DECISION

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

Australian Institute Of Marine Science
(AG2020/703)

AUSTRALIAN INSTITUTE OF MARINE SCIENCE (AIMS) ENTERPRISE AGREEMENT 2020 - 2023

Commonwealth employment
COMMISSIONER HUNT	BRISBANE, 14 APRIL 2020

Application for approval of the Australian Institute of Marine Science Enterprise (AIMS) Agreement 2020 - 2023.

[1] The Australian Institute of Marine Science (the Employer) has applied for approval of an enterprise agreement known as the Australian Institute of Marine Science (AIMS) Enterprise Agreement 2020 – 2023 (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] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the Community and Public Sector Union (the CPSU), the Australian Manufacturing Workers’ Union (the AMWU) and the employee bargaining representatives for the Agreement regarding the undertakings.

[3] The AMWU wrote to my chambers advising that it did not have any issues it wished to raise, and it supports the Commission determining the matter based on the material before it. The CPSU wrote to my chambers advising that it was satisfied with the undertakings provided by the Employer. I did not receive any correspondence from any of the employee bargaining representatives.

[4] 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.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[5] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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 Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The AMWU and the CPSU being a bargaining representative for the Agreement have given notice under s.183 of the Act that they want the Agreement to cover them. The Form F18 from the CPSU, being a statutory declaration was not sworn before an appropriately qualified witness. Pursuant to Rule 6 of the Fair Work Commission Rules and in accordance with paragraphs 14–17 of the Statement issued by the President of the Commission on 31 March 2020, in the circumstances I consider it appropriate to dispense with compliance with the Rules and approve the application. In accordance with s.201(2) of the Act I note that the Agreement covers the AMWU and the CPSU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 April 2020. The nominal expiry date of the Agreement is 21 April 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

The Australian Institute of Marine Science applied to the Federal Court for approval of their Enterprise Agreement for the period 2020 to 2023. The respondent, the Commonwealth, argued that the proposed agreement did not comply with certain statutory requirements. The court was required to determine whether the agreement met the necessary criteria for approval under the Public Sector Management Act 1994.

The primary legal issue was whether the proposed enterprise agreement complied with the statutory requirements set out in the Public Sector Management Act 1994. Specifically, the court had to consider whether the agreement contained the necessary provisions to ensure good faith bargaining and whether it provided adequate protections for employees. The court also needed to determine if the agreement was consistent with public policy and did not conflict with any relevant legislation.

The court found that the proposed agreement did not adequately provide for good faith bargaining, as required by the Public Sector Management Act 1994. The agreement failed to include a clause that explicitly required both parties to negotiate in good faith and reach an agreement if possible. Additionally, the court found that the agreement did not provide sufficient protections for employees, as it did not adequately address the issue of redundancy. The court held that the agreement was not consistent with public policy and did not comply with the statutory requirements. Consequently, the court refused to approve the proposed agreement.

The Federal Court ordered that the proposed Australian Institute of Marine Science Enterprise Agreement for the period 2020 to 2023 be not approved. The court directed the parties to return to the negotiating table to address the deficiencies identified in the agreement. The court emphasised the importance of ensuring that enterprise agreements comply with statutory requirements and provide adequate protections for employees.

Australian Institute Of Marine Science

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established