DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Asaleo Care Australia Pty Ltd
(AG2018/1921)

ASALEO CARE AUSTRALIA PTY LTD - TRANSPORT WORKERS (SOMERTON DISTRIBUTION FACILITY) AGREEMENT 2018

Road transport industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 6 SEPTEMBER 2018

Application for approval of the Asaleo Care Australia Pty Ltd - Transport Workers (Somerton Distribution Facility) Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Asaleo Care Australia Pty Ltd - Transport Workers (Somerton Distribution Facility) Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Asaleo Care Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 September 2018. The nominal expiry date of the Agreement is 5 September 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Asaleo Care Australia Pty Ltd sought approval for the Transport Workers (Somerton Distribution Facility) Agreement 2018. The Transport Workers Union of Australia opposed the application, raising concerns regarding the fairness and effectiveness of the proposed agreement. The dispute came before the Full Bench of the Commission, which was tasked with determining whether the agreement met the necessary criteria under the Fair Work Act 2009.

The central legal issue revolved around whether the agreement contained provisions that were unfair or ineffective in terms of the process for resolving workplace disputes. The Commission had to assess whether the agreement provided for a fair and effective system for the resolution of disputes, as required by section 235 of the Act. The opposition argued that certain clauses in the agreement, particularly those relating to dispute resolution, did not meet the statutory standards for fairness and effectiveness.

The Full Bench of the Commission considered the arguments presented by both parties and examined the provisions of the agreement in detail. The Commission found that while most of the agreement was fair and effective, some of the dispute resolution clauses did not meet the statutory requirements. Specifically, the Commission highlighted issues with the timelines for resolving disputes and the availability of independent adjudication. Consequently, the Commission refused to approve the agreement, noting that the problematic clauses could not be severed without fundamentally altering the agreement.

The Fair Work Commission ordered that the Transport Workers (Somerton Distribution Facility) Agreement 2018 not be approved as it failed to meet the statutory requirements for fairness and effectiveness. The Commission mandated that Asaleo Care Australia Pty Ltd and the Transport Workers Union of Australia renegotiate the agreement to address the identified issues, with a focus on ensuring that the dispute resolution provisions were fair and effective. This decision underscores the importance of adhering to the legislative standards for workplace agreements in Australia.

Asaleo Care Australia 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