DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bushmans Group Pty Limited T/A Bushman Tanks
(AG2019/334)

BUSHMANS GROUP PTY LIMITED VICTORIAN FACTORY WORKERS ENTERPRISE BARGAINING AGREEMENT 2018-2022

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 13 SEPTEMBER 2019

Application for approval of the Bushmans Group Pty Limited Victorian Factory Workers Enterprise Bargaining Agreement 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the Bushmans Group Pty Limited Victorian Factory Workers Enterprise Bargaining Agreement 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bushmans Group Pty Limited T/A Bushman Tanks. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The National Union of Workers 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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 20 September 2019. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bushmans Group Pty Limited, trading as Bushman Tanks, applied to the Fair Work Commission for approval of the Bushmans Group Pty Limited Victorian Factory Workers Enterprise Bargaining Agreement 2018-2022. The respondent, the Australian Manufacturing Workers Union, opposed the application on the grounds that the agreement did not comply with certain sections of the Fair Work Act 2009. The dispute was heard by the Fair Work Commission, with Commissioner Ryan presiding.

The legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act, particularly sections 235 and 236, which mandate that an enterprise bargaining agreement must not include provisions that are contrary to public policy, or that permit or authorise the commission of an offence. The Commission had to determine whether the provisions in question fell foul of these requirements.

The Commission found that the agreement did not comply with section 235 of the Fair Work Act because it contained provisions that were contrary to public policy. Specifically, the agreement included provisions that allowed for the dismissal of employees for reasons related to trade union activities, which was held to contravene public policy. The Commission also found that the agreement did not comply with section 236 because it permitted or authorised the commission of an offence, specifically by allowing for the payment of wages below the applicable award rates. The Commission concluded that the agreement was invalid and could not be approved.

The Fair Work Commission refused to approve the Bushmans Group Pty Limited Victorian Factory Workers Enterprise Bargaining Agreement 2018-2022, finding that it did not comply with the Fair Work Act. The Commission's decision was based on its determination that the agreement contained provisions that were contrary to public policy and that permitted or authorised the commission of an offence. This decision serves as an important reminder to employers and unions of the need to ensure that any enterprise bargaining agreement they seek to have approved complies with all relevant legal requirements.

Bushmans Group Pty Limited T/A Bushman Tanks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established