Independent Aviation T/A Independent Aviation Pty Ltd
[2022] FWCA 1740
•27 MAY 2022
| [2022] FWCA 1740 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Independent Aviation T/A Independent Aviation Pty Ltd
(AG2022/1213)
Independent Aviation Employee Collective Agreement 2007
| Airline operations | |
| COMMISSIONER HUNT | BRISBANE, 27 MAY 2022 |
Application for termination of the Independent Aviation Employee Collective Agreement 2007
Introduction
On 22 April 2022, Independent Aviation T/A Independent Aviation Pty Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Independent Aviation Employee Collective Agreement 2007 (the Agreement).
The Agreement covers the Employer and all employees of the Employer for whom classifications and classes of work are contained in the Agreement. The Employer is an employer covered by the Agreement, for the purpose of Subdivision C of Division 7 of Part 2-4 of the Act and has standing to make this application pursuant to s.225(a) of the Act.
The application was made using a Form F24B - application for termination of an enterprise agreement after the nominal expiry date (F24B) and was accompanied by a Form F24C – declaration in in relation to termination of an enterprise agreement after the nominal expiry date (F24C) of Ms Danielle Munro, General Manager of the Employer.
The Agreement was made in 2007, prior to the Act coming into force and is a “collective agreement-based transitional instrument” (CABTI). The application is made pursuant to s.225(b) of the Act and under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act). The application of these sections is discussed below. Accordingly, the application should have been made using a Form F28. It is noted, in any event, that for applications brought under schedule 3, item 16, the application is dealt with pursuant to s.225 of the Act, with the same considerations required as if it were an agreement made under the Act.
I notified the Employer that the application referred to a collective agreement-based transitional instrument, within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Schedule 3, items 15 and 16. I have exercised the discretion within s.586 of the Act to treat the application made on 22 April 2022 as though it was made using a Form F28.
The nominal expiry date of the Agreement has passed. The Employer stated that there are six employees covered by the Agreement.
In the F24C, Ms Munro stated that the primary activity of the Employer is the operation of a Flight Charter Brokerage business, and a 24-hour call centre. Ms Munro stated:
“This document has passed its nominal expiry date and the company wishes to move to a modern award.
[…]
Due to the expiration date the new award is better off for the staff. This includes more up to date classifications, hours of work, rates of pay (including penalty rates) and modern benefits.”
On 5 May 2022, I issued directions to the Employer to forward to employees covered by the Agreement an email from my chambers outlining s.226 of the Act and inviting views as to the application and the likely effect of termination of the Agreement. No views were received.
Termination of an enterprise agreement after its nominal expiry date
Item 16 of Schedule 3 of the Transitional Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.
Subdivision D of Division 7 of Part 2-4 of the Act provides for the termination of an enterprise agreement after its nominal expiry date. This subdivision consists of ss.225, 226 and 227, the terms of which are as follows:
“225 Application for termination of an enterprise agreement after its nominal expiry date
If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:
(a) one or more of the employers covered by the agreement;
(b) an employee covered by the agreement;
(c) an employee organisation covered by the agreement.
226 When the FWC must terminate an enterprise agreement
If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that it is not contrary to the public interest to do so; and
(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:
(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and
(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.
227 When termination comes into operation
If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”
Not contrary to the public interest (s.226(a))
I will first consider whether I am satisfied that termination of the Agreement is “not contrary to the public interest”.
In his decision to approve the termination of the McDonald’s Australia Enterprise Agreement 2013, Deputy President Colman observed that:[1]
“Section 226(a) does not require the Commission to be satisfied that the termination of an enterprise agreement is in the public interest. It sets a lower requirement. The Commission must be satisfied that it is not contrary to the public interest to terminate the agreement.” (emphasis is in the original)
The Agreement was made approximately 15 years ago and has less beneficial terms and conditions to employees than those contained within the modern award that would otherwise apply to employees covered by the Agreement. I am satisfied it is not contrary to the public interest to terminate the Agreement.
Appropriate (s.226(b))
I must consider whether it is “appropriate” to terminate the Agreement, taking into account all the circumstances, including the views of the employees, each employer and each employee organisation covered by the Agreement, and the circumstances of those employees, employers and organisations, including the likely effect that the termination will have on each of them.
The Employer’s views are, naturally and by virtue of having made this application, that it supports termination of the Agreement. I commend the Employer for making the application, even in the face of increased costs to its business.
As earlier noted, employees were given an opportunity to provide views as to the proposed termination of the Agreement; no views were received.
Taking into account the views of the persons (including the Employer) referred to in s.226(b) that have been presented to the Commission, and the circumstances of those persons, as well as the effect that termination will have on each of them, I consider that it is appropriate to terminate the Agreement.
The operative date of the termination
The remaining issue for determination in this application is: when should the Agreement be terminated?
Section 227 provides that, if an enterprise agreement is terminated under s.226, the termination ‘operates from the day specified in the decision to terminate the agreement.’
The Employer did not provide any views as to the operative date of termination of the Agreement.
I consider it suitable for termination of the Agreement to take effect from the day of this decision.
Conclusion
For the reasons given above, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.
For the reasons given above, in consideration of the material before me relevant to ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.
In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.
Having regard to s.227 of the Act, the termination will operate from the day of this decision, being 27 May 2022.
COMMISSIONER
[1] [2019] FWCA 8563 at [16].
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