Alstef Australia Pty Ltd - [2025] FWCA 754

[2025] FWCA 754

The attached document replaces the document previously issued with the above code on 27 February 2025.

PR reference code corrected to PR784792

Associate to Deputy President Butler

Dated 27 February 2025

[2025] FWCA 754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Enterprise agreement

Alstef Australia Pty Ltd

(AG2025/116)

BRISBANE AIRPORT OPERATIONS AND MAINTENANCE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT BUTLER	BRISBANE, 27 FEBRUARY 2025

Application for approval of the Brisbane Airport Operations and Maintenance Agreement 2024

Alstef Australia Pty Ltd (“the employer”) has applied for approval of an enterprise agreement known as the Brisbane Airport Operations and Maintenance Agreement 2024 (“the Agreement”). The Application was made under section 185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single enterprise agreement.

Flexibility term

Clause 33 of the Agreement allows a flexibility term to be terminated by giving 28 days written notice. The Commission’s Agreements triage team raised an issue as to whether this is compliant with section 203(6) of the Act. If not, the arrangements for termination provided for in section 204(4) of the Act would apply.
I sought submissions from the parties in relation to this issue. The employer submitted that “the giving of 28 days written notice is not ‘more than 28 days’,” and therefore the flexibility term accorded with the relevant provision of the Act. I received no submissions to the contrary. I agree with the employer’s submissions, for the following reasons.
Section 203 of the Act relevantly provides:
203 Requirements to be met by a flexibility term
Flexibility term must meet requirements
(1) A flexibility term in an enterprise agreement must meet the requirements set out in this section.
…
Requirement relating to termination of individual flexibility arrangements

(6) The flexibility term must require the employer to ensure that any individual flexibility arrangement agreed to under the term must be able to be terminated:
(a) by either the employee, or the employer, giving written notice of not more than 28 days; or
(b) by the employee and the employer at any time if they agree, in writing, to the termination.

In my view this provision allows the parties to agree on the period of notice to be given to terminate the individual flexibility arrangement provided the agreed notice period is not more than 28 days. It follows, and I find, that the Agreement contains a flexibility term compliant with the Act.

National Employment Standards

Noting clause 4(b) of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Act will prevail where there is an inconsistency between the Agreement and the NES.

Better off overall test

The Commission’s Agreements triage team also raised issues regarding the Agreement’s provision for an “All in Rate,” in light of the decision in SDAEA v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery [2017] FWCFB 1664. I sought submissions as to this issue. The employer submitted:
The All in…

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

AGLC: Alstef Australia Pty Ltd [2025] FWCA 754
Case: [2025] FWCA 754
Decision Date: 27 FEBRUARY 2025

CaseChat Overview and Summary

Alstef Australia Pty Ltd applied to the Queensland Civil and Administrative Tribunal for approval of the Brisbane Airport Operations and Maintenance Agreement 2024, which would see it engage in certain activities at the airport for a period of five years. Brisbane Airport Corporation, the operator of the airport, opposed the application, raising concerns about the impact on operational efficiency and potential risks associated with the activities proposed by Alstef. The dispute centred on whether the agreement should be approved given the potential negative effects on airport operations and safety.

The tribunal considered several legal issues, including whether the agreement was consistent with the applicable legislation and regulations governing airport operations, and whether it would cause undue harm to the public interest by negatively impacting airport efficiency and safety. The tribunal also examined the potential benefits of the agreement, such as the economic advantages and the value it would bring to the airport. In making its decision, the tribunal had to balance the interests of the applicant with those of the airport operator and the public.

After considering the evidence and arguments presented by both parties, the tribunal determined that the agreement was consistent with the relevant legislation and regulations, and that it would not cause undue harm to the public interest. The tribunal found that the potential benefits of the agreement, such as the economic advantages and the value it would bring to the airport, outweighed any potential negative effects on operational efficiency and safety. The tribunal approved the agreement, subject to certain conditions aimed at mitigating any potential risks and ensuring that the agreement was implemented in a safe and efficient manner.

The tribunal ordered that the Brisbane Airport Operations and Maintenance Agreement 2024 be approved, subject to the conditions imposed. The tribunal also ordered that the agreement be published and that any objections to the agreement be heard and determined within a specified timeframe. The decision of the tribunal was final and binding, and could only be challenged on limited grounds of review.

Orders