Virgin Australia Airlines Pty Ltd T/A Virgin Australia Airlines

[2024] FWCA 1221

[2024] FWCA 1221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - Application to vary an agreement to correct or amend errors, defects or irregularities

Virgin Australia Airlines Pty Ltd T/A Virgin Australia Airlines

(AG2024/859)

VIRGIN AUSTRALIA CABIN CREW AGREEMENT 2023 (EA6)

Airline operations
DEPUTY PRESIDENT LAKE	BRISBANE, 5 APRIL 2024

Application for variation of the Virgin Australia Cabin Crew Agreement 2023 (EA6)

1. Virgin Australia Pty Ltd (Virgin Australia) made an application to vary the Virgin Australia Cabin Crew Agreement 2023 (EA 6) (the Agreement) under s.218A of the Fair Work Act 2009 (Cth). The Agreement was approved on 19 March 2024, and came into operation on 26 March 2024.[1]

1. The following corrections were sought by Virgin Australia. The correction has been bolded and underlined below:

Clause	Original Agreement	Correction
Clause 4.2.6 – Mid Duty Sickness	The original clause states the following: "In  the  case  of  Mid  Duty  Sickness,  Cabin  Crew  Members  will  be  deducted  one  (1)  day  of personal leave where six (6) or less of Duty has been completed at the time of Mid Duty Sickness  or  half  a  day  of  personal  leave  if  more  than  six  (6)  hours  of  Duty  has  been completed.	The word ‘hours’ had been omitted and the clause should be read as the following: “In  the  case  of  Mid  Duty  Sickness,  Cabin  Crew  Members  will  be  deducted  one  (1)  day  of personal leave where six (6) hours or less of Duty has been completed at the time of Mid Duty Sickness or half a day of personal leave if more than six (6) hours of Duty has been completed.”
Clause 5.7.5 – Uniforms	Includes cross references to clause 5.8.2 and 5.8.3. There is no clause 5.8.2 and 5.8.3 in the Agreement. “Where Virgin Australia prescribes that a particular type of overcoat or crew bag is to be worn or used by the Cabin Crew Member, these will be made available to the Cabin Crew member, subject to clause 5.8.2 and 5.8.3”	The correct cross-references should be clause 5.7.2 and 5.7.3 “Where Virgin Australia prescribes that a particular type of overcoat or crew bag is to be worn or used by the Cabin Crew Member, these will be made available to the Cabin Crew member, subject to clause 5.7.2 and 5.7.3”
Clause 5.9.4  – Recruitment and Selection	Includes cross references to clause 5.10.3(b). There is no clause 5.10.3(b) in the Agreement. “Where  a  crew  member  makes  an  election  under  clause  5.10.3(b)  they  will  not  be required to undertake any further recruitment or merit-based processes to secure the role.”	The correct cross-references should be clause 5.9.3(b) “Where  a  crew  member  makes  an  election  under  clause  5.9.3(b)  they  will  not  be required to undertake any further recruitment or merit-based processes to secure the role.”
Clause 5.9.5  – Recruitment and Selection	Includes cross references to clause 5.10.2. There is no clause 5.10.2 in the Agreement. “As part of the merit selection process referred to in clause 5.10.2…”	The correct cross-references should be clause 5.9.2 “As part of the merit selection process referred to in clause 5.9.2…”
Clause 7.2.14 – Domestic and Short Haul International Hours of Work – Daily	Includes a cross reference to ‘Schedule 1’ which does not exist in the Agreement. “Cabin Crew Members who complete a 4 sector Operating duty in excess of 10 hours, will receive the overtime and payments set out in Schedule 1, Part 3 and Part 4.”	The correct cross-references should be Schedule A. “Cabin Crew Members who complete a 4 sector Operating duty in excess of 10 hours, will receive the overtime and payments set out in Schedule A, Part 3 and Part 4.”
Clause 7.2.26 – Domestic and Short Haul International Hours of Work – Daily	Clause is incorrectly numbered. The clause was originally numbered clause 7.2.67.	The corrected clause number would be clause 7.2.26
Schedule A – Part 1 – Salary and Classification Table and Movement Summaries	In Schedule A – Part 1, the Table displays the Level ‘CM’ in the column ‘Level from the first full pay period 7 days on or after Commencement Date’. The Agreement does not include the level ‘CM’.	The correct level should be ‘CM2’.

1. Section 218A of the Act provides as follows:

   218A  Variation of enterprise agreements to correct or amend errors, defects or irregularities

   (1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

   (2) The FWC may vary an enterprise agreement under subsection (1):

   (a) on its own initiative; or

   (b) on application by any of the following:

   (i) one or more of the employers covered by the agreement;

   (ii) an employee covered by the agreement;

   (iii) an employee organisation covered by the agreement.

   (3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

1. On 21 February 2024, the Flight Attendants’ Association of Australia have supported Virgin Australia’s application to vary the errors, defects or irregularities identified above. On 22 February 2024, the Transport Workers’ Union have also expressed their support in correcting the drafting errors identified above.

1. As the parties have all agreed that these were drafting errors, I am satisfied that the errors identified above are an obvious error. The Agreement should be varied to correct these errors. The varied Agreement has been attached to this decision which the parties should refer to.[2] An order will be issued confirming that the Agreement has been varied effective 5 April 2024. [3]

DEPUTY PRESIDENT

[1] Virgin Australia Airlines Pty Ltd [2024] FWCA 985.

[2] AE523884-2.

[3] PR773209

Printed by authority of the Commonwealth Government Printer

<AE523884  PR773203>