AFGRI Equipment Australia Pty Ltd T/A AFGRI Equipment
[2023] FWCA 2356
•1 AUGUST 2023
| [2023] FWCA 2356 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
AFGRI Equipment Australia Pty Ltd T/A AFGRI Equipment
(AG2023/1727)
AFGRI ENTERPRISE AGREEMENT 2023
| Business equipment industry | |
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 AUGUST 2023 |
Application for approval of the AFGRI Enterprise Agreement 2023
AFGRI Equipment Australia Pty Ltd (Employer) made an application pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the AFGRI Enterprise Agreement 2023 (Agreement).
Mr Carter, an employee bargaining representative, representing himself, filed a Form F18A and sought to be heard on the basis of the following concerns he had with the Agreement which have been distilled from the Form F18A, submissions filed on 11 July 2023 and the determinative conference on 28 July 2023. First, Mr Carter says the Employer did not act in accordance with the good faith bargaining principles as the Employer did not, among other things, thoroughly respond to issues raised by the bargaining representative. Apart from no evidence being adduced to support this contention, the objection is misconceived because it proceeds on a misreading of the requirements in s 187 of the Act, and a misunderstanding of the requirements of the Act vis-à-vis bargaining for an agreement. The objection in substance amounted to no more than a complaint that the Employer did not agree with or accede to representations about the Agreement and its contents made by Mr Carter, and he made no application for any bargaining orders at the time.
Second, Mr Carter contended that the employee group was not fairly chosen because there was no group of representatives chosen to negotiate the Agreement before it was presented to employees and therefore the Agreement was not genuinely agreed. This objection is also misconceived as the fairly chosen requirement in s 186 is concerned with the fair coverage of an agreement, not with representation of employees or group of employees in bargaining.
Third, Mr Carter contended that the Employer did not satisfactorily explain the Agreement to the employees, because some rates of pay for some classifications in the Agreement are lower for those for which provision is made under the AFGRI Enterprise Agreement 2012 (2012 agreement). And so, Mr Carter contends that employees were misinformed about the difference between the 2012 agreement and the Agreement. On Mr Carter’s own account, he was not misled, and no evidence was adduced that any other employee was misled. Moreover, the Employer did not suggest to employees that there was a connection between the 2012 agreement rates and the rates in the Agreement. It did not make any comparison between the 2012 agreement rates and the rates in the Agreement. That which the Employer proposed, and the voting employees by majority accepted, was the rates of pay specified in the Agreement. I do not therefore accept that employees were misinformed or misled.
However a matter of substance raised by Mr Carter relates to the explanation schedule provided to employees during the access period which incorrectly stated that the undertaking which is a term of the 2012 agreement provides that “31 July until the nominal expiry date, the wage rate will increase by the greater of (i) 2% or (ii) Yearly CPI for Perth” [emphasis in submissions].[1] Rather, the 2012 agreement undertaking provides that such increases apply “during the term of the Agreement”, not until the nominal expiry date. Mr Carter contended that employees may have been misled and I agree. This is a matter that raises reasonable grounds for believing that the employees may not have genuinely agreed to the Agreement.
The Employer has provided written undertakings addressing both this concern and others I had earlier raised in correspondence with the Employer. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings address my concerns, that they 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.
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.
The following provisions are likely to be inconsistent with the National Employment Standards (NES):
· Clause 36 – Request for flexible work arrangements; and
· Clause 25 – Compassionate leave.
However, noting clause 3.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s 54 of the Act, will operate from 8 August 2023. The nominal expiry date of the Agreement is 1 August 2027.
DEPUTY PRESIDENT
Annexure A
[1] Applicant’s submissions in response to Form F18A, 49
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