Boeing Defence Australia Limited

[2024] FWCA 3125

[2024] FWCA 3125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Boeing Defence Australia Limited

(AG2024/2969)

BOEING DEFENCE AUSTRALIA LIMITED ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 28 AUGUST 2024

Application for approval of the Boeing Defence Australia Limited Enterprise Agreement 2024.

1. An application has been made for approval of an enterprise agreement known as Boeing Defence Australia Limited Enterprise Agreement 2024 (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 (Applicant). The Agreement is a single enterprise agreement.

1. A Form F18A statutory declaration was filed in relation to the matter by Kim Manning, an employee bargaining representative for the Agreement (the bargaining representative), indicating various objections to the approval of the Agreement.

1. On 19 August 2024 correspondence was sent to the parties inviting submissions concerning the objection.

1. The Applicant provided detailed written submissions on 22 August 2024 addressing the matters raised by the bargaining representative. The Applicant also noted that the bargaining representative had lodged two earlier applications with the Commission, the first being an application for a bargaining order which sought to suspend the vote or nullify the results of the vote on the Agreement, and the other being for a scope order to have Assembly Operators removed from the coverage of the Agreement.

1. The application for a bargaining order was subsequently withdrawn and after the successful vote on the Agreement, the application for a scope order was adjourned pending the outcome of this application for approval of the Agreement.

1. The bargaining representative was given a further opportunity to respond to the Applicant’s submissions, and a response was received by the Commission from the bargaining representative on 26 August 2024.

1. The parties were given the opportunity to be heard in relation to the matter. No such request was received by the time specified, that being 27 August 2024, that a hearing was necessary, and so the application has been dealt with based on the information currently before the Commission.

1. Having carefully considered the concerns raised by the bargaining representative and the material provided by the Applicant, I have formed the view that the Agreement meets the requirements for approval.

1. I note the Applicant has notified the Commission that in the extensive materials provided to the Commission by the bargaining representative, information that meets the threshold, in accordance with the Australian Defence Security Principles Framework (DSPF), for a security classification of “OFFICIAL: Sensitive” was provided to the Commission. As a result, my reasons for coming to this view will be brief and will not traverse most of the information provided by the bargaining representative.

1. The bargaining representative did not dispute that the Agreement passes the BOOT but argued that “only using the BOOT to determine whether or not the Assembly Operators would be better off on [the Agreement] is short sighted”. I agree with the Applicant that in terms of whether employees are better off, the BOOT is the legal test, and no higher threshold applies. The complaint that a $1,250 payment made on commencement of the Agreement was not a benefit, and rather “less of a loss”, does not make employees worse off under the Agreement, in circumstances where the rates of pay and other benefits are substantially above the relevant award.

1. Similarly, I am not satisfied that the removal of Newcastle Show Day as a public holiday from the Agreement would prevent the approval of the Agreement. Likewise, wording changes to the Agreement made to ensure clarity, which were explained to employees, and who subsequently voted to approve the Agreement, will not prevent the Agreement being approved.

1. Finally, I accept the submissions of the Applicant as to the scope of the Agreement and its applicability to Assembly Operators. The NERR clearly identified Assembly Operators as being a group proposed to be covered by the Agreement. Bargaining commenced in August 2023 and no application to deal with the scope of the Agreement was made until July 2024, at the time the vote was due to take place. The appropriate time for the making of a scope order is during bargaining, not at the approval stage. In any event, I am satisfied, based on the submissions of the Applicant filed on 22 August 2024, that the group covered by the Agreement is fairly chosen given the work they are employed to perform.

1. In summary, I am not satisfied that the concerns raised prevent the approval of the Agreement, and 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.

1. The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the AWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 September 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

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