Essendon Airport Pty Ltd

[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.

Printed by authority of the Commonwealth Government Printer

Essendon Airport Pty Ltd sought approval for the Ground Services Staff Enterprise Agreement 2024 from the Fair Work Commission. The application was made under the Fair Work Act 2009, and the dispute centred around whether the agreement met the necessary criteria for approval, including whether it was free from prohibited content and whether it provided for the modern award rates of pay. The primary issue before the Commission was whether the proposed agreement complied with the statutory requirements set out in the Fair Work Act, specifically focusing on the provisions related to pay rates and conditions.

The Commission examined the proposed agreement to ensure it adhered to the Fair Work Act's provisions, which mandate that enterprise agreements must not include terms that would undermine the modern award. The Commission also assessed whether the agreement contained terms that were inconsistent with the modern award, as any such inconsistency would render the agreement non-compliant. Additionally, the Commission had to determine whether the agreement appropriately provided for the modern award rates of pay and conditions, ensuring that the terms did not unfairly disadvantage employees.

In reaching its decision, the Commission considered the provisions of the Fair Work Act and the relevant modern award. The Commission found that the proposed agreement was free from prohibited content and contained terms that were consistent with the modern award, including appropriate provisions for the modern award rates of pay. The Commission was satisfied that the agreement met all statutory requirements for approval and did not contain any terms that would undermine the modern award or disadvantage employees. As a result, the Commission approved the Ground Services Staff Enterprise Agreement 2024.

The final order of the Commission was that the Ground Services Staff Enterprise Agreement 2024, as submitted by Essendon Airport Pty Ltd, was approved under the Fair Work Act 2009. This approval means that the agreement is now a legally binding enterprise agreement between the employer and the ground services staff, and it will supersede any inconsistent provisions in the relevant modern award.

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