Virgin Australia Regional Airlines Pty Ltd T/A Virgin Australia Regional Airlines

[2021] FWCA 204

[2021] FWCA 204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Virgin Australia Regional Airlines Pty Ltd T/A Virgin Australia Regional Airlines
(AG2020/4025)

VIRGIN AUSTRALIA REGIONAL AIRLINES CABIN CREW AGREEMENT 2020

Airline operations
COMMISSIONER JOHNS	SYDNEY, 18 JANUARY 2021

Application for approval of the Virgin Australia Regional Airlines Cabin Crew Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Virgin Australia Regional Airlines Cabin Crew Agreement 2020 (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 Regional Airlines Pty Ltd T/A Virgin Australia Regional Airlines. The Agreement is a single enterprise agreement.

[2] 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] The Flight Attendants’ Association of Australia and the Transport Workers’ Union 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) I note that the Agreement covers the organisations.

[4] A query has been raised about stayed progression through pay point classifications under clause 4.1(c)(2). I am content that the clause is not discriminatory and unlawful under s.195(1) of the Act. It also does not give rise to a concern in relation to the Better Off Overall Test because clause 14.2 of the Aircraft Cabin Crew Award (the Award) does not appear to provide progression through a pay point structure, and the stayed progression therefore does not represent a detriment when compared to the Award.

[5] The Agreement at clause 3.9(e) contains a provision that severance payments must not exceed the amount which an employee would have earned if their employment had proceeded to the employee’s normal retirement date. It seems likely that this term discriminates against employees on the basis of age.  The parties should be aware that, therefore, it may not be enforceable.  The fact that it may not be enforceable is, however, not an impediment to approval of the Agreement.

[6] There are a number of clauses that appear inconsistent with the National Employment Standards, namely clause 3.8(b), clause 3.9(e), and clause 5.2(i). However, the Agreement has an effective NES precedence clause at clause 2.5(b).

[7] Clause 1.8 provides that to meet unanticipated changes to flying destinations and schedules, the employer may, following agreement with the joint consultative committee, implement a facilitative agreement which requires arrangements which are not possible or exceed the limits outlined in the Agreement. If the intention of the clause is to provide a mechanism to vary the Agreement, the parties need to understand that any such attempt to do so will likely not be effective. Effective variations to Agreements must made under Division 7, Subdivision A of the Act.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 January 2021. The nominal expiry date of the Agreement is 30 September 2022.

COMMISSIONER

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