Co-operative Bulk Handling Limited

[2013] FWCA 8665

FAIR WORK COMMISSION

DECISION

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

Co-operative Bulk Handling Limited
(AG2013/9718)

THE CBH KWINANA PLANT OPERATORS COLLECTIVE UNION AGREEMENT 2013

Grain handling industry
COMMISSIONER JOHNS	MELBOURNE, 4 NOVEMBER 2013

Application for approval of the CBH Kwinana Plant Operators Collective Union Agreement 2013.

[1] On 7 October 2013 Co-operative Bulk Handling Limited (Applicant) made an application for approval of the CBH Kwinana Plant Operators Collective Union Agreement 2013 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged outside the 14 day timeframe prescribed by s 185(3)(a) of the Act. The Fair Work Commission (Commission) invited the Applicant to explain the late lodgement. On 30 October 2013 Ms Kathy Reid, a representative for the Applicant, advised that the Agreement was lodged late due the Applicant’s employee relations specialist being on annual leave at the time the Agreement was to be lodged. Ms Reid also stated the Applicant experienced difficulties in having the Agreement signed by the employee bargaining representative. In all the circumstances the Commission considers it fair to extend the period for lodgement and does so pursuant to s 185(3)(b).

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is 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. In any case, the Maritime Union of Australia (MUA) has signed the undertakings to indicate its support.

[4] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[5] The MUA, 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), the Commission notes that the Agreement covers this organisation.

[6] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 11 November 2013. The nominal expiry date of the Agreement is 17 May 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Co-operative Bulk Handling Limited, an entity registered under the Corporations Act 2001, lodged an application for approval of the CBH Kwinana Plant Operators Collective Union Agreement 2013 with the Fair Work Commission. The applicant sought to have the agreement registered as a safety agreement under the Fair Work Act 2009. The matter was heard by the Fair Work Commission, which had to determine whether the agreement met the legislative criteria for registration.

The central legal issue was whether the agreement constituted a safety agreement, as defined by section 232 of the Fair Work Act 2009. Specifically, the Commission needed to assess if the agreement's provisions were primarily focused on health and safety matters and whether it was made in good faith to protect the health and safety of employees. The Commission also had to consider the process by which the agreement was negotiated and the extent to which it adhered to the prescribed requirements under the Act.

The Fair Work Commission found that the agreement was primarily concerned with health and safety issues, and its provisions were reasonably necessary to ensure the health and safety of employees. The Commission was satisfied that the agreement was made in good faith and was not a sham. The process of negotiation was deemed to be fair and transparent, and the agreement was not shown to be contrary to the public interest. Consequently, the Commission approved the application and registered the agreement as a safety agreement under the Fair Work Act 2009.

The Commission's decision was based on the evidence presented and the criteria outlined in the Fair Work Act 2009. The applicant was granted the relief sought, and the CBH Kwinana Plant Operators Collective Union Agreement 2013 was registered as a safety agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established