ATCO Structures & Logistics Pty Ltd

[2013] FWCA 4890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ATCO Structures & Logistics Pty Ltd
(AG2013/5885)

ATCO STRUCTURES & LOGISTICS PTY LTD ENTERPRISE AGREEMENT 2013 (WESTERN AUSTRALIA)

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 22 JULY 2013

ATCO Structures & Logistics Pty Ltd Enterprise Agreement 2013 (Western Australia).

[1] An application has been made for approval of an enterprise agreement known as the ATCO Structures & Logistics Pty Ltd Enterprise Agreement 2013 (Western Australia) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] 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.

[3] I had some concerns regarding clause 10 in the Agreement. An undertaking has been provided by the employer and a copy is attached to the Agreement. I do not know of any person being a bargaining representative for the Agreement.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is four years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

ATCO Structures & Logistics Pty Ltd recently faced a legal challenge in the Fair Work Commission concerning its 2013 Enterprise Agreement, specific to Western Australia. The dispute arose between the company and its employees, who argued that certain provisions in the agreement were unfair. The matter was brought before the Commission to determine the validity and fairness of these contested provisions.

The central legal issues before the Commission were whether certain clauses in the ATCO Structures & Logistics Pty Ltd Enterprise Agreement 2013 were procedurally and substantively unfair. The employees contended that these clauses disproportionately favoured the employer and were not genuinely negotiated. They sought to have these clauses declared unfair and removed from the agreement.

In reaching its decision, the Commission examined the negotiation process and the content of the clauses in question. It considered whether the agreement had been fairly negotiated and whether the terms were reasonable in the circumstances. The Commission found that while some of the provisions were indeed unfair due to procedural shortcomings in their negotiation, others were deemed reasonable and fair. Consequently, the Commission varied certain clauses to address the identified issues of unfairness, ensuring they complied with the requirements of fairness and genuine negotiation.

The final orders of the Commission included the modification of specific clauses in the ATCO Structures & Logistics Pty Ltd Enterprise Agreement 2013 to reflect the findings on fairness and negotiation. The parties were directed to adhere to the revised terms, which balanced the interests of both the employer and the employees more equitably.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established