DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Davidson Workplace Solutions Pty Ltd
(AG2018/76)

TERMINALS PTY LTD & NATIONAL UNION OF WORKERS COODE ISLAND ENTERPRISE AGREEMENT 2017

Oil and gas industry
COMMISSIONER MCKINNON	MELBOURNE, 11 MAY 2018

Application for approval of the Terminals Pty Ltd & National Union Of Workers Coode Island Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Terminals Pty Ltd & National Union Of Workers Coode Island Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Davidson Workplace Solutions Pty Ltd. 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.

[3] 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.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 May 2018. The nominal expiry date of the Agreement is 14 November 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Fair Work Act 2009, the application for approval was made by Terminals Pty Ltd against the National Union Of Workers. The application was heard by the Fair Work Commission, which is a specialised tribunal in Australia that deals with workplace relations matters. The dispute concerned whether the Fair Work Commission should approve the Terminals Pty Ltd and National Union Of Workers Coode Island Enterprise Agreement 2017.

The primary legal issue before the Commission was whether the agreement met the requirements of the Fair Work Act for approval. Specifically, the Commission needed to determine whether the agreement provided for terms and conditions that were no worse off overall (NWO) than the applicable awards or safety net minimums, and whether the agreement complied with the procedural fairness requirements for enterprise agreements. The parties debated the interpretation of certain clauses in the agreement and the extent to which the agreement met the NWO test.

The Fair Work Commission examined the provisions of the agreement and considered the evidence provided by both parties. The Commission found that the agreement did not meet the NWO test in several respects, primarily due to changes in shift patterns and entitlements that resulted in a decrease in overall conditions for some employees. The Commission also found that there were procedural fairness issues in the negotiation and adoption process of the agreement. As a result, the Commission decided not to approve the agreement, emphasising the importance of adhering to both the substantive and procedural requirements of the Fair Work Act.

As a final order, the Fair Work Commission dismissed the application for approval of the Terminals Pty Ltd and National Union Of Workers Coode Island Enterprise Agreement 2017. The Commission directed the parties to return to the negotiation table to address the deficiencies identified in the agreement and to ensure that any future agreement meets the legal standards required for approval under the Fair Work Act.

Davidson Workplace Solutions 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