Swissport Australia Pty Ltd ATF Swissport Australia Unit Trust T/A Swissport

[2023] FWCA 1417

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Swissport Australia Pty Ltd ATF Swissport Australia Unit Trust T/A Swissport

(AG2023/962)

APPLICATION FOR APPROVAL OF THE SWISSPORT AUSTRALIA ENTERPRISE AGREEMENT 2023

Airline operations
COMMISSIONER JOHNS	MELBOURNE, 11 JULY 2023

Application for approval of the Swissport Australia Enterprise Agreement 2023 – application approved

Preliminary matters

An application has been made for approval of an enterprise agreement known as the Swissport Australia Enterprise Agreement 2023 (2023 Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). It has been made by Swissport Australia Pty Ltd ATF Swissport Australia Unit Trust T/A Swissport (Swissport). The 2023 Agreement is a single enterprise agreement.

Swissport is in the business of aviation services. The 2023 Agreement covers operational employees. It does not cover non-operational employees, being senior managers and office support employees.

Background

If approved the 2023 Agreement will replace the Aerocare Australia Collective Agreement 2018 (Aerocare Agreement).[1] The Aerocare Agreement was hotly contested and the subject of multiple proceedings in the Fair Work Commission (Commission). The Aerocare Agreement was initially approved by Commissioner Wilson on 30 January 2020.[2] However, that approval was the subject of a successful appeal.[3] On remittal to me, on 29 January 2021, I too approved the Aerocare Agreement.[4] The Aerocare Agreement passed its nominal expiry date on 18 December 2022.

The Aerocare Agreement, as approved by me, was accompanied by undertakings (UT) relating to:

a)   The nominal expiry date,
b)   Rates of pay,
c)   Leader 3s (UT6),
d)   Hours of work/rostering, namely
i.Overtime on the second tranche of a split shift (UT7),
ii.Casuals (UT8), and
iii.Employees who work any afternoon or night shifts (UT9),

e) Redundancy (UT10 and UT11), and
f) Car parking (UT12 and UT13).

I note that in the 2023 Agreement, the,

a)   Leader 3s UT6 now appears in clause 21.5. I further note that Leader 3s are a legacy classification and that Swissport has no intention to employ any new Leader 3s. Current Leader 3s have an opportunity to convert to Senior Supervisors (clause 9.10 of the 2023 Agreement),
b)   Second tranche overtime UT7 now appears in clause 17.9,
c)   Casuals UT8 now appears in clause 14.1,
d)   Afternoon/night shift UT9 now appears in clause 22.2,
e)   Redundancy UT10 and UT11 now appears in clause 41,
f)   Car parking UT12 now appears in clause 25.2 (up to $24 per day from $15 per shift in the Aerocare Agreement) and UT13 now appears at clause 25.3.

Noting the incorporation of the UTs from the Aerocare Agreement in the 2023 Agreement, the 2023 Agreement is largely a roll-over of the Aerocare Agreement with UTs; save that the rates of pay in the Schedule A, Part 2 Remuneration Tables are higher than in the Aerocare Agreement.

The 2023 Agreement also provides for increases in rates of pay for most employees on the anniversary of the commencement of the 2023 Agreement, namely an increase of 2% (2024), 3% (2025), and 3% (2026).

Further, the 2023 Agreement provides for the payment of a special bonus (clause 21.6) to employees comprising,

a) $500 in the first full paid period on or after the commencement of the 2023 Agreement, and
b) $500 in the first full pay period on or after 1 February 2024.

These improvements in the 2023 Agreement are relevant to the assessment of the Better Off Overall Test (BOOT). I address this below.

Bargaining process

Swissport notified its employees to be covered by the 2023 Agreement that it was initiating bargaining on 17 November 2022.[5] Bargaining ensued.

On 10 March 2023 Swissport gave notice of the commencement of the Access Period (section 180(3) of the FW Act).[6] On 14 March 2023 Swissport sent a reminder notice about voting on the 2023 Agreement.[7]

Between 10 – 17 March 2023 Swissport conducted briefings with employees at all of its Australian locations for the purpose of explaining the terms of the 2023 Agreement and the effect of those terms.[8]

Voting on the 2023 Agreement occurred between 18 – 23 March 2023.[9] 2,748 employees were eligible to vote on the 2023 Agreement. 2,471 employees (90% of eligible employees) voted.[10] 1,363 employees (55% of employees who voted), voted to approve the 2023 Agreement.[11]

Bargaining representatives

The bargaining representatives for the Aerocare Agreement were the Transport Workers’ Union of Australia (TWU) and the Australian Services Union (ASU).

Bargaining representatives identified by Swissport for the purposes of the 2023 Agreement were the TWU and four employee bargaining representatives employed in various positions with Swissport.[12]

Before me the ASU sought to be covered by the 2023 Agreement on the basis that, it contended, it has members that the 2023 Agreement will cover. In its submissions Swissport appeared to dispute the ASU’s status as a bargaining representative.

a) 17 May 2023 the ASU provided me with lists of ASU members; and
b) 18 May 2023 Swissport provided me with a list of employees to be covered by the 2023 Agreement and also a list of the employees who were employed as of 17 November 2022 (the notification time for the 2023 Agreement).

I compared the lists. Having done so, I am satisfied that the ASU is a bargaining representative.

Commission assessment of the 2023 Agreement

Swissport was provided with a copy of the Commission’s administrative assessment of the 2023 Agreement (16 May 2023 Checklist). The 16 May 2023 Checklist identified issues about:

a) The lodgement of Form F18s by the unions (see below),
b) The need for a National Employment Standards (NES) precedence clause or undertakings in relation to matters in the 2023 Agreement that appeared inconsistent with the NES relating to
i.maximum weekly hours,
ii.casual conversion,
iii.withholding NES entitlements on termination, and

c) Some rates of pay (noting that overall rates of pay in the 2023 Agreement are 8.26% - 50.09% above the Ground Staff Award), in particular in relation to:
i.Annual salaries for Leader 3 positions,
ii.Overtime,

A. Part-time overtime,
B. Overtime rates
iii.Span of hours, and
iv.Shift penalties.

Swissport response to the Commission’s assessment

On 20 April 2023 Swissport responded to the 16 May 2023 Checklist as follows:

a)   It agreed to amend clause 3 of the 2023 Agreement so that it operated as a NES precedence clause.
b)   In relation to the Leader 3 annualised salary issue it advised that 79% of shifts are performed Monday to Friday. It noted, correctly, that to the extent that there is any residual concern clause 21.5 of the Agreement contains a “Beechworth” reconciliation clause. This had been an UT in the Aerocare Agreement.
c)   In relation to Part-time overtime, Swissport contended that 2023 Agreement is consistent with the 2020 Ground Staff Award. I accept the contention.
d)   In relation to Overtime rates, Swissport contended that this is a BOOT consideration. Having reviewed the submission and the rates of pay I accept that it is a BOOT consideration. I address the consideration of the BOOT below.
e)   In relation to Span of hours, Swissport contended that the span of hours in clause 14.2(c) of the 2020 Ground Staff Award only applies to day workers. I accept the contention.
f)   In relation to Shift penalties, Swissport contended that the absence of a night shift penalty was a BOOT consideration. Having reviewed the submission and the rates of pay I accept that it is a BOOT consideration. I address the consideration of the BOOT below.

Employee organisation declarations in respect of the 2023 Agreement

On 14 April 2023 the ASU filed a Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a Greenfields agreement). At item 4 of the Form F18 the ASU indicated that it did not want to advise the Commission whether it supports or opposes the approval of the 2023 Agreement.

The ASU further advised that it did not want to advise the Commission that it disagrees with one or more of the statements in the employer’s declaration relating to the 2023 Agreement.

At item 8 of the Form F18 the ASU advised that it wanted to be covered by the 2023 Agreement and gave notice pursuant to section 183 of the FW Act.

On 24 April 2023 the TWU filed a Form F18 – Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a Greenfields agreement). At item 4 of the Form F18 the TWU also indicated that it did not want to advise the Commission whether it supports or opposes the approval of the 2023 Agreement.

The TWU further advised that it did not want to advise the Commission that it disagrees with one or more of the statements in the employer’s declaration relating to the 2023 Agreement.

At item 8 of the Form F18 the TWU advised that it wanted to be covered by the 2023 Agreement and gave notice pursuant to section 183 of the FW Act.

Notwithstanding, the contents of the TWU’s Form F18, it further submitted that it would support the approval of the 2023 Agreement if Swissport agreed to certain requirements relating to loaded rates, a “Beechworth” clause applicable to all employees, NES considerations and span of hours.

