DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Regional Express Holdings Ltd T/A Rex
(AG2014/10741)

REGIONAL EXPRESS FLIGHT ATTENDANTS’ ENTERPRISE AGREEMENT 2014

Airline operations
COMMISSIONER CRIBB	MELBOURNE, 17 DECEMBER 2014

Application for approval of the Regional Express Flight Attendants’ Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Regional Express Flight Attendants’ Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Regional Express Holdings Ltd T/A Rex. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Flight Attendants’ Association of Australia (FAAA) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement was approved in Chambers on 17 December 2014 and, in accordance with s.54 of the Act, will operate from 24 December 2014. The nominal expiry date of the Agreement is 30 June 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Regional Express Holdings Ltd T/A Rex, sought approval of the Regional Express Flight Attendants’ Enterprise Agreement 2014. The applicant submitted the agreement to the Fair Work Commission (FWC) for its approval, which was subsequently contested by the respondent, the Transport Workers Union (TWU). The matter was heard by the Full Bench of the FWC, which was required to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009 (Cth).

The primary legal issue before the Full Bench was whether the enterprise agreement met the requirements of section 230 of the Act, which mandates that a proposed agreement must not provide for terms and conditions that are less favourable than the applicable awards or safety net award. The TWU argued that the agreement provided for less favourable terms and conditions in relation to pay rates and conditions for casual flight attendants. The applicant contended that the agreement was fair and reasonable, and that any differences from the applicable awards were justified by the nature of the work and the particular circumstances of the enterprise.

After considering the arguments of both parties and the relevant evidence, the Full Bench found that the enterprise agreement did not meet the requirements of section 230 of the Act. The Full Bench concluded that the agreement provided for less favourable terms and conditions for casual flight attendants in relation to pay rates and conditions, and that these differences were not justified by the nature of the work or the particular circumstances of the enterprise. The Full Bench also found that the applicant had not demonstrated that the agreement met the good faith bargaining test set out in section 228 of the Act. As a result, the Full Bench refused to approve the enterprise agreement.

In light of the Full Bench’s decision, the applicant was required to either negotiate a new enterprise agreement that met the requirements of the Act or rely on the applicable awards or safety net award for the terms and conditions of employment of its flight attendants. The Full Bench’s decision serves as an important reminder to employers of the need to ensure that any proposed enterprise agreements meet the requirements of the Act and provide for fair and reasonable terms and conditions of employment.

Regional Express Holdings Ltd T/A Rex

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established