Transport Workers' Union of Australia v Aviation Industry Resources Pty Ltd trading as Altara Resources
[2025] FWC 2125
•1 AUGUST 2025
| [2025] FWC 2125 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.306E - Application for a regulated labour hire arrangement order
Transport Workers' Union of Australia
v
Aviation Industry Resources Pty Ltd trading as Altara Resources
(C2024/5556)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 1 AUGUST 2025 |
Application for a regulated labour hire arrangement order in respect of Aviation Industry Resources Pty Ltd trading as Altara Resources in relation to work performed by cabin crew for Jetstar Airways Pty Limited; Application for an alternative protected rate of pay order by Jetstar Airways Pty Limited; both applications granted and relevant orders made
The Transport Workers’ Union of Australia (TWU) has applied under s.306E of the Fair Work Act 2009 (Act) for a Regulated Labour Hire Arrangement Order (RLHAO) to apply to Aviation Industry Resources Pty Ltd trading as Altara Resources (Altara) as the employer, and Jetstar Airways Pty Limited (Jetstar) as the regulated host (TWU Application).
Jetstar has also applied under s.306M of the Act for an Alternative Protected Rate of Pay Order (APROPO) (Jetstar Application).
The TWU (and its employee members), Altara, and Jetstar, all support both applications being granted. That said, the support of Altara and Jetstar in respect of the TWU Application is conditional upon the APROPO being granted. The summary is that the RLHAO will require relevant Altara employees (working for Jetstar) to be paid no less than a protected rate of pay (PROP) calculated by reference to one enterprise agreement, whereas the APROPO will give rise to the PROP being substituted, such that it will be calculated by reference to another (i.e. alternative and different) enterprise agreement (APROP).
Directions were issued for the filing and serving of submissions and evidence in respect of the TWU Application, and the Jetstar Application, and a hearing was conducted in Sydney on 24 July 2025.
At the hearing, Mr Philip Boncardo, of Counsel, instructed by Ms Lorraine Biviano, Legal Officer, appeared (with permission) for the TWU, Mr Richard Dalton KC, of Counsel, and Mr Nico Burmeister, of Counsel, instructed by Ms Kathy Srdanovic, Partner, and Ms Ruby Kambelos, Senior Associate, Ashurst lawyers, appeared (with permission) for Jetstar, and Mr Andrew Pollock, of Counsel, instructed by Mr Adam Lambert, Principal Solicitor, KHQ Lawyers, appeared (with permission) for Altara.
Factual background
The parties have filed a joint agreed statement of facts.[1] On the basis of these agreed facts,[2] I make the following findings:
a)Altara is a registered constitutional corporation pursuant to the Corporations Act 2001 and national system employer within the meaning of the Act.
b)Jetstar is a registered constitutional corporation pursuant to the Corporations Act 2001 and a national system employer within the meaning of the Act.
c)The TWU is entitled to represent the industrial interests of its members employed by Altara pursuant to Rule 4, Annexure B, (A)(1)(a) of the TWU's eligibility rules.
d)Altara’s employees include cabin crew that are engaged in the classification of Cabin Crew Member under the terms and conditions of the Aircraft Cabin Crew Award 2020 (Award).
e)Altara supplies its employees to Jetstar to perform work for Jetstar.
f)Jetstar is a wholly owned subsidiary of Qantas Airways Limited (Qantas). Jetstar has its own air operator's certificate (AOC) issued by the Civil Aviation Safety Authority in accordance with the Civil Aviation Act 1988.
g)Neither Altara, nor Jetstar, are small business employers for the purposes of the Act.
h)In November 2001, Qantas acquired Impulse Airlines Pty Limited (Impulse). Impulse operated as an airline business, flying selected regional routes along the Eastern seaboard of Australia.
i)Impulse held in its own right a high capacity AOC, and managed its own engineering heavy maintenance base, situated in Newcastle, New South Wales. At that time, Impulse was equipped with a fleet of 14 Boeing 717-200s, and a workforce of approximately 650 people, including pilots, engineers and cabin crew.
j)Between November 2001 and May 2004, Impulse operated a regional airline service under the “QantasLink” brand.
k)In October 2003, Qantas decided to use Impulse as the operating entity for its new low cost carrier airline.
l)On 1 December 2003, then Chief Executive Officer and Managing Director of the Qantas Group, Mr Geoff Dixon, announced that its new low cost domestic airline would be called “Jetstar”.
m)On 23 December 2003, Impulse Airlines Proprietary Ltd changed its name to “Jetstar Airways Proprietary Ltd”.
n)In February 2004, Jetstar opened for bookings. It commenced operations on 25 May 2004.
o)From 2004, Jetstar began to convert its fleet from Boeing 717 aircraft to Airbus A320 aircraft. This allowed for longer range flying, and resulted in an expansion of the network as Jetstar began servicing new routes including Melbourne to Cairns, and Brisbane to Perth.
p)In December 2005, Jetstar commenced a trans-Tasman service between Australia and Christchurch, New Zealand, using its existing fleet of narrow bodied Airbus A320 aircraft.
q)On 11 April 2006, Jetstar announced that from November 2006, it would commence flights to six international destinations (Bali, Bangkok, Honolulu, Ho Chi Minh City, Phuket and Osaka), on routes directly from Sydney, Melbourne and Brisbane. These routes were to be serviced by a fleet of widebody aircraft.
r)Since its expansion into international services, Jetstar has delineated its flying operations between its narrowbody operation (a single-aisle aircraft, predominantly flying domestic and trans-Tasman routes only) and widebody operation (a twin-aisle aircraft, predominantly flying international routes).
Narrowbody operation
s)Immediately prior to the Qantas Group acquiring Impulse, the cabin crew of Impulse had been engaged through a unit trust arrangement. Impulse did not employ any cabin crew directly.
t)Accordingly, those Impulse cabin crew were not covered by any federal award or certified agreement. One of the conditions of the Qantas Group acquiring Impulse was that all cabin crew engaged by Impulse would take up direct employment with Impulse.
u)In 2006, Jetstar and the FAAA negotiated the Jetstar Airways and FAAA Workplace Agreement 2006. This was expressed to cover the employment by Jetstar of all Flight Attendants (excluding those Cabin Crew employed within the Jetstar Widebody Operation).
v)In 2011, Jetstar and the FAAA negotiated the replacement agreement for the Jetstar Airways and FAAA Workplace Agreement 2006 (the Jetstar Airways and FAAA Enterprise Agreement 2011). This agreement covered the FAAA, but not the TWU.
w)The FAAA and the TWU were each bargaining representatives for (and are covered by each of) the following successor agreements:
·Jetstar Airways Cabin Crew Agreement 2018;
·Jetstar Airways Cabin Crew Agreement 2022 (JQD EA).
x)The JQD EA covers cabin crew members employed by Jetstar (excluding those employed within the Jetstar widebody operation).