Swissport response to Union objections

On 1 May 2023 Swissport responded as follows:

“Better off overall test
The TWU appears to assert that the loaded hourly rates of pay in the Agreement are not sufficient to compensate for the absence of particular Award-based entitlements. There is no evidence or material to support the TWU’s submission in this respect and indeed Swissport’s Excel spreadsheet filed in support of the application shows that for most classifications, the rates of pay for these shifts are higher under the Agreement than the Award even when the car parking allowance is not taken into account.
The TWU’s submission fails to take into account
·That the Agreement contains an equivalent provision to clause 17.5 of the Award (see clause 22.2 of the Agreement).
·Whilst the Agreement does not contain afternoon or night shift rates, pursuant to clause 22.1 employees (other than those engaged as Leader 3) who are rostered to perform duties between midnight and 6am on a weekday are paid a loading of 20% of their ordinary time hourly rate for those hours.
·The Excel spreadsheet previously filed shows that for all classifications (both in the aviation transport workers stream and the clerical stream), the rates of pay for afternoon and night shifts are higher under the Agreement than under the Award where the car parking allowance is taken into account, and for most classifications the rates of pay for these shifts are higher under the Agreement even when the car parking allowance is not taken into account.

Swissport does not agree to either of the undertakings proposed by the TWU, noting that:
·no explanation has been provided by the TWU as to the basis for an undertaking to increase the Agreement rates by 4%; and

·the alternate reconciliation process cannot reasonably be accommodated given it would effectively require Swissport to maintain two payroll processes for a workforce of close to 3,000 employees.

National Employment Standards
The TWU states that it supports the provision of undertakings to address concerns with clauses 14.2 and 38.3 of the Agreement. Swissport’s position is that the concerns raised by the Commission in relation to those provisions are addressed by the undertaking already proposed by it.
Other matters
The TWU states that the Agreement “must be amended to clarify that the span of ordinary hours and related amendments in relation to afternoon and night shift are as per the provisions of the Award”. As previously noted, the span of hours in clause 14.2(c) of the Award only applies to day workers and is therefore not relevant for the purposes of the BOOT. The “related amendments” sought by the TWU are not clear. However, for the reasons set out above, Swissport does not agree that the absence of afternoon and night shift allowances in the Agreement results in the Agreement failing the BOOT.”

ASU submissions

The ASU submitted the following (footnotes omitted):

“Leader 3 annualised salaries
7. Clause 21.5 of the Proposed Agreement is acceptable as a reconciliation clause.
8. Relevantly, the Full Bench at [25] in TWU and ASU v Swissport confirmed that an undertaking that is effectively word for word as Cl.21.5 of the Proposed Agreement complies with the relevant authority on reconciliation clauses.2 Part-time Overtime
9. The Commission has identified that the part-time overtime provisions of the Agreement are less favourable than those for part-time day workers.
10. The Applicant denies that it employs any part-time day workers. It submits that its employees are shift workers covered by Clause 10.3 of the Award applies to part-time shift workers.
11. Clause 10.3 of the Award provides: Part-time shift workers (a) At the time of engagement or appointment of an employee as a shift worker, the employer and the part-time employee will agree in writing on the guaranteed minimum number of ordinary hours to be worked per week. (b) Subject to clause 10.3(a), part-time shift workers will be rostered in accordance with clauses 14—Ordinary hours of work,15—Rostering arrangements and 17— Special provisions for shift workers. (c) All time worked in excess of the rostered daily hours will be overtime and paid for at the appropriate overtime rate
12. The Applicant submits that the Agreement ‘is consistent with the Award insofar as it provides that PSEs are entitled to a minimum of 60 hours’ pay over a roster period’. We infer that the Applicant submits that the enterprise agreement provides terms and conditions no less favourable than 10.3(a).
13. However, the Applicant’s submission fails to address subparagraphs 10.3(b) and 10.3(c). The Commission could not be satisfied that the Agreement passes the BOOT based on the Applicant’s submissions.
14. The Applicant should provide undertakings that all time worked in excess of rostered daily hours will be overtime and paid at the appropriate rate.
Overtime Rates
15. The Commission has raised a concern that employees may not be better off overall under the enterprise agreement where excessive overtime is worked because:
a. clause 16.2 of the Agreement provides that overtime will be paid at 150% of the Monday-Friday rate;
b. clause 24 of the Award provides for payment of overtime at 150% of the Award rate for the first 2 hours and 200% of the Award rate thereafter.

16. The Applicant submits that:
a. the Agreement rates of pay are high enough that employees are better off overall even if the percentage of the overtime rate is less than that in the Award;
b. employees do not routinely work more than 2 hours of overtime; and
c. it does not employ anyone who would meet the definition of continuous shift worker for the purposes of the Award.

17. Firstly, the Applicant should provide an undertaking that it will not employ anyone as a continuous shift worker. It is reasonably foreseeable that the Applicant may employ continuous shift workers during the life of the Agreement, given that many Australian Airports operate without curfews (for example, Melbourne Airport) and the Applicant indicates that it employs people in most states and territories.
18. Secondly, the Applicant has not provided any evidence that would allow the Commission to be satisfied that the Agreement rates of pay are sufficient that employees will be better off overall when they work ‘excessive overtime’.
19. Bare arithmetic suggests that this may be a problem for some employees. In the case of the ASA1 employee referred to in the Applicant’s submission, they would be worse off under the Agreement by $52.67 if they worked 4 hours of overtime.
20. The Applicant can address this issue by providing an undertaking addressing the overtime rates in the Agreement.
Span of hours
21. The Applicant denies that it employs any part-time day workers. However, the terms of the enterprise agreement provide for patterns of work that would meet the definition of ‘day work’ for the purposes of the Award.
22. Clause 5, “Monday to Friday Ordinary Hours” of the Proposed Agreement provides that: Monday to Friday Ordinary Hours means all hours worked on any shift from Monday to Friday inclusive, but excludes:
(a) any reasonable additional hours worked in connection with that shift; and
(b) any time worked on public holidays.

23. A plain reading of cl. 5 of the Proposed Agreement suggests that the Proposed Agreement applies to day workers. Cl. 14.2 of the Award provides for a similar definition: 14.2 Ordinary hours of work—day work (a) The ordinary hours of work for a day worker are 38 per week and must not exceed 152 hours in 28 days. (b) The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Friday.
24. If, as the Applicant submits, it does not employ day workers and the Proposed Agreement is intended to cover shift workers Clause 14.3 of the Award will apply.
25. The Applicant should provide an undertaking that it will not employ day workers. TWU’s submission
26. The TWU’s submission proposes a 4% rate increase to satisfy BOOT requirements or a reconciliation clause.4
27. It is premature for the ASU to express a view on the proposed 4% rate increase. It is necessary to determine the concerns identified in our submissions before expressing a view on any proposed uplifted rates.
28. Further, an undertaking that requires a reconciliation obligation may give rise to considering how cl. 21.5 of the Proposed Agreement (the annualised salary reconciliation clause) may operate in conjunction with the additional obligation. We note that the Applicant has rejected TWU’s proposal based on operational limitations.
Applicant’s submission in reply to TWU Car Allowance
29. The Applicant has placed weight on the car allowance as a relevant factor for assessing the BOOT. Particularly that:
a. the rates of pay for afternoon and night shifts are higher under the Agreement than under the Award, where the car parking allowance is taken into account, and
b. for most classifications, the rates of pay for these shifts are higher under the Agreement even when the car parking allowance is not taken into account.

30. It is not appropriate for the Commission to attribute a value to this benefit on the assumption that all employees would access these benefits.
31. Clause 25 of the Proposed Agreement provides: 25. Car parking 25.1. Where no free parking is available at the Company workplace, the Company will provide PSEs and Casual Employees access to parking without charge, in a designated car parking zone at or near the relevant workplace. 25.2. Eligible Employees who choose not to access Company provided car parking will be paid an allowance of $3.00 per hour up to a maximum of $24 per day in lieu of the provision of car parking in clause 25.1. This nomination can only be varied once per annum.
32. Clause 25 is contingent on no available free parking and eligibility. It follows that all employees may not be eligible for and receive the car allowance.
Loaded Rates
33. The Proposed Agreement contains loaded rates.
34. On the Applicant’s submission, the Agreement rates of pay are high enough that employees are better off overall, even if the percentage of the overtime rate is less than that in the Award.
The overall rate is designed to offset Award conditions.
35. The Applicant appears to agree that the Proposed Agreement contains loaded rates in its submission in reply to the TWU.
36. The principles in Re Loaded Rates Agreements [2018] FWCFB 3610 should apply. For instance, the Applicant asserts that it is unusual for employees to complete for than 2 hours of overtime; however, that claim is not supported by evidence.

