Gate Gourmet Services Pty Ltd
[2023] FWCA 1873
•23 JUNE 2023
| [2023] FWCA 1873 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Gate Gourmet Services Pty Ltd
(AG2023/1756)
GATE AVIATION SERVICES AGREEMENT 2022
| Airline operations | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 23 JUNE 2023 |
Application for approval of the Gate Aviation Services Agreement 2022
Gate Gourmet Services Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Gate Aviation Services Agreement 2022 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.
Clause 20.8.2 of the Agreement provides that redundancy pay is not payable by the Applicant ‘[i]f acceptable alternative employment is offered to an Employee and the Employee accepts that employment’ but does not mention that withholding redundancy pay is subject to an application to the Commission under s 120 of the Act. I am satisfied that by virtue of clause 6.2 of the Agreement, clause 20.8 would not permit the Applicant to withhold redundancy pay in circumstances where this provision is inconsistent with the National Employment Standards.
Clause 23.2 of the Agreement permits the Applicant to withhold monies due to an employee in certain circumstances. Whilst the application of this clause may prove unenforceable, it is not a matter that represents a barrier to the approval of the Agreement. The same can be said for clause 29.3, which provides that an employee is to reimburse the Applicant for ‘ASIC’ fees if they resign within 12 months of obtaining an ‘ASIC’. Such reimbursement is by way of deducting amounts owing to the employee as at the date of termination.
The Transport Workers’ Union of Australia (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement. Whilst the organisation raised concerns regarding whether other issues precluded the Agreement from passing the better off overall test, I have found that not to be the case.
The Agreement was approved on 23 June 2023 and, in accordance with s 54, will operate from 30 June 2023. The nominal expiry date of the Agreement is 1 February 2027.
DEPUTY PRESIDENT
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