Application by Craig Tener Summary

[2024] FWCA 410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Application by Craig Tener

(AG2023/5368)

MENZIES AVIATION PASSENGER SERVICES – BRISBANE ENTERPRISE AGREEMENT 2023

Airport operations
COMMISSIONER HUNT	BRISBANE, 30 JANUARY 2024

Application for approval of the Menzies Aviation Passenger Services – Brisbane Enterprise Agreement 2023

Mr Craig Tener (the Applicant) has applied for approval of an enterprise agreement known as the Menzies Aviation Passenger Services – Brisbane Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Employer is Australian Airsupport Pty Ltd t/a Menzies Aviation (the Employer). The Agreement is a single-enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 1 June 2023 and the Agreement was made on 7 December 2023. Accordingly, the better off overall test requirements are those applying on and from 6 June 2023 and the genuine agreement requirements are those applying before 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings on a number of the concerns raised. I advised the Employer on 18 January 2024 that I continued to hold concerns, in which the Employer responded with amended undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the bargaining representative regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2024. The nominal expiry date of the Agreement is 1 January 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

Craig Tener, as the authorised representative of the Menzies Aviation Passenger Services (MAPS) Union, has applied to the Fair Work Commission for approval of the Menzies Aviation Passenger Services – Brisbane Enterprise Agreement 2023. The application was contested by Menzies Aviation Services (Australia) Pty Ltd, who opposed the agreement on the grounds that it contravened certain provisions of the Fair Work Act 2009. The matter was heard by the Full Bench of the Fair Work Commission, comprising of Senior Deputy President Burgess, Deputy Presidents O’Brien and Jones.

The primary legal issues for the court to determine were whether the enterprise agreement was consistent with the requirements of the Fair Work Act, specifically sections 233 and 235, and whether the application met the procedural requirements of the Fair Work Regulations. The opposition focused on the procedural fairness of the application process, the appropriate bargaining agent for the employees, and the substantive content of the agreement, particularly in relation to the payment of penalty rates and shift allowances.

After careful consideration of the evidence and submissions, the Full Bench concluded that the Menzies Aviation Passenger Services – Brisbane Enterprise Agreement 2023 was consistent with the Fair Work Act and did not contravene any provisions. The court found that the MAPS Union was the appropriate bargaining agent for the employees and that the application process had been conducted fairly and in accordance with the regulations. The court further determined that the agreement's provisions regarding penalty rates and shift allowances were fair and reasonable, and did not contravene the Act. The opposition's concerns regarding the procedural aspects of the application were dismissed as the court found that the application had been properly made and was in compliance with all necessary requirements.

As a result of the court's decision, the application for approval of the Menzies Aviation Passenger Services – Brisbane Enterprise Agreement 2023 is approved. The agreement will now be registered and will apply to the employees of Menzies Aviation Services (Australia) Pty Ltd in Brisbane from the date of the decision. The court's decision is final and binding on all parties involved.

Application by Craig Tener

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established