Jetstar Airways Pty Limited T/A Jetstar Airways
[2022] FWCA 4567
•23 DECEMBER 2022
| [2022] FWCA 4567 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Jetstar Airways Pty Limited T/A Jetstar Airways
(AG2022/5096)
Jetstar Airways Pilots’ Enterprise Agreement 2019
| Airline operations | |
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 23 DECEMBER 2022 |
Application for approval of the Jetstar Airways Pilots’ Enterprise Agreement 2019
Jetstar Airways Pty Limited has applied for approval of an enterprise agreement known as the Jetstar Airways Pilots’ Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.
The Australian Federation of Air Pilots and the Australian and International Pilots Association being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.
The AIPA, whilst not opposing approval of the Agreement, sought to raise two issues for consideration. The issues were discussed at a conference of the parties on 22 December 2022, at which the AIPA confirmed that it did not oppose approval of the Agreement.
On 14 December 2022, Mr Jarrod Seen advised the Commission that he wished to formally oppose approval of the Agreement on the basis that he is a prospective employee of Jetstar and that he is a financial member of the AFAP. I was not immediately satisfied that Mr Seen had standing in relation to the application and I directed him to file submissions on this question.
Mr Seen filed submissions on 22 December 2022. He seeks to be heard on the application on the basis that he is a prospective employee of Jetstar and would be covered by the Agreement should an employment relationship be entered into in the future, and that he has applied for a pilot position on the Jetstar Careers online portal. He submits that if he is a prospective employee, he has a workplace right under s.341(3) of the Act and has the capacity to make a complaint or inquiry under s.341(1)(c).
Jetstar, the AIPA and the AFAP each opposed Mr Seen’s request to be heard.
I have considered the material filed by the parties in relation to Mr Seen’s request to be heard in this matter, and based on the material provided, I am not satisfied that Mr Seen has standing to be heard. His submission in relation ss.341(1)(c) and (3) of the Act is misguided. Having a workplace right for the purposes of Part 3-1 of the Act is not the same as having standing to be heard in an application for approval under Part 2-4. As counsel for the Applicant correctly points out, only an employee organisation that is a bargaining representative for an agreement or an employee bargaining representative who has been appointed by the employees may oppose an agreement by lodging a declaration prior to the Commission approving the agreement.[1] As Mr Seen is neither an employee organisation acting as a bargaining representative for the Agreement, or a nominated employee bargaining representative for the Agreement, I am not satisfied that Mr Seen has standing to be heard in relation to the application for approval.
I am also not satisfied that it is appropriate to exercise my discretion under s.590 of the Act to grant Mr Seen’s request to be heard. This is particularly so in circumstances where bargaining for the Agreement commenced several years ago and employees who will be covered by the Agreement have had their interests represented by bargaining representatives, including the AFAP and the AIPA. I consider that it would be unfair to delay approval of the Agreement which Mr Seen did not vote on and has no right to vote on, the matters of concern raised by him are ultimately not impediments to approval, and the delay caused by allowing Mr Seen to be heard in this matter may prejudice the employees who would be covered by the Agreement upon its commencement. It is also uncertain as to whether the Agreement will ever apply to Mr Seen. Mr Seen has no right, interest or legitimate expectation that warrants the exercise of my discretion under s.590 of the Act in his favour.
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.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 December 2022. The nominal expiry date of the Agreement is 21 November 2025.
DEPUTY PRESIDENT
[1] Fair Work Commission Rules 2013, subrules 24(3) and (4).
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