Widebodyoperation
y)Prior to 2018, all Flight Attendants employed in Jetstar's widebody operation were employed under Australian Workplace Agreements.
z)In 2018, Jetstar, the FAAA, and the TWU negotiated an enterprise agreement which was expressed to cover "All Cabin Crew Members employed by Jetstar Airways Pty Ltd, whether they are members of the Association, the Union, or not, excluding those Cabin Crew employed within the Jetstar Narrowbody Operation. For the avoidance of doubt, this agreement only applies to work by Cabin Crew Members operating on internationally designated flights" (the Jetstar Airways Cabin Crew (Widebody) Agreement 2018) (2018 EA).
aa)The 2018 EA covered the TWU and the FAAA.
bb)The 2018 EA was replaced by the Jetstar Airways Cabin Crew (Widebody) Agreement 2023 (JQI EA).
cc)The JQI EA is expressed to cover cabin crew members excluding those in the Jetstar narrowbody operation.
dd)The JQI EA covers the TWU, and the FAAA.
Team Jetstar
ee)Jetstar Group Pty Ltd (Team Jetstar) is a wholly owned subsidiary of Jetstar. Team Jetstar is a separate employing entity within the Jetstar group of companies, and is not an airline.
ff)Since 2007, Team Jetstar has supplied Jetstar with employees to perform work for Jetstar (Team Jetstar Employees).
gg)The Team Jetstar Cabin Crew Agreement 2023 (Team Jetstar EA) applies to the Team Jetstar Employees employed as Cabin Crew Members or Cabin Managers/Customer Service Managers working for Jetstar.
hh)Under the Team Jetstar EA, Team Jetstar employees are designated into one of the following categories:
·predominantly domestic flying (TJD): Employees are assigned to predominantly domestic flying but can undertake international (including trans-Tasman and other international flying, e.g. Bali). Generally speaking, all flying occurs on a narrowbody aircraft (subject to exceptions for certain Cabin Crew (employed during the Covid-19 pandemic) who are "dual endorsed" (i.e. endorsed to also fly on both narrowbody and widebody aircraft)).
·predominantly international flying (TJI): Employees are assigned to predominantly international flying on narrowbody and/or widebody aircraft (all TJI crew are dual endorsed). TJI employees can also perform domestic flying on narrowbody aircraft.
Employment arrangements
ii)Altara has been providing employees to perform work for Jetstar since 2010.
jj)As at 26 September 2024, the total number of crew employed on the JQD EA is 121.
kk)As at 26 September 2024, the total number of Cabin Crew and Cabin Service Managers employed under the JQI EA is 38. This comprises of eight Cabin Managers, and 30 Cabin Crew members.
ll)As at 26 September 2024, the total number of Cabin Crew and Cabin Managers/Cabin Service Managers employed under the Team Jetstar EA is 991. This comprises of 301 Cabin Managers, and 690 Cabin Crew members.
mm)On 12 August 2024, the FAAA filed an application for an RLHAO (FAAA Application) which, if it had been made, would have required Altara Employees to be paid no less than a PROP calculated by reference to the JQD EA.
nn)On 13 August 2024, the TWU filed the TWU Application (substantially identical to the FAAA Application), being an application for an RLHAO for employees of Team Jetstar (with Altara Employees to be paid no less than a PROP calculated by reference to the JQD EA).
oo)Following consideration of the applications, and the commencement of preliminary discussions with the TWU, Jetstar proposed to the TWU that the Team Jetstar EA, rather than the JQD EA, should be the source of the PROP under any RLHAO. To facilitate this, Jetstar proposed making an application to the Fair Work Commission for an APROPO based upon the Team Jetstar EA (i.e. the Jetstar Application).
pp)As part of its proposal, and after discussions with the TWU, Jetstar proposed a variation of the terms of the Team Jetstar EA, to provide improvements in terms and conditions for crew engaged under the Team Jetstar EA (in exchange for the TWU’s support of the Jetstar Application).
qq)Jetstar first corresponded with the TWU in relation to this proposal on 16 September 2024. The TWU undertook extensive consultation with its members about the proposal, and provided feedback to Jetstar. The TWU’s engagement with its members included delegate briefings, crew room visits, conducting a survey, distributing information materials about the proposal, and additions sought by the TWU. Through discussions, Jetstar and the TWU refined the proposal to reflect an outcome that reflected the interests of TWU members.
rr)On Wednesday, 27 November 2024, a formal meeting addressing the proposal for Team Jetstar and Altara Cabin Crew employees took place with the TWU, TWU delegates, and Jetstar representatives. During this meeting, additional conditions or amendments to the proposal were considered, and improvements negotiated between Jetstar and the TWU (that reflected the various matters raised by TWU members). Following this meeting, Jetstar and the TWU reached an in-principle agreement.
ss)On 5 December 2024, the TWU sent a communication to Altara Employees notifying them of the in-principle agreement reached with Jetstar. This communication included the following message:
"We've used the Same Job Same Pay laws won by TWU members to improve your pay and conditions.
While a Same Job Same Pay order would be based purely on rates of pay, we've spoken with TWU members, and looked comprehensively at what and how you're paid to arrive at this order about your pay which would:
Bring you in line with the Team Jetstar rates of pay bridge the gap
Provide for direct employment pathways
Protect your roster periods which Altara crew have said are important to you
It would mean keeping to a similar way of working while enhancing your pay and conditions."
tt)The following day, Altara sent a communication to its employees confirming the in-principle agreement. The communication included a statement that the changes proposed in connection with the agreement (with the TWU) will "result in a significant uplift in your pay, along with improvements to a number of conditions (whilst protecting our model of work with Jetstar)".
uu)Jetstar and the TWU reached final agreement in January 2025. The agreement included a variation to the terms of the Team Jetstar EA, such that Altara Employees would benefit (if the APROP Application was granted) as follows (with reference to applicable entitlements as at January 2025):
·an increase to the flying allowance from $17.00 to $20.18 (being an increase of $3.18 per block hour);
·an increase to the casual hourly rate from $33.30 to $36.89 (being increase of $3.59 per hour, representing a 10.8% uplift);
·an increase to the meal allowance payment from $2.75 to $3.86;
·introduction of a new overnight allowance payment;
·introduction of a new 1:2 credit hour payment for unused periods of home standby;
·introduction of a "cancelled accommodation allowance" payment of $67.53 per instance;
·introduction of a "missed meal break" payment ($21 per eligible event); and
·introduction of a "back of the clock" payment of $117.43 per event.
