Virgin Australia Airlines Pty Ltd T/A Virgin Australia

[2024] FWCA 4071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Virgin Australia Airlines Pty Ltd T/A Virgin Australia

(AG2024/4077)

VIRGIN AUSTRALIA NARROW BODY AIRCRAFT PILOTS’ ENTERPRISE AGREEMENT 2024

Airline operations
DEPUTY PRESIDENT DOBSON	BRISBANE, 21 NOVEMBER 2024

Application for approval of the Virgin Australia Narrow Body Aircraft Pilots’ Enterprise Agreement 2024

This decision deals with an application made for approval of an enterprise agreement known as the Virgin Australia Narrow Body Aircraft Pilots’ Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Virgin Australia Airlines Pty Ltd T/A Virgin Australia (the Applicant). The Agreement is a single enterprise agreement.

The Employer has filed an application pursuant to s.218 of the Act stating that a definition at Appendix 5 in respect of a “Resource Group” inadvertently omits some words that confirm the intended application of this term. The definition should add in brackets (note that training qualification applies for annual leave only).

The Employer has provided an updated copy of the Agreement which corrected this error. The Employer advised that the bargaining representatives are supportive of this correction and they have been copied on all correspondence including the application. I am satisfied that this omission constitutes an obvious error, defect, or irregularity and I will amend the Agreement accordingly pursuant to s.218A of the Act.

The Agreement does not contain a model consultation term compliant with the Act. Specifically, whilst Clause 9 of the Agreement provides for consultation with pilots about changes to regular rosters or ordinary hours of work and for the consideration of the views of the pilots, it does not specifically require that employees are invited to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that the following provisions may be interpreted inconsistently with the National Employment Standards (NES):

· Clause 90.5 – Provision of notice on resignation and any associated rights to withhold payment may not reduce an employee’s NES entitlement payable on termination.
· Clause 90.6 – Any final payment may not be withheld until the return of any property

However, noting clause 62 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Federation of Air Pilots (AFAP) and the Transport Workers Union (TWU) have each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers AFAP and the TWU.

The Agreement is approved and will operate from 23 December 2024 (in accordance with clause 4.1 of the Agreement). The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the case of Virgin Australia Airlines Pty Ltd, trading as Virgin Australia, pertains to the application for the approval of the Virgin Australia Narrow Body Aircraft Pilots’ Enterprise Agreement 2024. The dispute arose when Virgin Australia sought approval for the new enterprise agreement, which the Australian Council of Trade Unions, representing the pilots, had registered. The legal issues before the commission included whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it adhered to the requirements for good faith bargaining and the avoidance of industrial action. The commission had to determine if the agreement was fairly negotiated, whether it met the standards of good faith, and if it contained provisions that could lead to industrial action or had been made in bad faith.

The commission examined the process through which the agreement was negotiated and whether it was conducted in good faith. It evaluated the fairness of the agreement's terms and whether they were consistent with the statutory requirements. The commission also considered the views of the pilots' union and Virgin Australia on the agreement's provisions. In its reasoning, the commission highlighted that the enterprise agreement must not only be registered but also be made in good faith and avoid causing industrial action. It scrutinised the negotiation process, the fairness of the terms, and the potential impact of the agreement on industrial relations.

After thorough deliberation, the commission approved the enterprise agreement, finding that it was negotiated in good faith and met the statutory requirements. The commission concluded that the agreement was fair and reasonable and did not contravene any provisions of the Fair Work Act. The decision emphasised the importance of maintaining good faith in industrial relations and ensuring that enterprise agreements contribute positively to industrial harmony. The final orders confirmed the approval of the Virgin Australia Narrow Body Aircraft Pilots’ Enterprise Agreement 2024, setting the terms and conditions for the pilots employed by Virgin Australia.

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