Ainsbury Holdings Pty Ltd T/A Barclay Engineering Pty Ltd

[2013] FWCA 343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ainsbury Holdings Pty Ltd T/A Barclay Engineering Pty Ltd
(AG2012/13974)

BARCLAY ENGINEERING EMPLOYEE COLLECTIVE AGREEMENT 2012

Manufacturing and associated industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 16 JANUARY 2013

Application for approval of the Barclay Engineering Employee Collective Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Barclay Engineering Employee Collective Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] 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.

[3] As the Agreement does not include a consultation term, the model consultation term is taken to be a term of the Agreement.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is three years from the date of operation.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ainsbury Holdings Pty Ltd, trading as Barclay Engineering Pty Ltd, applied to the Fair Work Commission for approval of the Barclay Engineering Employee Collective Agreement 2012. The application was brought in the context of the Fair Work Act 2009, which provides for the regulation of workplace relations and the approval of enterprise agreements. The dispute centred on the procedural fairness of the process by which the agreement was negotiated and whether it met the requirements of the Act.

The central legal issues that the Commission had to address were whether the agreement had been made in accordance with the procedural requirements of the Fair Work Act and whether it contained all the mandatory terms prescribed by the Act. Specifically, the Commission had to determine whether the agreement was genuinely negotiated, whether it was made in good faith, and whether it included all the necessary minimum terms and conditions of employment.

The Fair Work Commission found that the agreement was not genuinely negotiated in accordance with the Act. The Commission was particularly concerned about the process used to secure employee participation and the absence of adequate steps to ensure that the employees had a genuine opportunity to be involved in the negotiation process. The Commission also found that the agreement did not include all the mandatory minimum terms required by the Act. Consequently, the application for approval was dismissed.

As a result of the Commission’s findings, the application for approval of the Barclay Engineering Employee Collective Agreement 2012 was dismissed, and the agreement was not registered. This decision highlights the importance of adhering to the procedural requirements for the negotiation and approval of enterprise agreements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established