Lloyd Helicopters Pty Ltd T/A Chc Helicopter

[2024] FWCA 1736

[2024] FWCA 1736

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lloyd Helicopters Pty Ltd T/A Chc Helicopter

(AG2024/1332)

CHC HELICOPTER (AUSTRALIA) CREW OFFICERS ENTERPRISE AGREEMENT 2023

Airline operations
DEPUTY PRESIDENT GRAYSON	SYDNEY, 10 MAY 2024

Application for approval of the CHC Helicopter (Australia) Crew Officers Enterprise Agreement 2023

Introduction

1. Lloyd Helicopters Pty Ltd (has made an application for approval of an enterprise agreement known as the CHC Helicopter (Australia) Crew Officers Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 25 November 2022, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as it was before 6 June 2023, apply to the present application. Further, as the Agreement was made on 8 April 2024 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

Terms of the Agreement

1. Clause 14.4 provides that termination of casual employment is with either one day’s notice or the forfeiture of one day’s pay, with no reference to this being less in respect of notice given. This clause is unenforceable to the extent that it may provide for deductions contrary to s.324 of the Act.

Model Flexibility Term

1. The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

National Employment Standards precedence term

1. Appendix 4 of the Agreement appears to provide for casual conversion and does not appear to be consistent with s.66B of the Act. The Act provides that an employer must make an offer to a casual employee if the employee has been employed by the employer for a period of 12 months; and during at least the last 6 months, the employee has worked a regular pattern of hours on an ongoing basis.

1. Clause 38 of the Agreement provides that the entitlement to 5 days of unpaid Family and Domestic Violence leave “is in accordance with the NES”. This clause is inconsistent with s. 106A of the Act which provides that an employee is entitled to 10 days of paid family and domestic violence leave in a 12-month period.

1. Clause 30.5 and 32.3 of the Agreement, which provide for circumstances in which an employee is taken as having abandoned their employment, are silent regarding the entitlement of an employee who has abandoned their employment to be paid notice of termination. Accordingly, these clauses may be inconsistent with sections 117 to 123 of the Act.

1. The entitlement to compassionate leave provided by clause 36 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s. 105 (1) (b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s. 105 (1) (c) of the Act. Accordingly, this clause is not consistent with s.104(1)(b) and (c) of the Act.

1. Clause 16 of the Agreement provides that employees will work reasonable hours to meet the operational needs of the employer. In accordance with Clause 29 – Work Practices, it appears that the hours required to meet the operational needs of the employer may exceed an average of 38 hours per week. Accordingly, this clause may not be consistent with s.62 of the Act.

1. Clause 33.1(c) of the Agreement provides that in normal circumstances an employee may not take carer’s leave where another person has taken leave to care for the same person. Accordingly, this clause is not consistent with ss.97 and s.102 which does not impose such a requirement on the taking of carer’s leave.

1. To the extent that these clauses be inconsistent with the National Employment Standards (NES), I note that in accordance with the NES precedence term in Part 8 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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 substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

1. Subject to the undertakings referred to 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.

Section 183 Bargaining Representatives

1. The Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the AMWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 May 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE524593  PR774926>

ANNEXURE A