Australian Energy Market Operator Limited

[2013] FWCA 5477

[2013] FWCA 5477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Australian Energy Market Operator Limited
(AG2013/7741)

AEMO ENTERPRISE AGREEMENT 2011-2014

Electrical power industry
COMMISSIONER LEWIN	MELBOURNE, 15 AUGUST 2013

Application to approve variations to the AEMO Enterprise Agreement 2011-2014.

Introduction

[1] An application has been made for approval of variations to the AEMO Enterprise Agreement 2011-2014 (the Agreement). The application has been made pursuant to s.210 of the Fair Work Act 2009 (the Act). The application was made within 14 days after the variation was made as prescribed by s.210 (3) (a) of the Act. The Agreement is a single enterprise agreement.

[2] Section 211 of the Act sets out when the Fair Work Commission must approve a variation of an Enterprise Agreement.

211 When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: The FWC may approve a variation under this section with undertakings (see section 212).

Modification of approval requirements

(2) For the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), the FWC must:

(a) take into account subsections (3) and (4) and any regulations made for the purposes of subsection (6); and

(b) comply with subsection (5); and

(c) disregard sections 190 and 191 (which deal with the approval of enterprise agreements with undertakings).

(3) The following provisions:

(a) section 180 (which deals with pre-approval steps);

(b) subsection 186(2) (which deals with the FWC’s approval of enterprise agreements);

(c) section 188 (which deals with genuine agreement);

have effect as if:

(d) references in sections 180 and 188 to the proposed enterprise agreement, or the enterprise agreement, were references to the proposed variation, or the variation, of the enterprise agreement (as the case may be); and

(e) references in those provisions to the employees employed at the time who will be covered by the proposed enterprise agreement, or the employees covered by the enterprise agreement, were references to the affected employees for the variation; and

(f) references in section 180 to subsection 181(1) were references to subsection 208(1); and

(g) the words “if the agreement is not a greenfields agreement—” in paragraph 186(2)(a) were omitted; and

(h) paragraph 186(2)(b) were omitted; and

(ha) references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and

(hb) subparagraph 188(a)(ii) were omitted; and

(j) the words “182(1) or (2)” in paragraph 188(b) were omitted and the words “209(1) or (2)” were substituted.

(4) Section 193 (which deals with passing the better off overall test) has effect as if:

(a) the words “that is not a greenfields agreement” in subsection (1) were omitted; and

(b) subsection (3) were omitted; and

(c) the words “the agreement” in subsection (6) were omitted and the words “the variation of the enterprise agreement” were substituted; and

(d) the reference in subsection (6) to section 185 were a reference to section 210.

(5) For the purposes of determining whether an enterprise agreement as proposed to be varied passes the better off overall test, the FWC must disregard any individual flexibility arrangement that has been agreed to by an award covered employee and his or her employer under the flexibility term in the agreement.

Regulations may prescribe additional modifications

(6) The regulations may provide that, for the purposes of the FWC deciding whether it is satisfied of the matter referred to in paragraph (1)(a), specified provisions of this Part have effect with such modifications as are prescribed by the regulations.

[3] The variations to the Agreement were the subject of a ballot of employees whereby a majority of Employees who voted in the ballot, approved the variations on 11 July 2013. The Agreement as varied has a nominal expiry date of 30 June 2015.

[4] The variations can be found at Attachment A to this Decision.

[5] I am satisfied that each of the requirements of s.211 of the Act that are relevant to this application have been met for the reasons set out below.

[6] I am satisfied that had an application been made under s.185 of the Act of the approval of the Agreement as proposed to be varied, the Fair Work Commission would have been required to approve the Agreement. 1 I am also satisfied that the agreement as varied would not expire more than four years after the day on which the Commission may approve the Agreement.2

[7] I am satisfied that all affected employees were given, or had access to the variations and any other material incorporated by reference during the 7 day period ending immediately before the start of the voting process for the ballot referred to above, and that all affected employees were notified of the time and place at which the vote was to occur. 3

[8] 385 full-time equivalent employees who are affected by the variation voted. 245 full-time equivalent employees cast a vote and 243 full-time equivalent employees voted to approve the variation.

[9] The variation to the Agreement is approved and, in accordance with s.216, will operate on and from 14 August 2013.

[10] An order will issue, accordingly.

COMMISSIONER

 1   Fair Work Act 2009 (s.211(1)(a)).

 2   Fair Work Act 2009 (s.211(1)(b)).

 3   Fair Work Act 2009 (s.211(3) , s.180(2), s.180(3)).

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