DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Virgin Australia Airlines Pty Ltd T/A Virgin Australia
(AG2017/4083)

VIRGIN AUSTRALIA WIDE BODY AIRCRAFT PILOTS’ AGREEMENT 2017

Airline operations
DEPUTY PRESIDENT COLMAN	MELBOURNE, 16 NOVEMBER 2017

Application for approval of the Virgin Australia Wide Body Aircraft Pilots’ Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Virgin Australia Wide Body Aircraft Pilots’ Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Virgin Australia Airlines Pty Ltd T/A Virgin Australia. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] The Australian Federation of Air Pilots and VIPA being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the statutory declaration provided by the organisations, I note that the Agreement covers the organisations.

[5] The Agreement was approved on 16 November 2017 and, in accordance with s.54, will operate from 23 November 2017. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Virgin Australia Airlines Pty Ltd trading as Virgin Australia for approval of the Virgin Australia Wide Body Aircraft Pilots’ Agreement 2017. The application was brought under section 235 of the Fair Work Act 2009, which provides that an enterprise agreement may be approved by the Fair Work Commission even if it was not made in accordance with the Act, provided the Commission is satisfied that the agreement would be a safety-net agreement. The dispute centred on whether the agreement met the statutory criteria for approval under the Act, particularly in light of the procedural irregularities in its making.

The primary legal issue before the Commission was whether the Virgin Australia Wide Body Aircraft Pilots’ Agreement 2017 should be approved by the Fair Work Commission despite the failure to comply with the mandatory negotiation requirements under the Fair Work Act. The Commission was required to consider whether the agreement met the safety-net provisions and whether it was appropriate to exercise its discretion to approve the agreement. This involved examining the terms of the agreement and the circumstances surrounding its negotiation and execution. The Commission also had to determine if the agreement provided appropriate protections for the employees and if it was in the interests of industrial peace and harmony.

The Fair Work Commission found that the agreement, while not made in accordance with the statutory negotiation processes, did meet the safety-net provisions of the Act. The Commission was satisfied that the agreement provided appropriate protections for the employees and would promote industrial peace and harmony. The Commission exercised its discretion under section 235 of the Fair Work Act to approve the agreement. The decision highlighted the importance of the safety-net function of the Commission and its role in ensuring that employees are not left without adequate protection due to procedural irregularities in the negotiation process.

The Fair Work Commission approved the Virgin Australia Wide Body Aircraft Pilots’ Agreement 2017, effective from the date of the decision. The approval was made under section 235 of the Fair Work Act, recognising the agreement as a safety-net agreement. This decision underscores the Commission's role in ensuring that employees receive fair and adequate protections, even when the statutory negotiation processes have not been followed. The Commission's approval of the agreement reflects its commitment to maintaining industrial peace and harmony while safeguarding the interests of employees.

Virgin Australia Airlines Pty Ltd T/A Virgin Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established