AGL Torrens Island Pty Ltd

[2014] FWCA 5911

[2014] FWCA 5911

FAIR WORK COMMISSION

DECISION

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

AGL Torrens Island Pty Ltd
(AG2014/7028)

AGL TORRENS ISLAND PTY LTD ENTERPRISE AGREEMENT 2014

Electrical power industry
DEPUTY PRESIDENT BARTEL	ADELAIDE, 27 AUGUST 2014

[1] An application for approval of an enterprise agreement known as the AGL Torrens Island Pty Ltd Enterprise Agreement 2014 (the Agreement) has been made by AGL Torrens Island Pty Ltd (the employer). The application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is an application for a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) has identified two concerns regarding the approval of the Agreement. 1 The first concerns the provisions in Clause 2.3 and 2.4 dealing with the incidence and parties bound by the Agreement, which contemplate that employees who are covered by the Agreement can subsequently be removed from coverage by entering into a Common Law Employment Agreement/Contract, providing it complies with clause 2.4. Section 194 of the Act dealing with unlawful terms has been amended2 to make unlawful a term of an enterprise agreement that “provides a method by which an employee or employer may elect (unilaterally or otherwise) not to be covered by the agreement.”3

[3] The employer has provided an undertaking pursuant to s.190 of the Act which addresses this concern and which has the support of the union bargaining representatives. The undertaking is taken to be a term of the Agreement and it is appended to the Agreement as Schedule A.

[4] The second concern identified in the Statement issued by the Commission is that the Consultation provision of the Agreement does include the additional requirements of a Consultation term which became operative on 1 January 2014. 4 The employer and union bargaining representatives agree that in this circumstance the model consultation term will apply in accordance with s.205(2) of the Act. The Model Consultation term will become a term of the Agreement and is appended to the Agreement as Schedule B.

[5] 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.

[6] The Australian Municipal, Administrative, Clerical and Services Union (the ASU), the Australian Manufacturing Workers’ Union (the AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia - Electrical, Energy & Services Division, SA Branch (the CEPU), and the Association of Professional Engineers, Scientists and Managers Australia (APESMA) being bargaining representatives for the Agreement, have each given notice pursuant to 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 the ASU, the AMWU, the CEPU and APESMA.

[7] The Australian Workers’ Union (the AWU) was also a bargaining representative for the Agreement. The AWU was reminded that a Form F18 had not been received in the statement issued by the Commission on 14 August 2014. At the hearing of this matter on 25 August 2014, the AWU was represented by the ASU but apparently provided no instructions in relation to the Form F18. The Commission advised the ASU that the AWU had until close of business that day to file the form. Nothing was received and a phone message left by my Chambers on 26 August was not responded to.

[8] The Agreement is approved. In accordance with s.54(1) of the Act the Agreement will operate from 3 September 2014. The nominal expiry date of the Agreement is 30 June 2018.

DEPUTY PRESIDENT

 1   Statement issued to the parties dated 14 August 2014.

 2 Schedule 4, Part 3, Item 4 of the Fair Work Amendment Act 2012, commencing 1 January 2013.

 3   Subsection 194(ba) of the Act.

 4   Sections 205(1)(a) and (1A) of the Act.

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