AGL Energy Limited Summary

[2023] FWCA 2527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

AGL Energy Limited

(AG2023/2534)

THE AGL NEWCASTLE GAS STORAGE FACILITY ENTERPRISE AGREEMENT 2023

Oil and gas industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 11 AUGUST 2023

Application for approval of the AGL Newcastle Gas Storage Facility Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the AGL Newcastle Gas Storage Facility Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by AGL Energy Limited (Employer). The Agreement is a single enterprise agreement.

Coverage of employee organisation(s)

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

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 18 August 2023. The nominal expiry date of the Agreement is 31 May 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (FW Act), that commenced operation on 6 June 2023. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was before 6 June 2023. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made after 6 June 2023.

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CaseChat Overview and Summary

In the Fair Work Commission, the applicant, AGL Energy Limited, sought approval of the AGL Newcastle Gas Storage Facility Enterprise Agreement 2023. This application was brought in accordance with section 234 of the Fair Work Act 2009. The application pertained to a proposed enterprise agreement between the applicant and certain employees of the company, specifically those working at the Newcastle Gas Storage Facility. The dispute centred on the terms and conditions of employment for these employees, including matters such as wages, hours of work, leave entitlements, and other employment-related provisions.

The primary legal issues that the Commission had to address were whether the proposed agreement complied with the requirements of the Fair Work Act 2009 and whether it met the standards of the Fair Work (Registered Organisations) Act 2009. This involved an assessment of whether the agreement contained all the mandated terms and conditions as stipulated by the Act and whether it was negotiated in good faith. Additionally, the Commission needed to ensure that the agreement did not have the effect of undermining the protections afforded to employees under the Fair Work Act 2009.

The Fair Work Commission found that the proposed enterprise agreement was compliant with the requirements of the Fair Work Act 2009. The Commission noted that the agreement contained all the mandatory terms and conditions, and it was negotiated in good faith. Furthermore, the agreement did not undermine the protections provided to employees under the Act. Consequently, the Commission approved the AGL Newcastle Gas Storage Facility Enterprise Agreement 2023. This decision allowed the agreement to come into effect on the date specified within the agreement, providing a clear framework for the terms and conditions of employment for the employees covered by the agreement.

AGL Energy Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established