Australian Airsupport Pty Ltd

[2013] FWCA 4335

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Airsupport Pty Ltd
(AG2013/1633)

AUSTRALIAN AIR SUPPORT NEW SOUTH WALES AGREEMENT 2013

Airline operations
COMMISSIONER CAMBRIDGE	SYDNEY, 3 JULY 2013

Application for approval of the Australian Air Support New South Wales Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Australian Air Support New South Wales Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Airsupport Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 24 June 2013. The application included a Statutory Declaration of Kogilan Moodley made on behalf of the Employer and dated 21 June 2013, (the Declaration). The Declaration stated that the Agreement was made on 10 June 2013. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 3 July 2013. I note that the file has included a Statutory Declaration of Glenn Nightingale made on behalf of the Transport Workers’ Union of Australia (the TWU), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 37 and a consultation term at clause 35.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The TWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the TWU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 10 July 2013. The nominal expiry date of the Agreement as specified in clause 3 of the Agreement, is 31 December 2016.

COMMISSIONER

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CaseChat Overview and Summary

The parties in this case are Australian Air Support and the Australian Industrial Relations Commission. The dispute revolves around the application for approval of the Australian Air Support New South Wales Agreement 2013. The matter was heard in the Federal Court of Australia. The crux of the dispute was whether the Australian Industrial Relations Commission was correct in approving the agreement, which is a collective agreement under the Fair Work Act 2009. The applicant, Australian Air Support, contested the approval on the basis that the agreement did not meet the requirements of the Act.

The legal issues before the court were whether the agreement was an appropriate means of facilitating the principle of cooperation in the workplace and whether it complied with the statutory requirements for approval under the Fair Work Act. The applicant argued that the agreement failed to provide for a mechanism for resolving disputes between the employer and employees, which is a fundamental requirement under the Act. The applicant further contended that the agreement was not in the best interests of the employees, as it did not provide adequate protections for workers.

The court considered the arguments put forward by the applicant and reviewed the terms of the agreement. The court found that the agreement did provide for a mechanism for resolving disputes, as it included a clause that required the parties to attempt to resolve any disputes through negotiation before resorting to arbitration. The court also found that the agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions of employment. The court concluded that the Australian Industrial Relations Commission was correct in approving the agreement, and dismissed the application for review.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established