vv)Outside of the Team Jetstar EA, it was also agreed between Jetstar and the TWU that Jetstar would:
·introduce a rostering rule that no more than 20% of published rosters for Altara Employees will consist of stand-by periods;
·provide opportunities for direct employment of Altara employees with Team Jetstar via at least two expression of interest processes per year;
·offer 50 new Team Jetstar permanent full-time opportunities by June 2025;
·commit to ongoing discussions between the TWU and Team Jetstar during the calendar year 2025 for a further 50 permanent Team Jetstar positions (either full-time or part-time), with composition to be determined (either by Altara or Team Jetstar);
·provide an $1,000 increase to the graduation bonus in relation to graduation from initial ground school training (from $1,500 to $2,500); and
·introduce a new 6-month anniversary bonus payment of $1,750 for new Altara team members flying with Jetstar who graduate from their initial ground school training after 1 November 2025.
ww)Overall, the agreed variation would provide for an average annual earnings increase of 21.4%, or over $8,000 (calculated based upon a combination of data, including flying forecasts for FY26, and actual hours worked in FY24).
xx)Jetstar also undertook to fund backpay of the increases and new payments (except the cancelled accommodation allowance) to the first full pay period on and after 1 November 2024 (subject to variation of the Team Jetstar EA being approved, and the APROPO being made).
yy)Jetstar and the TWU agreed that this was a fair and reasonable outcome, that would:
·streamline the path to uplifting pay and conditions for Altara employees;
·deliver benefits to Altara employees that could not be achieved via a RLHAO simpliciter;
·promote consistency by largely aligning pay arrangements of Altara and Team Jetstar employees (making up 93% of total cabin crew) under the Team Jetstar Agreement;
·resolve the TWU Application without the need for protracted and costly litigation, and ensure that affected employees received pay increases in a timely fashion (as well as backpay);
·address the concerns of TWU members at Altara about changes to their underlying work rules and conditions by otherwise preserving those arrangements; and
·avoid disputes about the method for calculating the PROP under the JQD EA.
zz)On 31 January, Altara sent a communication to the Altara employees providing an update on the final agreement reached.
aaa)The access period for the variation of the Team Jetstar EA opened on Monday 17 February 2025. On the same day, Altara sent a communication to the Altara employees providing an update.
bbb)After a vote that closed on 28 February 2025, the variation to the Team Jetstar EA was made.
ccc)The Commission approved the variation on 3 April 2025 (with effect on the same day).
ddd)On 11 April 2025, Altara sent a further update to its employees advising that the variation had been approved, and foreshadowing the next steps in the APROP application process.
Legislative provisions
Section 306E of the Act (in relation to RLHAOs) reads:
“FWC may make a regulated labour hire arrangement order
Regulated labour hire arrangement order
(1) The FWC must, on application by a person mentioned in subsection (7), make an order (a regulated labour hire arrangement order) if the FWC is satisfied that:
(a) an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host; and
(b) a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of that kind; and
(c) the regulated host is not a small business employer.
Note: The FWC may make other decisions under this Part which relate to regulated labour hire arrangement orders: see Subdivisions C (short‑term arrangements) and D (alternative protected rate of pay orders) of this Division, and Division 3 (dealing with disputes).
(1A) Despite subsection (1), the FWC must not make the order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A).
(2) Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made.
(3) For the purposes of paragraph (1)(a), it does not matter:
(a) whether the supply is the result of an agreement, or one or more agreements; or
(b) if there are one or more agreements relating to the supply—whether an agreement is between:
(i) the regulated host and the employer; or
(ii) the regulated host and a person other than the employer; or
(iii) the employer and a person other than the regulated host; or
(iv) any 2 persons who are neither the regulated host nor the employer; or
(c) whether the regulated host and employer are related bodies corporate.
Note: If related bodies corporate with different corporate branding do not provide labour to each other, a regulated labour hire arrangement order cannot be made because labour is not supplied in the way mentioned in paragraph (1)(a).
(4) For the purposes of paragraph (1)(b), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed.
Regulated employee and host employment instrument
(5) An employee referred to in paragraph (1)(a) is a regulated employee.
(6) The covered employment instrument referred to in paragraph (1)(b) is a host employment instrument.
Who may apply for an order
(7) The following persons may apply for the order:
(a) a regulated employee;
(b) an employee of the regulated host;
(c) an employee organisation that is entitled to represent the industrial interests of an employee mentioned in paragraph (a) or (b);
(d) the regulated host.
Matters that must be considered in relation to whether work is for the provision of a service
(7A) For the purposes of subsection (1A), the matters are as follows:
(a) the involvement of the employer in matters relating to the performance of the work;
(b) the extent to which, in practice, the employer or a person acting on behalf of the employer directs, supervises or controls (or will direct, supervise or control) the regulated employees when they perform the work, including by managing rosters, assigning tasks or reviewing the quality of the work;
(c) the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work;
(d) the extent to which either the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the regulated employees;
(e) the extent to which the work is of a specialist or expert nature.
Matters to be considered if submissions are made
(8) For the purposes of subsection (2), the matters are as follows:
(a) the pay arrangements that apply to employees of the regulated host (or related bodies corporate of the regulated host) and the regulated employees, including in relation to:
(i) whether the host employment instrument applies only to a particular class or group of employees; and
(ii) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employees; and
(iii) the rate of pay that would be payable to the regulated employees if the order were made;
(c) the history of industrial arrangements applying to the regulated host and the employer;
(d) the relationship between the regulated host and the employer, including whether they are related bodies corporate or engaged in a joint venture or common enterprise;
(da) if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons:
(i) the nature of the regulated host’s interests in the joint venture or common enterprise; and
(ii) the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons);
(e) the terms and nature of the arrangement under which the work will be performed, including:
(i) the period for which the arrangement operates or will operate; and
(ii) the location of the work being performed or to be performed under the arrangement; and
(iii) the industry in which the regulated host and the employer operate; and
(iv) the number of employees of the employer performing work, or who are to perform work, for the regulated host under the arrangement;
(f) any other matter the FWC considers relevant.
What an order must specify
(9) A regulated labour hire arrangement order must specify:
(a) the regulated host covered by the order; and
(b) the employer covered by the order under this section; and
(c) the regulated employees covered by the order under this section; and
(d) the host employment instrument covered by the order; and
(e) the day the order comes into force, which must be:
(i) if the order is made before 1 November 2024—that day or a later day; or
(ii) otherwise—the day the order is made or a later day.
Note: For paragraphs (b) and (c), additional employers and regulated employees of those employers may be covered by the order under section 306EA.
What an order may specify
(10) A regulated labour hire arrangement order may specify when the order ceases to be in force.
Note: For variation and revocation of a regulated labour hire arrangement order, see section 603.”
