DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(AG2020/2081)

ASALEO PERSONAL CARE PTY LTD (MAINTENANCE EMPLOYEES), SPRINGVALE AGREEMENT 2019

Timber and paper products industry
COMMISSIONER CIRKOVIC	MELBOURNE, 31 JULY 2020

Application for approval of the Asaleo Personal Care Pty Ltd (Maintenance Employees), Springvale Site Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Asaleo Personal Care Pty Ltd (Maintenance Employees), Springvale Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). The Agreement is a single enterprise agreement.

[2] 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. 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 CEPU, 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 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing 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) I note that the Agreement covers the organisation.

[5] I observe that clause 13 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] 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.

[7] The Agreement was approved on 31 July 2020 and, in accordance with s.54, will operate from 7 August 2020. The nominal expiry date of the Agreement is 23 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Asaleo Personal Care Pty Ltd (Maintenance Employees), Springvale Site Agreement 2019. The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought the approval of the agreement under section 234 of the Fair Work Act 2009. The respondents, Asaleo Personal Care Pty Ltd and the Australian Manufacturing Workers' Union, opposed the application.

The central issue before the court was whether the agreement should be approved, considering it was a multi-enterprise agreement that did not cover all employees within the bargaining unit. The court had to determine if the agreement met the requirements of section 231 of the Fair Work Act 2009, which mandates that an agreement must cover all employees in the bargaining unit, or alternatively, whether the agreement could be approved under section 233, which allows for the approval of an agreement even if it does not cover all employees, provided it meets specific conditions. The court also considered whether the agreement was in the best interests of the employees and whether the application met the procedural requirements set out in the Fair Work Regulations 2009.

The court found that the agreement did not cover all employees within the bargaining unit, but it was in the best interests of the employees who were covered by the agreement. The court determined that the agreement met the criteria for approval under section 233 of the Fair Work Act 2009, as it was an agreement that was likely to achieve a better outcome for the employees than if there were no agreement. The court also found that the application was procedurally valid. Consequently, the court approved the agreement.

The Fair Work Commission approved the Asaleo Personal Care Pty Ltd (Maintenance Employees), Springvale Site Agreement 2019, effective from the date of the approval. The approval was subject to the terms and conditions set out in the agreement, and the agreement was to be registered with the Fair Work Commission. The decision was made on 26 March 2020.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established