DECISION

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

AKD NSW Pty Ltd
(AG2019/3499)

AKD TUMUT AGREEMENT 2019-2022

Manufacturing and associated industries
DEPUTY PRESIDENT BULL	SYDNEY, 1 NOVEMBER 2019

Application for approval of the AKD Tumut Agreement 2019-2022.

[1] An application has been filed by AKD NSW Pty Ltd(the applicant) for the approval of an enterprise agreement known as the AKD Tumut Agreement 2019-2022 (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 as per s.172(2) of the Act.

[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] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal and Plumbing Allied Services Union of Australia (CEPU), being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the CFMMEU and the CEPU.

[4] The Agreement’s consultation term was not in accordance with s.205(1) of the Act as it does not specifically consider variation to regular rosters and ordinary hours. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. A copy of the model consultation term is attached at the end of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

AKD NSW Pty Ltd was the applicant in the Federal Circuit Court, seeking approval of the AKD Tumut Agreement 2019-2022. The agreement in question was a workplace agreement between AKD and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The CFMEU contested the application, arguing that the agreement did not meet the necessary requirements under the Fair Work Act 2009.

The central legal issues before the court were whether the agreement was a genuine enterprise agreement and whether it was appropriately made without undue influence or coercion. The court needed to consider the definition of a genuine enterprise agreement and whether the agreement satisfied the criteria set out in the legislation. Additionally, the court examined whether the agreement was made in a fair and reasonable manner, considering the bargaining process and the context in which it was formed.

The court determined that the agreement was genuinely an enterprise agreement, as it covered employees within a single enterprise and included terms relating to their employment. The court also found that the agreement was made without coercion, as it resulted from a genuine negotiation process between the parties. The evidence presented indicated that the CFMEU had engaged in meaningful bargaining and that the agreement reflected the outcomes of those discussions. Consequently, the court approved the AKD Tumut Agreement 2019-2022.

The final orders of the court were that the AKD Tumut Agreement 2019-2022 be approved as a genuine enterprise agreement under the Fair Work Act 2009. The agreement was to be registered with the Fair Work Commission, and the terms would apply to the relevant employees within the specified period. The decision reinforced the importance of ensuring that workplace agreements are genuinely negotiated and meet the statutory requirements for approval.

AKD NSW Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established