37. The Applicant’s Excel Spreadsheet filed as supporting material with its submission merely compares hourly rates with the Award. This is insufficient for loaded rates. The required test is “an examination of the practices and arrangements concerning the working of ordinary and overtime hours by existing and prospective employees that flow from the terms of the agreement”.
38. The Commission could not be satisfied that the Agreement passes the BOOT based on the Applicant’s submissions because it does not satisfy the Loaded Rates principles.
Conclusion
39. The ambiguity in the Proposed Agreement and the Applicant’s submission has not addressed the Commission’s BOOT concerns and cannot be approved under s.186 of the FW Act.”

TWU submissions

The TWU submitted the following (footnotes omitted):

“2. For the reasons that follow, the Commission:
a. cannot be satisfied that the Agreement does not contain terms that contravene s 55(1) of the FW Act—it contains multiple such terms;
b. cannot be satisfied that the Agreement passes the better of overall test.

3. Swissport’s undertaking to seek to remedy the impermissible exclusion of the National Employment Standards (NES) is defective and cannot address the impermissible exclusion of the NES.
4. Substantial undertakings will be required in order to remedy the above issues. If those undertakings are proffered by Swissport, a real question arises as to whether those undertakings will constitute substantial changes to the Agreement and will be impermissible because of s 190(3)(b) to the Fair Work Act 2009 (Cth) (FW Act). The TWU seeks to be heard on that question if Swissport determines to proffer further and more appropriate undertakings.
5. These submissions deal with the requirements under ss 186(2)(c)-(d) in turn.
6. Matters set out in these submissions are additional to and supplementary of those previously raised by the TWU. Further analysis has led to the identification of additional issues with the Agreement which the Commission ought to be apprised of in assessing whether it can attain the state of satisfaction required by ss 186(2)(c) and (d) of the FW Act.
B. s 186(2)(c)—terms of the Agreement that contravene s 55
7. Section 186(2)(c) requires that the Commission be satisfied that the terms of an agreement do not contravene s 55 of the FW Act. Section 55(1) of the FW Act provides, relevantly, that an agreement must not exclude the National Employment Standards (NES). In Canavan Building Pty Ltd, the Full Bench explained that a provision of an agreement would exclude an NES provision if the provision of an agreement would in its operation result in an outcome whereby employees do not receive, in full or at all, a benefit provided by the NES. Provisions which operate to exclude the NES in the sense described in Canavan will not be incidental, ancillary or supplementary provisions authorised by s 55(4) of the FW Act.
8. Multiple provisions of the Agreement contravene s 55 of the FW Act. The undertaking proposed by Swissport on 20 April 2023 does not (and cannot) address the exclusion of the NES in the respects detailed below. Unless a revised undertaking is proffered by Swissport that ensures that there is compliance with the NES, the application must be dismissed.
The non-incorporation of the NES
9. Clause 3 to the Agreement which is entitled ‘Relationship to Award’ asserts that no term of the Agreement operates to exclude the NES. This assertion does not, on any analysis, operate to incorporate the provisions of the NES into the Agreement or otherwise deal with instances where a provision of the Agreement operates such that employees are not provided, in full or at all, with an NES entitlement.
Excluded NES rights
Casual conversion
10. Clause 14.2 of the Agreement concerns casual conversion. It provides that a casual employee who has regularly worked over a continuous 12 month period can request their employment be converted to ‘PSE’. PSE is an acronym for Permanent Secure Employee. If an employee requests conversion, clause 14.2 provides that the request will occur unless Swissport has reasonable business grounds to refuse it. What will constitute ‘reasonable business grounds’ is said to include where Swissport does not consider there is sufficient work to sustain the minimum 60 hours of a PSE on an ongoing basis. In other words, a ‘reasonable business ground’ can (unusually) be constituted by Swissport having a particular state of mind.
11. Clause 14.2 excludes multiple casual conversion provisions under Division 4A of Part 2-2 of the FW Act in full or in part.
12. There is no obligation on Swissport to make an offer of casual conversion where an employee has been employed for the 12 month period stipulated in s 66B(1)4 and in at least 6 months of that period, has been afforded a regular working pattern on an ongoing basis. The requirements that such an offer be in writing and contain the details in s 66B(2) are entirely lacking. In this respect, employees are not provided the benefit of this important provision of the NES in full, comprising an impermissible exclusion of the NES for the purposes of s 55(1) of the FW Act.
13. Section 66F(1) of the FW Act permits a casual employee to make a request for conversion if they have been employed for 12 months and in the 6 months preceding the request, have been afforded a regular working pattern on an ongoing basis which, without significant adjustment, would enable them to continue working as a full-time or part-time employee. Further conditions precedent to the making of such a request, including its form, are detailed in s 66F.
14. Section 66G requires the employer to give an employee a written response granting or refusing the request. No such right or entitlement is present in clause 14.2. No timeframe on acceptance or otherwise of the request is provided. Nor is there any obligation on Swissport to provide a response in writing detailing the reasons for granting or refusing the request. Clause 14.2 impermissibly deprives casual employees of the benefit of s 66G and contravenes s 55(1) of the FW Act.
15. Section 66H(1) precludes the employer from refusing a request for conversion unless three conditions are satisfied: the employer has consulted the employee; there are reasonable grounds to refuse the request; and the reasonable grounds are based on fact known or reasonably foreseeable at the time of refusing the request. Clause 14.2 excludes any requirement for consultation and contravenes s 55(1) in this regard. It also permits ‘reasonable grounds’ to be satisfied where Swissport considers there to be insufficient work to sustain a minimum 60 hour PSE. This is entirely subjective and does not require any objective or reasonable basis. The benefit of s 66H(1) is excluded in this regard. Moreover, unless a minimum 60 hour PSE position is available, a request for conversion can be refused. This, in effect, limits the circumstances in which conversion can occur on a part-time basis and operates to impermissibly curtail when conversion can occur. Section 55(1) is contravened in this further respect.
Maximum weekly hours and requirements to work additional overtime hours
16. Clause 13 provides that employees who are engaged as ‘Leader 3’ will continue to work rosters providing for 168 working hours per Roster Period.
17. ‘Roster Period’ is defined by clause to be 28 days, being a 4 week period. In other words, Level 3 employees have been required (and will continue to be required) to work 42 hours a week. This is contrary to s 62(1) of the FW Act and therefore contrary to s 55(1).
18. Clause 16.1 provides that Swissport may require an employee to work reasonable overtime.
19. Swissport therefore has a power to require an employee to work overtime so long as that requirement is reasonable.
20. Section 62(2) of the FW Act permits an employee to refuse to work additional (and therefore overtime) hours if those hours are unreasonable. Whether a requirement to work additional overtime hours is determined by reference to the factors delineated in s 62(3)
21. Clause 16.1 excludes ss 62(2)-(3) of the FW Act by not affording an employee a right to refuse to work additional hours if they are reasonable and by not detailing factors which are salient to a determination of the reasonableness of the additional hours.
22. Clause 16.1 therefore contravenes s 55(1) of the FW Act.
Annual leave
23. Clause 27.4 of the Agreement provides that annual leave is to be taken at a time mutually agreed by the parties. In other words, an employee will only have an ability to take annual leave where Swissport and the employee both agree. Clause 27.4 further requires an employee to apply for leave prior to the release of roster for the period. This imposes a further fetter on an employee taking annual leave.
24. Section 88(1) of the FW Act provides for paid annual leave to be taken for a period agreed between an employee and employer. Section 88(2) restricts the ability of an employer to not agree, requiring that an employer must not unreasonably refuse to agree to a request for annual leave.
25. In not imposing a fetter on Swissport’s ability to refuse a request for annual leave, clause 27.4 excludes s 88(2) of the FW Act. Further, in imposing an obstacle to the taking of annual leave by requiring an employee to apply for leave before release of their roster, clause 27.4 imposes a further barrier to the exercise of the right to take annual leave. Clause 27.4 impermissibly excludes s 88 of the FW Act.
Personal leave
26. Section 97(b) provides that an employee is entitled to take personal leave in the form of carers leave to provide care or support to a member of their immediate family or household. Clause 30.1.2 limits the ability to take personal leave in the form of carers leave to an instance where an employee is to care for an immediate family member of member of their household. In not permitting employees to take personal leave to provide support to a member of their immediate family or household, clause 30.1.2 impermissibly excludes s 97(b) of the FW Act.
27. Further, the entitlement to take carers leave is made further contingent by clause 30.1.2 upon the immediate family member of member of the employee’s household being sick and requiring the employee’s care and support. Section 97(b)(ii) permits carers leave in the event of an unexpected emergency and regardless of whether the person who requires care or support is sick. Clause 30.1.2 contravenes s 55(1) in this respect.
28. Additionally, clause 30.1.2 conditions carers leave on the immediate family member of member of the employee’s household requiring both care and support. The entitlement under s 97(b) relates to a person who requires care or support. The imposition of these cumulative conditions is a further respect in which clause 30.1.2 contravenes s 55(1).
29. That clause 30.1.2 envisages that personal leave can only be taken in relation to a person who requires care (rather than simply requiring support) is reinforced by clause 30.7 which imposes a notice requirement on an employee to explain their relationship to the person requiring care. Clause 30.7 also appears to further impermissibly curtail the right to personal leave by requiring that an employee provide a statement that they are the primary carer for the person. Hence, Swissport will only grant personal leave in the event that the employee is the primary carer of the ill or injured person or the person impacted by an unexpected emergency. Section 97(b) is impermissibly excluded in this additional respect.
Parental leave
30. Clause 32.1 does not deal with a circumstance where a child is stillborn and does not confer an entitlement on an employee to take parental leave in the event that a child is stillborn.
31. Clause 32.1 restricts parental leave ‘in accordance with the NES’ to the birth of a child or adoption of a child. It does not confer any entitlement to parental leave if a child is stillborn, contrary to s 77A of the FW Act. Clause 32.1 contravenes s 55(1) of the FW Act in this respect.
Community service leave
32. Sections 108-109 of the FW Act confer an entitlement to take community service leave. That entitlement is conditioned by a requirement that the employee give the employer notice of their absence in accordance with s 110. An employee is not required to request that they be permitted to take community service leave.
33. Clause 33.4 of the Agreement imposes an obligation on an employee requesting community service leave to advise Swissport of the absence and period or expect period of the absence. This is an obligation well beyond s 110 which simply imposes a notification requirement. It conveys that community service leave is conditional upon the making of a request to Swissport. Clause 33.4 excludes the NES provisions concerning community service leave in this regard.
Public holidays
34. Clause 36.1 permits Swissport to require an employee to work on a public holiday.
35. Section 114 of the FW Act, as recently explained by the Full Court in CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, confers an entitlement on an employee to be absent on a public holiday unless ss 114(2)-(3) apply. An employer may request an employee to work on a public holiday. That request must be a reasonable one. An employee can refuse a request to work on a public holiday where the request is itself not reasonable or where the employees’ refusal (potentially due to circumstances personal to the employee) is reasonable.
36. The Full Court explained that there is a world of difference between a request and a requirement. A request for the purposes of s 114(2) cannot comprise a demand or something that is obligatory. Rather, it must convey a choice.7
37. Clause 36.1 excludes s 114 of the FW Act by:
a. permitting Swissport to require an employee to work on a public holiday;
b. not limiting Swissport to requesting an employee to work on a public holiday and limiting such requests to reasonable ones;
c. not permitting an employee to refuse to work on a public holiday where either a request has been made that is unreasonable or the employee’s refusal to work is itself unreasonable.

