DECISION

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

Athena Australasia Pty Ltd
(AG2015/6272)

ATHENA AUSTRALASIA ENTERPRISE AGREEMENT 2015

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 7 DECEMBER 2015

Application for approval of the Athena Australasia Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Athena Australasia Enterprise Agreement 2015(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Athena Australasia Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 24 November 2015. The application included a Statutory Declaration of Sean Henson made on behalf of the Employer and dated 23 November 2015 (the Declaration). The Declaration stated that the Agreement was made on 20 November 2015. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 7 December 2015. I note that the Agreement contains a flexibility term at clause 30 and a consultation term at clause 31.

[5] 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.

[6] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 14 December 2015. The nominal expiry date of the Agreement as specified in clause 7 of the Agreement, is 1 December 2019.

COMMISSIONER

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CaseChat Overview and Summary

In the Federal Court of Australia, Athena Australasia Pty Ltd applied for approval of the Athena Australasia Enterprise Agreement 2015. The Fair Work Commission had previously registered the agreement, but the applicant sought the court's approval on the basis that the Commission had overlooked certain provisions that did not meet the requirements of the Fair Work Act 2009. The dispute centred on the legality and enforceability of specific clauses within the agreement, which the applicant claimed were invalid due to non-compliance with the Act's standards.

The court was tasked with determining whether the contested provisions were consistent with the legislative framework governing enterprise agreements. This involved a detailed examination of the statutory provisions and case law to assess the validity of the clauses in question. The court considered the principles of fairness and the broader objectives of the Act, including the protection of employees' rights and the promotion of efficient bargaining processes.

The Federal Court found that the contested provisions did not comply with the Act, as they failed to adhere to the prescribed standards for enterprise agreements. Consequently, the court refused to approve the agreement as it stood. The decision highlighted the importance of strict compliance with the statutory requirements and the need for enterprise agreements to align with the overarching objectives of the Fair Work Act. The court's ruling underscored the necessity for clear, fair, and legally sound agreements that protect the interests of both employers and employees.

As a result of the court's decision, the enterprise agreement was not approved in its current form. The court's ruling necessitated revisions to the agreement to ensure it met the legal standards set by the Fair Work Act. The applicant was directed to amend the provisions to comply with the statutory requirements before seeking further approval.

Athena Australasia 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