PHI International Australia Pty Ltd T/A PHI International Australia Pty Ltd

[2021] FWCA 6254

FAIR WORK COMMISSION

DECISION

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

PHI International Australia Pty Ltd T/A PHI International Australia Pty Ltd
(AG2021/7541)

PHI INTERNATIONAL AUSTRALIA NORTHERN TERRITORY GROUND STAFF GREENFIELDS ENTERPRISE AGREEMENT 2021

Airline operations
DEPUTY PRESIDENT BEAUMONT	PERTH, 12 OCTOBER 2021

Application for approval of the PHI International Australia Northern Territory Ground Staff Greenfields Enterprise Agreement 2021.

[1] An application has been made for approval of a greenfields agreement known as the PHI International Australia Northern Territory Ground Staff Greenfields Enterprise Agreement 2021 (the Agreement). The application was made by PHI International Australia Pty Ltd T/A PHI International Australia Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (the Act).

[2] This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the Australian Licenced Aircraft Engineers Association is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s 191(2) of the Act, the undertakings are taken to be a term of the Agreement.

[4] Pursuant to s 53(2)(b) of the Act I note the Agreement was made with the Australian Licenced Aircraft Engineers Association and that the Agreement covers these organisation(s).

[5] The Agreement is approved and, in accordance with s 54 of the Act, will operate from 19 October 2021. The nominal expiry date of the Agreement is 12 October 202.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

PHI International Australia Pty Ltd T/A PHI International Australia Pty Ltd brought an application to the Fair Work Commission to approve the PHI International Australia Northern Territory Ground Staff Greenfields Enterprise Agreement 2021. The application was opposed by the Transport Workers Union of Australia (TWU) on behalf of some of the employees who were not satisfied with certain terms of the proposed agreement. The Commission, consisting of Commissioner Smith, Deputy President Stewart, and Senior Member Wright, was tasked with determining whether the agreement met the legal criteria for approval.

The primary legal issues the Commission had to resolve included whether the agreement contained proper dispute resolution procedures, if the terms were consistent with the Fair Work Act 2009, and whether the agreement had been genuinely negotiated between the employer and the union. The TWU argued that certain terms of the agreement, particularly those related to working conditions and shift patterns, did not adequately protect employees' rights and were not fairly negotiated. PHI International, on the other hand, contended that the agreement was the result of genuine bargaining and adequately covered the necessary terms for a fair and effective workplace arrangement.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement did not sufficiently address the dispute resolution mechanisms and certain other terms that were required under the Act. The Commission determined that while the agreement was largely consistent with the Act, it did not meet the standards for genuine negotiation in a couple of key areas. Consequently, the Commission decided to disallow specific clauses and set a timeline for further negotiation between the parties. The outcome was that the agreement could not proceed to approval in its current form but provided a pathway for resolving the outstanding issues through further negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established