Jet Aviation Australia Pty Ltd T/A Jet Aviation Australia

[2024] FWCA 4432

[2024] FWCA 4432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Jet Aviation Australia Pty Ltd T/A Jet Aviation Australia

(AG2024/4469)

JET AVIATION AUSTRALIA PTY LTD B300 EAST SALE OPERATIONS ENTERPRISE BARGAINING AGREEMENT 2024-2028

Airline operations
DEPUTY PRESIDENT GRAYSON	SYDNEY, 11 DECEMBER 2024

Application for approval of the Jet Aviation Australia Pty Ltd B300 East Sale Operations Enterprise Bargaining Agreement 2024-2028

Introduction

1. Jet Aviation Australia Pty Ltd T/A Jet Aviation Australia (the Employer) has made an application for approval of an enterprise agreement known as the Jet Aviation Australia Pty Ltd B300 East Sale Operations Enterprise Bargaining Agreement 2024-2028 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 24 June 2024 and the Agreement was made on 30 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Form F17B

1. The Form F17B lodged by the Employer did not specify the notification time for the Agreement. An amended Form F17B was subsequently filed on invitation by my Chambers, and I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) Precedence Term

1. The Agreement contains a casual conversion clause at 6.1.5 which reflects the Act’s scheme prior to 26 August 2024. The casual conversion clause does not incorporate the changes available to casual employees employed after this date, and which take effect from February 2025 (which occurs during the Agreement’s nominal term).

1. Clause 9.3 of the Agreement provides for compassionate leave. However, this clause is silent as to the entitlement to compassionate leave in circumstances where:

(a)“a child is stillborn, where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive”, as provided by s.104(1)(b) of the Act; and,

(b)“the employee, or the employee’s spouse or de facto partner, has a miscarriage”, as provided by s.104(1)(c) of the Act.

1. Further, Clause 10.1.2 of the Agreement provides that where an employee fails to give the required notice on termination, the employer may withhold from any monies due to the employee on termination under the Agreement or the NES, an amount not exceeding the amount the employee would have been paid under the Agreement in respect of the period of notice required by the clause less any period of notice actually given by the employee. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. The clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. To the extent that these clauses may be inconsistent with the National Employment Standards (NES), I note that in accordance with the NES precedence term in Clause 2.2.5 of the Agreement, the clauses will be read and interpreted in conjunction with the NES.

Section 186, 187, and 188

1. I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

1. The Australian Licensed Aircraft Engineers Association (ALAEA) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

1. In accordance with s.201(2), I note that the Agreement covers the ALAEA and the AMWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 December 2024. The nominal expiry date of the Agreement is 30 September 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE527190  PR782344>