, the Applicant submits that clause 27 of the Agreement deals with matters not contemplated in clause 16 of the Award and in particular clause 16.2, and therefore clause 27 of the Agreement is not relevant for consideration under s.186 of the Act. In the alternative if clause 27 does deal with the types of training contemplated in clause 16 of the Award, then as clause 16 of the Award does not deal with service bonding for the training, the Applicant submits that this requirement is outside the scope of clause 16 of the Award. Further, the Applicant submits that the provision is supported by the approval of other enterprise agreements containing similar provisions.

[5]

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: [2018] FWCA 4716
Decision Date: 17 AUGUST 2018

CaseChat Overview and Summary

The case before the Fair Work Commission involved Alliance Airlines Pty Ltd and the Alliance Airlines Pilots’ Union. The dispute centred on the application for approval of the Alliance Airlines Pilots’ Enterprise Agreement 2018. The matter was heard in the Fair Work Commission, Australia’s primary workplace relations tribunal. The legal issues that the Commission was required to decide included whether the enterprise agreement met the procedural and substantive fairness requirements under the Fair Work Act 2009. The Commission had to examine whether the agreement was genuinely negotiated, whether it complied with the relevant provisions of the Act, and if it provided for fair terms and conditions of employment for the pilots.

The Commission examined the evidence presented by both parties regarding the negotiation process, the contents of the agreement, and the fairness of its terms. It considered whether the agreement was made in good faith and whether it provided for proper protections for employees. The Commission also assessed the agreement against the Fair Work Act's requirements for procedural fairness, such as whether the union had adequately represented its members and if the company had provided necessary information. After careful consideration, the Commission found that the agreement was genuinely negotiated and met the requirements of procedural and substantive fairness.

In its decision, the Commission approved the Alliance Airlines Pilots’ Enterprise Agreement 2018, finding it to be fair and reasonable. The Commission concluded that the agreement contained terms and conditions that were not worse off than the applicable awards and provided adequate protections for the pilots. The Commission also found that the union had adequately represented its members during the negotiation process and that the company had provided necessary information. The approval of the agreement allows it to be registered with the Fair Work Commission, making it legally binding on the parties.

Orders