THAI Airways International Public Company Limited

[2013] FWCA 9294

[2013] FWCA 9294

FAIR WORK COMMISSION

DECISION

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

THAI Airways International Public Company Limited
(AG2013/10864)

THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED EMPLOYEE ENTERPRISE AGREEMENT 2013

Airline operations
COMMISSIONER CAMBRIDGE	SYDNEY, 26 NOVEMBER 2013

Application for approval of the Thai Airways International Public Company Limited Employee Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Thai Airways International Public Company Limited Employee Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by THAI Airways International Public Company Limited (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 14 October 2013. The application included a Statutory Declaration of Mr Viroj Sirihorachai dated 8 October 2013, and made on behalf of the Employer (the Declaration). The Declaration stated that the Agreement was made on 27 September 2013. Therefore the application was not lodged within the 14 day time limit established by subsection 185 (3) of the Act. However, in the circumstances where the application was made 3 days after the 14 day period, and an explanation for the late lodgement has subsequently been provided, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[3] The application for approval was listed for Hearing in Chambers before the Fair Work Commission (the Commission) on 22 October 2013. However the Commission received communication from the Australian Municipal, Administrative, Clerical and Services Union (ASU) which inter alia, asserted that the Agreement did not pass the Better Off Overall Test (the BOOT). Consequently the matter was listed for an attendance Hearing on 14 November 2013.

[4] At the Hearing held on 14 November, Ms A Koelmeyer appeared for the Employer and Mr J Cooney appeared via video link for the ASU. During the Hearing particular concerns regarding whether or not the Agreement passed the BOOT were the subject of considerable discussion. Certain clarifications were provided during the Hearing. A proposition was developed which anticipated that the Employer may provide an Undertaking which was directed at the resolution of concerns regarding the Agreement passing the BOOT.

[5] The Commission has received correspondence dated 25 November 2013, from the Employer which included further material in support of the application together with an Undertaking made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertaking).

[6] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertaking. Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[7] I note that the Agreement contains a flexibility term at clause 35.7 and a consultation term at clause 35.6.

[8] I am prepared to accept the Undertaking. As provided by s.191 of the Act, the Undertaking is taken to be a term of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The ASU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the ASU.

[10] The Agreement as varied by the Undertaking is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 3 December 2013. The nominal expiry date of the Agreement as specified in clause 1.4 of the Agreement, is 31 December 2014.

COMMISSIONER

UNDERTAKING

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