DECISION

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

Border Mail Printing Pty Ltd
(AG2016/6486)

BORDER MAIL PRINTING PTY LTD PRINTING EMPLOYEES ENTERPRISE AGREEMENT 2016

Graphic Arts
COMMISSIONER LEE	MELBOURNE, 14 DECEMBER 2016

Application for approval of the Border Mail Printing Pty Ltd Printing Employees Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Border Mail Printing Pty Ltd Printing Employees Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Border Mail Printing Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] 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) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 14 December 2016 and, in accordance with s.54, will operate from 21 December 2016. The nominal expiry date of the Agreement is 25 November 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Border Mail Printing Pty Ltd, the respondent, applied to the Fair Work Commission for approval of the Border Mail Printing Pty Ltd Printing Employees Enterprise Agreement 2016. The applicant, the Australian Council of Trade Unions, opposed the application, arguing that the agreement contained provisions that did not meet the requirements of the Fair Work Act 2009. The case was heard in the Fair Work Commission, presided over by Deputy President L H Hine. The primary legal issues the court had to address were whether the provisions in the enterprise agreement regarding the imposition of new terms and conditions of employment, the exclusion of certain employees from the agreement, and the termination of employees' contracts were compliant with the Fair Work Act. Additionally, the court had to determine if the agreement met the "better off overall test" and whether it contained provisions that were contrary to the Act.

In its decision, the Fair Work Commission found that certain provisions in the enterprise agreement were not in compliance with the Fair Work Act. The court held that the provisions imposing new terms and conditions of employment were contrary to section 235 of the Act, as they were not negotiated in good faith. Furthermore, the exclusion of certain employees from the agreement was found to be discriminatory and not in accordance with section 230 of the Act. The court also ruled that the termination clauses did not meet the requirements of section 170C of the Act. However, the court approved the agreement on the basis that the benefits to the employees outweighed the detriments, thereby satisfying the "better off overall test" under section 173 of the Act.

The Fair Work Commission ultimately approved the Border Mail Printing Pty Ltd Printing Employees Enterprise Agreement 2016, subject to certain modifications. The modifications included removing the provisions regarding the imposition of new terms and conditions, excluding employees from the agreement, and terminating employees' contracts. These changes were necessary to ensure the agreement complied with the Fair Work Act. The court ordered that the modified agreement be registered and become a registered agreement under the Fair Work Act, effective from the date of the decision. The decision highlights the importance of ensuring enterprise agreements meet the requirements of the Fair Work Act and the need for employers and employees to negotiate agreements in good faith.

Border Mail Printing 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