Capital Airport Group Pty Limited

[2019] FWCA 3320

[2019] FWCA 3320

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 15 Sch. 3—Termination of transitional instrument

Capital Airport Group Pty Limited
(AG2019/1323)

CAPITAL AIRPORT GROUP STAFF AGREEMENT

Airline operations
DEPUTY PRESIDENT KOVACIC	CANBERRA, 24 JUNE 2019

Application for termination of the Capital Airport Group Staff Agreement.

[1] On 18 April 2019 the Capital Airport Group Pty Ltd (the Applicant) made an application under Item 15 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)(the TPCA Act), seeking to terminate the Capital Airport Group Staff Agreement (the Agreement).

[2] The Agreement is a collective agreement-based transitional instrument as defined under the Schedule 3 Item 2(5) of the TPCA Act.

[3] Item 15 of that Schedule provides that for the purposes of applying under the Fair Work Act 2009 (Cth) (the Act) to terminate such an instrument, a reference to an enterprise agreement is to be taken to include a collective agreement-based transitional instrument. Accordingly, the Applicant, is required to satisfy the requirements of Subdivision C of Division 7 of Part 2-4 of the Act in order for this collective agreement-based transitional instrument to be terminated.

Statutory framework

[4] The Transitional Act at Schedule 3, item 15 states:

15 Collective agreement-based transitional instruments: termination by agreement

Subdivision C of Division 7 of Part 2-4 of the FW Act (which deals with termination of enterprise agreements by employers and employees) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[5] Sections 221, 222 and 223 of the Act relevantly provide as follows:

221 When termination of an enterprise agreement is agreed to

Single-enterprise agreement

(1) If the employees of an employer, or each employer, covered by a single-enterprise agreement have been asked to approve a proposed termination of the agreement under subsection 220(1), the termination is agreed to when a majority of the employees who cast a valid vote approve the termination.

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If the employees of an employer, or each employer, covered has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period–within such further period as the FWC allows.

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[6] Attached to the application was the Statutory Declaration sworn by Ms Leesa Baker, the Manager – Human Resources of the Applicant, in which she states among other things that:

● the effect of termination of the Agreement was that the majority of employees would be covered by the Airport Employees Award 2010, 1 with a small number of employees covered by the Car Parking Award 2010;2

● an information session was conducted for all employees on 9 April 2019 at which a presentation was given about the difference between the terms and conditions in the Agreement and under the abovementioned modern awards and the process for the vote to be conducted and the subsequent application to the Fair Work Commission; and

● a vote by employees was held over the period of 12-15 April 2019, with 130 employees (i.e. 88 per cent of employees) voting and of that number 125 employees (i.e. 96 per cent of votes cast) voting in favour of terminating the Agreement.

[7] As previously mentioned, the application was made on 18 April 2019 which is within 14 days after the termination is agreed to as per s.222(3)(a) of the Act.

[8] Based on the material that is before me, I am satisfied that the requirements of s. 233 of the Act have been met. Accordingly, I must approve the termination of the relevant collective agreement-based transitional instrument.

[9] The termination will come into effect from the date of this decision.

 1   MA000049

 2   MA000095

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