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

1. 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

1. 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)

1. 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

1. 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.

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

Approval

1. 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

1. 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.

1. 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.

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

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

Consideration – Application to Vary

1. 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 of the following:

(i)one or more of the employers covered by the agreement;

(ii)an employee covered by the agreement;

(iii)an employee organisation covered by the agreement.

(3)If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

1. The Explanatory Memorandum for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 states as follows:

“772. This Part would remove unnecessary complexity in the agreement-making process by amending the FW Act to:

·     simplify the process for correcting any obvious errors, defects or irregularities in enterprise agreements; and

·     provide a simple remedy to address the situation where the wrong version of an enterprise agreement or variation has been inadvertently submitted to, and approved by, the FWC.

…

775.     New subsection 218A(1) would empower the FWC, at its discretion, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (ie without the need for a Full Bench appeal). For example, the FWC could correct typographical errors or obvious omissions. The FWC would be able to decide how corrections are made.

776.     This addresses a regulatory gap, as the existing ‘slip rule’ in section 602 enables the FWC’s decisions, but not enterprise agreements, to be corrected: see Advantaged Care Pty Ltd v Health Services Union [2021] FWCFB 453.”

1. Having regard to the terms of the Agreement and the matters set out in the application to vary the Agreement, I am satisfied that the reference to “clause 38.1” in clause 40.2 of the Agreement is an obvious error within the meaning of s.218A of the FW Act. I am further satisfied that it is appropriate to exercise my discretion to vary clause 40.2 of the Agreement to correct the error by replacing “clause 38.1” with “clause 40.1.”

1. The variation will operate from 29 May 2023. An order giving effect to this variation will be issued with this decision.

COMMISSIONER

[1] Jetstar / ASU Agreement 2018

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