DECISION

Fair Work Act 2009
s.185—Enterprise agreement

AGL Torrens Island Pty Ltd T/A AGL Torrens
(AG2019/3248)

AGL TORRENS ISLAND PTY LTD ENTERPRISE AGREEMENT 2019

Electrical power industry
COMMISSIONER LEE	MELBOURNE, 13 SEPTEMBER 2019

Application for approval of the AGL Torrens Island Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the AGL Torrens Island Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by AGL Torrens Island Pty Ltd T/A AGL Torrens. The Agreement is a single enterprise agreement.

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

[3] I note that clauses 15.2 and 24.1 of the Agreement provide that the Employer may deduct payment from an employee’s remuneration at the time of termination, or where the employee has performed jury service and has been paid by the Courts. In my view, the clauses may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved, and it does not represent a barrier to the approval of the Agreement.

[4] The Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Services Union of Australia (CEPU), the Australian Workers Union (AWU), Australian Municipal, Administrative, Clerical and Services Union (ASU), the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 19.1 - Annual Leave;

• Clause 20.3 - Personal Leave; and

• Clause 26 - Domestic Violence Leave.

However, noting clause 3.3 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 September 2019. The nominal expiry date of the Agreement is 13 February 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

AGL Torrens Island Pty Ltd, trading as AGL Torrens, applied for approval of the AGL Torrens Island Pty Ltd Enterprise Agreement 2019 before the Fair Work Commission. The dispute arose from the negotiation and approval process of the enterprise agreement under the Fair Work Act 2009. The Commission had to determine whether the agreement met the legal requirements for approval, including whether it was made in good faith and whether it provided for matters that could be the subject of an enterprise agreement.

The key legal issues were whether the agreement was genuinely negotiated, whether it contained terms that were within the scope of an enterprise agreement, and whether the process for approval was conducted in a manner that complied with the Fair Work Act. Specifically, the Commission examined whether there was evidence of genuine negotiation between the parties and whether the agreement contained all the necessary terms and conditions to be considered a valid enterprise agreement.

The Commission found that the enterprise agreement was genuinely negotiated and contained all the necessary terms to be considered valid. It was satisfied that the process for approval was conducted in accordance with the requirements of the Fair Work Act. The Commission concluded that the agreement met all the legal criteria for approval and approved it accordingly.

As a result, the Fair Work Commission granted approval of the AGL Torrens Island Pty Ltd Enterprise Agreement 2019. The agreement is now legally binding on the parties and will govern the employment conditions of the employees covered by the agreement.

AGL Torrens Island Pty Ltd T/A AGL Torrens

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established