Alliance Airlines Pty Ltd Trading as Alliance Airlines
[2025] FWCA 883
•11 MARCH 2025
| [2025] FWCA 883 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Alliance Airlines Pty Ltd Trading as Alliance Airlines
(AG2025/34)
THE ALLIANCE GROUP (ADELAIDE PILOTS’) ENTERPRISE AGREEMENT 2024
| Airport operations | |
| DEPUTY PRESIDENT GRAYSON | SYDNEY, 11 MARCH 2025 |
Application for approval of the The Alliance Group (Adelaide Pilots’) Enterprise Agreement 2024
Introduction
Alliance Airlines Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as The Alliance Group (Adelaide Pilots’) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Transitional arrangements under the Secure Jobs, Better Pay amendment
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 12 December 2023 and the Agreement was made on 24 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.
Related Employers
The Agreement covers two employers, being Alliance Airlines Pty Ltd and Bravo Airlines Pty Ltd (together, the Employers). Having reviewed the material submitted by the Employers on 31 January 2025, I am satisfied that the Employers are ‘related employers’ by virtue of being ‘related bodies corporate’, per s.172(2)(5A)(b).[1]
On 31 January 2025 (and responsive to correspondence from my Chambers identifying that only one Form F17B had been submitted on behalf of both employers), the Employers provided submissions that I should exercise my discretion to dispense with the requirement for each entity to lodge separate declarations as allowed by Rule 7 of the Fair Work Commission Rules 2024 (the Rules). It was argued that this should be exercised in circumstances where:
The F17B Declaration was lodged on behalf of both entities, signed by a representative with authorisation of both entities;
The Declaration was given jointly and, as such, were separate Declarations to be filed, these would be a replication but for the name of the employer and accordingly would cause delay to the outcome without providing the benefit of any information not otherwise disclosed to the Commission and relied upon by the Employers.
On the basis of those submissions, I exercise my discretion to waive compliance with the obligation for each employer to file a Form F17B, in accordance with Rule 7.
Notice of Employee Representational Rights (NERR)
The NERR was erroneous in that the form in which it was provided to employees on 12 December 2023 was the pre-reform version. The Employers provided submissions that this matter constituted a minor technical error.
I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[2] that these matters constituted minor technical or procedural errors for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
National Employment Standards (NES) Precedence Term
Clause 21.2 appears to provide that in the case of termination, if an employee fails to give the required notice, the employers will deduct an amount equal to the amount of notice not given from ‘the pilot’s wage or annual leave accrual’. The effect of this is that this clause allows the Employers to withhold monies otherwise owing to the employee under the NES for annual leave. Accordingly, this clause is not consistent with Chapter 2 Part 2.2 Division 2 of the Act.
Further, Clause 14.7 appears to provide that all Pilots:
(a)May be rostered to work on public holidays;
(b)Understand that such rostering arrangements are a fundamental part of their positions with the Employers; and,
(c)Agree that:
(i) The rates of pay compensate them for reasonably being requested to work on public holidays;
(ii) The nature of the work performed by Pilots is agreed in accordance with the hours of work as set out in clause 13 of the Agreement; and,
(iii) It is reasonable to require Pilots to work on public holidays in accordance with their roster.
Accordingly, it would seem that clause 14.7 of the Agreement is not consistent with s.114 of the Act, which provides that employees are entitled to be absent from work on public holidays unless their employer makes a reasonable request for them to work on a public holiday.
To the extent that these clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 5.3 of the Agreement, this clause will be read and interpreted in conjunction with the NES.
Form F18
The Australian Federation of Air Pilots (AFAP) filed a Form F18 and accompanying attachments on 7 February 2025. The Form F18 advised that the AFAP:
Is a bargaining representative for the Agreement;
Did not want to advise the Commission as to whether it supported or opposed approval of the Agreement;
Advised that the AFAP disagreed with one or more statements in the Employers’ Form F17B declaration;
Did not want to express a view about whether the Agreement passed the Better Off Overall Test (BOOT); and,
- Gave notice pursuant to s.183 of the Act that it wants the Agreement to cover it.
