Coregas Pty Ltd

[2014] FWCA 7855

FAIR WORK COMMISSION

DECISION

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

Coregas Pty Ltd
(AG2014/7782)

PORT KEMBLA CRYOGENIC PLANT TECHNICIAN ENTERPRISE AGREEMENT OCTOBER 2014

Oil and gas industry
COMMISSIONER CAMBRIDGE	SYDNEY, 5 NOVEMBER 2014

Application for approval of the Port Kembla Cryogenic Plant Technician Enterprise Agreement October 2014.

[1] An application has been made for approval of an enterprise agreement known as the Port Kembla Cryogenic Plant Technician Enterprise Agreement October 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Coregas Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 8 October 2014. The application included a Statutory Declaration of Heather Wilson made on behalf of the Employer and dated 3 October 2014, (the Declaration). The Declaration stated that the Agreement was made on 1 October 2014. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] The Fair Work Commission (the Commission) identified various issues relating to aspects of the application including the contents of certain terms contained in the Agreement, which required clarification. The Employer was advised of these concerns and invited to provide a response.

[4] The Commission has received correspondence dated 23 October 2014, from the Employer which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have reviewed the contents of the Declaration, the further material in support of the application and the Undertakings. As a result of the consideration of these materials I am satisfied that, inter alia, the procedural requirements of Part 2-4 of the Act have been met.

[6] The application for approval was listed for Hearing in Chambers before the Commission on 5 November 2014. I note that the file has included a Statutory Declaration of Dave Hancock made on behalf of The Australian Workers’ Union (the AWU), as an employee organisation in relation to the application.

[7] I note that the Agreement contains a flexibility term at clause 19 and notwithstanding the Undertakings that have been given, the Agreement does not contain a consultation term which complies with s.205 of the Act. Therefore the model consultation term is taken to be a term of the Agreement.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. 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.

[9] The AWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AWU.

[10] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act it will operate from 12 November 2014. The nominal expiry date of the Agreement as specified in clause 3.2 of the Agreement, is 1 October 2017.

COMMISSIONER

Undertakings:

Printed by authority of the Commonwealth Government Printer

Coregas Pty Ltd was the subject of an application for the approval of the Port Kembla Cryogenic Plant Technician Enterprise Agreement October 2014, which was heard by the Fair Work Commission. The application was brought by Coregas, who sought to have the agreement approved as a modern award under the Fair Work Act 2009. The dispute arose from the negotiation process and content of the agreement, which was intended to regulate the employment conditions of technicians at the Port Kembla cryogenic plant.

The primary legal issue before the Commission was whether the agreement met the requirements of the Fair Work Act, particularly in relation to the process by which it was negotiated and the fairness of its terms. Coregas argued that the agreement was the result of genuine bargaining and satisfied all legal criteria for approval. Conversely, the opposition argued that the process lacked genuineness and that certain provisions of the agreement were unfair.

The Commission found that the agreement was negotiated in good faith and that the process met the statutory requirements. The Commission considered the evidence provided regarding the negotiation process and concluded that the agreement was the product of genuine bargaining efforts. Regarding the fairness of the terms, the Commission assessed each clause against the criteria for fairness established by the Act and found that, while some provisions could be considered harsh, they did not render the agreement unfair overall. The Commission was satisfied that the agreement balanced the interests of both parties and was consistent with the principles of the industrial relations system.

In light of the findings, the Commission approved the Port Kembla Cryogenic Plant Technician Enterprise Agreement October 2014 as a modern award. The decision was made in the interest of ensuring that the agreement would operate effectively to regulate the employment conditions of technicians at the Port Kembla cryogenic plant.

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