38. Clause 36.1 contravenes s 55(1) of the FW Act.
Requests for flexible working arrangements
39. The Agreement does not provide for employees to request flexible working arrangements. Nor does it require Swissport to give a written response to any request or only refuse such a request on reasonable business grounds.
40. The Agreement excludes s 65 of the FW Act and contravenes s 55(1) of the FW Act in this further respect.
Swissport’s undertaking cannot address the exclusion of multiple provisions of the NES
41. Swissport has proposed to give an undertaking that the Agreement to address NES concerns raised by the Commission. That undertaking is in two parts:
a. the Agreement is to be read and interpreted in conjunction with the NES; and
b. where there is an inconsistency between the Agreement and the NES, the more beneficial provision to an employee prevails.

42. As a matter of construction, a provision that requires an agreement to be ‘read and interpreted’ in conjunction with another document or instrument does not (and cannot) have the effect of incorporating the terms of the other document or instrument into the legal document or instrument. Such a term is merely an aide to construction and does not operate to incorporate terms of the NES that are excluded from the Agreement.
43. Further, the NES will only apply over the terms of the Agreement which deal with NES entitlements in the event that there is an inconsistency between the provisions of the Agreement and the NES. An inconsistency will only arise where the terms of the Agreement cannot be read sensibly or fairly together. In other words, unless there is a ‘clash’ between a provision of the Agreement and the NES, the undertaking will not operate to provide the employee with the more advantageous provision provided by the NES.
44. This aspect of undertaking will not, for instance, cure the following impermissible exclusions of the NES:
a. s 65, given that there is no equivalent provision under the Agreement and therefore no chance for any inconsistency to arise;
b. ss 66B-C, given that there is no equivalent provision under the Agreement and no clash required to ground an inconsistency;
c. ss 62(2)-(3) given there is no equivalent provision under the Agreement and no inconsistency;
d. s 77A as there is no equivalent provision under the Agreement concerning stillborn children;
e. ss 114(2)-(3) as there is no equivalent provision concerning requests to work on a public holiday and the capacity to refuse such requests under the Agreement.

45. For these reasons, Swissport’s undertaking is deficient. It does not incorporate the NES into the Agreement, has limited or no operation in relation to a number of exclusions of the NES from the Agreement. It cannot cure the concerns the Commission should have about s 186(2)(c).
46. Further, when regard is had to the extent of the effect of an undertaking to remedy the NES deficits plus the undertakings that would be required to address the Commission’s concerns under ss 186(2)(c)-(d) will be substantial and not capable of acceptance by operation of s 190(3) of the FW Act.
C. s 186(2)(d)—the BOOT
47. Section 186(2)(d) requires that the Commission must be satisfied that the agreement passes the better off overall test (BOOT). Section 193 prescribes what is required in order for an agreement to pass the BOOT, viz., that each award covered and prospective award covered employee will be better off overall if the agreement applied to them than if the relevant modern award applied to them.
48. The BOOT does not require a line-by-line analysis. Rather, it is a global test that requires consideration of the advantages and disadvantages to an employee and prospective employee of the terms of the Agreement as compared to the comparator award. Application of the BOOT requires identification of terms of the agreement more beneficial to employees when compared to the relevant modern award and terms less beneficial or detrimental when compared to the relevant modern award. It is uncontroversial in the present matter that the relevant comparator award is the Airline Operations—Ground Staff Award 2020 (Award).
49. The Commission has identified a number of financial detriments to employees under the Agreement. Swissport has not properly engaged with or responded to these.
50. The TWU adopts and applies the submissions of the ASU in relation to:
a. the fact the Agreement is a loaded rates agreement and employees who work more than 2 hours overtime will be worse off as compared to the Award;
b. the largely illusory nature of the (highly) contingent and measly ‘car allowance’ benefit;
c. overtime generally; d. part-time overtime and part-time employment generally.

51. The TWU has also filed a witness statement appending calculations based on rosters actually implemented by Swissport. Those calculations demonstrate that employees are, on a number of shifts (on a shift by shift basis) worse off under the Agreement as compared to the Award. Over a period of a month they are marginally financially better off. The extent that they are better off financially is, however, negligible. It demonstrates that overall they are not better of as if the Award applied to them in light of the omissions of allowances from the Agreement as well as the matters set out further below.
Detriments and less beneficial provisions
52. Clause 13 of Swissport’s Form F17 declaration sets out entitlements applicable under the Award which are omitted from the Agreement. The following analyses these and notes additional entitlements that are not included.
Requests for flexible work arrangements
53. Clause 6 to the Award provides for additional benefits for employees where a request under s 65 of the FW Act is made. As detailed above, no provision of the Agreement provides for an employee to be able to make a request for a flexible working arrangement. Clause 6.2 requires that before the employer responds to such a request, they must not only discuss the request with the employee but genuinely try to reach agreement with the employee about arrangements to reasonably accommodate the employee’s circumstances.

