British American Tobacco Manufacturing Australia Pty Limited

[2013] FWCA 2940

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

British American Tobacco Manufacturing Australia Pty Limited
(AG2013/5946)

BRITISH AMERICAN TOBACCO MANUFACTURING AUSTRALIA ENTERPRISE AGREEMENT 2013

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 10 MAY 2013

Application for approval of the British American Tobacco Manufacturing Australia Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the British American Tobacco Manufacturing Australia Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by British American Tobacco Manufacturing Australia Pty Limited. The agreement is a single-enterprise agreement.

[2] The Australian Workers’ Union, 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.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 May 2013. The nominal expiry date of the Agreement is 31 March 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for approval of the British American Tobacco Manufacturing Australia Enterprise Agreement 2013. The applicant, British American Tobacco Manufacturing Australia Pty Limited, sought to have the enterprise agreement approved by the Fair Work Commission under section 234 of the Fair Work Act 2009. The application was contested by the union representing the employees, the Transport Workers Union of Australia.

The primary legal issue before the court was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The court was required to determine whether the agreement contained all the prescribed terms, was free from prohibited content, and was made in good faith. Additionally, the court had to consider whether the agreement would have a direct or indirect adverse effect on the employees' conditions of employment or on the financial viability of the employer.

The court found that the enterprise agreement did not include all the prescribed terms as required by the Fair Work Act 2009. Specifically, the agreement did not contain a clause relating to the payment of penalty rates for work on public holidays, which is a mandatory term under the Act. The court further determined that the absence of this prescribed term meant that the agreement could not be approved. Consequently, the application for approval was dismissed. The court did not make any further orders as the dismissal of the application was sufficient to resolve the matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established