Alliance Airlines Pty Ltd T/A Alliance Airlines

[2019] FWCA 2906

[2019] FWCA 2906

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Alliance Airlines Pty Ltd T/A Alliance Airlines
(AG2018/6796)

ALLIANCE AIRLINES PILOTS’ (F100 ADELAIDE) ENTERPRISE AGREEMENT 2018

Airline operations
COMMISSIONER PLATT	ADELAIDE, 30 APRIL 2019

Application for approval of the Alliance Airlines Pilots’ (F100 Adelaide) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Alliance Airlines Pilots’ (F100 Adelaide) Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Alliance Airlines Pty Ltd T/A Alliance Airlines. The agreement is a single enterprise agreement.

[2] On 10 January 2019 Mr Mattner on behalf of the Australian Federation of Air Pilots corresponded with the Commission seeking to be heard as to the approval of the Agreement. The Applicant opposed the request.

[3] The matter was allocated to my Chambers on 18 April 2019. At that time, I sought further information from the AFAP about the basis upon which they wished to be heard including the names of their members (on a confidential basis) that they purported to represent. I also sought information from the Applicant (again on a confidential basis) concerning the names of the employees proposed to be covered by the Agreement and the appointment of bargaining agents.

[4] On 29 April 2019, I conducted a Conference with the parties and also invited the AFAP to attend.

[5] On the information provided, it appears that the AFAP may have been the default bargaining representative for three employees until 11 October 2018 at which time those 3 employees appointed in writing the Transport Workers’ Union of Australia (TWU) as their bargaining representative and revoked any previous appointment. I find that the AFAP ceased to be a bargaining representative at that time. Accordingly, the AFAP is not a party to these proceedings. The AFAP invited me to exercise my discretion under s.590 of the Act to receive a submission from them. I declined to do so as such a course would be inconsistent with s.176 of the Act, and the approach taken in CFMEU v Collinsville Coal Operations Pty Ltd 1 where it was held that a Union which was no longer a bargaining agent with all members covered by the Agreement having appointed an alternative representative, had no right to be heard.

[6] I did however receive the submission made by the AFAP so as to inform myself about potential issues with respect to the Agreement meeting the requirements of the Act. Those issues included the relevant Air Pilots Award 2010 classification comparator for the BOOT and the interaction of clause 27 of the Agreement with clause 16 of the Award.

[7] During the conference I sought clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[8] I was satisfied that even if the AFAP’s position on the appropriate Award comparator for the classifications was correct, the salaries contained in the Agreement exceeded the comparator rate.

[9] The Applicant has submitted an undertaking in the required form dated 30 April 2019. The undertaking provides further clarity in respect of the operation of clause 27 of the Agreement.

[10] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

[11] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[12] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[13] The TWU, 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) of the Act I note that the Agreement covers this organisation.

[14] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 7 May 2022.

COMMISSIONER

 1   [2014] FWCFB 7940.

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