Application by Maurice Alexander Management Pty Ltd

[2022] FWC 3236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Application by Maurice Alexander Management Pty Ltd

(AG2022/3564)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 19 DECEMBER 2022

Application for approval of the MAM Casual Flight Attendants Enterprise Agreement 2022

1. The applicant, Maurice Alexander Management Pty Ltd operates a labour hire business, employing casual flight cabin crew for supply to Qantas Airways Ltd in connection with the operation predominantly of domestic flights. Casual cabin crew currently in the applicant’s employ are covered by the Flight Attendants' Association of Australia National Division Casual Flight Attendants Enterprise Agreement 2015 (2015 Agreement). Following a period of bargaining, the applicant sought, and on 11 August 2022 obtained, approval from relevant employees of a new enterprise agreement titled the MAM Casual Flight Attendants Enterprise Agreement 2022 (Agreement). The applicant applies under s 185 of the Fair Work Act 2009 (Act) for the approval of the Agreement by the Commission. The Flight Attendants' Association of Australia (FAAA) was a bargaining representative for the Agreement and it had advised relevant employees to vote against the approval of the Agreement. It is opposed to the approval of the Agreement by the Commission but has given notice that, in the event of approval, it wants to be covered by the Agreement. The relevant reference modern award is the Aircraft Cabin Crew Award 2020 (Award).

1. The 2015 Agreement contains “Schedule 1 – Availability Requirements and Allocation of Duty”, which separates employees into four different ‘Contracts,’ each containing varied amounts of ‘required availability’ or ‘allocation of work’ in 28-day roster periods. The different contracts are:

1.        Contract A – no guaranteed allocation of work;

2.        Contract B – an employee must be available at least 11-13 days of each roster period, including being available on between 3-6 specific dates nominated by the applicant;

3.        Contract C – employees receive 19 days of allocated work; and

4.        Contract D – employees receive between 14 and 19 days of allocated work.

1. The structure of the Agreement is such that, when in operation, it will provide for some wage increases and preservation of existing employment conditions for existing casual employees (Contract A, B, C and D employees); and by Part C of the Agreement, it will provide, inter alia, for new casual employees (described as Contract E employees), lower wage rates than those which will pertain to existing casual employees. The circumstances which are said to have necessitated this structure are later discussed.

1. The FAAA’s opposition to the Agreement’s approval is on several grounds. First, because the group of employees covered by the Agreement was not fairly chosen in accordance with s 186(3) of the Act. Second, there was no genuine agreement by the employees as required by s 186(2)(a), because the employees who were asked to vote on the Agreement will not be subject to Part C which will only apply to new employees. Third, there was no genuine agreement by the employees as required by s 186(2)(a) because…