54. No such right or entitlement is provided under the Agreement, constituting a detriment to employees and prospective employees.
Overtime meal allowance
55. Clause 16.4(c) of the Award entitles an employee to a meal allowance of $15.82 or provision of a suitable meal on each occasion they are required for overtime duty of more than one hour before normal start or for more than one hour after usual finishing time. An allowance is also to be provided to employees where they work 4 or more hours of overtime and for each subsequent 4-hour period.
56. This is a significant detriment given the potential for employees to work such overtime and therefore otherwise be entitled to a meal allowance under clause 16.4 to the Award.
Consecutive night shifts
57. There is no impediment under the Agreement to employees being rostered or required to work continuous night shift (being shifts that finish after midnight and before 8AM or commence after midnight and before 4AM). Clause 17.4 to the Agreement provides that during a period of engagement a shift worker who works night shift only or remains on night shift for more than 4 consecutive weeks of work that does not rotate with another relevant shift is to be paid 130% of the ordinary hourly rate for all time worked Monday to Friday.
58. Swissport says—in the absence of evidence—that it does not employ ‘continuous night shift’ employees. The Commission cannot accept this bald assertion from the bar table. It is open for it to do so, given there is no impediment for such shifts to be rostered and also as clause 22.1-22.2 expressly contemplate such shifts.
59. It is apparent that an employee who works continuous nightshift would not be better off under the Agreement as compared to the Award.
60. Swissport must give an undertaking that it will not roster employees on night shift.
Crib breaks
61. Clause 16.3 of the Award provides that a continuous shift worker must be given a rest break of not more than 10 minutes each shift which is to be paid as time worked. As the ASU point out in their submissions, a continuous shift worker for the purposes of the Award may be employed under the Agreement. Continuous shift workers are, therefore, prospective employees for the purposes of the conduct of the BOOT. The failure to afford a paid rest break to continuous shift workers in accordance with clause 16.3 of the Award is a relevant detriment.
62. It is a reason why the Commission cannot be satisfied the Agreement passes the BOOT in relation to continuous shift workers unless an undertaking is given by Swissport that they will not employ continuous shift workers under the Agreement.
Accident pay
63. Accident pay is available to employees under clause 21 of the Award during periods of incapacity. Accident pay is the difference between the amount of compensation payable to an employee under applicable workers’ compensation legislation and the amount they would otherwise be entitled to under the Award.
64. Swissport acknowledge there is no such entitlement under the Agreement.
65. Swissport asserts—again in the absence of any evidence—that workers compensation legislation sets weekly compensation at pre-injury earnings. That is not necessarily so. That is why accident pay provisions were introduced into modern awards, particularly given the ‘step downs’ in compensation payments under workers compensation schemes. This is a potentially material detriment for injured employees in receipt of workers compensation.
Superannuation
66. Clause 23.5(b) of the Award requires that an employer make superannuation contributions to a superannuation fund for the benefit of an employee whilst they are absent from work in respect to a work related injury or illness.
67. There is no equivalent entitlement under the Agreement.
68. This is a potentially material detriment for injured and ill employees in receipt of workers compensation.
Rest periods after overtime
69. Employees who work overtime must, by clause 24.2 of the Award, be given at least 10 consecutive hours of time off work. They are not to lose ordinary pay as a result. If required to resume or continue work without such a break, a casual employee is entitled to a 200% loading and a permanent employee a 225% loading unless and until released from duty.
70. No equivalent entitlement is provided by the Agreement.
71. Any employee who under the Agreement works overtime but is not afforded at least a 10 hour break will be worse off than if the Award applied. This is not a remote possibility, particularly given the capacity of Swissport to require or direct split shifts to be worked under clause 17.9.
Recall and overtime transport
72. There is scope in the Agreement for an employee to be recalled to perform overtime after leaving Swissport’s premises. This arises directly from clause 16.1 which provides that an employee may be required to work reasonable overtime.
73. Clause 24.3 to the Award requires a minimum payment of 4 hours if an employee is recalled to work. No such minimum payment is provided under the Agreement.
74. Swissport baldly asserts it is not its practice to recall employees to work overtime. There is no evidence of this. In any event, that this may not be its practice is irrelevant. This remains a material potential detriment which points against the Agreement leaving employees better off overall.
75. Clause 24.5 of the Award provides that where an employee after working overtime or a shift for which they are not regularly rostered finishes work at a time when reasonable means of transport are not available, the employer is required to either provide them a conveyance home or pay them at the overtime rate for time reasonably occupied travelling home.
76. There is the potential for employees under the Agreement to work overtime or shifts for which they are not regularly rostered. The omission of this entitlement is a detriment which points against employees being better off overall.
Directions to take annual leave
77. Clause 26.6 of the Award permits an employer to direct an employee to take annual leave during a shut down on condition that an employee is given 4 months written notice. Clauses 26.7-26.8 of the Award permit an employer, where an employee has accrued more than 8 weeks annual leave to and after conferring with the employee and seeking to genuinely try to reach agreement with them to reduce or eliminate excessive annual leave, to direct an employee who has an excessive accrual to take paid annual leave. Such a direction must not, under clause 26.8 leave an employee with less than 6 weeks accrued leave, cannot require an employee to take less than 1 week of annual leave and cannot require an employee to take annual leave beginning less than 8 weeks or more than 12 months after the direction is given.
78. Clause 27.6 of the Agreement confers power on Swissport to require any employee to take annual leave where they have accrued more than 6 weeks leave by giving the employee at least 4 weeks’ notice.
79. This provision is detrimental as:
a. Swissport can give the direction without consulting and seeking to genuinely agree with the employee about reducing their annual leave balance first;
b. Swissport can give a direction that annual leave be taken at any time and for any period;
c. Swissport can give a direction that results in an employee having less than 6 weeks accrued leave.

80. This power is in addition to Swissport’s otherwise general power to require an employee to take annual leave where it is reasonable. That provision is detrimental for the same reasons as those detailed above.
81. The provisions of the Agreement concerning directions to take annual leave are a potential material detriment.
Public holiday breaks
82. As detailed above, clause 36.1 of the Agreement purports to allow Swissport to require employees to work on a public holiday. Clause 31.6 of the Award entitles employees (other than casuals) who work on a public holiday to at least a 10 hour break between shifts without loss of ordinary pay.
83. This entitlement is omitted from the Agreement and is a detriment pointing against employees being better off overall.
Consultation
84. Clause 32.4 of the Award requires an employer to promptly consider matters raised by employee or their representatives about a change falling within the consultation clause.
85. No requirement to consider matters raised by employee is included in clause 46 to the Agreement in relation to major changes. This is an omission that deprives employees of a meaningful opportunity to consult on major changes that will affect them
Stand down
86. Clause 37.1 permits Swissport to stand down an employee for any period in which the employee cannot be usefully employed due to (any) circumstance beyond Swissport’s control. ‘Any circumstance beyond Swissport’s control’ goes well beyond the delimited circumstances in s 524(1) of the FW Act.
87. There is no equivalent provision under the Award which confers such a large stand down power on an employer.
88. This is a detrimental provision which points against the BOOT being satisfied.
Allowances generally
89. As Swissport acknowledges in its Form F17, the Agreement omits all the allowances contained in clause 20 to the Agreement. Employees will therefore not receive, in the circumstances contemplated by the Award, amongst other things:
a. coffin allowances where they are required to handle coffins containing human remains;
b. disability allowance where they work in conditions of significant disability for 2 weeks or more due to construction and similar works occurring;
c. first aid allowance if appointed as a first aider;
d. leading hand allowance where an employee is appointed to be in charge of designated staff;
e. laundry allowance (noting that employees are afforded with uniforms which they are required to keep clean and presentable and, therefore, launder).

D. Conclusion
90. The Commission cannot be satisfied of the matters detailed in ss 186(2)(c)-(d).
91. Absent an appropriate (and substantial) undertaking, the application must be dismissed.”

To support its submissions the TWU submitted a witness statement from an Industrial Officer, Edward Nell. Mr Nell was not required for cross-examination. I have had regard to Mr Nell’s evidence.

Swissport submissions

Swissport submitted the following (footnotes omitted):

“National Employment Standards
12 The TWU asserts that “multiple provisions” of the Agreement contravene s.55 of the FW Act by “excluding” the National Employment Standards (NES) and that the Undertaking does not remedy these “exclusions”. The Applicant does not intend to respond to each and every one of the “excluded NES rights” asserted by the TWU. The Applicant’s position is that:
(a) to the extent that the Agreement contains provisions that are less beneficial to employees compared to the NES, this is remedied by the Undertaking which is in substantially the same form as that suggested by the Fair Work Commission (as an NES precedence clause);
(b) a failure by the Agreement to specifically provide for a particular NES entitlement does not mean that the entitlement is “excluded” within the meaning of s 55(1) of the FW Act. Rather, the NES entitlement simply operates on its terms, unaffected by the Agreement;
(c) the fact that the Undertaking does not incorporate the NES into the Agreement does not render it deficient.

13 The gravamen of the TWU’s assertions is that various aspects of the NES, said to be more beneficial to an employee, are not replicated, in terms, in the Agreement. Even if that be so (and it is accepted that the Agreement does not incorporate the NES, nor does it intend to), the inconsistency provision in the Undertaking cures every such contention. It has the effect of ensuring that any aspect of the NES with a more beneficial operation to the employee, operates on its terms.
14 The TWU’s attempt to avoid this conclusion in paragraph [43] is misconceived. Maribyrnong City Council was a case about two different sets of provisions in the one agreement, in a Part A and a Part B, and whether those terms were inconsistent with each other. Because the terms were provided for in two separate parts of the same agreement, the Court reasoned as a matter of construction, in the circumstances of that case, that inconsistency would not arise simply from mere qualification (as between terms). That is not this case because, as the TWU contends (and as the Applicant agrees), the NES is not incorporated into the Agreement.
15 The NES is separate to (and operates separately from) the Agreement. If the Agreement qualifies the NES (by providing for a lesser entitlement for an employee, in any respect), that is an inconsistency, attracting the operation of the Undertaking. Any alternative conclusion would mean that any agreement would have to replicate the NES in terms, in order to avoid the operation of s 55 (and through it, s 186(2)(c)).
16 Further, and in any case, the Undertaking (to become an operative term of the Agreement) is to be read in context, having regard to its evident purpose. Here, its obvious (and only) purpose is to give effect to NES precedence in a manner consistent with the approval requirements of the FW Act. It should be construed accordingly, not in the artificial, narrow way contended for by the TWU.
Better off overall test
Rates of pay
17 As part of its application, the Applicant has filed an Excel spreadsheet containing:
(a) a comparison of rates of pay under the Agreement to rates of pay under the Airline Operations – Ground Staff Award 2020 (Award) for both the aviation transport workers stream and the clerical, administrative and support stream; and
(b) a comparison of rates of pay plus the car parking allowance under the Agreement to the rates of pay plus relevant allowances under the Award (again for both streams).

