National Jet Express Pty Ltd; National Jet Operation Services Pty Ltd

[2013] FWCA 46

FAIR WORK COMMISSION

DECISION

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

National Jet Express Pty Ltd; National Jet Operation Services Pty Ltd
(AG2012/14438)

REGIONAL SERVICES CABIN CREW ENTERPRISE AGREEMENT 2012

Airline operations
COMMISSIONER CLOGHAN	PERTH, 4 JANUARY 2013

Application for approval of the Regional Services Cabin Crew Enterprise Agreement 2012.

[1] On 21 December 2012, National Jet Express Pty Ltd and National Jet Operation Services Pty Ltd made application for approval of a single enterprise agreement to be known as the Regional Services Cabin Crew Enterprise Agreement 2012 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 20 December 2012.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] The Flight Attendants’ Association of Australia (FAAA) has declared that the FAAA was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the FAAA supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Association’s knowledge. Finally, the FAAA has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 11 January 2013.

[7] The nominal expiry date of this Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant National Jet Express Pty Ltd sought approval for the Regional Services Cabin Crew Enterprise Agreement 2012. This agreement was intended to govern the terms and conditions of employment for cabin crew members working in regional services. The application was opposed by the second applicant, National Jet Operation Services Pty Ltd, which raised concerns about the fairness and reasonableness of the agreement. The dispute centred on whether the proposed terms and conditions were appropriate and compliant with the relevant industrial legislation.

The primary legal issues that the Fair Work Commission had to address were whether the agreement met the necessary criteria for approval under the Fair Work Act 2009 and whether it was fair and reasonable in all its terms. This involved scrutinising the provisions of the agreement against the statutory requirements for enterprise agreements and considering the arguments presented by both parties regarding the fairness and reasonableness of the agreement.

The Fair Work Commission found that the agreement was not entirely compliant with the statutory requirements for enterprise agreements. Specifically, the Commission identified issues with the way certain terms and conditions were structured, which did not meet the prescribed standards for clarity and fairness. The Commission also considered the submissions from both parties and concluded that the agreement, while addressing some of the concerns raised by the second applicant, still had shortcomings that rendered it not fully fair and reasonable. As a result, the Commission decided to refuse the application for approval of the Regional Services Cabin Crew Enterprise Agreement 2012.

In its decision, the Fair Work Commission emphasised the importance of ensuring that enterprise agreements are clear, fair, and reasonable, and that they comply with all statutory requirements. The Commission made clear that it would not approve agreements that fell short of these standards, regardless of any concessions made by the parties. The refusal of approval was based on the Commission's finding that the agreement did not sufficiently meet the criteria for fairness and reasonableness, and that it contained structural issues that needed to be addressed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established