ZIP Airport Services Pty Ltd
[2023] FWCA 750
•10 MARCH 2023
| [2023] FWCA 750 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.222—Enterprise agreement
ZIP Airport Services Pty Ltd
(AG2023/403)
Cairns Airport Refuelling Service Pty Ltd Enterprise Agreement 2018
| Road transport industry | |
| COMMISSIONER HUNT | BRISBANE, 10 MARCH 2023 |
Application for termination of the Cairns Airport Refuelling Service Pty Ltd Enterprise Agreement 2018
On 22 February 2023, ZIP Airport Services Pty Ltd (the Employer) made an application pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Cairns Airport Refuelling Service Pty Ltd Enterprise Agreement 2018 (the Agreement).
The Agreement covers the following two named entities; Viva Energy Group and Cairns Airport Refuelling Service Pty Ltd. In the Form F24 application, the Employer advised the following:
“The Agreement covers employees engaged in the refuelling of aircraft at Cairns Airport, operation of the Cairns Airport Joint User Hydrant Installation (JUHI), and other related operations.
On 1 April 2022 the Viva Energy Group commenced as the operator of the JUHI at Cairns Airport. It was and continues to be run as a joint venture between the Viva Energy Group and Ampol, which both supply fuel to various aircraft providers at Cairns Airport.
The employees covered by the Agreement are employed in the role of JUHI Operators. They were previously employed via a now deregistered company Cairns Airport Refuelling Service Pty Ltd under the control of Ampol. The employees transitioned to Viva Energy by transferring their employment to Viva Energy’s wholly owned subsidiary, Zip Airport Services Pty Ltd on 1 April 2022.
The Cairns Airport Refuelling Service Pty Ltd Enterprise Agreement 2018 (Agreement) transitioned with their employment via the transfer of business provisions under the Fair Work Act 2009.”
I am therefore satisfied that the Employer is an employer covered by the Agreement, for the purpose of Subdivision C of Division 7 of Part 2-4 of the Act, and can therefore make this application.
Section 223 of the Act sets out the conditions which, if established, require the Commission to terminate the Agreement pursuant to s.222 of the Act. Section 223 provides as follows:
“223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, he FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and
(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and
(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and
(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”
The application was supported by a Form F24A statutory declaration made by Ms Georgina Fay Elliott (professionally known as Georgina Fay Porter), Workplace Relations Manager of the Employer, which declared, amongst other things, that the three employees covered by the Agreement were notified of the time and place of the vote, that the vote would be taken by secret ballot, and that of the two votes cast, both employees approved the termination of the Agreement.
As part of its application, the Employer provided the Commission a copy of an employee’s correspondence which stipulated as follows:
“Hello Commissioner,
My name is [redacted], I currently work for Zip Airport Services Pty Ltd and we recently had a vote to terminate the Cairns Airport Refuelling Service Pty Ltd Enterprise Agreement and agree to a non-Agreement covered employment with Viva Energy.
An oversite by myself lead me to miss the voting timeline and I was unable to cast my vote in regards to the termination of the CARS Pty Ltd Enterprise Agreement. I understand this cannot be undone.
I would like to take this opportunity to agree that I would like to terminate the Cairns Airport Refuelling Service Pty Ltd Enterprise Agreement and take up employment with Viva Energy Australia Pty Ltd under non-Agreement employment.
I have read all the information provided and been given every opportunity to voice any concerns, I understand I could have vote in any way that I felt best suited my situation.
I had every intention of voting for the termination of the Cairns Airport Refuelling Service Pty Ltd Enterprise Agreement. This is my way of confirming my preference to you.
Thank you for your consideration
Kind Regards,
[Redacted]
([redacted])”
While I am grateful for the communication from the above employee covered by the Agreement, I am bound to determine the application noting that only two employees voted, and not three. Only two valid votes were cast.
