Australian Airsupport Pty Ltd T/A Menzies Aviation

[2024] FWCA 559

[2024] FWCA 559

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Airsupport Pty Ltd T/A Menzies Aviation

(AG2023/5536)

AUSTRALIAN AIR SUPPORT NEW SOUTH WALES AGREEMENT 2023

Airline operations
DEPUTY PRESIDENT EASTON	SYDNEY, 8 FEBRUARY 2024

Application for approval of the Australian Air Support New South Wales Agreement 2023.

1. Australian Airsupport Pty Ltd T/A Menzies Aviation (the Employer) has made an application for the approval of the Australian Air Support New South Wales Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 February 2024. The nominal expiry date of the Agreement is 31 December 2027.

Variation

1. In the course of approving the agreement, a defect was identified in clause 42. The flexibility term was inconsistent with s.203 of the Act which provides that if an employee is under the age of 18 years old, any individual flexibility arrangement agreed to under the term must be in writing and signed by a parent or guardian of the employee.

1. The Employer has filed an amended copy of the Agreement with a revised signatory page to include the employee signatory’s address to comply with regulation 2.06A(2)(b)(i) of the Fair Work Regulations 2009 and amended clause 42.2 follows:

“The Company must ensure that the individual flexibility arrangement:

·   is in writing; and

·   includes the name of the Company and the employee; and

·   is signed by the Company and the employee; and

·   is signed by a parent or guardian of the employee if the employee is under 18.

Includes details of:

·   the terms of the enterprise agreement that will be varied by the arrangement; and

·   how the arrangement will vary the effect of the terms; and

·   how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

·   states the day on which the arrangement commences.”

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity – and no further.

1. I am satisfied that the errors listed in [4] above is a defect within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify these errors (PR771137). The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 15 February 2024.

DEPUTY PRESIDENT

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