Lloyd Helicopters Pty Ltd T/A CHC Helicopter (Australia)

[2019] FWCA 5807

[2019] FWCA 5807

FAIR WORK COMMISSION

DECISION

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

Lloyd Helicopters Pty Ltd T/A CHC Helicopter (Australia)
(AG2019/2517)

CHC HELICOPTERS (AUSTRALIA) AMWU & ALAEA AIRCRAFT ENGINEERS ENTERPRISE AGREEMENT 2018 - 2020

Airline operations
COMMISSIONER SPENCER	BRISBANE, 21 AUGUST 2019

Application for approval of the CHC Helicopters (Australia) AMWU & ALAEA Aircraft Engineers Enterprise Agreement 2018 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the CHC Helicopters (Australia) AMWU & ALAEA Aircraft Engineers Enterprise Agreement 2018 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Lloyd Helicopters Pty Ltd T/A CHC Helicopter (Australia) (the Applicant). The Agreement is a single-enterprise agreement.

[2] The copy of the Notice Of Employee Representational Rights (NERR) lodged by the Employer with application for approval was the NERR prescribed by Schedule 2.1 of the Fair Work Regulations 2009 (Regulations).

[3] In the application for approval the Applicant provided the notification for the initial round of voting on 1 March 2018. The date that the last Notice of Employee Representational Rights (NERR) was provided to employees was 18 April 2019. This indicated that 48 days had elapsed between the notification time and the provision of the last NERR to employees. S.173(3) of the Act states that the employer must give notice as soon as practicable, and not later than 14 days, after the notification time of the Agreement.

[4] The Employer accepts that it provided the NERR to employees beyond the 14 days permitted by the Act and that in doing so it has failed to comply with the requirements of s 173(3) of the Act. The Australian Licenced Aircraft Engineers Association (ALAEA) has stated that they do not believe the late issuance of the NERR had denied members of the ALAEA representation, and accordingly, offered their support for the approval of the agreement.

[5] In the present circumstances and with regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that the late provision of the NERR to employees is a minor technical error in relation to the requirement of s 173 of the Act and the employees covered by the Agreement were not likely to have been disadvantaged by such an error.  Accordingly, pursuant to s 188(2) of Act I am satisfied that, notwithstanding the delayed issuing of the NERR to employees, the Agreement has been genuinely agreed to.

[6] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with s.191(1) of the Act the undertakings are taken to be terms of the Agreement. A copy of the undertakings is attached to the Agreement, marked Appendix A.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 August 2019. The nominal expiry date of the Agreement is 31 August 2020.

COMMISSIONER

 1   [2019] FWCFB 318 at [128]-[140].

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