Jet Aviation Australia Pty Ltd

[2021] FWCA 7066

[2021] FWCA 7066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Jet Aviation Australia Pty Ltd
(AG2021/8124)

JET AVIATION (HAWKER PACIFIC PTY LTD), B300 EAST SALE OPERATIONS ENTERPRISE BARGAINING AGREEMENT 2021-2024

Airline operations
DEPUTY PRESIDENT MANSINI	MELBOURNE, 17 DECEMBER 2021

Application for variation of the JET Aviation (Hawker Pacific Pty Ltd), B300 East Sale Operations Enterprise Bargaining Agreement 2021-2024.

[1] An application has been made by Jet Aviation Australia Pty Ltd (formerly Jet Aviation (Hawker Pacific Pty Ltd)) for approval of a variation to the JET Aviation (Hawker Pacific Pty Ltd), B300 East Sale Operations Enterprise Bargaining Agreement 2021-2024 (the Agreement), pursuant to s.210 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The application was accompanied by a declaration of the employer covered by the varied Agreement and declarations of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Licensed Aircraft Engineers Association (ALAEA) as organisations covered by the varied Agreement. Those organisations did not advise of any disagreement with the employer’s declaration or opposition to the application.

[4] The variations include to the title of the Agreement and the employer’s corporate entity name with the consequence that the original agreement titled JET Aviation (Hawker Pacific Pty Ltd), B300 East Sale Operations Enterprise Bargaining Agreement 2021-2024 was expressed to cover Hawker Pacific Pty Ltd ACN 001 540 316 trading as Jet Aviation Australia ABN 94 001 540 316 but now appears as Jet Aviation Australia Pty Ltd B300 East Sale Operations Enterprise Bargaining Agreement 2021-2024 and is expressed to cover Jet Aviation Australia Pty Ltd ACN 001 540 316 trading as ABN 94 001 540 316.

[5] Although the application was not initially accompanied by a signed copy of the variation instrument and the agreement as varied, as required by s.210(2)(a), those signed instruments were subsequently filed. The Applicant’s request to waive an irregularity in the form or manner in which an application was made was not opposed. In the circumstances, I consider it appropriate to allow the waiver and do so pursuant to s.586(b).

[6] The relevant employees were given a communication which included all details of the proposed variation but were not provided with a copy of, or access to, the written text of the variation instrument as required by s.180(2) and s.211(3)(c) of the Act. 1 The Applicant asked the Commission to waive this non-compliance in accordance with s.188(2) and the bargaining representatives either supported or did not oppose. I consider the proposed variation was clearly communicated to the employees and the instrument did not need to be separately provided in order for the changes to be understood. 23 of the 28 eligible employees voted in favour of the variation. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others,2 I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and

b) the employees to be covered by the varied Agreement were not likely to have been disadvantaged by this error.

[7] Accordingly, I am satisfied that the varied Agreement has been genuinely agreed within the meaning of s.188(2) of the Act (relevant to this variation application, pursuant to s.211(3)(c)).

[8] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[9] The variation is approved and the consolidated version of the Agreement, as varied, is attached as Annexure B to this decision. In accordance with s.216 of the Act, the variation operates from 17 December 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< AE510275  PR736672>

 1   The Royal Melbourne Golf Club Inc [2020] FWCA 2284.

 2   [2019] FWCFB 318.