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

[2023] FWCA 478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/5307)

MENZIES CARGO AND GROUND SERVICES AND THE TWU OF AUSTRALIA ENTERPRISE AGREEMENT 2022

Airport operations
COMMISSIONER P RYAN	SYDNEY, 15 FEBRUARY 2023

Application for approval of the Menzies Cargo and Ground Services & the TWU Enterprise Agreement 2022

enterprise agreement known as the Menzies Cargo and Ground Services and the TWU of Australia Enterprise Agreement 2022 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

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.

Sections 186, 187, 188 and 190

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.

Model Flexibility Term

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

Section 183 Bargaining Representatives

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

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

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 22 February 2023. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Menzies Aviation (Australia) Pty Ltd, trading as Menzies Aviation, sought approval for the Menzies Cargo and Ground Services & the TWU Enterprise Agreement 2022 from the Fair Work Commission. The Transport Workers Union (TWU) and Menzies Aviation had negotiated an enterprise agreement which aimed to establish terms and conditions for employees in the cargo and ground services sector. The application for approval was contested, requiring the Commission to assess whether the agreement met the necessary legal criteria for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement provided for the proper operation of the enterprise, whether it included genuine bargaining, and whether it adhered to the safety net protections stipulated by the Fair Work Act. The Commission examined the extent to which the agreement balanced the interests of both parties and ensured fair terms for the employees, particularly in light of the safety net provisions that protect employees' entitlements.

The Fair Work Commission found that the Menzies Cargo and Ground Services & the TWU Enterprise Agreement 2022 met the necessary criteria for approval. The Commission concluded that the agreement allowed for the effective operation of Menzies Aviation and reflected genuine bargaining between the parties. It was determined that the agreement provided fair terms and conditions for employees, ensuring they were not disadvantaged compared to the applicable safety net. The Commission approved the agreement, recognising its compliance with the legal standards required under the Fair Work Act.

The Fair Work Commission approved the Menzies Cargo and Ground Services & the TWU Enterprise Agreement 2022, setting out specific terms and conditions for employees in the cargo and ground services sector. The approval was contingent on the agreement being registered with the Fair Work Commission and effectively implemented by Menzies Aviation. The decision underscored the importance of balancing the interests of employers and employees while ensuring compliance with legislative requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established