There is some contention as to which modern award will apply if the Agreement is terminated. The Employer has informed the three employees that it had considered the Airline Operations – Ground Staff Award 2020 would apply, however it is prepared to treat the applicable award covering employees as the Road Transport and Distribution Award 2020.
In the decision to approve the Agreement, the Transport Workers’ Union of Australia (TWU) is noted as an employee organisation covered by the Agreement. Therefore, s.223(d) is a relevant factor.
Accordingly, I sought the views of the TWU as to the termination of the Agreement for the purpose of s.223(d) of the Act. On 7 March 2023, the following correspondence was received:
“Dear Associate,
We refer to the application materials filed by ZIP Airport Services Pty Ltd on 22 February 2023 and the Commission’s email correspondence below of 3 March 2023.
We confirm the TWU does not object to the termination of the Cairns Airport Refuelling Service Pty Ltd Enterprise Agreement 2018 on the basis that:
· All of the employees who were covered by the Agreement support its termination;
· The issues raised by the TWU in its email correspondence of 23 November 2022 in the previous application filed by ZIP Airport Services appear to have now been addressed in the January 2023 PPT Presentation to employees that was attached to the 2 February 2023 email to employees; and
· This includes that the Grade 9 Transport Worker classification under the Road Transport and Distribution Award 2020 will cover employees in addition to their contract of employment and the NES, rather than as Level 4 Storepersons under the Airline Operations - Ground Staff Award 2020.
However, it is noted that the employment contract dated 13 October 2022 that is attached to the 2 February 2023 email to employees still refers to the Airline Operations Award at paragraph 4 on the first page, and also does not specify that where there are inconsistencies between the employment contract and the NES that the NES prevails. It is unclear if an updated contract has since been provided to the relevant employees. The TWU submits that for clarity, prior to termination of the Agreement an undertaking should be provided by the Applicant that it will provide updated employment contracts referring to the Road Transport Award as the underpinning Award and including an NES precedence clause to the existing employees, and that any Cairns JUHI Operators employed moving forward will also receive contracts in that vein.
Please advise if the Commission requires any further information from the TWU with respect to this application.
Kind regards,
Phuong Nguyen
Industrial Officer”
It is noted that the Employer provided the following information to employees voting to terminate the Agreement:
“VEA previously advised that the Company’s view was that the correct underlying award and classification was the Airline Operations – Ground Staff Award 2020 as a Level 4 Storeperson, which is consistent with the Company’s treatment of the Brisbane JUHI operators.
However, to avoid further disputes on this point, the Company is willing to continue to apply the Aerodrome Attendant classification in Road Transport and Distribution Award 2020 (‘Award’) as the underlying Award for the Cairns JUHI Operators
Employees are substantially better off overall under the VEA contractual terms and conditions than under either award.”
As to which modern award will apply if the Agreement is terminated, the answer is a matter of fact which need not be traversed in consideration of this application. The three employees will be covered by one award or the other, and any statement by any party, either the Employer or the TWU, is irrelevant, and frankly cannot be relied upon. If there is any contest as to which modern award is the correct award covering employees, such matter will be ultimately determined by a court or tribunal.
To the extent that the employees have been provided with a common law agreement to govern their employment terms, it will be read in conjunction with the relevant modern award applicable for the work performed.
Having regard to my views above, I do not consider it necessary in determining this application to request an undertaking from the Employer to the relevant employees for me to be satisfied that the consideration in s.223 of the Act have been met.
Further, in respect of the concerns of the TWU relevant to the National Employment Standards (NES), the NES cannot be eroded. Where a contract contains terms that are less favourable than those provided in the NES, these terms would have no effect. The NES shall always prevail.
Conclusion
In consideration of the material before me, including the statutory declaration and the supporting material, I am satisfied that the requirements of s.223 of the Act have been met. In accordance with s.223, I must terminate the Agreement. The application to terminate the Agreement is approved.
The Employer has not nominated a preferred date for the termination of the Agreement.
Having regard to s.227 of the Act, the termination will operate from the day of this decision, being 10 March 2023.
COMMISSIONER
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