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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CaseChat Overview and Summary

In the matter of Virgin Australia Regional Airlines Pty Ltd, trading as Virgin Australia Regional Airlines, an application was made to the Fair Work Commission seeking approval of a new enterprise agreement, specifically the Virgin Australia Regional Airlines Cabin Crew Agreement 2020. The applicant sought to implement this agreement to regulate the terms and conditions of employment for cabin crew members. The dispute arose as the existing agreement was due to expire, and both the employer and the employee representatives needed a new framework to govern their relationship moving forward.

The central legal issue before the Commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This included examining whether the agreement provided for a safety net of minimum terms and conditions, whether it was free from prohibited content, and whether it had been fairly negotiated. Additionally, the Commission needed to consider if the agreement contained appropriate dispute resolution mechanisms and if it complied with any relevant national employment standards.

The Fair Work Commission carefully reviewed the proposed agreement, taking into account submissions from both parties and relevant industry standards. The Commission determined that the agreement provided an appropriate safety net of minimum terms and conditions and was free from prohibited content. It was satisfied that the agreement had been fairly negotiated and contained adequate dispute resolution processes. Furthermore, the Commission found that the agreement complied with the national employment standards. Based on these findings, the Commission approved the Virgin Australia Regional Airlines Cabin Crew Agreement 2020.

In conclusion, the Fair Work Commission approved the Virgin Australia Regional Airlines Cabin Crew Agreement 2020, recognising it as a fair and reasonable agreement that meets the legislative requirements under the Fair Work Act 2009. This decision ensures that the cabin crew members of Virgin Australia Regional Airlines will be governed by a new enterprise agreement that provides a suitable safety net and appropriate dispute resolution mechanisms.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established