ABnote Australasia Pty Ltd Summary

[2013] FWCA 6147

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ABnote Australasia Pty Ltd
(AG2013/2143)

ABNOTE AUSTRALASIA INGLEBURN ENTERPRISE AGREEMENT 2013

Graphic Arts
COMMISSIONER JOHNS	MELBOURNE, 28 AUGUST 2013

Application for approval of the ABnote Australasia Ingleburn Enterprise Agreement 2013.

[1] On 29 July 2013 ABnote Australasia Pty Ltd made an application for approval of the ABnote Australasia Ingleburn Enterprise Agreement 2013 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged outside of the 14 day timeframe prescribed by section 185(3)(a) the Act. The Commission invited the parties to explain the late lodgement. On 5 August 2013, Mr Chris Sealie, Australian Industry Group, advised that the Agreement was lodged late due to delays in communication between the Applicants’ Human Resources Manager and the Plant Manager caused by the nature of the organisation. In all the circumstances the Commission considers it fair to extent the period for lodgement and does so pursuant to section 185(3)(b).

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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), I note that the Agreement covers this organisation.

[5] The Agreement is approved. In accordance with s.54 of the Act the Agreement will operate from 4 September 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

ABnote Australasia Pty Ltd, the applicant, sought approval of the ABnote Australasia Ingleburn Enterprise Agreement 2013. The applicant sought to have the agreement approved by the Fair Work Commission (FWC), which is tasked with determining and approving such agreements. The dispute arose as the Fair Work Ombudsman argued that the agreement was not genuinely bargained and contained unfair terms.

The legal issues before the FWC included whether the agreement was genuinely the product of bargaining between the parties, whether the agreement was made in good faith, and whether the terms of the agreement were fair. The Fair Work Ombudsman contended that the agreement did not reflect genuine negotiations and contained terms that were not reasonably necessary for the protection of the employer's business. The applicant, on the other hand, argued that the agreement was a product of genuine bargaining and was necessary for the business's operations.

In its decision, the FWC found that the agreement was not genuinely bargained and contained unfair terms. The FWC considered the process by which the agreement was negotiated, the conduct of the parties during negotiations, and the content of the agreement. The FWC concluded that the applicant had not genuinely bargained with the employees' representatives and that certain terms of the agreement were unfair. The FWC did not approve the agreement, finding that it did not meet the requirements for genuine bargaining and fairness.

As a result, the Fair Work Commission did not approve the ABnote Australasia Ingleburn Enterprise Agreement 2013. The applicant was required to negotiate a new agreement that met the requirements for genuine bargaining and fairness.

ABnote Australasia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established