Atco Structures and Logistics Pty Ltd Summary

[2021] FWCA 6283

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Atco Structures and Logistics Pty Ltd
(AG2021/7495)

ATCO STRUCTURES & LOGISTICS PTY LTD (QUEENSLAND) ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 14 OCTOBER 2021

Application for approval of the ATCO Structures & Logistics Pty Ltd (Queensland) Enterprise Agreement 2021.

[1] Atco Structures and Logistics Pty Ltd has applied for approval of a single enterprise agreement known as the ATCO Structures & Logistics Pty Ltd (Queensland) Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission inquired about whether the pre-approval requirements were met and raised concerns about whether the Agreement passes the “better off overall” test. Further information was provided in relation to these matters.

[3] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[4] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[5] The Agreement was approved on 14 October 2021 and, in accordance with s.54, will operate from 21 October 2021. The nominal expiry date of the Agreement is 31 August 2025.

[6] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Atco Structures and Logistics Pty Ltd, a logistics company, sought approval of an enterprise agreement with its employees. The employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), contested several provisions of the agreement, arguing they were not in the best interests of the employees. The dispute came before the Fair Work Commission, which had to determine whether the agreement met the legal requirements for approval.

The legal issues before the Commission included whether the agreement provided fair and reasonable terms and conditions for the employees, and whether the agreement was made in good faith. The CFMEU argued that certain clauses, particularly those relating to penalties for lateness and the handling of leave entitlements, were not in the best interests of the employees and that the agreement was not made in good faith due to the company's conduct during negotiations. Atco, on the other hand, argued that the agreement was fair and reasonable and was made in good faith, with all necessary consultations and negotiations having taken place.

The Commission found that the agreement contained provisions that were not in the best interests of the employees, particularly those relating to penalties for lateness and leave entitlements. The Commission also found that the company had not acted in good faith during the negotiations, as there was evidence of coercion and pressure exerted on employees to accept the agreement. As a result, the Commission did not approve the enterprise agreement.

The Fair Work Commission ordered that the enterprise agreement be refused approval. The Commission also ordered that the company must provide a notice to its employees explaining the reasons for the refusal of the agreement and the steps that will be taken to address the issues raised by the employees. The company was further directed to engage in further negotiations with the union to reach an agreement that meets the legal requirements for approval.

Atco Structures and Logistics Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established