DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Malaysia Airlines Berhad
(AG2018/2624)

MALAYSIA AIRLINES ENTERPRISE AGREEMENT 2018

Airline operations
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 20 FEBRUARY 2019

Application for approval of the Malaysia Airlines Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Malaysia Airlines Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Malaysia Airlines Berhad. The Agreement is a single enterprise agreement.

[2] The Employer 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 substantial changes to the Agreement.

[3] 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.

[4] I observe that clause 53 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[6] 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.

[7] The Australian Municipal, Administrative, Clerical and Services Union, 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) I note that the Agreement covers the organisation.

[8] The Agreement was approved on 20 February 2019 and, in accordance with s.54, will operate from 27 February 2019. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Malaysia Airlines Berhad sought approval for the Malaysia Airlines Enterprise Agreement 2018 in the Fair Work Commission. The dispute arose from the proposed changes to employee conditions of employment, which the airline argued were necessary for the company's financial viability and competitiveness. The primary issue before the Commission was whether the proposed changes, which included provisions for reduced redundancy payments, altered shift patterns, and adjustments to leave entitlements, met the criteria for approval under the Fair Work Act 2009.

The Commission considered the proposed agreement against the Fair Work Act's objectives, including the need to promote high levels of employment and to provide for fair and effective workplace relations. The airline argued that the changes were necessary for its business to remain competitive in a global market, and that the proposed agreement facilitated flexibility and efficiency. The Commission examined the evidence provided regarding the financial health of the airline and the broader context of the industry, assessing whether the proposed changes were proportionate and fair. The Commission also took into account the views of employee representatives and whether the agreement provided a fair balance between the interests of the employer and the employees.

After thorough consideration, the Commission found that the proposed changes were necessary for the airline's financial viability and did not undermine the objectives of the Fair Work Act. The Commission approved the Malaysia Airlines Enterprise Agreement 2018, acknowledging the difficult economic environment and the necessity for the airline to adapt. The decision emphasised the importance of balancing the needs of the business with the rights and protections of employees. The final orders included the approval of the agreement, subject to the specific terms and conditions outlined in the decision.

Malaysia Airlines Berhad

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established