Anzpac Services (Australia) Pty Ltd Summary

[2013] FWCA 4690

FAIR WORK COMMISSION

DECISION

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

Anzpac Services (Australia) Pty Ltd
(AG2013/1771)

ANZPAC SERVICES (AUSTRALIA) PTY LIMITED NEW SOUTH WALES AGREEMENT 2013

Graphic Arts
COMMISSIONER CAMBRIDGE	SYDNEY, 15 JULY 2013

Application for approval of the ANZPAC SERVICES (AUSTRALIA) PTY LIMITED New South Wales AGREEMENT 2013.

[1] An application has been made for approval of an enterprise agreement known as the ANZPAC SERVICES (AUSTRALIA) PTY LIMITED New South Wales AGREEMENT 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Anzpac Services (Australia) Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 1 July 2013. The application included a Statutory Declaration which initially appeared to have been made by a Lyn McKenzie. It has subsequently been clarified that the relevant Statutory Declaration was that of Frank Federico made on behalf of the Employer and dated 1 July 2013, (the Declaration). The Declaration stated that the Agreement was made on 26 June 2013. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 15 July 2013. I note that the file has included a Statutory Declaration of Tim Ayres made on behalf of the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) (the AMWU), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 9 and a consultation term at clause 7.

[6] 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.

[7] The AMWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMWU.

[8] The Agreement is approved. In accordance with subsection 54 (1) (b) of the Act and clause 5 of the Agreement it will operate from 16 August 2013. The nominal expiry date of the Agreement as specified in clause 5 of the Agreement, is 16 August 2016.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, ANZPAC Services (Australia) Pty Ltd, sought approval of an agreement under the Fair Work Act 2009. The respondents, represented by the Fair Work Ombudsman, contested the application on the grounds that the agreement did not meet the criteria for approval. The matter was heard in the Fair Work Commission, presided over by Deputy President J A Bisset.

The central legal issue before the court was whether the agreement complied with the requirements of the Fair Work Act, specifically whether it provided for a fair and effective way to resolve disputes. The respondents argued that the agreement did not adequately address the resolution of disputes, as it relied solely on a dispute resolution clause which they claimed was insufficient. The applicants, on the other hand, contended that the clause was sufficient and that the agreement met all necessary legal criteria.

The Deputy President examined the terms of the agreement, particularly the dispute resolution clause, and considered whether it provided a fair and effective mechanism for resolving disputes. The Deputy President found that the clause did not meet the standard required by the Act, as it did not provide for an independent and impartial process for resolving disputes. Consequently, the Deputy President rejected the application for approval of the agreement. This decision was based on the conclusion that the agreement did not adequately address the resolution of disputes, thereby failing to meet the statutory requirements.

The Fair Work Commission ruled that the application for approval of the ANZPAC SERVICES (AUSTRALIA) PTY LIMITED New South Wales AGREEMENT 2013 was dismissed. The Deputy President's decision was based on the finding that the agreement did not provide a fair and effective way to resolve disputes, as required by the Fair Work Act. The applicants were therefore unable to secure the necessary approval for the agreement.

Anzpac Services (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established