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[27]
austlii:cth/FWCA/2025/2825
General information, not legal advice.
FWCA
2025-08-22
Original judgment source is linked above.
s.185 - Enterprise agreement
MENZIES AVIATION AUSTRALIA & THE TWU - RAMP & CARGO ENTERPRISE AGREEMENT 2024
Application for approval of the Menzies Aviation Australia & The TWU - Ramp & Cargo Enterprise Agreement 2024
[1] Menzies Aviation Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Menzies Aviation Australia & The TWU - Ramp & Cargo Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
[2] The Agreement will apply to employees who are covered by the Airline Operations - Ground Staff Award 2020 (the Award).
[3] The F16 Application submitted by the Employer indicates that there are four employers. However, only one F17 was lodged. Rule 32(3) of the Fair Work Commission Rules 2024 (the FW Rules) states that each employer that is to be covered by an agreement must lodge a statutory declaration in support of the application for approval within 14 days after the day on which the agreement is made. I am satisfied that it is appropriate to dispense with this requirement pursuant to rule 7 of the FW Rules.
[4] The F16 Application submitted by the Employer did not include an authority to sign from the signatory. The Employer provided an amended F16 to address this issue. Consequently, I consider this issue resolved.
Notice of Employee Representational Rights (NERR)
[5] The NERR was emailed to relevant employees on 23 April 2024. The Employer has provided copies of the NERR provided and the covering notification emails. Having regard to this material, I am satisfied that the NERR was provided in its prescribed form and time.
Agreement access and notification of time, place and method of vote
[6] Voting for the Agreement commenced on 23 June 2025. The notification of time, place and method of vote occurred on 16 June 2025. Further, a cohort of employees received the Agreement on 16 June 2025. This was only 6 clear days prior to the commencement of voting.
[7] The Employer provided submissions that the TWU, as the bargaining representative, agreed to a shorter access period in writing as permitted by item 16(b) of the Statement of Principles. A copy of the relevant email from TWU of 16 June 2025 was provided for my consideration.
[8] Based on these submissions, I am satisfied that the Employer has complied with the Statement of Principles of Genuine Agreement as the Employer:
provided employees with a reasonable opportunity to consider the proposed enterprise agreement before voting on it, so that the employees could vote in an informed manner; and
informed the employees of the time, place and method for the vote within a reasonable time before the day on which voting commenced.
[9] The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. 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. A copy of the model flexibility term can be found in Annexure B of the Agreement.
[10] Clause 44 of the Agreement deals with superannuation. The Commission raised a concern with the Employer that the form will be pre-filled with the Employer's default superannuation fund, so that employees may not be provided with a genuine opportunity to nominate their own fund.
[11] The Commission raised a concern with the Employer that apprentices may not be better off overall under the Agreement. The Employer submitted that it does not employ apprentices and does not intend to do so, so it is not reasonably foreseeable that it will employ an apprentice during the life of this Agreement. The TWU has not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ an apprentice during the life of this Agreement.
[12] The Commission raised a concern with the Employer that trainees may not be better off overall under the Agreement. The Employer submitted that it does not employ trainees and does not intend to do so, so it is not reasonably foreseeable that it will employ a trainee during the life of this Agreement. The TWU has not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ a trainee during the life of this Agreement.
[13] The Commission raised the following issues with the Employer which are relevant to whether employees are better off overall under the Agreement compared to the relevant Award:
The pay rates for employees classified as Clerical, Administration and Support Workers appear to fall below Award rates in all cohorts except for the Perth Cargo Operations, as well as Melbourne and Sydney Cargo and Ramp Operations. As such, it does not appear that employees covered under the Clerical, Administration and Support stream of the Award will be better off overall. The Employer submitted that that it does not employ any employees in Brisbane Ramp Operations, Cairns Ramp Operations, Darwin Ramp Operations or Melbourne AAS Ramp Operations within the scope of this Agreement who are classified within the Award's clerical, administrative and support stream. Any workers at those locations and in that stream are engaged under other instruments. Further, the Employer submitted that it does not intend to so engage any employee in those locations falling within that Award stream under this Agreement. The TWU has not expressed any disagreement in relation to this matter. I am therefore satisfied that it is reasonably foreseeable that the Employer will not employ such employees during the life of this Agreement.
2. Clause 5.8 in Schedule G of the Agreement provides an annualised salary clause which appears to attempt to provide for reconciliation, however, as it does not state the specific amount employees will receive above the Award rates, it does not appear to be in accordance with the decision in Shop, Distributive and Allied Employees Association v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery.[1] As such, it does not appear to provide enough protections for employees under an annualised salary arrangement.
[14] The Employer provided written submissions and undertakings to address the above issues. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
[15] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
[16] The TWU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.
[17] In accordance with s.201(2), I note that the Agreement covers the TWU.
[18] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 August 2025. The nominal expiry date of the Agreement is 31 December 2026.
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