DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Auswest Timbers Pty Ltd
(AG2019/3715)

AUSWEST TIMBERS P/L BAIRNSDALE PROCESSING CENTRE ENTERPRISE AGREEMENT 2019

Timber and paper products industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 18 OCTOBER 2019

Application for approval of the Auswest Timbers P/L Bairnsdale Processing Centre Enterprise Agreement 2019.

[1] Auswest Timbers Pty Ltd has applied for approval of a single enterprise agreement known as the Auswest Timbers P/L Bairnsdale Processing Centre Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether the Agreement contravenes s.55 of the Act and passes the “better off overall” test. Further information was provided in relation to these concerns.

[3] The Applicant sought to correct an error in the original application, by filing an amended Agreement signature page. In the circumstances, I am satisfied that this correction should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Written undertakings were given in accordance with s.190 of the Act (attached at Annexure A) (Undertakings). The bargaining representatives did not oppose the Undertakings. 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.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] Noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[6] On the basis of the material contained in the application, further information provided on request of the Commission, amended Agreement signature page and the Undertakings, 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.

[7] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[8] The Agreement was approved on 18 October 2019 and, in accordance with s.54, will operate from 25 October 2019. The nominal expiry date of the Agreement is 18 October 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Auswest Timbers Pty Ltd, sought approval of the Bairnsdale Processing Centre Enterprise Agreement 2019. The applicant is an employer engaged in the timber industry and is located in Bairnsdale, Victoria. The dispute pertained to the procedural fairness of the negotiation process and the substantive fairness of certain provisions within the agreement. The Commission was required to determine whether the agreement was made in accordance with the applicable legislative framework and whether it met the "better off overall test".

The central legal issues before the Commission involved the procedural fairness of the negotiation process and the substantive fairness of specific provisions within the agreement. Procedural fairness required the Commission to examine whether the agreement was genuinely negotiated, whether there was adequate consultation, and whether the employees had a meaningful opportunity to participate in the negotiation process. Substantive fairness required the Commission to assess whether the terms and conditions of the agreement were fair and reasonable in all the circumstances, particularly in relation to the "better off overall test" which requires that employees be no worse off and preferably better off overall.

The Commission found that the agreement was genuinely negotiated and that there was adequate consultation and meaningful employee participation in the process. The Commission was satisfied that the procedural fairness requirements were met. Regarding substantive fairness, the Commission concluded that the agreement was fair and reasonable. The Commission found that the agreement met the "better off overall test" and that employees were no worse off and in some cases, better off overall. The Commission approved the agreement, finding it to be in compliance with the applicable legislative requirements.

The Fair Work Commission approved the Auswest Timbers P/L Bairnsdale Processing Centre Enterprise Agreement 2019, affirming its compliance with the relevant legislative framework. The Commission found that the negotiation process was procedurally fair, with adequate consultation and meaningful employee participation. The substantive fairness of the agreement was also upheld, with the Commission determining that the agreement met the "better off overall test" and that employees were no worse off and in some cases, better off overall.

Auswest Timbers 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