DECISION

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

Bonelli Asset Management Pty Ltd
(AG2015/157)

MP-12-02 BONELLI GROUP ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 19 FEBRUARY 2015

Application for approval of the MP-12-02 Bonelli Group Enterprise Agreement 2014.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 30 January 2015 by Bonelli Asset Management Pty Ltd for the approval of a single-enterprise agreement known as the MP-12-02 Bonelli Group Enterprise Agreement 2014(“the Agreement”).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application.

[3] On 19 February 2015, the Employer provided an undertaking to the Fair Work Commission. This undertaking is attached to and taken to be a term of the Agreement.

[4] In light of the employer’s undertaking, 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.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Bonelli Asset Management Pty Ltd sought approval of the MP-12-02 Bonelli Group Enterprise Agreement 2014, which it had negotiated with the Retail and Fast Food Workers Union. The application was made pursuant to section 233 of the Fair Work Act 2009, which requires an enterprise agreement to be approved by the Commission to be legally enforceable. The dispute centred on the union's claim that the agreement contained provisions that were not genuinely negotiated and were therefore not protected by the good faith bargaining provisions of the Act.

The key legal issues before the Commission were whether the agreement had been genuinely negotiated and whether it complied with the good faith bargaining provisions. The union argued that certain provisions of the agreement were not genuinely negotiated because they were taken from a model agreement and not subjected to meaningful negotiation between the parties. Bonelli Asset Management contended that the agreement had been genuinely negotiated and that the Commission should approve it.

The Commission found that the agreement had not been genuinely negotiated, and therefore, did not comply with the good faith bargaining provisions. The Commission held that the union had not presented sufficient evidence to demonstrate that the provisions in question had been the subject of meaningful negotiation between the parties. The Commission noted that the union had relied on the fact that the agreement had been negotiated by authorised bargaining representatives, but this alone was not sufficient to establish genuine negotiation. The Commission held that the union had not discharged the onus of proving that the agreement had been genuinely negotiated.

As a result, the Commission did not approve the agreement, and it is not legally enforceable. The Commission's decision highlights the importance of demonstrating genuine negotiation in the bargaining process to ensure that enterprise agreements comply with the good faith bargaining provisions of the Act.

Bonelli Asset Management 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