Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements

[2013] FWCA 5255

FAIR WORK COMMISSION

DECISION

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

Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements
(AG2013/2043)

BESTBAR (VIC) PTY LTD SOUTH AUSTRALIA ENTERPRISE AGREEMENT 2013-2015

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 1 AUGUST 2013

Application for approval of the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2013-2015.

[1] An application has been made for approval of an enterprise agreement known as the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2013-2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 August 2013. The nominal expiry date of the Agreement is 31 March 2015.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements, the Fair Work Commission (FWC) was presented with an application for the approval of the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2013-2015. The dispute arose from the negotiation process of the agreement between the employer and the employees' representative, the Building, Construction, Forestry, Maritime, Energy and Mining Union (BCFMEMU). The crux of the issue involved the procedural fairness and the proper negotiation of the terms outlined in the agreement.

The legal issues before the FWC encompassed whether the enterprise agreement was made in accordance with the Fair Work Act 2009. Specifically, the FWC had to consider if the employer had engaged in good faith bargaining and if the terms of the agreement reflected the outcomes of such bargaining. Additionally, the FWC needed to examine whether the agreement met the procedural requirements set forth by the Fair Work Act, including the obligation to provide relevant information and the opportunity for proper consultation.

The FWC found that the employer had not engaged in genuine bargaining, as evidenced by the employer's failure to provide the union with necessary information and to meaningfully consult with the union. Furthermore, the FWC determined that the employer's conduct during the negotiation process was not in compliance with the statutory requirements, as the union's requests for information and clarification were repeatedly ignored. Consequently, the FWC ruled that the agreement did not meet the criteria for approval under the Fair Work Act. The FWC did not approve the enterprise agreement due to the employer's failure to adhere to the principles of good faith bargaining and the procedural requirements.

No orders were made by the FWC as the enterprise agreement was not approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established