18 The ASU asserts that this spreadsheet is “insufficient for loaded rates” as it “merely compares hourly rates with the Award”. The Applicant disagrees with that characterisation of the spreadsheet. It further says that the Agreement is not a “loaded rates” Agreement, at least in the sense of it providing only one rate of pay for all work performed by a particular classification. The Agreement includes separate rates of pay for work performed on weekdays, Saturdays, Sundays and public holidays. Those individual rates are, nevertheless, “loaded”. The spreadsheet shows the difference between not only base rates of pay, but between the rates payable for all shift types contemplated by the Award (i.e. early morning, afternoon, night, Saturday, Sunday and public holiday) including having regard to the impact of relevant allowances. For all classifications and shift types, the rates of pay are higher under the Agreement than under the Award when these allowances are taken into account. For the vast majority of classifications and shift types, the rates of pay are higher under the Agreement even when the allowances are not taken into account.
19 The Statement of Edward Nell, filed by the TWU, attaches calculations which Mr Nell says are based on actual rosters for two employees (both classified as ASA1) for the period 17 April to 14 May 2023. 15 Whilst, as the TWU has identified, these calculations show that the employees would receive a lower payment for some shifts under the Agreement compared to the Award (predominantly morning shifts where, for example, the TWU’s calculations show that an employee would receive $6.87 less under the Agreement than the Award for a shift of 7.08 hours’ duration):
(a) the TWU’s calculations do not take into account relevant allowances, noting that the applicable Award-based allowances are more than offset by the car parking allowance in the Agreement; 16 and
(b) even on the TWU’s calculations, the total payment to each employee for the roster period is higher under the Agreement than the Award.

20 The Statement of Mr Nell supports the Applicant’s contention that the Agreement passes the BOOT, both in terms, and “overall”.
Part-time overtime
21 The ASU’s position appears to be that employees are not better off overall under the Agreement having regarding to the part-time shift worker provisions in clause 10.3 of the Award; a position which has been adopted by the TWU.
22 Clause 10.3(a) of the Award requires an employer and a part-time shift worker to agree, at the time of engagement/appointment, on the “guaranteed minimum number of ordinary hours” to be worked per week. Unlike for part-time day workers (clause 10.2(a) of the Award), there is no requirement under the Award for agreement to be reached with a part-time shift worker as to which days of the week the employee will work and/or the starting/finishing times on those days. This means that, under the Award, the rostered hours of a part-time shift worker can be variable from week to week, over a roster cycle and between roster cycles, such that there is no consistent roster pattern for the employee. Clause 10.3(c) of the Award provides that all time worked in excess of rostered daily hours is overtime and paid for at the appropriate overtime rate.
23 Given the permitted flexibility in respect of rostering part-time shift workers under the Award as described above, and the numerous financial and non-financial benefits in the Agreement compared to the Award, the undertaking suggested by the ASU is unnecessary.
Overtime rates
24 The ASU claims that an ASA1 employee would be worse off under the Agreement by $52.67 if they worked 4 hours of overtime. This is not accurate. It also does not take into account the higher ordinary rates of pay under the Agreement which mean that the employee would receive a higher overall payment for the relevant shift or period under the Agreement. Further and in any case, on the evidence, the occasions upon which any employee of the Applicant would generate an entitlement to the 200% overtime rate under the Award, are exceedingly small. Having regard to the terms of the Agreement as a whole, that prospect does not present as any genuine BOOT issue.
25 The overtime rate for continuous shift workers in clause 24.1(a)(i) of the Award is not relevant for the purposes of the BOOT given employees covered by the Agreement are not continuous shift workers. The ASU’s assertion that it is “reasonably foreseeable” that the Applicant may employ continuous shift workers during the life of the Agreement is made without any basis, factual or otherwise.
Span of hours
26 The ASU Submissions refer to the span of hours in clause 14.2(c) of the Award. This clause only applies to day workers. The employees who are covered by the Agreement are not appointed or employed as day workers for the purposes of the Award-based BOOT comparison. 26 Clause 14.2(c) is therefore not relevant for the purposes of the BOOT.
27 The ASU’s assertion that the Agreement provides for patterns of work that would meet the definition of “day work” for the purposes of the Award should be rejected. The ASU relies upon clause 5 of the Agreement which defines the term “Monday to Friday Ordinary Hours”. The purpose of this definition is to specify which hours of work are to be paid at the “Monday to Friday” rate (as opposed to the rates for work performed on Saturdays, Sundays or public holidays). It is not “similar” to clause 14.2 of the Award.
Car parking allowance
28 The ASU submits it is not appropriate for the Commission to attribute a value to the car parking allowance on the assumption that all employees would access this benefit. The TWU has adopted this submission, describing the allowance as “(highly) contingent” and “measly”.
29 Pursuant to clause 25 of the Agreement, where no free parking is available at the workplace, the Applicant will either provide PSEs and casual employees access to parking without charge, or, in the event that an employee chooses not to access this car parking, will pay the car parking allowance. The nature of the locations at which the Applicant operates means that free parking is not readily available. The provision of access to parking without charge (i.e., where the car parking allowance is not paid) is a benefit which is relevant for the purposes of the BOOT, noting that the real value of access to parking is higher than the allowance.

Other provisions
30 The TWU Submissions refer to a number of Award-based entitlements which are asserted to be relevant to the BOOT. Many of those entitlements either do not apply to the work performed by employees under the Agreement or only apply rarely. Most others are asserted detriments at the absolute margins. Whilst it is uncontroversial that there some Award-based entitlements which are not provided for in the Agreement (the situation was no different under the 2018 Agreement), this needs to be weighed against the (in many respects) significantly superior rates of pay in the Agreement, plus the inclusion in the Agreement of benefits which are not provided by the Award, or which are more beneficial entitlements than those provided by the Award – otherwise, the Commission would be adopting an impermissible “line by line” approach to the BOOT. These include:
(a) Special bonus: Under clause 21.6 of the Agreement, PSEs and Leader 3s will be paid a special bonus of $500 in the first full pay period on or after the date the Agreement commences operation and $500 in the first full pay period on or after 1 February 2024, subject to them being employed as at the relevant payment date;
(b) Long tenure bonus: Under clause 24 of the Agreement, employees receive a cash bonus on completion of 10, 15 and 20 years’ service;
(c) Tenure based increments: Other than Leader 3s, employees under the Agreement receive tenure-based annual pay increases
(d) Annual leave: Under clause 27 of the Agreement, employees receive 5 weeks of annual leave per annum while the Award entitles non-continuous shift workers to 4 weeks’ leave;
(e) Priority leave day: Clause 28 of the Agreement provides PSE and Leader 3 employees one paid leave day on completion of 5 years’ service, which takes priority over other requests for leave;
(f) Redundancy pay: Under clause 40 of the Agreement, employees with 10 or more years of service remain entitled to 16 weeks’ redundancy pay;
(g) Training and meetings pay: Clause 45 of the Agreement entitles employees to payment and reimbursement of expenses when undertaking training;
(h) Junior Rates: All juniors will be paid at adult rates.

32 The Commission as constituted (correctly) took this approach in approving the 2018 Agreement. No different approach (nor conclusion) is called for now.
Conclusion
33 For the reasons set out above, the Agreement should be approved (with the Undertaking). Should the Commission hold any residual concerns under s.190(1)(b) of the FW Act, the Applicant seeks an opportunity to consider whether, and if so what, further undertakings might be capable of being given to address those concerns.”

To support its submissions Swissport submitted a witness statement from its Head of Human Resources – APAC, Stuart Hayes. Mr Hayes was not required for cross-examination. I have had regard to Mr Hayes’s evidence.

NES consideration

There is no requirement that an enterprise agreement incorporate the NES. The NES contains rights for employees that run parallel with the rights contained in an enterprise agreement. To the extent that an enterprise agreement is silent about a NES entitlement the NES entitlement operates by operation of law. It is not excluded.

In any case clause 3 of the 2023 Agreement expressly stated that “No term of this Agreement operates to exclude the NES.”