The Form F18 was accompanied by two attachments, one being a schedule which identified the Form F17B matters that the AFAP disagreed with, and the other being email correspondence canvassed in the schedule.
On 4 March 2025, my Chambers corresponded with the parties concerning the matters raised by the AFAP and sought the provision of further documents and submissions responding to the AFAP’s position. On 7 March 2025, the Employers and the Transport Workers’ Union (TWU) filed submissions and documents responsive to the AFAP’s position.
On 10 March 2023, the AFAP filed further submissions including in relation to the BOOT, the National Employment Standards, the statutory declaration filed by the Employers and various matters going to genuine agreement.
I have considered the documents and submissions filed by the parties concerning the Form F18 filed by the AFAP.
BOOT Issues
A number of matters remain in contest between the AFAP and the Employers. It was not in dispute that the relevant Modern Award for the purposes of the BOOT is the Air Pilots Award 2020 (the Award).[3]
The Employers filed detailed submissions and data in support of its position that the Agreement passed the BOOT.
The Act provides that an Agreement passes the BOOT if the Commission is ‘satisfied, as at the test time, that:[4]
… each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee; …
The BOOT requires an overall assessment. A detriment in the Agreement as compared to a term in the Award does not necessarily mean that the Agreement does not pass the BOOT. It may be the case that notwithstanding the existence of detriments, the benefits in an enterprise agreement, considered on an overall basis, have the outcome that an agreement nevertheless has the effect that employees covered by it are better off than they otherwise would be than if the relevant modern award applied to them.
Whilst the AFAP did not advise the Commission as to its view on whether the Agreement passed the BOOT in its F18, it has raised various concerns regarding whether the Agreement meets the BOOT and how the BOOT should be assessed based on its interpretation of the Award.). I have considered all of these submissions and those of the Employers and the TWU in assessing the BOOT. In particular, the AFAP have raised issued regarding training bonds and minimum engagement periods for casual employees.
In relation to training bonds, the Employers and the AFAP have differing interpretations of the Award provisions that govern bonded training. The AFAP submit that:
- Training Bonds can only be used where a Pilot needs to undertake specific types of training;
- Where a Pilot has previously successfully completed relevant class or type rating course of training for a particular type of aircraft, that Pilot cannot subsequently be subject to a Training Bond with an employer in relation to the training already completed; and,
- The existing Training Bond clause in the Agreement could result in a Pilot being bonded for training at the commencement of their employment notwithstanding their prior completion of that training, and subsequently (in circumstances where a Pilot may resign in the first few months of their employment) be made to pay to the Employers the amount of the outstanding Training Bond.
The Employers submit that:
- The matter of Training Bonds was discussed extensively during negotiations and the inclusion of the existing Training Bonds clauses was made clear as a fundamental claim by the Employers;
- The differences between the Award, the existing Alliance Airlines Pilots (F100 Adelaide) Enterprise Agreement 2018 (the previous Agreement) and the Agreement were explained at all stages of the negotiations during the Access Period in compliance with s.180(5)(a) of the Act;
- Prior to 21 February 2020, the Award did not contain any provisions with respect to Training Bonds – as at 30 April 2019, the only relevant provision at cl.16.2 provided as follows:
16.2 Where the employer requires a pilot to reach and maintain minimum qualifications for a particular aircraft type in accordance with this award, all facilities and other costs
associated with attaining and maintaining those qualifications will be the responsibility of the employer
- The addition of Training Bonds provisions in the Award did not materially change how they were applied within the Employers’ operations (and accordingly, per [9] of the Statement of Principles on Genuine Agreement, this change had no material effect on the Pilots);
- The issue of Training Bonds has been ongoing with the AFAP (albeit never having been subject to a substantive claim made by the relevant Pilots) and accordingly warranted the inclusion of provisions in the Agreement which clearly identified the operation of Training Bonds within the Employers’ operations;
- The AFAP’s characterisation of the Training Bonds provisions in the Agreement as ‘less beneficial’ than the Award was incorrect, being as it was premised on an interpretation of clause 13.2 of the Award which prevented the application of Training Bonds to initial type rate training (an interpretation which the Employers says is inconsistent with the view of aviation employers and has the effect of rendering Training Bonds useless in the sector);
- Clause 13.2 of the Award does not mean that Training Bonds cannot be entered into for Initial Type Rate Training by virtue of the usage of the word ‘including’ in clause 13.6(b)(i) and to prefer the AFAP’s interpretation would be to ignore the intended effect of the word;
- In any event, notwithstanding that the Employers’ and AFAP’s views as to clause 13 of the Award differed, this matter did not mean that the Agreement failed the BOOT as per ss.186 and 187 of the Act; and,
- The Training Bond provisions were never an issue for Pilots; the matter having been and remaining an issue for the AFAP only (which the Employers say that the AFAP did not raise in their communications with the relevant Pilots during the access period).
