Skystar Airport Services Pty Ltd

[2024] FWCA 1013

[2024] FWCA 1013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Skystar Airport Services Pty Ltd

(AG2023/5428)

SKYSTAR (PERTH AIRPORTS) & TWU ENTERPRISE AGREEMENT 2023

Airline operations
DEPUTY PRESIDENT O’KEEFFE	PERTH, 21 MARCH 2024

Application for approval of the Skystar (Perth Airports) & TWU Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Skystar (Perth Airports) & TWU Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Skystar Airport Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement under s.173(2) was 21 July 2021 and the Agreement was made on 14 December 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

1. From the material submitted by the Applicant it was apparent that employees were notified of the vote less than seven clear days prior to the vote. Given the high voter turnout, I do not find that employees were disadvantaged by the notice period for the vote and I am using the powers conferred by s.188(2) of the Act as they existed prior to 6 June 2023 to disregard this minor procedural error.

1. There was also an issue with the proposed flexibility term in the Agreement and as such, the model flexibility term has been inserted into the Agreement.

1. The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Transport Workers' Union of Australia (the TWU), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

1. The Applicant has provided written undertakings. The undertakings were the subject of some submissions from a bargaining representative and the undertaking regarding overtime was subsequently revised.  The bargaining representative who had raised the concern made further submissions but neither myself nor the Applicant could reconcile the figures used by the bargaining representative to buttress his argument.  This was raised with the bargaining representative, however, he made no further submissions to correct or clarify his contentions.  At the hearing held on 21 March 2024 to deal with approval of the Agreement, there were no objections made to the revised undertaking.  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.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Transport Workers' Union of Australia (the TWU), lodged a Form F18 statutory declaration giving 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 the Agreement covers the TWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 March 2024. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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