Application by SGS Australia Pty Ltd - [2015] FWC 1302

[2015] FWC 1302

DECISION

Fair Work Act 2009
s.185—Enterprise agreement
SGS Australia Pty Ltd
(AG2014/8554)
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 27 FEBRUARY 2015

Application for approval of the SGS Australia Pty Ltd Enterprise Agreement 2014; not

satisfied employees genuinely agreed as employer did not comply with s. 180(2); application

for approval dismissed.

Introduction

[1] On 7 August 2014 SGS Australia Pty Ltd (SGS) made an application pursuant to s.

185 of the Fair Work Act 2009 (Act) for the approval of a single enterprise agreement titled

“SGS Australia Pty Ltd Enterprise Agreement 2014” (Agreement). A statutory declaration

completed by Mr Steve McCartney the WA Secretary of the Automotive, Food, Metals,

Engineering, Printing and Kindred Industries Union (AMWU) supporting the application for

approval was also filed with the application.

[2] By correspondence dated 17 October 2014 the National Office of the AMWU advised

my Chambers that despite the statutory declaration filed in support of the application, the

AMWU had a number of concerns about the Agreement relating to its scope and whether the

Agreement passed the better off overall test. Consequently I convened a number of hearings

to deal with the issues raised by the AMWU. SGS and the AMWU have also exchanged

correspondence about the issues raised and SGS has provided certain undertakings to the

Commission designed to meet the issues raised by the AMWU. Pursuant to directions issued

by me, the parties also filed written submissions concerning the issues raised. It is

unnecessary for me to canvass each issue that was raised and it is sufficient for present

purposes to indicate that many of the issues raised by the AMWU have been resolved by

agreement.

[3] I have also found it unnecessary to resolve each of the outstanding issues raised by the

AMWU for the purposes of determining whether the Agreement can be approved because I

am not satisfied that each of the preapproval requirements has been satisfied and consequently

I am not satisfied that the Agreement has been genuinely agreed (within the meaning of

section 188) to by the employees covered by the Agreement for the purposes of s. 186(2).

This is because SGS as the employer covered by the Agreement has not complied with s.

180(2). These are my reasons for that conclusion.

Consideration

[2015] FWC 1302

Relevant legislative provisions

[4] Section 180 of the Act sets out some of the preapproval steps that must be completed

before employees are asked to vote to approve an agreement. Relevantly s. 180(2) provides as

follows:

Employees must be given copy of the Agreement etc.
(2) The employer must take all reasonable steps to ensure that:
(a) during the access period for the Agreement, the employees (the relevant employees)
employed at the time who will be covered by the Agreement are given a copy of the following
materials:
(i) the written text of the Agreement;
(ii) any other material incorporated by reference in the Agreement; or

(b) the relevant employees have access, throughout the access period for the Agreement, to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 1302
Decision Date: 27 February 2015

CaseChat Overview and Summary

In the case of SGS Australia Pty Ltd, the Fair Work Commission was tasked with determining whether the SGS Australia Pty Ltd Enterprise Agreement 2014 (Agreement) could be approved under the Fair Work Act 2009. The primary issue was whether the employer had complied with section 180(2) of the Act, which requires the employer to ensure employees covered by the Agreement are provided with a copy of the Agreement and any incorporated material, or have access to such material throughout the access period. The court was also required to decide if the Agreement had been genuinely agreed to by the employees, as required under section 186(2)(a) of the Act.

The court found that while the employer had taken reasonable steps to provide employees with a copy of the Agreement, it had failed to ensure that employees had access to the incorporated policies that were referenced in the Agreement. Specifically, the policies related to leave entitlements, health and safety obligations, and fitness for work. The court determined that these policies were incorporated into the Agreement, meaning that a failure to comply with these policies would constitute a breach of the Agreement. However, there was no evidence that the employer had taken reasonable steps to provide employees with copies of these policies or ensure they had access to them during the access period. As a result, the court concluded that the employees had not genuinely agreed to the Agreement, and the application for approval was dismissed.

The court's reasoning was that the incorporation of such policies into the Agreement placed additional burdens on the employer without any clear benefit to the employees. The court suggested that these policies could be more appropriately dealt with through other means, such as employment contracts or specific directions to employees. Given that the employer had not complied with the preapproval requirements, the court found it unnecessary to address other issues raised by the AMWU, such as the scope of the Agreement and whether it passed the better off overall test. Consequently, the application to approve the Agreement was dismissed.

Orders