DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Boeing Defence Australia Limited
(AG2018/450)

BOEING DEFENCE AUSTRALIA LIMITED AVIATION TRADES ENTERPRISE AGREEMENT 2018 TO 2020

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 6 JULY 2018

Application for approval of the Boeing Defence Australia Limited Aviation Trades Enterprise Agreement 2018 to 2020.

[1] An application has been made for approval of an enterprise agreement known as the Boeing Defence Australia Limited Aviation Trades Enterprise Agreement 2018 to 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Boeing Defence Australia Limited. The Agreement is a single enterprise agreement.

[2] The application was lodged with the Fair Work Commission (the Commission) on 12 February 2018. At lodgement the Applicant lodged two copies of the Agreement, one with rates and allowances tables and one without. An attached cover letter outlined that on the last occasion the Applicant sought approval of its enterprise agreement, at the Applicants request, the wage rates were not published on the Commissions website on the basis of an undertaking provided by the Applicant. The Applicant indicated that it was willing to provide an undertaking in similar terms for this application. The Applicant noted that the reason for that request was that it must take all reasonable steps to maintain its commercial competitiveness in the market place and the defence contracting industry is small and labour costs are an integral part of responses to Government requests for tender.

[3] On 1 June 2018 the Commission wrote to the Applicant outlining my concerns in relation to the application. In this correspondence I sought confirmation as to which copy of the Agreement was voted on by employees and raised additional concerns in relation to the Agreement. On 8 June 2018 the Applicant provided written undertakings addressing my concerns in relation to the Agreement and confirmed that the copy of the Agreement voted on by employees contained rates of pay.

[4] On 13 June 2018 the Commission wrote to the Applicant advising that I was satisfied with the undertakings provided. I also advised that I was of the view that s.601(4) of the Act provides the Commission must publish an enterprise agreement approved by the Commission under Part 2-4 of the Act and that should the Agreement be approved the wage rates will be published as per s.601(4) of the Act.

[5] The Applicant responded on 14 June 2018 requesting that I reconsider my position in regards to publishing the wage rates. The correspondence drew my attention to a number of enterprise agreements which had been approved without the publication of wage rates, including the Applicants two previous agreements for its trades workforce. The Applicant reiterated its submissions that the defence contracting industry in Australia is small and competitive labour costs are an integral part of responses to Government requests for tender and that the Applicant is cognisant to take all reasonable steps to maintain its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 4019
Decision Date: 6 JULY 2018

CaseChat Overview and Summary

In the Fair Work Commission, Boeing Defence Australia Limited applied for approval of the Boeing Defence Australia Limited Aviation Trades Enterprise Agreement 2018 to 2020. The dispute involved the proposed terms and conditions of employment for employees within the aviation trades sector at Boeing Defence Australia Limited. The Commission was required to assess whether the proposed agreement met the criteria for registration under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was in the public interest and whether it had been genuinely negotiated between the employer and employees.

The legal issues centred on whether the proposed agreement was procedurally and substantively sound. Procedurally, the court examined if the necessary steps had been taken to facilitate genuine bargaining and if the agreement was reached through a process that allowed for meaningful input from the employees. Substantively, the court considered whether the terms of the agreement were fair and reasonable, taking into account various factors such as the economic circumstances of the parties and the impact of the agreement on the employees.

The Fair Work Commission found that the bargaining process was genuine and that the proposed agreement was in the public interest. The Commission concluded that Boeing Defence Australia Limited had taken reasonable steps to facilitate genuine bargaining, and that the agreement was a product of this process. Additionally, the terms of the agreement were deemed fair and reasonable, balancing the interests of both the employer and employees. The Commission approved the Boeing Defence Australia Limited Aviation Trades Enterprise Agreement 2018 to 2020, finding that it met the necessary criteria for registration.

The final orders of the Commission were that the Boeing Defence Australia Limited Aviation Trades Enterprise Agreement 2018 to 2020 be approved and registered under the Fair Work Act 2009. This decision allows the agreement to become the governing document for the employment conditions of the employees covered by the agreement.

Orders