Alstef Australia Pty Ltd
[2025] FWCA 754
•27 FEBRUARY 2025
[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 Rate of pay has been developed having regard to the standard roster pattern of working 4 shifts on/4 shifts off over an 8 week roster. All classifications working this roster pattern work night and day shifts, other than the Daytime Operations Assistant classification which only works day shift. The Applicant submits that the All in Rates of pay provide more than sufficient compensation for working such a pattern, with amounts payable under the proposed Agreement 20% to 50% more than what would be required under the Award for the roster pattern worked.
Although the rate has been referred to as an “All in Rate of Pay”, the rate only covers the standard roster over 42 hours per week. Under the proposed Agreement employees are separately compensated for work on public holidays and overtime, in excess of an average of 42 hours per week where working on the 8 week roster cycle or otherwise in excess of their ordinary hours, with penalty rates applying calculated based on the All in Rate of pay. This ensures that employees are not worse off under the proposed Agreement in situations where they may work additional hours. Therefore, the Applicant submits the proposed Agreement passes the Better Off Overall Test and a reconciliation mechanism is not necessary.
I received no submissions in response to the above. I have considered, and I accept, the employer’s submission in that regard.
The next issue raised related to whether, if casuals were to be engaged, they would be better off under the Agreement, having regard to Loaded Rates in Agreements [2018] FWCFB 3610. The employer submitted:
The Applicant does not engage casual employees below the Shift Technician (Entry Level) classification. It is noted that as at 1 July 2024 the All in Rates of pay under the proposed Agreement for Shift Technician (Entry Level) are 81% to 109% above the base rates of pay in the Award for the relevant classification. However, as at 1 January 2025 the All in Rates under the proposed Agreement increase such that the rates are 102% to 134% above the relevant Award rates of pay. Therefore, it would only be in very rare occasions where a casual employee only worked ordinary hours on a Sunday that there may be an issue of not being better off under the proposed Agreement. The Applicant is prepared to provide an undertaking that they will only employ casual employees at the Shift Technician (Entry Level) classification and above … Further, from 1 July to 31 January 2024 any casual employee employed as a Shift Technician (Entry Level), Shift Technician Top Increment or System Controller who worked ordinary hours on a Sunday(s) only or more ordinary hours on a Sunday(s) than hours worked on other days of the week in a pay period will be paid no less than what they were entitled to received under the Award for the hours worked in that pay period.
I received no submissions in response to the above. The employer provided a proposed undertaking. I received no objections to the employer’s proposed undertaking. The employer duly provided the undertaking. A copy is annexed as Annexure A to this decision. I will refer to the undertaking further below. Having regard to the employer’s undertaking I accept the employer’s submissions.
The last issue related to part-time employees. I also sought submissions in relation to this issue. The employer submitted:
It should be noted that in accordance with clause 9(c) of the proposed Agreement that part-time employees are entitled to payment of overtime in excess of their agreed hours of work. The rate of overtime applicable will be 150% of the All in Rate of pay or 200% of the All in Rate of pay where overtime is worked on a public holiday. It should be noted that the All in Rates of pay applicable from 1 July 2024 for all classifications range from 48% to 109% above the relevant Award rate of pay and this increases to a range of 65% to 134% above the relevant Award rate of pay from 1 January 2025. Therefore, given part-time employees will be compensated for work performed in excess of their agreed hours by at least a 150% penalty on top of their All in Rate of pay they will receive payment under the proposed Agreement well in excess of what they would otherwise be entitled to under the Award.
I received no submissions in response to the above. I have considered, and I accept, the employer’s submission in that regard.
Organisations
Each of the following organisations, being a bargaining representative for the agreement, has given notice under section 183 of the Act that it wants to be covered by the Agreement:
a)“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); and
b)Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.
In accordance with section 201(2) of the Act, and relying on the organisations’ declarations, I note that the Agreement covers each of those organisations.
Undertaking
The Employer has given a written undertaking in accordance with section 190 of the Act. The undertaking is attached as Annexure A to this decision. I am satisfied that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.
Conclusion
With the undertaking now given, and after having regard to the Statement of Principles as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.
The Agreement is approved and will operate in accordance with section 54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE528194 PR784792>
Annexure A
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