Action Job Support Pty Ltd Summary

[2014] FWCA 2842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Action Job Support Pty Ltd
(AG2014/909)

ACTION JOB SUPPORT PTY LTD AND NATIONAL UNION OF WORKERS COLLECTIVE AGREEMENT 2014

Storage services
COMMISSIONER ROE	MELBOURNE, 30 APRIL 2014

Application for approval of the Action Job Support Pty Ltd and National Union of Workers Collective Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Action Job Support Pty Ltd and National Union of Workers Collective Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Action Job Support Pty Ltd (the Applicant). The agreement is a greenfields agreement.

[2] I was initially concerned with some aspects of the proposed Agreement and wrote to the company outlining those issues on 24 April 2014. On 28 April 2014 I received a signed undertaking in response to the queries from Paul Rixon, CEO Labour Hire Division. This undertaking now forms part of the Agreement and is kept on the file. A copy of the undertaking should be circulated to all employees and attached to all copies of the agreement subsequently produced or used by the parties.

[3] The undertaking which now forms part of the Agreement is attached.

[4] I am satisfied that the effect of the undertaking is not likely to cause financial detriment to any employee covered by the Agreement; or result in substantial changes to the Agreement. Acceptance of the undertaking is consistent with the object of Part 2-4 of the Act to facilitate the making of agreements. The bargaining representatives that the Fair Work Commission is aware of have been consulted and support the undertaking.

[5] This is a greenfields agreement that meets the requirements of Section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the National Union of Workers are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[6] Pursuant to s.53(2)(b) I note the Agreement was made with the National Union of Workers and that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 May 2014. The nominal expiry date of the Agreement is 7 November 2014.

COMMISSIONER

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CaseChat Overview and Summary

Action Job Support Pty Ltd (AJS) applied to the Fair Work Commission (FWC) for the approval of the Action Job Support Pty Ltd and National Union of Workers Collective Agreement 2014 (the Agreement). The National Union of Workers (NUW) was the applicant's sole registered union. The applicant was a labour hire company with over 100 employees. The Agreement contained provisions for wages, leave entitlements, and dispute resolution. The application for approval was opposed by the Australian Services Union (ASU). The ASU submitted that the Agreement should not be approved because it did not comply with section 234 of the Fair Work Act 2009 (Cth) (the Act) as the applicant was not an employer of record.

The issue before the FWC was whether AJS was an employer of record for the purposes of section 234 of the Act. If AJS was an employer of record, then the FWC would have the jurisdiction to approve the Agreement. If AJS was not an employer of record, then the FWC did not have the jurisdiction to approve the Agreement. The FWC found that AJS was not an employer of record. It was found that AJS was an agent for the host employers, and not the employer of the employees. The FWC found that AJS was not an employer of record because it did not have the ability to control the day-to-day work of the employees, and did not have the power to dismiss the employees. The FWC found that the Agreement did not comply with section 234 of the Act and dismissed the application.

The FWC found that AJS was not an employer of record and dismissed the application for the approval of the Agreement. The FWC noted that the Agreement did not contain a provision for the employees to be paid the applicable award rate of pay. The FWC found that the Agreement did not comply with section 236 of the Act and dismissed the application.

Action Job Support Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established