dnata Catering Australia Subsidiary 1 Pty Ltd
[2025] FWCA 504
•7 FEBRUARY 2025
| [2025] FWCA 504 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
dnata Catering Australia Subsidiary 1 Pty Ltd
(AG2025/24)
DNATA CATERING (SUBSIDIARY 1 PTY LTD) & ASU ENTERPRISE AGREEMENT 2024
| Airline catering industry | |
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 7 FEBRUARY 2025 |
Application for approval of the dnata Catering (subsidiary 1 Pty Ltd) & ASU Enterprise Agreement 2024
Introduction
dnata Catering Australia Subsidiary 1 Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the dnata Catering (subsidiary 1 Pty Ltd) & ASU Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
The Agreement will apply to employees who are covered by the Airline Operations Award – Ground Staff Award 2020 (the Award).
Agreement Explanation
In its application, the Employer referred to emails and documents sent to employees rather than setting out the steps that were taken by the Employer to explain the terms of the Agreement. These steps were not sufficient for the purposes of ss.180(5) and paragraphs 11-14 of the Statement of Principles (the Principles).
The Employer provided submissions about how the terms and effects of the Agreement were explained to employees. I am satisfied having regard to those submissions that the requirements of s. 180(5) of the Act have been met.
Delegates’ Rights Term
The Agreement’s workplace delegates’ rights term is less prescriptive about how the Employer will enable delegates to represent employees’ industrial interests.
The Employer provided an undertaking to address this issue.
Part-Time Safeguards
Clause 17.2 of the Agreement outlines protections for part-time employees, including specifying the number of ordinary hours to be worked per week or roster cycle and the days on which those hours are worked. These provisions appear similar to those in clause 10 of the corresponding Award. However, it appears that these safeguards apply exclusively to Airline Officers and do not extend to other part-time employees.
The Employer submitted that all employees covered by the Agreement are employed solely in the Airline Officer classifications. No other classification applies to the roles or work performed by employees under this Agreement. The Employer also provided undertakings in support of this position.
Apprentices
The Agreement appears to refer to apprentices at clause 47.3 of the Agreement. However, it does not contain apprentice pay rates. If the intention is for apprentices to receive the rates from the Award, it is unclear how these employees would be considered better off overall.
The Employer provided undertakings stating that they do not and will not engage any employees in Apprentice classifications.
Better off Overall Test (BOOT) Issues
The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:
The rates of pay for Level 2.1, Level 2.2, Level 2.3 and Level 3.1 appear to fall below the Award.
Clause 17.5 of the Agreement provides that part time employees are paid overtime for work in excess of 7.6 hours per day, 10 days per fortnight, 1560 hours in the first year and 1410 hours in successive years. The Agreement also provides that part-time employees will not be rostered to work in excess of 30 hours per week. The Award, however, provides for part-time day workers to receive overtime for all work in excess of their agreed hours under clause 10.2(c).
Clause 20.3 of the Agreement provides that casual airline officers receive 20% casual loading. In contrast, clause 11.1 of the Award provides a 25% casual loading for all employees. The rates of pay do not appear to be high enough to compensate for this deficiency and as such casual employees who fall less than 5% below the Award do not appear better off overall.
Clause 35.6.1 of the Agreement provides that an employee working on permanent night shift will receive 27.5% loading (applied to employees in level 1 – 4 only). Clause 17.4 of the Award provides a 30% loading to employees working permanent night shift and not all employees appear to receive rates high enough to compensate.
Clause 37.9 of the Agreement refers to Time in Lieu of Overtime. In contrast to clause 24.6 of the Award, the Agreement omits specific provisions that apply under the Award, for example, the Agreement does not provide that the employer and employee must agree to the arrangement in writing.
The Agreement is silent on change of rosters. Clause 17.1 of the Award provides that a change of roster means a change from one roster pattern which prescribes the total number of shifts worked over the complete cycle of the roster to another roster pattern.
Clause 23.1.1 of the Agreement provides for an allowance that is payable for a whole day or shift. However, clause 18.7 of the Award states that if an employee is required to perform a higher class of work in any day or shift. the employee must be paid for the whole day or shift at the higher rate of pay.
The Agreement provides a meal allowance of $14.73 in Schedule 3. Conversely, the Award provides a meal allowance of $17.92 in clause 16.4.
The Agreement provides a First Aid allowance of $16.75 within Schedule 3. Conversely, the Award provides a First Aid allowance of $17.34 under clause 20.2(c).
Section 190 Undertakings
The employer provided written undertakings to address the above BOOT issues. A copy of the undertakings is attached in Schedule 4. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Section 186, 187, 188 and 190
Subject to the undertakings referred to above, 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.
Section 183 Bargaining Representatives
The Australian Municipal, Administrative, Clerical and Services Union (ASU) 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 ASU.
Approval
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 February 2025. The nominal expiry date of the Agreement is 31 May 2027.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE527956 PR784129>
0
0
0