Cobham SAR Services Pty Ltd T/A Cobham Aviation Services

[2022] FWCA 2915

[2022] FWCA 2915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cobham SAR Services Pty Ltd T/A Cobham Aviation Services

(AG2022/3301)

Cobham SAR Services Pilot and Aircrew Enterprise Agreement 2020 - 2023

Airline operations
COMMISSIONER PLATT	ADELAIDE, 25 AUGUST 2022

Application for approval of the Cobham SAR Services Pilot and Aircrew Enterprise Agreement 2020 – 2023

1. An application has been made for approval of an enterprise agreement known as the Cobham SAR Services Pilot and Aircrew Enterprise Agreement 2020 – 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cobham SAR Services Pty Ltd T/A Cobham Aviation Services (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 12 August 2022.

1. On 17 August 2022, 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 Standards (NES) issue that requires comment:

·   Clause 3.8.2 of the Agreement provides that if an employee fails to give the required notice, the employer has the right to withhold monies due to the employee equal to the ordinary time rate of pay for the period of notice not given. This may pose NES concerns if the employer withholds from any NES entitlements owed to the employee, such as accrued annual leave.

1. Clause 1.4.2 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, clause 3.8.2 will not apply to the extent that it is inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 23 August 2022. The undertaking deals with the following topics:

·  The definition of a shift worker will be for the purposes of the NES and is an employee who works ordinary hours over 7 days of the week and is regularly rostered to work on Sundays and public holidays.

·  Shiftworkers are entitled to the same quantum of leave described in clause 7.1.1 of the Agreement.

·  Casual pilots will be paid at the rate of 1/800^th of the annual salary prescribed for the classification of work performed (including additions to salary) for the actual time spent flying where that rate exceeds the amount otherwise payable under clause 3.3.4.

·  Casual pilots will be provided insurance under clause 4.17.2 of the Agreement.

·  In respect of the better off overall issue relating to part-time employees employed as aircrew, the Applicant has provided a system consistent with that in Shop, Distributive and Allied Association v Beechworth Bakery Employee Co Pty Ltd T/A Beechworth Bakery.[1]

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. Whilst the Australian Federation of Air Pilots (AFAP) sought clarification on the effect of a portion of the undertaking, they did not oppose the approval of the Agreement on that basis.  

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 AFAP and the Transport Workers’ Union (TWU), 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 1 January 2024.

COMMISSIONER

[1] [2017] FWCFB 166

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