Menzies Aviation (Australia) Pty Ltd T/A Menzies Aviation

[2023] FWCA 2627

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Menzies Aviation (Australia) Pty Ltd T/A Menzies Aviation

(AG2023/2432)

MENZIES AVIATION MATRAVILLE OPERATIONS AND THE TWU OF AUSTRALIA ENTERPRISE AGREEMENT 2023

Airline operations
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 18 AUGUST 2023

Application for approval of the Menzies Aviation Matraville Operations and the TWU of Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Menzies Aviation Matraville Operations and the TWU of Australia Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

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.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 5 July 2023.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

Pursuant to subsection 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 Agreement is approved and, in accordance with section 54 of the Act, will operate from 25 August 2023. The nominal expiry date of the Agreement is 31 December 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Menzies Aviation (Australia) Pty Ltd, trading as Menzies Aviation, sought approval of an enterprise agreement with the Transport Workers Union of Australia. The application was brought before the Fair Work Commission, as the parties were unable to reach an agreement. The Transport Workers Union of Australia represented the employees of Menzies Aviation at the Matraville operations. The dispute centred on the terms and conditions of employment outlined in the proposed enterprise agreement, specifically those concerning wages, working conditions, and dispute resolution mechanisms.

The legal issues before the Commission involved determining whether the agreement was in the best interests of the employees, whether it was fairly negotiated, and if it complied with the Fair Work Act 2009. The Commission had to consider whether the agreement provided fair and better off outcomes for the employees, whether it addressed their needs and interests, and if the process of negotiation was fair and in good faith. Additionally, the Commission assessed whether the agreement was consistent with the national system of industrial relations and met the requirements of the Fair Work Act.

The Fair Work Commission found that the Menzies Aviation Matraville Operations and the TWU of Australia Enterprise Agreement 2023 was in the best interests of the employees. The Commission concluded that the agreement was fairly negotiated and met the requirements of the Fair Work Act. The agreement was deemed to provide fair and better off outcomes for the employees, addressing their needs and interests. The Commission approved the agreement, highlighting the importance of fair and better off outcomes and the role of good faith bargaining in the industrial relations system.

The final orders of the Commission included the approval of the Menzies Aviation Matraville Operations and the TWU of Australia Enterprise Agreement 2023. The agreement was to be registered with the Fair Work Commission, and the terms and conditions set out in the agreement would apply to the employees of Menzies Aviation at the Matraville operations. The Commission's decision provided clarity and certainty for both Menzies Aviation and the Transport Workers Union of Australia, ensuring that the agreement was in the best interests of the employees and met the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established