Section 306F of the Act (relevantly) reads:
“306F Protected rate of pay payable to employees if a regulated labour hire arrangement order is in force
Application of section
(1) This section applies if a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer.
Employer must not pay less than protected rate of pay
(2) The employer must pay the regulated employee at no less than the protected rate of pay for the employee in connection with the work performed by the employee for the regulated host.
Note: This subsection is a civil remedy provision (see Part 4‑1).
…
Meaning of protected rate of pay
(4) Unless subsection (5) applies, the protected rate of pay for the regulated employee is the full rate of pay that would be payable to the employee if the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee.
…
(10) Subsection (2) applies despite any provision of:
(a) a fair work instrument (other than an instrument made by the FWC under this Part) that applies to the regulated employee; or
(b) a covered employment instrument (other than a fair work instrument) that applies to the regulated employee; or
(c) the regulated employee’s contract of employment;
that provides for a rate of pay for the regulated employee that is less than the protected rate of pay for the regulated employee.
Note: See also section 306N (effect of alternative protected rate of pay order) and subsection 306Q(6) (effect of arbitrated protected rate of pay order).”
Section 306M of the Act (in relation to APROPOs) reads:
“306M Making an alternative protected rate of pay order
Application of this section
(1) This section applies if:
(a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or
(b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or
(c) an application for a regulated labour hire arrangement order that would cover a regulated host, an employer and a regulated employee of the employer performing work for the regulated host has been made to the FWC under section 306E but has not been finally determined.
Alternative protected rate of pay order
(2) The FWC may make an order (an alternative protected rate of pay order) specifying:
(a) how the rate of pay at which the employer must pay the regulated employee in connection with the work is to be worked out; and
(b) that the employer must pay the rate of pay worked out in that way to the regulated employee in connection with the work.
Rate of pay
(3) The rate of pay for the purposes of paragraph (2)(a) must be the protected rate of pay for the regulated employee that would apply if the references in section 306F to the host employment instrument covered by the regulated labour hire arrangement order were instead references to a specified covered employment instrument that:
(a) applies to a related body corporate of the regulated host and would apply to a person employed by the related body corporate to perform work of that kind; or
(b) applies to the regulated host and would apply to a person employed by the regulated host to perform work of that kind in circumstances that do not apply in relation to the employee.
Who may apply
(4) The FWC may make an alternative protected rate of pay order only on application by the employee, the employer, the regulated host or an organisation entitled to represent the industrial interests of any of those persons.
Time for making
(5) The FWC must decide whether or not to make the order as quickly as possible after the application is made.
Criteria for making etc.
(6) The FWC must not make the order unless satisfied that:
(a) it would be unreasonable for the requirement in section 306F, that the employer pay the regulated employee at no less than the protected rate of pay, to apply in connection with that work (including, for example, because the rate would be insufficient or would be excessive); and
(b) there is a covered employment instrument of the kind referred to in paragraph (3)(a) or (b).
(7) Before deciding whether to make the order, the FWC must seek the views of the following:
(a) the employer;
(b) the regulated host;
(c) the employer to which a covered employment instrument to be specified in the order for the purposes of subsection (3) applies (if not the regulated host);
(d) the employee;
(e) employees to whom the covered employment instrument to be specified in the order for the purposes of subsection (3) applies;
(f) organisations entitled to represent the industrial interests of any of the persons referred to in paragraphs (a) to (e).
(8) In deciding whether to make the order, the FWC must have regard to:
(a) whether the host employment instrument covered by the regulated labour hire arrangement order applies only to a particular class or group of employees; and
(b) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employee; and
(c) the views (if any) of any persons or organisations mentioned in subsection (7);
(d) the rate of pay that would be payable to the regulated employee in connection with the work if the order were made; and
(e) any other matter the FWC considers relevant.
Exception for short‑term arrangements
(9) In making an order under this section, the FWC must ensure that, if an exception in section 306G would apply to the requirement to pay the regulated employee at no less than the protected rate of pay, the exception also applies in relation to the requirement to pay the employee at the rate worked out under the alternative protected rate of pay order.”
Section 18(1) of the Act defines the term “full rate of pay”. It reads:
“(1) The full rate of pay of a national system employee is the rate of pay payable to the employee, including all the following:
(a)incentive - based payments and bonuses;
(b)loadings;
(c)monetary allowances;
(d)overtime or penalty rates;
(e)any other separately identifiable amounts.”
Approach to legislative provisions
In Application by the Mining and Energy Union,[3] a Full Bench of the Commission outlined a number of principles concerning the proper interpretation and application of s.306E of the Act.[4] I apply, but do not repeat, the principles stated in that decision.
I also adopt and apply the following submissions of Jetstar as to the proper approach to the application of the legislative scheme (as it concerns the interaction of ss.306E, 306F, and 306M of the Act):
“Regulated labour hire arrangement orders
37. There is no dispute as to the validity of the TWU Application. Nor is there any dispute that the Commission may reach the satisfactions contemplated by sub-ss 306E(1)(a), (b) and (c), and 306E(1A).
38. Subject to resolution of the APROP, the ‘starting point’ here is that the prohibition in sub-s 306E(2) applies. That sub-section provides as follows (emphasis added):
(2) Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made.
39. Sub-section 306E(8), to which sub-s 306E(2) cross-refers, sets out the matters to which the Commission must have regard, including pay arrangements (s 306E(8)(a)), the history of industrial arrangements (s 306E(8)(c)), and ‘any other matter the FWC considers relevant’ (s 306E(8)(f)). The requirement to have regard to the matters in s 306E(8) is conditioned upon submissions having been made about them. That is, in the absence of any such submissions, regard need not be had to those matters: Batchfire ([2024] FWCFB 299, at [16]).
40. That said, as the Full Bench in Goonyella ([2025] FWCFB 134) observed at [274], the reference to ‘all of the circumstances’ in s 306E(2) and ‘any other matter the FWC considers relevant’ in s 306E(8)(f) indicates the breadth of the matters to which regard must be had. The combined effect of those sub-sections is that regard must be had to any relevant circumstance in relation to which a submission is made. To that end, a matter is relevant if it could rationally bear upon the assessment of whether it is fair and reasonable in all the circumstances to make the RLHAO.
41. As to the ‘fair or reasonable’ assessment mandated by s 306E(2), the Full Bench in Goonyella went on to observe that:
[275] In our opinion, the subsection requires the Commission to make a broad value judgment as to whether it is not fair and reasonable to make an order in all of the circumstances. That evaluative assessment is likely to involve a balancing of various interests that would be affected by an order having regard to the matters listed in s 306E(8), including any matter not specifically identified in the subsection that the Commission considers relevant. It is also the case that the Commission is entitled, although not required, to have regard to a matter as part of "all of the circumstances" even if no submission is advanced about it.
