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[7]
austlii:cth/FWCA/2025/2213
General information, not legal advice.
FWCA
2025-07-04
Original judgment source is linked above.
s 185 - Enterprise agreement
VIRGIN AUSTRALIA REGIONAL AIRLINES STORES ENTERPRISE AGREEMENT 2025
Application for approval of the Virgin Australia Regional Airlines Stores Enterprise Agreement 2025.
[1] Virgin Australia Regional Airlines Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Virgin Australia Regional Airlines Stores Enterprise Agreement 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.
[2] The Applicant has provided written undertakings. 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.
[3] In compliance with s 190(4) of the Act, the bargaining representatives' views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.
[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.
[5] I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):
(a) Clause 33.2 states that a shift worker is entitled to accrue 190 hours and a day worker is entitled to accrue 152 hours of annual leave. This appears to be inconsistent with s 87(1) of the Act which specifies annual leave in weeks.
(b) Clause 34.7(a) provides that a team member shall, as soon as reasonably practicable, and prior to the commencement of normal duty, inform VARA of the inability to attend for duty and, as far as practicable, state the nature of the injury or illness and the estimated duration of the absence. This appears to be inconsistent with s 107(2)(a) of the Act which provides that notice must be given to the employer as soon as practicable (which may be a time after the leave has started).
(c) Clause 34.7(b) states that a medical certificate, statutory declaration or other evidence satisfactory to VARA shall be produced for personal leave absences. This appears to raise inconsistency with s 107(3) of the Act which provides that an employee who has given his or her employer notice of the taking of leave under Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person.
(d) Clause 34.8(a) appears to limit access to carer's leave to those occasions where the employee would be responsible for the sole care and support of the person concerned. There does not appear to be a similar restriction in Subdivision A or B of Division 7 of Part 2-2 of Chapter 2 of the Act.
(e) The entitlement to compassionate leave provided by clause 35.1 does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee's immediate family or household as per s 105(1)(b) of the Act or after the employee or the employee's spouse or de facto partner has a miscarriage as per s 105(1)(c) of the Act.
(f) Clause 35.4 states 'this clause does not apply to casuals' in relation to compassionate leave. Clause 35 of the Agreement mentions a maximum of 3 days per occasion (i.e., does not specify that this is paid / unpaid), and a further 2 days unpaid leave (subject to clause 35.2). This appears to raise inconsistency with of the Act which provides for casual employees, compassionate leave is unpaid leave.
[6] However, I am satisfied that with the undertakings provided, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
[7] The Transport Workers' Union of Australia (the organisation), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.
[8] The Agreement was approved on 4 July 2025 and, in accordance with s 54, will operate from 11 July 2025. The nominal expiry date of the Agreement is 4 July 2029.
Printed by authority of the Commonwealth Government Printer
(g) Clause 39 indicates that an employee may be required to work a public holiday; however, does not appear to specify that an employee may refuse to work a public holiday where the request by the employer is unreasonable or the refusal is reasonable. This may raise an inconsistency with s 114(3) of the Act.
(h) Clause 31.1(e) seems to state that failure to return VARA property will entitle it to withhold the monetary value of such property (with due consideration to normal wear and tear) from the Team Member's final pay due on termination until the Team Member returns such property. This may restrict an employee's entitlement to payment of NES entitlements upon termination of employment.
(i) Clause 32.3(d) provides that severance pay is not payable where the employer finds suitable alternative employment; however, the provision is not subject to an application under s 120 of the Act.