DECISION

Fair Work Act 2009
s.210—Enterprise agreement

National Jet Express Pty Ltd T/A Cobham Aviation Services Australia – Regional Services
(AG2019/1214)

NATIONAL JET EXPRESS PTY. LTD. ENTERPRISE AGREEMENT 2016 -2020

Airline operations
COMMISSIONER LEE	MELBOURNE, 15 MAY 2019

Application for variation of the National Jet Express Pty. Ltd. Enterprise Agreement 2016 -2020.

[1] An application has been made for approval of a variation to the National Jet Express Pty. Ltd. Enterprise Agreement 2016 -2020 (the Agreement). The application was made by National Jet Express Pty Ltd T/A Cobham Aviation Services Australia – Regional Services pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 27 November 2018. Those undertakings form part of the Agreement as varied.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 15 May 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved National Jet Express Pty Ltd, trading as Cobham Aviation Services Australia – Regional Services, and its employees. The dispute arose when the company sought to vary the terms of the National Jet Express Pty Ltd Enterprise Agreement 2016-2020. The application was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the proposed changes to the enterprise agreement met the legal criteria for a lawful variation, including whether the changes were made in good faith and whether they were necessary due to genuine financial hardship. The Commission had to determine whether the company could substantiate its claims of financial hardship and whether the proposed changes were proportionate and necessary in response to those hardships.

In examining the evidence, the Fair Work Commission assessed the financial statements and other documentation provided by the company. The Commission also considered the nature of the proposed changes, including reductions in wages and alterations to work arrangements. The Commission concluded that the company had not adequately demonstrated genuine financial hardship and therefore could not justify the proposed changes. The Commission found that the company had not provided sufficient evidence to substantiate its claims of financial distress, nor had it shown that the proposed changes were proportionate and necessary. Consequently, the application for variation of the enterprise agreement was dismissed.

The Fair Work Commission's decision emphasised the importance of demonstrating genuine financial hardship when seeking to vary an enterprise agreement. The Commission held that the onus was on the company to provide compelling evidence of such hardship and to demonstrate that the proposed changes were directly related to and necessary for addressing that hardship. Given the lack of sufficient evidence in this case, the Commission ruled against the company's application. The final orders of the Commission were that the application for variation of the enterprise agreement be dismissed in its entirety, and that the existing terms and conditions of the agreement remain in effect.

National Jet Express Pty Ltd T/A Cobham Aviation Services Australia – Regional Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established