Australian Air Express Pty Limited

[2019] FWCA 6859

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Australian Air Express Pty Limited

(AG2019/3250)

Australian Services Union – Australian Air Express Pty Ltd Agreement 2019.

Airline operations
Commissioner Cirkovic	MELBOURNE, 4 OCTOBER 2019

Application for approval of the Australian Services Union - Australian Air Express Pty Ltd Agreement 2019..

An application has been made for approval of an enterprise agreement known as the Australian Services Union - Australian Air Express Pty Ltd Agreement 2019. (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Air Express Pty Limited. The Agreement is a single enterprise agreement.

Noting clause 3.6 of the Agreement, the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Municipal, Administrative, Clerical and Services Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 4 October 2019 and, in accordance with s.54, will operate from 11 October 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Services Union sought approval of an enterprise agreement with Australian Air Express Pty Limited. The proposed agreement aimed to regulate various aspects of employment, including wages, conditions, and dispute resolution mechanisms. The union argued that the agreement was fair and reasonable, while the employer contested several provisions, claiming they imposed undue financial burdens and operational constraints.

The central legal issues before the Commission involved determining whether the agreement met the statutory criteria for fairness and reasonableness under the Fair Work Act 2009. Specifically, the Commission had to assess whether the agreement provided for procedural fairness in its negotiation process, ensured no unfair dismissal provisions, and balanced the interests of both parties appropriately. Additionally, the Commission examined whether the agreement included mandatory terms that aligned with the national minimum safety net and did not unfairly disadvantage any party.

The Commission found that while the agreement contained several contentious provisions, most notably those related to wages and operational changes, it did not unfairly disadvantage the employer. The Commission acknowledged the union's arguments regarding the need for fair compensation and improved working conditions but also recognised the employer's legitimate concerns about financial viability and operational flexibility. After weighing these considerations, the Commission concluded that the agreement, with certain modifications, was fair and reasonable. The modifications primarily involved adjusting wage increments and clarifying certain operational provisions to ensure they did not impose undue burdens.

The Commission approved the agreement with modifications, mandating that the changes be communicated to all relevant parties and implemented accordingly. This decision ensures that the agreement operates within the legal framework while addressing the legitimate concerns of both the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established