Eastern Australia Airlines Pty Limited

[2016] FWC 8409

[2016] FWC 8409

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Eastern Australia Airlines Pty Limited
(AG2016/5133)

Airline operations
COMMISSIONER LEE	MELBOURNE, 24 NOVEMBER 2016

Application for approval of the Eastern Australia Airlines Line Maintenance Aircraft Engineers Agreement 2016.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 6 October 2016. An application was made for approval of an enterprise agreement known as the Eastern Australia Airlines - Line Maintenance Aircraft Engineers Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Eastern Australia Airlines Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

[2] Through correspondence with the Applicant and the bargaining representatives I indicated I had a concern that all employees were not given a notice of employee representational rights (the Notice) within the statutory period of 14 days from the date of notification time that is required by s.173(3) of the Act and so much was evident from the Form 17 – Employer’s statutory declaration in support of an application for approval of an enterprise agreement (Form F17) that was supplied by the Applicant.

[3] It is not contested that five employees did not receive the Notice within the 14 day period from the date of notification time.  The five employees did receive the Notice at a later time.

[4] The date of notification time for the Agreement was 10 August 2015 and there were 77 employees that are said to have been covered by the Agreement at Q2.10 of the Form 17. It follows that since five employees did not receive the Notice, that 72 employees covered by the Agreement were emailed the Notice on that same date, however, it is also clear that five did not receive the notice until 18 October 2015.

[5] Mr Stephen Woodbury was granted permission to appear on behalf of the Applicant.  Mr Woodbury made submissions that the reason that five employees did not receive the Notice within 14 days of the date of notification time was inadvertent. This was explained by way of a pre-existing list of names of employees that was in circulation being relied on erroneously by the Applicant, thinking that the list would include all of the employees that would be covered by the Agreement. It was because of that error that the five employees were not included in the original email circulation of the Notice on 10 August 2015.  When the error was discovered the employees were issued with a Notice.

[6] The Australian Licensed Aircraft Engineers Association (ALAEA) being a bargaining representative for the Agreement also appeared at the hearing.  They did not take any issue with the version of events that were set out by Mr Woodbury on behalf of the Applicant and I regard that as factual.

[7] Mr Woodbury took me to the decision in Uniline Australia Limited 1, in particular paragraph 106:

“[106] We do not discount the possibility that for the purposes of ss. 181(2) and 188(a)(ii) a Notice might be given to an employee more than 14 days after the notification time for the agreement and the Commission might nevertheless be satisfied that the employer had complied with ss. 181(2). This might occur for example, where the employer took all reasonable steps to give the Notice as required by ss. 173(1) but those steps were unsuccessful in relation to a particular employee. But that is not the case here. The Appellant took no such steps, and it does not submit otherwise. As this was not the subject of any argument advance by the Appellant we take the point no further.” 2

[8] In my view the test is, in terms of complying with this part of the Act whether or not the employer has taken all reasonable steps to give each employee the Notice.  In the circumstances of this particular case I am satisfied, based on what has been submitted and not contested, that the employer did take all reasonable steps to give each employee the Notice.  In those circumstances, I am satisfied that the Applicant has complied with that pre-approval requirement.

[9] While not every employee received a Notice within 14 days of the date of notification time, this is not fatal to the application being approved if the all reasonable steps test is met and in considering the particular factual matrix of this case, as it was put by Mr Woodbury I find that the test has been so met.

[10] That being the case, I am satisfied that the Agreement should be approved.

[11] A decision approving the Agreement has previously been issued in [[2016] FWCA 7193].

COMMISSIONER

Appearances:

S Woodbury on behalf of the Applicant

L Amos on behalf of The Australian Licensed Aircraft Engineers Association

Hearing details:

2016.

Melbourne by Video-Link to Sydney:

6 October.

 1   [2016] FWCFB 4969.

 2   [2016] FWCFB 4969 at [106].

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