Jetstar Airways Pty Limited T/A Jetstar Airways

[2023] FWCA 1056

[2023] FWCA 1056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

Jetstar Airways Pty Limited T/A Jetstar Airways

(AG2023/683)

JETSTAR AIRWAYS ENGINEERING & MAINTENANCE ENTERPRISE AGREEMENT 2023

Airline operations
COMMISSIONER WILSON	MELBOURNE, 17 APRIL 2023

Application for variation of the Jetstar Airways Engineering & Maintenance Agreement 2023

1. An application has been made for approval of a variation to Jetstar Airways Engineering & Maintenance Agreement 2023[1] (the Agreement) to correct or amend an error, defect or irregularity in the Agreement. The application is made pursuant to s.218A of the Fair Work Act 2009 (the Act). It has been made by Jetstar Airways Pty Limited T/A Jetstar Airways.

1. The Agreement was approved by the Fair Work Commission (the Commission) on 13 April 2023 and commences operation on 20 April 2023. The Applicant submits that the Agreement contains a substantive error, defect or irregularity, the details of which are set out and considered below.

Legislation

1. Section 218A provides for the variation of enterprise agreements to correct or amend an obvious error, defect or irregularity and relevantly provides as follows:

“(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.”

Consideration

1. On 7 March 2023, the Applicant made an application for approval of the Agreement pursuant to s.185 of the Act. The Agreement was approved by the Commission on 13 April 2023.

1. Prior to the Agreement being approved by the Commission, the Applicant filed the s.218A application on 17 March 2023.

1. The Applicant submits during the process of bargaining for the Agreement with employee bargaining representatives, agreement was reached to change the classification levels for employees who are designated as “Aircraft Maintenance Engineers” within the meaning of the Agreement. As part of the agreed changes, the “Level 5 AME” classification that features in the Jetstar Airways Engineering & Maintenance Enterprise Agreement 2018 (2018 Agreement) was removed from the Agreement.[2]

1. Resulting from “the classification change, references to a “AME Level 5” in rows 2, 3 and 4 of Table 3 – “A Category Allowance” in Clause 26.2.3 of the Agreement are erroneous and should be references to a “Level 4 AME”. This is because, per the definition of “Level 4 AME” in Clause 2.6.5 of the Agreement, there is no “AME Level 5” classification in the Agreement and employees in the “Level 4 AME” classification should be entitled to the “A” Category Allowances set out in Table 3.”[3]

1. The Applicant further submits that the error in Clause 26.2.3 is an obvious error for the purpose of s.218A of the Act because it is clear on the face of the document that:

“a. there is no “Level 5 AME” classification in the Agreement;

b. the error has occurred because Table 3 of Clause 26.2.3 of the Agreement has mistakenly not been amended to reflect the removal of “Level 5 AME” classification or the changes to the definition of a “Level 4 AME” from the 2018 Agreement to the Agreement; and

c. per the definition of “Level 4 AME” in Clause 2.6.5 of the Agreement, a Level 4 AME must hold a Tier 1, Tier 2 or Tier 3 A-Category approval. The “A” Category Allowance provided for in Table 3 of Clause 26.2.3 is intended to compensate AMEs (and some LAMEs) who have been issued a Company authorisation for a Tier 1, Tier 2 or Tier 3 hold an A-Category Approval. Under the 2018 Agreement, only a “Level 5 AME” is required to hold a license with an A-Category approval, per the definition of “Level 5 AME” in Clause 2.5.5 of the 2018 Agreement.”[4]

1. The Applicant therefore seeks to vary the words “AME Level 5” in rows 2, 3, and 4 of Table 3 in Clause 26.2.3 of the Agreement and replace them with “Level 4 AME”.

1. I caused correspondence to be issued to the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), The Australian Licenced Aircraft Engineers Association and the individual bargaining representatives of the Agreement on 21 March 2023 advising that I was disposed to grant the s.218A application subject to learning the views of the bargaining representatives on the subject. The bargaining representatives were asked to provide their views on the application by 4.00PM Friday 24 March 2023.

1. The Australian Licenced Aircraft Engineers Association confirmed on 22 March 2023 that they had no objection to the s.218A application. No other bargaining representative provided a response.

1. As a default bargaining representative for some employees covered by the Agreement, I caused the same correspondence to be provided to The Australian Workers’ Union on 5 April 2023. The Australian Workers’ Union was asked to provide their views on the s.218A application by 4.00PM Tuesday 11 April 2023. No response was received.

Conclusion

1. For the reasons set out above, I am satisfied that the error in Clause 26.2.3 was an error within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the employer covered by the Agreement, thus satisfying the requirements of s.218A(2)(b)(i) of the Act.

1. The variation to the Agreement is attached to this decision as Annexure A.

1. The variation sought will operate from 20 April 2023. An order giving effect to this decision will be issued at the same time as this decision.

COMMISSIONER

Annexure A

[1] AE519716.

[2] Form F1, Application, item 2.2 [4].

[3] Ibid, [6].

[4] Ibid, [7].

Printed by authority of the Commonwealth Government Printer

<AE519716  PR761030>