[2019] FWCA 7743

The attached document replaces the document previously issued with the above code on 12 November 2019.

The typographical error in the heading - “Enterprise” - is corrected.

Associate to Commissioner Platt

Dated 13 November 2019

[2019] FWCA 7743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sydney Night Patrol and Inquiry Co Pty Ltd
(AG2019/3736)

SNP AVIATION SECURITY AND TRANSPORT WORKERS’ UNION ADELAIDE AIRPORT ENTERPRISE AGREEMENT 2019

Security services
COMMISSIONER PLATT	ADELAIDE, 12 NOVEMBER 2019

Application for approval of the SNP Aviation Security and Transport Workers’ Union Adelaide Airport Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the SNP Aviation Security and Transport Workers’ Union Adelaide Airport Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Sydney Night Patrol and Inquiry Co Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 9 October 2019.

[3] On 18 October 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] A hearing was conducted on 11 November 2019 and the Applicant subsequently submitted a revised undertaking in the required form dated 11 November 2019. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• Clauses 25.1.7 and 27.5.3 will be subject to ss.324 and 326 of the Act.

• The employer and an employee may agree to substitute another day, or part-day as the case may be, for a day, or part-day, that would otherwise be a public holiday, or part-day public holiday, under the NES.

• At the time of being employed a part-time employee will be advised in writing of the employee’s fortnightly hours and initial roster, which will include the hours worked each day, which days of the week the employee will work and the actual starting and finishing times each day.

• A part-time employee’s regular pattern of work may varied in writing before the varied hours commence. A variation may be of a temporary or permanent nature. An employee may elect to provide written standing consent to vary their regular pattern of work, provided that such standing consent may not include agreement to work more than 12 hours per day or 76 hours per fortnight and may be withdrawn by the employee at any time. A part-time employee who provides standing consent can still verbally refuse to work additional or varied hours. Hours worked by a part-time employee in excess of their rostered hours will be paid at the appropriate overtime rate.

• Until the first full pay period after 1 January 2020, the meal break referred to in clause 32.1 of the Agreement will be a paid break.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[9] The Transport Workers’ Union, 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 this organisation.

[10] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 23 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Sydney Night Patrol and Inquiry Co Pty Ltd was the applicant before the Fair Work Commission seeking approval of a new enterprise agreement. The respondent was the SNP Aviation Security and Transport Workers’ Union. The dispute centred on the terms of the SNP Aviation Security and Transport Workers’ Union Adelaide Airport Enterprise Agreement 2019. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission involved the compliance of the proposed agreement with the Fair Work Act. The Commission needed to assess whether the agreement had been made in good faith, whether it provided for the proper operation of the business, and whether it contained the minimum terms and conditions required by the Act. Additionally, the Commission examined whether the agreement had been fairly negotiated and whether it met the requirements for approval under section 232 of the Act.

In its reasoning, the Commission noted that the agreement had been negotiated between the parties in good faith, as evidenced by the process and documentation provided. The Commission found that the agreement provided for the proper operation of the business, considering the unique nature of the aviation security industry. It also determined that the agreement contained the minimum terms and conditions as required by the Fair Work Act. The Commission concluded that the agreement was fairly negotiated and met the statutory requirements for approval. Therefore, the application for approval of the SNP Aviation Security and Transport Workers’ Union Adelaide Airport Enterprise Agreement 2019 was granted.

The Commission's final order was that the SNP Aviation Security and Transport Workers’ Union Adelaide Airport Enterprise Agreement 2019 be approved as a registered agreement under the Fair Work Act 2009. The agreement would now govern the employment conditions of the employees covered by the agreement, effective from the date of registration.

Sydney Night Patrol and Inquiry Co Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established