[276] The assessment of the fairness and reasonableness of making an order will inevitably involve consideration of the consequences of an order being made or not made. The principal consequence of an order is that the employer must pay the regulated employee at no less than the "protected rate of pay" in connection with the work performed for the regulated host in accordance with s 306F(2). The order is likely, for that reason, to have consequences for the employer, and perhaps the regulated host, that might be thought to be adverse in that the order will increase employment costs and positive for the regulated employees in that they will receive a higher rate of pay. However, the assessment to be made requires consideration to the whole of the circumstances, including (when relevant) the pay arrangements for employees of the regulated host, the industrial arrangements applying to the regulated host and the employer, the relationship between the regulated host and the employer and the arrangements between the regulated host and the employer. It is not a one-dimensional trade-off between the benefits to employees and asserted detriments to the employer or regulated host.
42. If a RLHAO is in force, its only practical function is to regulate the rate of pay payable to the regulated employees. That is, if a RLHAO is in force, each regulated employee must be paid (at least) in accordance with the PROP: s 306F. As the Full Bench in Goonyella observed at [339], a RLHAO ‘if made, simply has the effect of requiring that regulated employees be paid the protected rate of pay’.
Alternative protected rate of pay (APROP)
43. Subdivision D provides for the making of APROP orders. Such an order may be made in the circumstances described in sub-s 306M(1), which include when an application for a RLHAO has been made under s 306E but has not been finally determined (as is the case here).
44. Sub-section 306M(2) describes what an APROP order must specify, which, as its name suggests, is an alternative calculation of the PROP. Sub-section 306M(3) limits sub-s 306M(2) by requiring that the APROP must be derived from a ‘specified covered employment instrument’ of the type described in that sub-section, including (as is the case here) an enterprise agreement (the Team Jetstar EA) that applies to a related body corporate (Team Jetstar) or the regulated host (Jetstar).
45. Sub-section 306M(6) provides the prerequisites for the making of an APROP order (emphasis added):
(6) The FWC must not make the order unless satisfied that:
(a) it would be unreasonable for the requirement in section 306F, that the employer pay the regulated employee at no less than the protected rate of pay, to apply in connection with that work (including, for example, because the rate would be insufficient or would be excessive); and
(b) there is a covered employment instrument of the kind referred to in paragraph (3)(a) or (b).
46. If each criterion is met, the Commission’s discretion to make an APROP order is enlivened. The discretion is conditioned—relevantly—on sub-s 306M(8), which provides:
(8) In deciding whether to make the order, the FWC must have regard to:
(a) whether the host employment instrument covered by the regulated labour hire arrangement order applies only to a particular class or group of employees; and
(b) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employee; and
(c) the views (if any) of any persons or organisations mentioned in subsection (7);
(d) the rate of pay that would be payable to the regulated employee in connection with the work if the order were made; and
(e) any other matter the FWC considers relevant.
47. These matters largely overlap with the fair and reasonable considerations for a RLHAO set out in s 306E(8) referred to above: in particular, the matters in s 306M(8)(a), (b) and (d) mirror the ‘pay arrangements’ matters in s 306E(8)(a). In each case, the Commission is required to have regard to ‘any other matter [it] considers relevant’.
48. The ‘views’ to which the Commission must have regard, per sub-s 306M(8)(c), are those of the employer; the regulated host; the employer and the employees to whom the ‘specified covered employment instrument’ applies; the ‘employee’ (being a reference to the current or proposed regulated employees); and each organisation entitled to represent the industrial interests of any of the aforementioned people.
49. If the Commission makes an APROP order, s 306N regulates its effect. The APROP attaches to the RLHAO and supplants the ‘host employment instrument’ in the RLHAO with the specified covered employment instrument in the APROP for the purposes of applying s 306F. Thus, in a practical sense, an APROP order has the effect of varying an extant RLHAO and the protected rate of pay (because the APROP effectively replaces the only practical effect of the RLHAO).
50. Taken together, these provisions provide for a scheme as follows:
(a)The Commission must make a RLHAO where certain basic pre-conditions are met. The exception to this rule is that the Commission must not make a RLHA order if it is satisfied that, in all the circumstances, it is not fair and reasonable to make the RLHAO.
(b)The only effect of a RLHAO, once in force, is to provide the ‘host employment instrument’ for the PROP which, by operation of s 306F, the regulated employer is required to pay the regulated employees as a minimum. It follows that the only basis for concluding that it cannot make a RLHAO (assuming the basic pre-conditions are met) is that that requirement would, in all the circumstances, not be fair and reasonable.
(c)The flipside of this is that an APROP order can only be made if the Commission is satisfied that the PROP requirement is unreasonable.
(d)While there is no express provision to this effect, s 306M should be construed such that the Commission cannot make the APROP order unless it is satisfied that it would not be unreasonable to require that the employer pay the regulated employees at no less than the APROP. So much is apparent from the intent of the s 306M (see, in particular, s 306M(6)).
(e)For an APROP order to have any effect, an underlying RLHAO must be in force. While an APROP order can be made before the RLHAO is made or becomes effective, it will have no substantive effect unless and until it does (s 306N(2)(a)).
51. That is, the legislature contemplates two circumstances in which the Commission might make an APROP order. First, it might make the order where a RLHAO was made and, subsequent to that making, the circumstances have changed such that it is no longer reasonable to require the employer to pay to the PROP. Secondly, and relevantly to the present case, the Commission might make an APROP order where it has before it an application for a RLHAO that it would make, but for the unreasonableness of the requirement to pay to the PROP. In either case, the making of the APROP order ‘cures’ the unreasonableness.” [5]
Consideration and determination
I am satisfied, for the purposes of s.306E(7) of the Act, that the TWU is an organisation entitled to represent the industrial interests of employees of Jetstar and Altara employed to perform work as cabin crew. Accordingly, the TWU is entitled to apply for a RLHAO under s.306E of the Act by operation of s.306E(7)(c). It is not in dispute, and I find, that Jetstar’s has standing (as a regulated host) to seek that the APROPO be made pursuant to s.306M(4) of the Act.
I am satisfied that the requirements of s.306E(1) of the Act, which must be satisfied in order to enliven the obligation to make a RLHAO, are met. Specifically, on the evidence before me, I am satisfied that:
a) Altara provides its employees to perform work for Jetstar;
b) The JQD EA would apply to Altara’s employees who perform work for Jetstar, if Jetstar were to employ these employees directly to undertake the same kind of work; and
c) Altara is not a small business employer.
