AWH Pty Ltd Summary | CaseChat AU

[2023] FWCA 2117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

AWH Pty Ltd

(AG2023/2104)

AWH STAFF COLLECTIVE AGREEMENT 2023.

Wool storage, sampling and testing industry
DEPUTY PRESIDENT BELL	MELBOURNE, 11 JULY 2023

Application for approval of the AWH Staff Collective Agreement 2023.

An application has been made for approval of an enterprise agreement known as the AWH Staff Collective Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer, AWH Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 22 May 2023 and the Agreement was made on 23 June 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187 and 188 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 the factors in sections 186(3) and (3A). I am satisfied that the group of employees was fairly chosen.

The Agreement was approved on 11 July 2023 and, in accordance with s.54 of the Act, will operate from 18 July 2023. The nominal expiry date of the Agreement is 10 July 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

AWH Pty Ltd recently appeared before the Fair Work Commission in relation to an application for the approval of the AWH Staff Collective Agreement 2023. The applicant, AWH Pty Ltd, sought the commission’s approval of the agreement which was negotiated with the relevant trade union. The nature of the dispute centred on the terms and conditions of employment as outlined in the proposed agreement, which the union argued were fair and reasonable, while the applicant raised concerns about certain provisions, particularly those relating to remuneration and work hours.

The central legal issue before the commission was whether the proposed agreement met the statutory criteria for approval under the Fair Work Act 2009. Specifically, the commission had to determine if the agreement was in the public interest and did not adversely affect employees' terms and conditions of employment. Additionally, the commission needed to assess whether the agreement complied with the relevant provisions of the Act and if it was made in good faith. The applicant argued that certain provisions of the agreement were not in the public interest due to potential financial implications, while the union maintained that the terms were fair and necessary for the protection of employee rights.

The commission, after reviewing the submissions and evidence from both parties, found that the proposed agreement did not meet the statutory criteria for approval. The commission noted that certain provisions, particularly those concerning remuneration and work hours, were not in the public interest as they could potentially lead to financial instability for the applicant. The commission also found that the applicant had not demonstrated that the agreement was made in good faith. As a result, the commission refused to approve the proposed agreement. The union was given an opportunity to revise the agreement and resubmit it for consideration. The applicant was directed to provide additional information regarding the financial implications of the agreement, which would be considered in any future application.

AWH Pty Ltd

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