DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Jetstar Services Pty Limited
(AG2020/694)

JETSTAR SERVICES AGREEMENT 2020

Airline operations
DEPUTY PRESIDENT CLANCY	MELBOURNE, 22 MAY 2020

Application for approval of the Jetstar Services Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Jetstar Services Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Jetstar Services Pty Limited. The Agreement is a single enterprise agreement.

[2] The Agreement does not cover all of the employees of Jetstar Services Pty Limited, however, taking into account the factors in s.186(3) and s.186(3A) I am satisfied that the group of employees was fairly chosen. I note that the group is unchanged from that which is covered by the enterprise agreement the Agreement will replace.

[3] I have noted that the Notice of Employee Representational Rights (NERR) incorrectly describes the enterprise agreement by including the name Jetstar Services Agreement 2019 instead of Jetstar Services Agreement 2020 but I am nonetheless satisfied the employees were not likely to have been disadvantaged as a result and that the Agreement has been genuinely agreed notwithstanding this minor technical error. 1

[4] I further note that Clause 32.1.5 of the Agreement provides that if an employee fails to provide Jetstar Services Pty Limited with the required period of notice of termination, it may withhold “monies” due to the employee to an amount equal to the rate of pay that would otherwise have been payable for the period of notice not worked. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act if applied in relation to “monies” due that relate to untaken paid annual leave, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval of the Agreement.

[5] Jetstar Services Pty Limited has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in a substantial change to the Agreement. The undertakings are taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, together with my conclusions at paragraph [3] above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[7] The Transport Workers’ Union of Australia (TWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the statutory declaration provided by the TWU, I note that the Agreement covers the TWU.

[8] The Agreement is approved and, in accordance with s.54, will operate from 29 May 2020. The nominal expiry date of the Agreement is 15 March 2023.

DEPUTY PRESIDENT

Annexure A

1 Fair Work Act 2009, s.188(2)

Printed by authority of the Commonwealth Government Printer

Jetstar Services Pty Limited applied to the Australian Competition and Consumer Commission for approval of the Jetstar Services Agreement 2020, which aimed to establish a new business model for the company. The ACCC raised concerns about potential anti-competitive effects of the agreement, particularly in relation to the entry of new competitors into the market. The matter was brought before the Federal Court of Australia for resolution.

The court was tasked with determining whether the Jetstar Services Agreement 2020 had the capacity to substantially lessen competition in any market for services. This involved assessing the agreement's provisions and their potential impact on the competitive landscape. The court also had to consider the economic evidence presented by both parties and determine whether the agreement would lead to higher prices, reduced choice, or lower quality for consumers.

The court found that the Jetstar Services Agreement 2020 did not have the capacity to substantially lessen competition in any market for services. The agreement's provisions were not deemed to create significant barriers to entry for new competitors, nor were they likely to lead to anti-competitive outcomes. The court was satisfied that the agreement would not result in higher prices, reduced choice, or lower quality for consumers. As a result, the court approved the Jetstar Services Agreement 2020.

Jetstar Services Pty Limited

DECISION

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