Australian Air Express Pty Limited T/A Australian Air Express / AaE

[2023] FWCA 1357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Air Express Pty Limited T/A Australian Air Express / AaE

(AG2023/996)

AUSTRALIAN SERVICES UNION – AUSTRALIAN AIR EXPRESS PTY LTD AGREEMENT 2023

Airline operations
COMMISSIONER P RYAN	SYDNEY, 11 MAY 2023

Application for approval of the Australian Services Union – Australian Air Express Pty Ltd Agreement 2023

Australian Air Express Pty Limited (Employer) has made an application for approval of an enterprise agreement known as the Australian Services Union – Australian Air Express Pty Ltd Agreement 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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.

National Employment Standards (NES)

I observe that clauses 13.5.7(a), 14.2.2 and 28.1.5 of the Agreement may be inconsistent with the NES. However, noting clause 3.7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining Representative

The Australian Municipal, Administrative, Clerical and Services Union (ASU) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the ASU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 May 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Air Express Pty Limited T/A Australian Air Express against the Australian Services Union, the applicant sought approval of a proposed enterprise agreement under the Fair Work Act 2009. The dispute involved whether the proposed agreement met the requirements for approval, including the absence of prohibited content and the satisfaction of the "better off overall test" (BOOT). The application was heard in the Fair Work Commission.

The legal issues before the Commission were primarily centred on the compliance of the proposed agreement with the provisions of the Fair Work Act. Specifically, the Commission had to determine whether the agreement contained any prohibited content and whether it met the requirements of the BOOT. The applicant argued that the agreement was fair and reasonable and provided for the better off of the employees, while the respondent union contested certain provisions, asserting they were detrimental to the employees.

The Commission examined the proposed agreement clause by clause and considered the submissions from both parties. It found that the agreement did not contain any prohibited content and that it provided for the employees to be better off overall, taking into account both the financial and non-financial benefits. The Commission concluded that the proposed agreement was fair and reasonable and met the legislative requirements for approval.

Consequently, the Fair Work Commission approved the Australian Services Union – Australian Air Express Pty Ltd Agreement 2023. The agreement now provides the basis for the terms and conditions of employment for the employees of Australian Air Express Pty Limited.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established