Essendon Airport Pty Ltd
[2024] FWCA 1831
•20 MAY 2024
| [2024] FWCA 1831 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Essendon Airport Pty Ltd
(AG2024/1571)
ESSENDON AIRPORT PTY LTD GROUND SERVICES STAFF ENTERPRISE AGREEMENT 2024
| Airport operations | |
| DEPUTY PRESIDENT BELL | MELBOURNE, 20 MAY 2024 |
Application for approval of the Essendon Airport Pty Ltd Ground Services Staff Enterprise Agreement 2024.
An application has been made for approval of an enterprise agreement known as the Essendon Airport Pty Ltd Ground Services Staff Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Essendon Airport Pty Ltd. The Agreement is a single enterprise agreement.
The notification time for the Agreement under s.173(2) was 9 December 2021 and the Agreement was made on 6 May 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]
Correspondence was sent by my Chambers to the employer raising potential concerns regarding patterns of work and their potential impact on the better off overall test (BOOT). The concern was in regard to whether employees may be required to work non-rotating night shifts under the Agreement, noting the Airport Employees Award 2020 provided for shift penalty entitlements when such shifts were worked, whereas the Agreement was silent. A response was received from the employer advising that due to the hours of airport operations (with a curfew in place from 11pm – 6am) there is no requirement for non-rotating nightshift, and that in the rare event of an emergency during that time, if the employees are required the time is managed as overtime.
I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that non-rotating night shifts are not reasonably foreseeable patterns of work as that is relevant for the better off overall test.
Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.
The Australian Workers’ Union (AWU), 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 organisation.
The Agreement was approved on 20 May 2024. Clause 1.4 of the Agreement states that it will come into operation on the first day of the first full pay period which occurs at least 7 days after it is approved by the Commission. Relevantly, the employer advises the date of the first day of the next full pay period after today is 30 May 2024. In accordance with s.54 of the Act and clause 1.4 of the Agreement, the Agreement will operate from 30 May 2024. The nominal expiry date of the Agreement is 19 May 2027.
DEPUTY PRESIDENT
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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