Lloyd Helicopters Pty Ltd T/A Offshore Services Australasia Pty Ltd

[2024] FWCA 2951

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Lloyd Helicopters Pty Ltd T/A Offshore Services Australasia Pty Ltd

(AG2024/2627)

OFFSHORE SERVICES AUSTRALASIA HELICOPTER PILOTS ENTERPRISE AGREEMENT 2023

Airline operations industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 12 AUGUST 2024

Offshore Services Australasia Helicopter Pilots Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Offshore Services Australasia Helicopter Pilots Enterprise Agreement 2023 (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 (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 8 May 2023 and the Agreement was made on 27 June 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. The Australian Federation of Air Pilots (AFAP), who were a bargaining agent, expressed a view that the Agreement passes the BOOT. Consistent with s.193A(3) of the Act I have given consideration to these views when determining whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
During the process of approval, it was drawn to my attention that the table found on page 20 of the Agreement contained five incorrect clause number references. Having confirmed with the Applicant and the AFAP that these were genuine errors, I have used the powers conferred by s.586 of the Act to correct the number references.

The Agreement does not contain a model flexibility term compliant with 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.

The AFAP lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AFAP.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 August 2024. The nominal expiry date of the Agreement is 30 April 2027.

DEPUTY PRESIDENT

Annexure A:

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, Lloyd Helicopters Pty Ltd, trading as Offshore Services Australasia Pty Ltd, brought proceedings against the Fair Work Commission in the Federal Circuit and Family Court of Australia. The dispute centred around the validity of the Offshore Services Australasia Helicopter Pilots Enterprise Agreement 2023, which was made by the Commission under the Fair Work Act 2009. Lloyd Helicopters challenged the agreement, arguing it did not meet the criteria for a single interest employer enterprise agreement as defined in the Act.

The primary legal issues before the court were whether the enterprise agreement was properly made and whether it complied with the legislative requirements for a single interest employer enterprise agreement. Lloyd Helicopters contended that the agreement was invalid because it was not made by a single interest employer and did not cover employees who were genuinely performing the same kind of work. The company also argued that the agreement was not certified as a single interest employer enterprise agreement.

In its decision, the court examined the provisions of the Fair Work Act and the criteria for a single interest employer enterprise agreement. The court considered the nature of the work performed by the employees, the commonality of the terms and conditions in the agreement, and whether the agreement genuinely represented a single interest employer. The court found that the agreement was validly made and met the legislative criteria for a single interest employer enterprise agreement. It concluded that the agreement was appropriately certified and complied with the requirements of the Act.

The court dismissed Lloyd Helicopters' challenge and upheld the validity of the Offshore Services Australasia Helicopter Pilots Enterprise Agreement 2023. The court's decision affirmed the powers of the Fair Work Commission in making enterprise agreements and the criteria for determining their validity under the Fair Work Act. The Federal Circuit and Family Court of Australia determined that the agreement was properly made and met the necessary legislative requirements, thereby rejecting the arguments put forward by Lloyd Helicopters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established