Jetstar Airways Pty Limited Summary

[2022] FWCA 2646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Jetstar Airways Pty Limited

(AG2022/2348)

Jetstar Airways Stores Agreement 2019

Airline operations
COMMISSIONER MATHESON	SYDNEY, 4 AUGUST 2022

Application for approval of the Jetstar Airways Stores Agreement 2019.

An application has been made for approval of an enterprise agreement known as the Jetstar Airways Stores Agreement 2019 (Agreement). The application was made by Jetstar Airways Pty Limited (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.1 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.

The Agreement contains the following cross-referencing errors:

The clause in which the cross-reference appears	The clause number presently showing	The intended cross-reference
8.4.1	9.3	7.3
8.4.4	7.4	7.3
31.2	0	31
14.2.1	12	11
11.2	15	14
11.3	15.1 16.2	13.1 14.2
12.8.1	Appendix 1, Table 2	Appendix 1, Table 4
14.5 14.3.5 36 37.3	Table 2, Appendix 1	Table 4, Appendix 1

To the extent that these errors impacted my assessment of the better off overall test, the Applicant was invited to provide undertakings.

The Applicant, as the employer covered by the Agreement, has provided written undertakings to address the errors and other issues impacting the better off overall test assessment. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 August 2022. The nominal expiry date of the Agreement 4 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Jetstar Airways Pty Limited sought approval for the Jetstar Airways Stores Agreement 2019, an enterprise agreement under the Fair Work Act 2009. The applicant, Jetstar Airways, sought to have the agreement approved by the Fair Work Commission. Certain provisions of the Agreement were considered potentially inconsistent with the National Employment Standards (NES). However, the Commissioner was satisfied that the NES would prevail in the event of any inconsistency.

The legal issues before the Commissioner were whether the Agreement met the statutory requirements for approval under the Fair Work Act, and specifically, whether the Agreement satisfied the better off overall test. The Commissioner also had to consider the cross-referencing errors within the Agreement and whether these errors impacted the better off overall test. Furthermore, the Commissioner was required to assess whether the undertakings provided by Jetstar Airways to address the errors and other issues impacting the better off overall test were acceptable.

The Commissioner found that, subject to the undertakings, the Agreement met the statutory requirements for approval under the Fair Work Act. The Commissioner accepted the undertakings provided by Jetstar Airways to address the cross-referencing errors and other issues impacting the better off overall test. The Commissioner was satisfied that the undertakings would not cause financial detriment to any employee covered by the Agreement, or result in substantial changes to the Agreement. The Commissioner also noted that the more beneficial entitlements of the NES would prevail in the event of any inconsistency with the Agreement. Therefore, the Commissioner approved the Agreement, which will operate from 11 August 2022, with a nominal expiry date of 4 August 2026.

Jetstar Airways Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established