For the purposes of s.306E(1A) of the Act, I am satisfied that the performance of work is not and will not be for the provision of a service. Rather, it will be for the supply of labour. In forming this view, I have had regard to the matters set out in subsection (7A). In relation to these matters, I make the following findings:
a) Altara is not involved (or has limited day-to-day involvement) in matters relating to the day-to-day performance of work by its employees for Jetstar. Altara’s role is limited to consideration of whether particular employees should be disciplined or promoted, including based upon feedback from Jetstar.
b) The evidence demonstrates that Jetstar (in the real, and practical, sense) directs, supervises and controls Altara’s employees in the performance of their work for Jetstar.
c) Altara’s employees work within Jetstar’s systems and processes, and according to its operational requirements. In this regard, Altara’s employees work on aircraft operated by Jetstar. Jetstar has its own AOC. Altara does not hold an AOC. Few, if any, systems, plants or structures of Altara are used by Altara’s employees when they perform work for Jetstar.
d) There is no evidence that Altara is or will be subject to industry or professional standards or responsibilities in relation to the work of its employees supplied to Jetstar.
e) The work undertaken by Altara’s employees at Jetstar involves the operation of Jetstar’s systems and aircraft, but does not involve work of a specialist or professional nature.[6]
Section 306E(2) of the Act provides that the Commission must not make a RLHAO if it is satisfied that it is not fair and reasonable in all of the circumstances to make it, having regard to the matters set out in s.306E(8) “in relation to which submissions have been made”.[7] Whilst the TWU has made no submissions in relation to the matters set out under s.306E(8)(a) to (e) of the Act,[8] it has made submissions in relation to s.306E(8)(f). Jetstar and Altara have made submissions that engage with s.306E(8)(a), (c) and (f). It is appropriate to take the parties submissions under s.306E(8) into account as part of determining whether or not I must make the RLHAO, and whether or not the APROPO ought be made (the latter to the extent that they cross-over with the matters set out in s.306M(8)).
There is an added layer to s.306E(2) in this case, in that ss.306M(1)(c), and 306M(6) to 306M(8) apply. Altara and Jetstar support the making of the RLHAO sought by the TWU, but they do so only on the basis that the APROPO is also made. The TWU equally supports the making of the APROPO. The position of Altara, Jetstar, and the TWU in this regard is a relevant consideration under ss.306E(2) (cf. 306E(8)(f)) and 306M(6)(a) (cf. 306M(8)(c) and (e)). In essence, whether or not I can, or cannot, be satisfied that it is not fair and reasonable in all the circumstances to make a RLHAO sought by the TWU is very much linked in this case to whether or not it would be unreasonable for the APROPO to be made.[9]
I am satisfied that the APROPO sought, by reference to the Team Jetstar EA, falls within ss.306M(3)(a) of the Act, that s.306M(6)(b) is met, and that s.306M(9) does not apply. For the purposes of s.306M(3) (and s.306F(4)) of the Act, the method for determining (or calculating) the APROP occurs by reference to the PROP that would apply if the Team Jetstar EA (as the “specified covered employment instrument”) applied to relevant employees (i.e. as opposed to the JQD EA).[10]
I am satisfied (on the evidence) that s.306M(7) has been complied with.[11] I concur with the submissions of Altara,[12] that the views of the three individuals who provided responses (against the making of the APROPO) should be given little weight. Two of these individuals are not regulated employees, whilst the third individual (an employee of Team Jetstar) has raised issues that either struggle for relevance, or are based upon bald assertions. In short, I find that the views of the three individual employees do not give rise to a conclusion that it is not fair and reasonable to make the RLHAO, or unreasonable to make the APROPO. The FAAA (which in addition to the TWU, has the capacity under its Rules to represent the industrial interests of relevant employees) does not oppose the Application.[13] Relevant employer bodies do not have a position, or otherwise do not wish to express a view.[14]
In relation to the matters set out under s.306E(8) (concerning the RLHAO, to which submissions have been made) and s.306M(8) of the Act (that I must have regard to when determining whether or not to make the APROPO), I rely upon the following findings:
(a) the JQD EA applies to a particular class or group of employees (i.e. employees of Jetstar employed to work at Jetstar as Cabin Crew Members or Cabin Managers/Customer Service Managers);[15]
(b) the Team Jetstar EA applies to a particular class or group of employees (i.e. employees of Team Jetstar employed as Cabin Crew Members or Cabin Managers/Customer Service Managers to work at Jetstar). Team Jetstar employs around 58 percent of the total number of Australian based persons working at Jetstar as Cabin Crew.[16]
(c) the history of industrial arrangements applying to Altara, Jetstar and Team Jetstar has meant that different terms and conditions have applied to relevant Altara, Jetstar and Team Jetstar employees,[17] in that:
i)Team Jetstar has been the main employer of Jetstar’s Australian based Cabin Crew workforce since 2007. The Team Jetstar EA covers Cabin Crew employees engaged on both narrow and wide bodied aircraft (supporting the manner in which Jetstar has been able to expand (especially into overseas ports) and meet its operational requirements);[18]
ii)Altara employs around 33 percent of the total number of Australian based persons working at Jetstar as Cabin Crew.[19] Altara has supplied Cabin Crew labour to Jetstar since 2010. These Altara employees work with employees of Jetstar, and Team Jetstar, at or for Jetstar;
iii)Jetstar Cabin Crew employees are around nine percent of the total number of Australian based persons working for Jetstar as Cabin Crew. This number is diminishing.[20] The JQD EA covers Cabin Crew employees working on narrow bodied aircraft only (i.e. working on Jetstar’s domestic and trans-Tasman flights, but not Jetstar’s other international flights); and
iv)the Award applies to Altara’s Cabin Crew employees when they perform their work for Jetstar. The Team Jetstar EA applies to Team Jetstar Cabin Crew employees when they perform their work for Jetstar. The JQD EA applies to Jetstar employees when they perform work for Jetstar.
