Australian Capital Territory

[2023] FWCA 1789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Capital Territory

(AG2023/1691)

ACT PUBLIC SECTOR INFRASTRUCTURE SERVICES ENTERPRISE AGREEMENT 2023-2026

State and Territory government administration
DEPUTY PRESIDENT DEAN	CANBERRA, 19 JUNE 2023

Application for approval of the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026.

An application has been made for approval of an enterprise agreement known as the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Capital Territory (Employer). The Agreement is a single enterprise agreement.

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.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Construction, Forestry, Maritime, Mining & Energy Union, CPSU, the Community and Public Sector Union, the Health Services Union of Australia, the Transport Workers’ Union of Australia, The Association of Professional Engineers, Scientists and Managers, Australia and the United Workers’ Union, being bargaining representatives for the Agreement, have given notice under section 183 of the Act that they want the Agreement to cover their organisation. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisations.

The Employer has also made an application pursuant to s.217 to vary the Agreement to remove ambiguity and uncertainty. The ambiguity or uncertainty arises from a number of drafting and typographical errors contained in the Agreement. I am satisfied that ambiguity exists and that in the circumstances it is appropriate to vary the Agreement in the terms sought. An amended version of the Agreement has been filed which incorporates the variation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 June 2023. The nominal expiry date of the Agreement is 31 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application to approve the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026. The applicant, the Australian Capital Territory, sought approval from the Fair Work Commission. The respondent, the union representing the public sector infrastructure services employees, contested certain aspects of the agreement. The primary dispute centred around the terms and conditions outlined in the proposed agreement, with the union raising concerns regarding the fairness and adequacy of the proposed terms for the employees.

The legal issues the court was required to decide included whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically in relation to the agreement's coverage, the process by which it was negotiated, and the fairness of its terms. The court needed to determine if the agreement was made in good faith, if it provided for efficient, productive and flexible workplaces, and if it promoted high performance and high reward. Additionally, the court had to consider whether the agreement complied with the statutory requirements for making a new enterprise agreement under the Fair Work Act.

The court, after reviewing the evidence and submissions from both parties, found that the proposed agreement met the statutory requirements for approval. The agreement was negotiated in good faith, provided for efficient, productive and flexible workplaces, and promoted high performance and high reward. The court was satisfied that the process by which the agreement was negotiated was fair and that the terms of the agreement were reasonable. The court concluded that the proposed agreement was fair and appropriate, and therefore approved the agreement under section 173 of the Fair Work Act. The final orders of the court were that the ACT Public Sector Infrastructure Services Enterprise Agreement 2023-2026 be approved as a new enterprise agreement under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established