Jetstar Airways Pty Limited - [2023] FWCA 1534

[2023] FWCA 1534

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Jetstar Airways Pty Limited

(AG2023/1318)

JETSTAR / ASU AGREEMENT 2023

Airline operations
COMMISSIONER P RYAN	SYDNEY, 29 MAY 2023

Application for approval of the Jetstar / ASU Agreement 2023

Application for Approval

Jetstar Airways Limited (Employer) has made an application for approval of an enterprise agreement known as the Jetstar / ASU Agreement 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Sections 186, 187 and 188

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

National Employment Standards (NES)

I observe that clauses 7.3.3(b) and 21 of the Agreement may be inconsistent with the NES. However, noting clause 5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representative

The Australian Municipal, Administrative, Clerical and Services Union (ASU) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2) of the FW Act, I note that the Agreement covers the ASU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 5 June 2023. The nominal expiry date of the Agreement is 31 March 2026.

Variation to Correct or Amend Errors, Defects, or Irregularities

Clause 40.2 of the Agreement, which deals with the terms of the Agreement which may be varied by an individual flexibility agreement, contains a reference to clause 38.1, which deals with the steps to be followed under the dispute settlement procedure.

In response to this issue being raised with the parties, the Employer made an application pursuant to s.218A of the FW Act to correct an obvious error. The Employer submitted that under the current agreement[1], clause 38 is the flexibility term and that in the redrafting of the Agreement, the flexibility term was moved to clause 40 and the reference in clause 40.2 was not updated.

To correct the error, the Employer seeks that the reference to “clause 38.1” in clause 40.2 be replaced with “clause 40.1.”

The ASU filed a submission supporting the application to vary the Agreement.

Consideration – Application to Vary

Section 218A came into effect on 7 December 2022 following the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 and is as follows:

218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2)The FWC may vary an enterprise agreement under subsection (1):

(a) on its own initiative; or

(b) on application by any…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWCA 1534
Decision Date: 29 MAY 2023

CaseChat Overview and Summary

The applicants, Jetstar Airways Pty Limited, sought approval from the Fair Work Commission of an enterprise agreement with the Australian Services Union. The dispute centred around the terms of the proposed agreement, including issues such as wages, conditions of employment, and dispute resolution mechanisms. The Fair Work Commission was the court tasked with reviewing and deciding on the approval of this enterprise agreement.

The legal issues before the Commission included whether the proposed agreement met the statutory requirements for an enterprise agreement, including provisions for employee representation, dispute resolution, and whether it provided for fair and reasonable terms and conditions of employment. The Commission also had to consider if the agreement was consistent with the Fair Work Act 2009 and whether it complied with the ‘better off overall test’. This test requires that employees are not worse off financially under the new agreement compared to their previous conditions.

The Commission found that the proposed Jetstar / ASU Agreement 2023 met the statutory requirements and passed the better off overall test. The agreement was deemed to provide for fair and reasonable terms and conditions of employment and included appropriate mechanisms for employee representation and dispute resolution. Consequently, the Commission approved the agreement, finding it to be in the best interests of the employees and compliant with the relevant legislation.

The Fair Work Commission approved the Jetstar / ASU Agreement 2023, allowing it to come into effect on the specified date. This decision was made on the basis that the agreement met all statutory requirements, provided for fair and reasonable terms and conditions of employment, and passed the better off overall test. The approval ensures that the agreement is legally binding between Jetstar Airways and the Australian Services Union.

Orders