(d) in practice, the JQD EA has applied to an employee at a classification, job level, or grade that would be applicable to relevant Altara employee if they were employed by Jetstar and worked at Jetstar;[21]
(e) in practice, the Team Jetstar EA has applied to an employee at a classification, job level or grade that would be applicable to relevant Altara employee if they were employed by Team Jetstar and performed work at Jetstar;[22]
(f) the rate of pay that will be payable to relevant Altara employees if the RLHAO is made, will be higher than if the RLHAO is not made (as compared to the rate of pay that would be payable to relevant Altara employees under the Award);[23]
(g) the rate of pay that will be payable to relevant Altara employees if the RLHAO is made, and the APROPO is also made, will be higher (as compared to the rate of pay that would be payable to relevant Altara employees under the Award);[24]
(h) whilst Jetstar and Team Jetstar are related bodies corporate, neither Jetstar and/or Team Jetstar are related bodies corporate with Altara, and the three of them do not have a joint venture or common enterprise relationship;[25]
(i) the Team Jetstar EA is much better suited to Jetstar’s business and operating model, and its growth or expansion goals;[26]
(j) there is a risk that the continuation of the existing commercial relationship between Jetstar and Altara will be undermined and/or detrimentally altered from the perspective of Altara (including its employees), and Jetstar, if the RLHAO (along with the APROPO) is not made;[27]
(k) the terms and conditions under which work will be performed by Altara employees if the RLHAO and the APROPO are made are set out in the Team Jetstar EA (as varied), giving Altara employees terms and conditions that make them better off than those contained under the Award. There is no end date upon which the RLHAO will operate. The location of the work to be performed by Altara’s employees is the same. The industry (and market) in which Altara and Jetstar operates is highly regulated, and highly competitive. Jetstar offers low cost products that are differentiated from full services airlines via (for example) low-cost and/or unbundled airfares, maintaining high volume “back of clock” flight scheduling (i.e. early morning and late night flights), keeping seat capacity numbers high, and performing short turnaround times;[28]
(l) the making of the RLHAO and the APROPO will ensure terms and conditions between Altara and Jetstar employees are streamlined, less complex, and consistent (and less fragmented), thus avoiding likely (or inevitable) disputation;[29]
(m) the Team Jetstar EA has undergone a process of update and renewal, that has involved Team Jetstar (and its employees) and the TWU (and its members) engaging in the statutory process to vary it, and have that variation approved by the Commission. In these circumstances, making the RLHAO and the APROPO is consistent with the Act’s overarching Object - to promote cooperative workplace relations (at the workplace level via collective bargaining);[30]
(n) making the RLHAO and the APROPO together is supported by the TWU (and its members), Altara (and its employees), and Jetstar.[31] Team Jetstar employees have had direct input into the process via the Team Jetstar EA variation. The FAAA does not object to the orders being made;[32]
(o) the making of the RLHAO and APROPO will not give rise to a rate of pay for relevant Altara employees that is clearly insufficient or would be excessive.[33] Further, any comparison between the JQD EA and the Team Jetstar EA ought not be solely concerned with a line by line, or better off overall test, comparative analysis (e.g. the entitlement for ‘xyz’ is better or higher in this enterprise agreement, as compared to the same ‘xyz’ entitlement in the other enterprise agreement (which is either lower, or totally absent)). There is no such test to be applied, and in any event the benefits of the Team Jetstar EA (as compared to the JQD EA) are unarguable.[34]
(p) employees to whom the RLHAO and APROPO will apply will receive benefits not only from the Team Jetstar EA, but also from the:
i) orders taking effect expeditiously (i.e. absent the time wasted to engage in and resolve contested proceedings); and
ii) agreement reached as to matters that the Commission cannot award (e.g. if the RLHAO and APROPO are made, their effect will be backdated by agreement of the parties, not by order of the Commission).[35]
In my view, all of the matters that I have had regard to or taken into account under s.306E(8) and s.306M(8) support a finding (or give rise to a conclusion) that I am not, or cannot be, satisfied that it:
(a) is not fair and reasonable in all the circumstances to make the RLHAO and the APROPO together;
(b) would be unreasonable for:
(i)the APROPO to apply in connection with the work that relevant Altara employees perform for Jetstar; and
(ii)the requirement in section 306F to apply such that Altara be required to pay its relevant employees at no less than the APROPO (per the Team Jetstar EA).
Disposition
On the facts and evidence before me, and having regard to the findings that I have made in this decision, I make the following ultimate conclusions:
(a) I am satisfied that it would be unreasonable for the requirement in s.306F of the Act to apply such that Altara pays its relevant employees at the PROP (JQD EA) in connection with the work that such employees perform for Jetstar;
(b) I am not satisfied that it would be unreasonable for the requirement in s.306F of the Act to apply such that Altara pays its relevant employees at the APROPO (Team Jetstar EA) in connection with the work that such employees perform for Jetstar;
(c) absent the APROPO being made, I am satisfied that it is not fair and reasonable to make the RLHAO in all of the circumstances;
(d) if the APROPO is made, I am not satisfied that it is not fair and reasonable to make the RLHAO in all of the circumstances;
(e) it is appropriate that I make the APROPO sought by Jetstar. Indeed, nothing on the evidence before me, or the matters I have been required to take into account, gives rise to me exercising my discretion in a manner other than by making the APROPO; and
(f) I am required by s.306E(2) of the Act to make the RLHAO (with the APROPO).
There were submissions made by the parties at the hearing as to whether or not the RLHAO needs to be made in its own right before I can consider or determine the APROPO, and whether or not I am able to consider the APROPO in determining whether or not the RLHAO must be. The TWU Application and the Jetstar Application proceeded together before me by consent of the parties, and were heard together (with evidence in one application being evidence in the other). In this regard, the ultimate case before me was advanced on the basis that both applications should be granted, with the orders to be made in resolution of both applications directly impacting upon one another. In my view, given the Jetstar Application was made under s.306M(1)(c) (being prior to the determination of the TWU Application) it was not only appropriate, but necessary, for the applications to be considered and resolved together, and without the need to engage in some form of artificial separation exercise. Indeed, in this case, my determination under s.306E(2) of the Act (including by reference to the matters set out under s.306E(8)) could only be hypothetical absent my determination of the APROPO at the same time as the RLHAO, or as part of determining to make the RLHAO.
I will publish the RLHAO, and the APROPO, consistent with the requirements of ss.306E(9) and 306M(2) and 306M(3)(a) of the Act, together with this decision [PR789877], in the following terms:
“[1]Pursuant to s.306E of the Fair Work Act 2009 (Act), the Fair Work Commission makes a regulated labour hire arrangement order covering:
a)Jetstar Airways Pty Limited (Jetstar), the regulated host;
b)Aviation Industry Resources Pty Ltd (Altara), the employer;
c)the Jetstar Airways Cabin Crew Agreement 2022, the host employment instrument;
d)each Altara employee:
i.who is employed as a cabin crew member and covered by the Aircraft Cabin Crew Award 2020; and
ii.who is supplied by Altara to perform work for Jetstar; and
iii.to whom the host employment instrument would apply if they were employed by Jetstar to perform work as cabin crew,
(each a regulated employee).
[2] This order come into force on 1 September 2025.
[3]This order ceases to be in force where the host employment instrument ceases to apply and no other new employment instrument starts to apply pursuant to s.306EB of the Act.
Alternative protected rate of pay order
[4]Pursuant to s.306M of the Act, the rate of pay at which Altara must pay each regulated employee in connection with work performed for the regulated host is the protected rate of pay that would apply if the references in s.306F to the host employment instrument were instead references to the Team Jetstar Cabin Crew Agreement 2023.
[5]This order comes into force on 1 September 2025.
