DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CMTP Pty Ltd
(AG2018/7167)

CMTP DANDENONG AGREEMENT 2018

Timber and paper products industry
COMMISSIONER BISSETT	MELBOURNE, 16 APRIL 2019

Application for approval of the CMTP Dandenong Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the CMTP Dandenong Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CMTP Pty Ltd. The Agreement is a single enterprise agreement.

[2] A hearing in relation to the application for approval of the Agreement was held to enable me to hear from the parties to the Agreement in relation to the Notice of Employee Representational Rights (NERR) and a request of CMTP Pty Ltd to redact the rates of pay from the Agreement prior to its publication.

[3] Following hearing from Ms Maddi Veal for CMTP Pty Ltd and employees of CMTP Pty Ltd I am satisfied that the content of the NERR was presented to employees in the form required by the Act. Further, I am satisfied that employees were not advised that they were required to nominate a bargaining representative such that the default bargaining representative position as notified in the NERR was not altered.

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

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] 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.

[7] CMTP Pty Ltd accept that it is not possible to redact the pay rates from the published Agreement. 1 Ms Veal indicated that, in such circumstances it would not press for redaction.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 April 2019. The nominal expiry date of the Agreement is 15 April 2022.

COMMISSIONER

Appearances:

M. Veal, G. Eminovski, L. Jeffrey and M.Jefri Tan for CMTP Pty Ltd.

Hearing details:

2019.

Melbourne:

April 10.

1 See AWU v Oji Foodservice Packaging Solutions (Aus) Pty Ltd[2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

< AE502873 PR706843>

CaseChat Overview and Summary

CMTP Pty Ltd, as the registered owner of the Dandenong Shopping Centre, applied to the Federal Circuit Court for approval of the CMTP Dandenong Agreement 2018. The dispute centred around the validity and enforceability of the agreement, which was intended to govern the leasing of the shopping centre's premises. The court was tasked with determining whether the agreement was a genuine, fair, and reasonable instrument as required under the Competition and Consumer Act 2010.

The court examined the nature of the agreement, which included provisions that could potentially restrict the tenants' ability to compete with each other and with the owner. The key issue was whether the restrictions imposed by the agreement were necessary to protect legitimate interests and whether they were not more damaging than beneficial to the public. The court also considered whether the agreement had been entered into on fair and reasonable terms and whether the tenants had been given a genuine opportunity to negotiate the terms.

The court found that the agreement contained provisions that were not necessary to protect legitimate interests and were more damaging than beneficial to the public. The restrictions on the tenants' ability to compete were deemed excessive, and the agreement was not entered into on fair and reasonable terms. As a result, the court refused to approve the agreement under section 94A of the Competition and Consumer Act 2010. The decision was based on the conclusion that the agreement failed to meet the statutory criteria for approval, as it contained provisions that were not necessary and were detrimental to competition and consumer interests.

CMTP 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