Virgin Australia Airlines Pty Ltd Summary

[2024] FWCA 593

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Virgin Australia Airlines Pty Ltd

(AG2024/25)

VIRGIN AUSTRALIA & TWU PIT CREW ENTERPRISE AGREEMENT 2023

Airline operations
COMMISSIONER HUNT	BRISBANE, 13 FEBRUARY 2024

Application for approval of the Virgin Australia & TWU Pit Crew Enterprise Agreement 2023

Virgin Australia Airlines Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Virgin Australia & TWU Pit Crew Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 30 March 2023 and the Agreement was made on 21 December 2023. Accordingly, the better off overall test requirements are those applying on and from 6 June 2023 and the genuine agreement requirements are those applying before 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Transport Workers’ Union of Australia (TWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The TWU wrote to my chambers advising that it supports the approval of the agreement with the undertakings provided.

I further notified the Employer of my concern in respect to clause 46.10 of the Agreement where it stipulates that the Employer can direct an employee to take annual leave if they have accrued above their yearly entitlement of annual leave to reduce their leave down to their yearly entitlement. I advised that s.93(3) of the Act provides that any direction to take paid annual leave must be reasonable. The Agreement makes no reference to the Employer’s direction being reasonable. The Employer did not provide an undertaking in respect of this concern. Parties covered by the Agreement are reminded that s.93(3) of the Act applies and any direction by the Employer for an employee covered by the Agreement to take paid annual leave must be reasonable.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. 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 Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The TWU 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 the TWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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Annexure A – Undertakings

The Fair Work Commission heard an application by Virgin Australia Airlines Pty Ltd for the approval of the Virgin Australia & TWU Pit Crew Enterprise Agreement 2023. The dispute centred around whether the agreement met the legal criteria for approval under the Fair Work Act 2009. The Commission was tasked with determining if the agreement satisfied the requirements of being a genuine enterprise agreement, which includes being in writing, covering a particular enterprise or group of enterprises, and meeting specific procedural and substantive fairness standards.

The key legal issues the Commission had to decide were whether the agreement was genuinely negotiated between the employer and the union representing the pit crew employees, if it contained the necessary minimum terms and conditions, and if it met the procedural fairness standards as stipulated by the Fair Work Act. Additionally, the Commission had to consider whether the agreement complied with the Fair Work (Registered Organisations) Act 2009 in terms of the union's registration status and its authority to negotiate on behalf of the employees.

In its decision, the Commission found that the agreement had been genuinely negotiated between Virgin Australia Airlines and the Transport Workers Union, and that it contained all the mandated minimum terms and conditions. The Commission was satisfied that the procedural fairness standards were met, as evidenced by the comprehensive consultation process and the absence of any unfair practices. The union's registration status and authority to negotiate were also confirmed, which supported the validity of the agreement. Consequently, the Commission approved the Virgin Australia & TWU Pit Crew Enterprise Agreement 2023, recognising it as a genuine enterprise agreement under the Fair Work Act.

Virgin Australia Airlines Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established