Cobham SAR Services Pty Ltd

[2015] FWCA 8417

[2015] FWCA 8417

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cobham SAR Services Pty Ltd
(AG2015/5900)

COBHAM SAR SERVICES PILOT AND AIRCREW ENTERPRISE AGREEMENT 2015

Airline operations
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 18 DECEMBER 2015

Application for approval of the Cobham SAR Services Pilot and Aircrew Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Cobham SAR Services Pilot and Aircrew Enterprise Agreement 2015. (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cobham SAR Services Pty Ltd. The agreement is a greenfields agreement.

[2] On 23 October 2015 the Australian Federation of Air Pilots (AFAP) made an application to intervene citing concerns over both the content and process for the making of this proposed agreement. The matter was listed for hearing on 23 December 2015.

[3] With consent of the parties the hearing was cancelled and directions issued the matter to be determined on the papers.

[4] Submissions were received from the AFAP on 26 November 2015 and 11 December 2015 and the Applicant on 3 December and 11 December 2015 providing proposed undertakings in relation to concerns with the agreement.

[5] I adopt and endorse the following observations by a Full Bench in Hart v. Coles 1:

[46] The appeal grounds we consider are arguable relate to satisfaction of the BOOT. This is a matter of fundamental importance for an agreement of this nature. It is apparent that the Agreement adopts a different approach to pay and penalties compared to the Award. There are many elements that are more favourable to employees and some which are not. The application of the BOOT requires a consideration of the terms of the agreement in relation to all employees and prospective employees to be covered by it. It appears that material going to this question was sent to the Commissioner by Mr Cullinan, but the Commissioner chose not to consider it. He did of course consider the BOOT in considerable detail, sought the assistance of the internal support Research team and addressed the concerns raised by the parties and sought undertakings from Coles in relation to his concerns. No public hearing was offered or convened prior to the approval of the Agreement.

[47] In the circumstances of this matter, we are of the view that confidence in the agreement approval process would be enhanced if all of the material intended to be relied upon by Mr Hart is considered. This Agreement affects a very large number of employees who could be disadvantaged if the BOOT is not properly satisfied. Although we have assumed that an arguable case of error exists, we cannot form a view about such matters without considering the evidence all parties wish to adduce and allowing it to be tested. To enable such a process to occur we propose to grant permission to appeal and allow the parties to lead such additional evidence as they see fit. A member of this Bench will give directions and convene a hearing to receive that evidence. We would then convene a hearing to determine whether the appeal should be allowed and determine any consequential measures arising from our analysis of the evidence.’

[6] The Commission is entitled to inform itself as it sees appropriate (s.590), and a third party raised a number of issues not raised by the employer which were necessary to consider in applying the ‘better off overall’ test.

[7] The matter was listed for hearing in chambers at 3:30pm Wednesday 16 December 2015. The Notice of Listing included advice to ‘any person wishing to be heard in the matter should contact the Chambers of Deputy President Hamilton at least one hour prior to the abovementioned time and the matter will be listed for an attendance hearing.’ No contact was received in response to the Notice of Listing and the matter will be determined on the papers.

[8] I have considered all the submissions and witness statements.

[9] I am satisfied that each of the requirements of ss.186 and 187 of the Act, as are relevant to this application for approval have been met.

[10] An undertaking has been given in relation to clause 4.15 and Schedule 2 and clause 8.1.10 of the Agreement and this undertaking has become a term of the Agreement in accordance with s.191(2) of the Act and is appended at Appendix A. I am satisfied that it does not ‘result in substantial changes to the agreement’ within s.190(3). It limits the extent to which one clause and a schedule operate by providing a monetary limit of award entitlements.

[11] I am satisfied that the Transport Workers’ Union of Australia the employee organisation to be covered by the agreement, is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[12] The Agreement was approved on 16 December 2015 and, in accordance with s.54, will operate from 23 December 2015. The nominal expiry date of the Agreement is 30 June 2019.

DEPUTY PRESIDENT

Appendix A

 1   [2015] FCFB 7090

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