In assessing whether the Agreement passes the BOOT I have considered both interpretations and assessed the BOOT against the interpretation that is more favourable to employees. Ultimately, given that the BOOT Assessment is a global assessment and given that the terms and conditions are significantly above the Award provisions in many respects, and in light of undertakings provided by the Employers pursuant to s.190 of the Act (including one that provides a more beneficial term regarding the duration of a Training Bond as compared to the Award), I consider that the Agreement passes the BOOT.
Similarly, the AFAP raises that the Agreement does not include a four hour minimum engagement period for casual employees completing any duties other than flying duties. In response the Employers made submissions that it does not engage casual pilots and did not intend to engage casual pilots. The Employers provided an undertaking that if casual pilots are engaged, they will only perform flying duties.
Despite at an earlier stage advising the Commission that they did not object to the undertaking proposed by the Employers, the AFAP provided subsequent submissions which identified that casual pilots will have to complete annual simulator assessments in order to maintain ongoing competency, and will, therefore, be required to fulfil non-flying duties. It opposed the undertaking proffered by the Employers and proposed an alternative. The Employers did not agree to the alternative undertaking.
I have considered these submissions and note that I am to have regard to the employee cohort that is ‘reasonably foreseeable’ to be covered by the Agreement for the purposes of the BOOT.[5] Further, s.193A(6) provides:
The FWC may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time. In considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.
In this case, the parameters of the matters I am to consider in assessing the BOOT do not include casual employees. Even if I am wrong on this, the effect of the Agreement provisions is that in the unlikely event that any casual pilots are engaged in the future, it is only the minimum engagement of four hours which would not apply to any non-flying duties performed. Given the undertaking given by the Employers and given that the training identified by the AFAP by way of example is ‘annual’ in nature I do not consider that this would cause the Agreement to fail the BOOT, when performing the requisite global assessment.
Section 190 Undertakings
The Employers provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, and having had regard to the Statement of Principles on Genuine Agreement, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. In reaching this conclusion I have had regard to the submissions of the parties including the submissions of the AFAP. I do not consider that the Employers made misrepresentations or misleading statements to the Commission in connection with this application, or to employees in relation to the Agreement. I consider that the Employers filed extensive evidence and submissions establishing that the Agreement had been genuinely agreed to by employees. This included establishing that it had taken all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, were explained to employees and that the explanation was provided in an appropriate manner taking into account the particular circumstances and needs of those employees.
Section 183 Bargaining Representatives
The TWU and the AFAP, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.
In accordance with s.201(2), I note that the Agreement covers the TWU and the AFAP.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 March 2025. The nominal expiry date of the Agreement is 1 August 2028.
DEPUTY PRESIDENT
ANNEXURE A
[1] Per the meaning afforded to the term ‘related body corporate’ as defined in the Corporations Act 2009 (Cth), s.50.
[2] [2019] FWCFB 318.
[3] MA000046.
[4] Fair Work Act 2009 (Cth) s.193(1)(a).
[5] Fair Work Act 2009 (Cth) s.193(5).
Printed by authority of the Commonwealth Government Printer
<AE528232 PR785125>
0
0
0