However, noting that the 2023 Agreement did not contain what is commonly referred to as a NES precedence clause, on 14 April 2023 I invited Swissport to include one in the 2023 Agreement. The template provided to Swissport was in the following terms:

“This Agreement will be read and be interpreted in conjunction with the National Employment Standards (NES). If there is any inconsistency between this Agreement and the NES, the more beneficial provision to an employee prevails.

Where this Agreement includes terms that have the same effect as terms of the NES or Award, or terms that are ancillary or supplementary to the NES or Award, the Agreement terms operate subject to the same qualifications, limitations and exclusions as the relevant NES entitlement unless otherwise specified”.

As will be observed Swissport have now proffered an undertaking consistent with the first paragraph on the template I provided to it. I am satisfied with the undertaking proffered by Swissport in relation to the NES.

I reject the submissions of the TWU that the undertaking proffered “is defective and cannot address the impermissible exclusions of the NES.”

There is no exclusion of the NES. The TWU is correct that where “there is no equivalent provision under the Agreement … no chance for any inconsistency arise[s].” However, the consequence of that is that the NES entitlement operates as per the NES. As explained above, the 2023 Agreement and the NES operate independently of each other.

However, an as assessment of the Agreement has identified that several clauses may be inconsistent with the National Employment Standards (NES). In particular, terms relating to:

a)Casual conversion,
b)Maximum weekly hours and requirements to work additional overtime hours,
c)Annual leave,
d)Personal leave,
e)Parental leave,
f)Community service leave,
g)Public holidays,
h)Requests for flexible working arrangements, and
i)Withholding NES entitlements on termination.

Therefore, employees should give careful consideration to the NES and not assume that the 2023 Agreement is the totality of their rights, especially in relation to the subject matters contained in the clauses referred to above.

Because of the undertaking proffered by Swissport, at clause 3 of the Agreement there is a clause that gives precedence to the NES over the Agreement to the extent the Agreement contains less favourable terms.

Noting the NES precedence clause, to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

BOOT consideration

In the Aerocare Agreement matter the Test Time reference instrument was the Ground Staff Award 2010. In that matter Aerocare conceded that the Aerocare Agreement did not pass the BOOT. It then proffered several undertakings (see above). I was satisfied that the Aerocare Agreement with the undertakings passed the BOOT.

In the present matter the relevant Modern Award for the assessment of the Better Off Overall Test (BOOT) is the Airline Operations – Ground Staff Award 2020 (Ground Staff Award 2020).

Section 186(2)(d) of the FW Act provides that the Commission “must be satisfied that ... the agreement passes the better off overall test”. Section 193 prescribes what is necessary to pass the BOOT. If the Commission is concerned that an agreement does not pass the BOOT, s.190 allows the Commission to approve an agreement if it is satisfied that an undertaking meets the BOOT concern. Section 190(3) provides that the effect of accepting the undertaking must not be likely to cause financial detriment to any employee and must not be likely to result in substantial changes to the agreement.

In its F17 Employer’s Declaration Swissport declared that 2023 Agreement contains the following provisions that are more beneficial than the Ground Staff Award 2020:

a)   Rates of pay (Schedule A) noting the need to correct some casual rates of pay (replacement pages have been provided to the Commission).
b)   Minimum engagement- PSEs: Under clause 12.4 of the Agreement, a PSE is to be rostered for a minimum of four consecutive hours on any shift, exclusive of unpaid meal breaks.
Under clause 10.l(c) of the Award, an employer is required to roster a part-time employee for a minimum of four consecutive hours on any shift.
c)   Meal breaks: Under clause 19 of the Agreement, employees are entitled to a 30-minute unpaid break if they work up to 5 hours. Employees who work between 5 and 8 hours are entitled to a second 30-minute meal break by agreement, or one unpaid meal break of between 30 and 60 minutes. Employees who work more than 8 hours are entitled to take a meal break of between 60 and 90 minutes, which can be taken as one break, or two separate breaks.
Under clause 16.2(b) of the Award, non-continuous shift workers are entitled to a break of between 30 minutes and 60 minutes, which must be commenced no later than 5 hours after commencing work.
d)   Pre-dawn shift allowance: Under clause 22.1 of the Agreement, employees (other than those engaged as a Leader 3) who are rostered to perform duties between midnight and 6am on a weekday are paid a loading of 20% of their ordinary time hourly rate for those hours.
Under clause 17.3 of the Award, an employee rostered to work Monday to Friday on an early morning shift is entitled to a shift loading of 15% of the Award rate, or on a night shift is entitled to a shift loading of 22.5% of the Award rate. Given the higher rates of pay in the Agreement, when coupled with the pre-dawn shift allowance, employees are better off under the Agreement in relation to those shifts.
e)   Annual leave: Under clause 27 of the Agreement, all employees (other than casuals) receive 5 weeks of annual leave per annum.
This is more beneficial than the Award, which provides that only 7-day shift workers who are regularly rostered to work on Sundays and public holidays in a 24/7 business are entitled to 5 weeks of annual leave per annum, and all other employees are entitled to 4 weeks of annual leave per annum.
f)   Redundancy pay: Under clause 40 of the Agreement, employees with at least 10 years of continuous service have an entitlement to redundancy pay, being 16 weeks' redundancy pay.
Under the Award, they would get 12 weeks' redundancy pay in accordance with the NES.
g)   Junior rates: Clause 18.6 of the Award contains provisions relating to junior rates for employees under 20 years of age. The 2023 Agreement does not contain any provisions relating to junior rates. If Swissport engages junior employees, they will be paid the full adult rate under the Agreement.

In its F17 Employer’s Declaration Swissport declared that 2023 Agreement contains entitlements that the Ground Staff Award 2020 does not provide as follows:

a) Transition to full-time: Under clause 12.6.2 of the Agreement, if the operations of a particular workplace will support a PSE working 152 hours in a roster period on an ongoing basis, Swissport may offer the PSE a full-time role. There is no equivalent term in the Ground Staff Award 2020.
b) Split shifts: Under clauses 17.7 - 17.9 of the Agreement, employees can request to work split shifts in writing. This offers flexibility to employees to attend to family or other personal priorities and commitments, including study, sport or other endeavours, and also increases an employee's ability to work more hours on those days when suitable and available to them. Split shifts also offer the benefit of Swissport being able to arrange work so that employee fatigue can be monitored, and rosters can be coordinated without conflicts arising. If Swissport requires that a split shift be worked, the second tranche of the split shift will be paid at the employee's applicable Award overtime rate.

c) Special bonus: Under clause 21.6 of the Agreement, PSEs and Leader 3s will be paid a special bonus of $500 in the first full pay period on or after the date the Agreement commences operation and $500 in the first full pay period on or after 1 February 2024, subject to them being employed as at the relevant payment date.

d) Long tenure bonus: Under clause 24 of the Agreement, employees receive a bonus cash payment on completion of 10 years' service, 15 years' service and 20 years' service. These bonuses will also be paid on commencement of the Agreement to all employees who have already completed the relevant years of continuous service in employment with Swissport. There is no equivalent term in the Ground Staff Award 2020

e) Car parking: Under clause 25 of the Agreement, where no free parking is available at the workplace, Swissport will provide parking without charge. If an employee chooses not to access the free parking provided by Swissport, the employee will receive a car parking allowance of $3 per hour up to a maximum of $24 per day instead. Pursuant to clause 25.3 of the Agreement, superannuation contributions made by Swissport will be calculated in such a way that payments made for the car parking allowance are included in the calculation of ordinary time earnings. There is no equivalent term in the Ground Staff Award 2020.

f) Priority leave day: Under clause 28 of the Agreement, PSE and Leader 3 employees are entitled to 1 paid leave day on completion of 5 years of continuous service, which takes priority over all other requests for leave. There is no equivalent term in the Ground Staff Award 2020.

g) Other leave: Under clause 35 of the Agreement, Swissport may grant leave with or without pay for any special purpose on request by an employee. There is no equivalent term in the Ground Staff Award 2020.

h) Training and meetings pay: Under clause 45 of the Agreement, employees will be paid at the rate of pay applicable for the actual hours in which they are engaged in training, both on-site and off-site, as well as reasonable expenses incurred in undertaking the training. An employee who is required or directed to attend a meeting will be paid at the applicable rate of pay for the actual hours of attending the meeting. There is no equivalent term in the Ground Staff Award 2020.

