Australian Transport Safety Bureau

[2024] FWCA 1182

[2024] FWCA 1182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Australian Transport Safety Bureau

(AG2024/600)

AUSTRALIAN TRANSPORT SAFETY BUREAU (ATSB) ENTERPRISE AGREEMENT 2024-2027

Commonwealth employment
COMMISSIONER PLATT	ADELAIDE, 4 APRIL 2024

Application for approval of the Australian Transport Safety Bureau Enterprise Agreement 2024-2027

1. An application has been made for approval of an enterprise agreement known as the Australian Transport Safety Bureau Enterprise Agreement 2024-2027 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Australian Transport Safety Bureau (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 13 March 2024.

1. On 15 March 2024, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There is one National Employment Standard (NES) issue that requires comment:

·  Clause 234 of the Agreement states that if an employee who falls ill during a period of approved miscellaneous leave without pay cannot apply for personal/carer’s leave during that period. This may be inconsistent with s.97 of the Act which states that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness or injury or to provide care or support to a member of their immediate family or household who requires support because of a personal illness or injury or unexpected emergency.

1. Clause 6 of the Agreement acts as an effective NES precedence clause. As a result, the above clause will not apply to the extent it is inconsistent with the NES.

1. The Agreement contains a number of changes which when considered in isolation, are less advantageous than the Award. These include increased ordinary hours, an expanded spread of hours and some penalty rates. I note that the Agreement also confers benefits of universal application including paid leave between Christmas and New Year and increased Superannuation Contributions.  I have not considered additional benefits which were conditional in their application and/or difficult to quantify in monetary terms.  I find that the universal improvements offset the disadvantages referred to. 

1. The Applicant has submitted an undertaking in the required form dated 18 March 2024, a copy of which is attached to this Agreement. The undertaking deals with the following topics:

   ·  The definition of a shift worker has been inserted, consistent with the Australian Public Service Enterprise Award 2015.

·  The requirement to prescribe the agreed part time hours of working including the start and finish times so as to determine when overtime is payable has been inserted, consistent with the Australian Public Service Enterprise Award 2015.

·  A Part-time minimum engagement has been inserted, consistent with the Australian Public Service Enterprise Award 2015.

·  Higher duties allowance will be paid to employees (at a classification at or below the rate of $41.42 per hour) after half a day where they occupy a role at a classification level higher than their substantive classification level consistent with the Australian Public Service Enterprise Award 2015.

·  Higher duties allowance will be paid to (at a classification at or above the rate of $41.42 per hour) after one week where they occupy a role at a classification level higher than their substantive classification level.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. The Community and Public Sector Union and the Association of Professional Engineers, Scientists and Managers Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act 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 7 days after the date of approval of the Agreement. The nominal expiry date is 28 February 2027.

COMMISSIONER

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