ASC Pty Ltd T/A ASC Pty Ltd

[2017] FWCA 5911

[2017] FWCA 5911

FAIR WORK COMMISSION

DECISION

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

ASC Pty Ltd T/A ASC Pty Ltd
(AG2017/5106)

ASC PTY LTD ENTERPRISE AGREEMENT 2017-2020

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 17 NOVEMBER 2017

Application for approval of the ASC Pty Ltd Enterprise Agreement 2017-2020

[1] An application (F16) was made on 27 October 2017 by ASC Pty Ltd T/A ASC Pty Ltd (ASC) for approval of an enterprise agreement known as the ASC Pty Ltd Enterprise Agreement 2017-2020 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single-enterprise agreement. It is proposed to replace the ASC Pty Ltd Enterprise Agreement 2012-2015 which has passed its nominal expiry date.

[2] The application was accompanied by an Employers Statutory Declaration in Support (F17) by Ms Nicole Kidman of the ASC.

[3] The application was also accompanied by three Statutory Declarations of Employee Organisations (F18): the Australian Manufacturing Workers Union (SA Branch) (AMWU); the Australian Workers Union (AWU); and the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union, Electrical Division (CEPU).

[4] Each employee organisation was a bargaining representative for the Agreement. Each supported approval of the Agreement. Each has given notice under section 183 of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act I note that the Agreement covers the AMWU, the AWU and the CEPU.

[5] On 17 November 2017 I conducted a telephone hearing of the parties to consider the application. I sought the views of the applicant and the bargaining representatives in relation to the Agreement.

[6] The employer has provided an undertaking dated 14 November 2017 that it “will apply the consultation provision terms consistent with s. 205 of the Fair Work Act 2009.” It did so in response to the Commission drawing attention to the fact that clause 38 of the Agreement is not in the form of the model clause nor does it specifically include all of the language provided for in section 205(1A)(b) of the FW Act.

[7] In considering this matter I am satisfied that clause 38 ‘Introduction of Change’ does meet the statutory requirements of section 205(1A) of the FW Act. Although it does not specifically refer to employees being invited to express views (including about family and caring responsibilities) I consider that a reasonable construction of clause 38 imposes this obligation as an inferred condition because its express language imposes an obligation to provide information to employees and then imposes an express obligation to give prompt consideration to views expressed by employees. It does not limit what those views could concern. I have therefore received the undertaking as material advanced by the applicant in support of the application but do not consider it necessary to deal with it any more formally. As an expression on the record of how the employer intends to apply clause 38 it is capable of being used as an aide to interpretation of that clause should a dispute over interpretation or implementation arise in the future.

[8] Consequently, I am satisfied that each of the requirements of sections 186, 187, 188, 202 and 205 of the FW Act as are relevant to this application for approval have been met.

[9] The Agreement is approved. In accordance with section 54 of the Act and noting the terms of clause 6 of the Agreement it will operate from 24 November 2017. The nominal expiry date of the Agreement is 24 November 2020.

DEPUTY PRESIDENT

Appearances:

Ms A. Cooper and Mr S. Long, for the Applicant

Mr S. Pisoni of the CEPU

Mr P. Bauer of the AMWU

Mr F. Mateos of the AWU

Hearing details:

2017.

Adelaide.

17 November.

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