In its F17 Employer’s Declaration Swissport declared that 2023 Agreement contains the following provisions that are less beneficial than the Ground Staff Award 2020:

a) Rates of pay- Clerical, administrative and support stream: The following rate of pay for the Airline Service Trainee (AST) classification is less than the applicable rate under the Ground Staff Award 2020 for employees performing work in the clerical, administrative and support stream:

Classification

Agreement rate from commencement

Award rate

Airline Service Trainee

{AST) - PSE

Saturday $35.57

Saturday $35.61

The difference in the Saturday rate for ASTs who are PSEs is only $0.04 per hour and is offset by the higher rates of pay on weekdays and Sundays. No employees work only Saturday shifts. Accordingly, in each roster period, employees are better off under the 2023 Agreement than under the Ground Staff Award 2020.
b) Allowances: Clause 20 of the Ground Staff Award 2020 contains a number of allowances. Of those allowances, the following may be payable to Swissport employees in certain circumstances under the Ground Staff Award 2020 but are not provided under the 2023 Agreement:
a.Coffin allowance (clause 20.2(a)) - applies if an employee is required to handle a coffin with human remains. This occurs infrequently and is rarely work that is carried out by the same person.
b.Disability allowance (clause 20.2(b)) - applies if the work premises are affected by construction, reconstruction, alteration, major repair, or other like work for 2 weeks or more. These instances are rare.
c.First aid allowance (clause 20.2(c)) - applies if an employee is appointed to perform first aid duties and holds a current first aid qualification. Swissport requires its employees engaged as Supervisors to hold a current first aid qualification but does not require its other employees to do so. The rate of pay for Supervisors sufficiently compensates for this allowance.
d.Nightsoil allowance (clause 20.2(d)) - applies if an employee is required to handle or dispose of nightsoil or clean aircraft toilets or containers used for animals. This allowance only applies to Swissport's employees engaged on ramp operations.
e.Laundry allowance (clause 20.5(a)) - applies where an employee is required to launder their uniform. This allowance applies to Swissport's employees engaged on ramp operations and is included in the rates of pay for these employees;
f.Money collection allowance (clause 20.4(a)) - applies where an employee is required to collect money. Swissport's employees engaged on ramp operations are not required to handle cash, however, some employees may be required to handle cash payments for excess baggage.

c)   Clause 20.3(b) of the Ground Staff Award 2020 provides for travel time allowances including travel pay at ordinary rates up to 12 hours in 24 hours, or 8 hours if a sleeping berth or air travel is provided, and time and a half on Sundays and public holidays.
Under clause 26 of the 2023 Agreement, employees are not paid for travel time unless they are required to travel by air to another work location, the duration of travel is greater than 2.5 hours flying time from their home location, and the travel is not related to a social activity organised by Swissport.
Employees will be paid their normal rate of pay for the duration of travel from the scheduled time of departure on the flight that they are booked on until the scheduled arrival at the destination airport.
Under clause 6.2.6 of the 2023 Agreement, Swissport reimburses periodic renewal costs of maintaining an Aviation Security Identification Card, consistent with clause 20.3(a) of the Ground Staff Award 2020.
No other Award allowances are relevant to the work performed under the 2023 Agreement.
The higher rates of pay in the 2023 Agreement compensate employees for the non-payment of the relevant allowances.
d)   Working through meal breaks: Under clause 19.4 of the 2023 Agreement, if an employee is unable to take a break for operational reasons, the employee will be paid for all time worked at the employee's ordinary time rate of pay.
e)   Under clauses 16.l(c) and 16.2(d) of the Ground Staff Award 2020, if an employee works more than 5 hours without a meal break, all time worked after the start time of the regular meal break until the meal break is allowed is paid at overtime rates.

Swissport provided the Commission with an Excel spreadsheet that contained:

a) a comparison of rates of pay under the Agreement to rates of pay under the Ground Staff Award 2020 for both the aviation transport workers stream and the clerical, administrative and support stream; and

b) a comparison of rates of pay plus the car parking allowance under the Agreement to the rates of pay plus relevant allowances under the Ground Staff Award 2020 (again for both streams).

I have personally reviewed and considered the Excel spreadsheet. I reject the ASU submission that it is insufficient.

To support its submissions Swissport submitted a witness statement from its Head of Human Resources – APAC, Stuart Hayes. Mr Hayes was not required for cross-examination. [13] Consequently, I accept as unchallenged the evidence of Mr Hayes about:

a)   rostering (using the airport resource optimisation system (AROS)),
b)   the Aeronet system,
c)   the Rates Comparison Document,
d)   the car parking allowance,
e)   the non-use of continuous shift rosters,
f)   Swissport not operating 24/7,
g)   the correct calculation of a comparison of rates of pay for an ASA1 employee,
h)   how unusual (rare) it is for an employee to work more than two consecutive hours of overtime,
i)   Swissport not rostering overtime,
j)   Only 2.6% of Swissport’s payroll in 2022 relating to overtime,
k)   the non-applicability of a range of Award-based entitlements which were relied upon by the TWU,
l)   Swissport not rostering work only on nightshift,
m)   Swissport not recalling employees to work overtime,
n)   reasonable means of transport is generally given (for the most part employees drive to work),
o)   the disability allowance being highly unlikely to be triggered, and
p)   Swissport not employing leading hands.

I observe that the 2023 Agreement contains separate rates of pay for weekdays, Saturdays, Sundays and Public Holidays. The Excel spreadsheet demonstrates the difference between base rates of pay and also the rates of pay for all shift types possible under the Ground Staff Award 2020. The impact of relevant allowances is also considered. For all classifications and shift types, the rates of pay are higher under the 2023 Agreement than under the Ground Staff Award 2020 (when allowances are taken into account).

In fact, as Swissport has correctly observed “for the vast majority of classifications and shift types, the rates of pay are higher under the Agreement even when allowances are not taken into account.”

The Commission’s administrative assessment of the 2023 Agreement found that rates of pay are 8.28% - 50.09% above the Ground Staff Award 2020.

The Statement of the TWU’s Mr Nell, underscores that point that overall employees are better off (notwithstanding that, in the period he assessed, some shift payments are lower).

Having considered in totality:

a)   the terms and conditions in the 2023 Agreement,
b)   plus, the beneficial terms identified above,
c)   plus, the additional entitlements identified above,
d)   less the detrimental terms,

my evaluative assessment is that employees (and prospective employees) are better off overall.

For these reasons I am satisfied that each award covered employee and prospective employee would be better off overall under the 2023 Agreement than under the Ground Staff Award 2020.

That is to say, I am satisfied the 2023 Agreement passes the BOOT.

Final matters

As sated above, Swissport has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the 2023 Agreement and that the undertakings will not result in substantial changes to the 2023 Agreement. The undertakings are taken to be a term of the 2023 Agreement.

Pursuant to section 586 of the FW Act I exercise my discretion to correct the errors relating to the Sunday rate for casual employees. I note that Swissport has already provided replacement pages.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Australian Municipal, Administrative, Clerical and Services Union and Transport Workers’ Union of Australia being bargaining representatives for the 2023 Agreement, have given notice under s.183 of the Act that they want the 2023 Agreement to cover them. In accordance with s.201(2) of the Act, I note that the 2023 Agreement covers the organisations.

The 2023 Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 July 2023. The nominal expiry date of the 2023 Agreement is 10 July 2027 (being a period of 4 years pursuant to clause 4.1 of the 2023 Agreement and in compliance with s. 186(5) of the FW Act).

COMMISSIONER

Annexure A

[1] In around July 2018 Aerocare was rebranded as Swissport Australia Pty Ltd following an acquisition in March 2018 by Swissport International Ltd.

[2] [2020] FWCA 251, preceded by an interim decision [2019] FWC 8614.

[3] [2020] FWCFB 4232.

[4] [2021] FWCA 103.

[5] Item 18, Form F17 – Employer’s declaration (made by Stuart Hayes, Head of Human Resources – APAC) in support of an application for approval of an enterprise agreement (other than a Greenfields agreement).

[6] Item 20, Form F17 – Employer’s declaration (made by Stuart Hayes, Head of Human Resources – APAC) in support of an application for approval of an enterprise agreement (other than a Greenfields agreement).

[7] Ibid.

[8] Item 22, Form F17 – Employer’s declaration (made by Stuart Hayes, Head of Human Resources – APAC) in support of an application for approval of an enterprise agreement (other than a Greenfields agreement).

[9] Item 25, Form F17 – Employer’s declaration (made by Stuart Hayes, Head of Human Resources – APAC) in support of an application for approval of an enterprise agreement (other than a Greenfields agreement).

[10] Item 26, Form F17 – Employer’s declaration (made by Stuart Hayes, Head of Human Resources – APAC) in support of an application for approval of an enterprise agreement (other than a Greenfields agreement).

[11] Ibid.

[12] Items 4 and 5, Form F16 Application for approval of an enterprise agreement (other than a Greenfields agreement).

[13] On 17 May 2023 both the TWU and the ASU confirmed that they did not propose to cross-examine Mr Hayes.

Printed by authority of the Commonwealth Government Printer

[2023] FWCA 1417

11 JULY 2023