NOTE: Section 306F(2) of the Act provides that, while a regulated labour hire order is in force, an employer covered by the order must pay any regulated employee covered by the order no less than the ‘protected rate of pay’ for the employee in connection with the work performed by the employee for the regulated host. The ‘protected rate of pay’ for a regulated employee is defined in ss.306F(4)–(6). There are certain exceptions to this obligation under ss.306F(3) and (3A). The protected rate of pay is the ‘full rate of pay’, which is defined under ss.12 and 18 of the Act.”
I note that as requested by the parties, the operative date of these Orders will be 1 September 2025.[36] If there are any issues or difficulties with this operative date, the parties (or any of them) are able to approach my Chambers via an application to vary the operative date pursuant to s.603 of Act (which will thereafter be determined in the usual manner).[37]
DEPUTY PRESIDENT
Appearances:
Mr Philip Boncardo, of Counsel, instructed by Ms Lorraine Biviano, Legal Officer, appeared (with permission) for the Transport Workers’ Union of Australia (TWU).
Mr Richard Dalton KC, of Counsel, and Mr Nico Burmeister, of Counsel, instructed by Ms Kathy Srdanovic, Partner, and Ms Ruby Kambelos, Senior Associate, Ashurst lawyers, appeared (with permission) for Jetstar Airways Pty Limited.
Mr Andrew Pollock, of Counsel, instructed by Mr Adam Lambert, Principal Solicitor, KHQ Lawyers, appeared (with permission) for Aviation Industry Resources Pty Ltd trading as Altara Resources.
Hearing details:
Sydney, 24 July 2025
[1] Digital Hearing Book (Court Book (CB)), pp.63-70.
[2] In relation to accepting unchallenged submissions or agreed facts before the Commission, see TWU Submissions, at [13]-[18], CB, pp. 28-29, citing R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Melbourne Metropolitan Tramways Board (1965) 113 CLR 228, per Barwick CJ at 243 (see also Menzies J’s observations at 252); Re Furnishing Trades Award (unreported) Ludeke J, Marsh DP and McDonald C, 18 February 1991, Print J6764. at p 4; MM Cables v Zammit [1999] AIRC 553, at [20]-[24]. Health Services Union [2013] FWCFB 5551, at [72]; Application by The Greater Union Organisation Pty Ltd & Birch Carroll & Coyle Ltd[2013] FWCFB 8859, at [16]; Esler Family Trust v Worthington[2016] FWCFB 8739, at [19]; Children’s Services Award 2010 [2020] FWCFB 3011, at [408]; Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, at 163 (per Gibbs CJ, Stephen, Mason and Wilson JJ); Moses v Western Australia (2007) 160 FCR 148, at [111].
[3] [2024] FWCFB 299, 333 IR 249.
[4] Ibid, at [8]-[17].
[5] Jetstar Submissions at [37]-[51] (footnotes omitted), Digital Hearing Book (Court Book (CB)), pp.47-51.
[6] Sinclair Statement, at [48]-[53], CB, pp.110-111.
[7] I observe that I ‘may’ have regard to the matters under s.306E(8) of the Act in relation to an application for a RLHAO, even if submissions in relation to a matter(s) under s.3068E(8) has not been made: Application by Mining and Energy Union re Rix's Creek Mine [2025] FWCFB 12, at [49]-[52].
[8] TWU Submissions, at [25], CB, p.30.
[9] Some of the matters that I must have regard to under s.306M(8) of the Act, when determining whether or not to make the APROP, are the same, similar, or cross over into the matters set out under s.306E(8).
[10] Per s.306M(3)(a) of the Act. Note the findings at subparagraphs [6](ee) to [6](gg) of this decision.
[11] Exhibits A1 and A2. Email from Ms Biviano of the TWU to the FAAA, 7 July 2025 (12:07pm); Email from Mr Michael Cope of the FAAA to Chambers, 15 July 2025 (2:49pm). Biviano Statement, at [22]-[37], CB, pp.85-88. Callaway Statement, at [20], CB, p.121. See also, CB, p.213.
[12] Altara Submissions, at [12]-[13], CB, p.60-61. See also Transcript, PN67, PN78 and PN104-PN118.
[13] Transcript, PN79.
[14] Section 306M(8)(c) of the Act. CB, pp.213-223 (FAAA response found at CB, pp.219-220).
[15] Sections 306E(8)(a)(i) and 306M(8)(a) of the Act. Around 990 employees, or 58 percent of the total number of Australian based persons working for Jetstar as Cabin Crew are employed by Team Jetstar. Team Jetstar has been the main employer of Jetstar’s Australian based Cabin Crew workforce since 2007.
[16] Section 306E(a)(i) and s.306M(a) and (b) of the Act.
[17] Section 306E(8)(c) and s.306M(8)(e) of the Act. Sinclair Statement, at [40]-[54], CB, pp.108-111.
[18] Section 306M(8)(a) of the Act. Sinclair Statement, at [41]-[47]
[19] Section 306E(8)(e)(iv) of the Act. Sinclair Statement, at [54], CB, p.111.
[20] Transcript, PN61.
[21] Section 306E(8)(a)(ii) of the Act.
[22] Section 306M(8)(b) of the Act.
[23] Section 306E(8)(a)(iii) of the Act.
[24] Section 306E(8)(a)(iii) and s.306M(8)(d) of the Act.
[25] Section 306E(8)(d), (da)(i) and (ii), and s.306M(8)(e) of the Act.
[26] Sections 306E(8)(f) and 306M(8)(e) of the Act. Transcript, PN44-PN47 (But note, PN63), PN113-PN114.
[27] Section 306E(8)(d) of the Act. Note, Callaway Statement, at [11]-[19], CB, pp.120-121. Transcript, PN94-PN100.
[28] Sections 306E(8)(e)(i)-(iv) and s.306M(8)(e) of the Act. Sinclair Statement, at [4]-[15], CB, pp.103-105.
[29] Sections 306E(8)(f) and s.306M(8)(e) of the Act. See Sinclair Statement, at [57]]-[76]. CB, pp.111-114. Transcript, PN75-PN77, and PN90.
[30] Sections 306E(8)(f) and s.306M(8)(e) of the Act. Transcript, PN54 and PN69-PN70.
[31] Sections 306E(8)(f) and s.306M(8)(e) of the Act. Transcript, PN56-PN58, and PN62.
[32] Sections 306E(8)(f) and s.306M(8)(e) of the Act. Transcript, PN64-PN66.
[33] Section 306M(6)(a) of the Act.
[34] See paragraphs [6](uu), [6](ww) and [6](yy) of this decision.
[35] Sections 306E(8)(f) and s.306M(8)(e) of the Act. See also paragraph [6](vv) of this decision.
[36] Consistent with s.306E(9)(e)(ii) of the Act.
[37] Transcript, PN137-PN155.
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