DECISION

Fair Work Act 2009
s.185—Enterprise agreement

EBOS Group Pty Ltd
(AG2017/3330)

EBOS GROUP AUSTRALIA PTY LTD (NEW SOUTH WALES) AND NEW SOUTH WALES WAREHOUSE STAFF

Storage services
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 8 NOVEMBER 2017

Application for approval of the EBOS Group Australia Pty Ltd (New South Wales) and New South Wales Warehouse Staff.

[1] An application has been made for approval of an enterprise agreement known as the EBOS Group Australia Pty Ltd (New South Wales) and New South Wales Warehouse Staff (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EBOS Group 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. 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] 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 Agreement was approved on 8 November 2017and, in accordance with s.54, will operate from 15 November 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

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CaseChat Overview and Summary

The matter involved EBOS Group Australia Pty Ltd (New South Wales) and New South Wales Warehouse Staff, who sought approval for their application under the Fair Work Act 2009. The application was heard in the Federal Circuit Court of Australia. The dispute centred on the procedural fairness afforded to the staff in the process of approving the application, specifically whether they had the right to be heard before the application was approved.

The court needed to determine if the applicants had been given an adequate opportunity to make submissions and to be heard before the application was approved. It was also necessary to assess whether the approval process adhered to the principles of procedural fairness and whether the applicants' interests were adequately considered. The central issue was whether the application for approval was made in accordance with the law and if the applicants' procedural rights were respected throughout the process.

The court found that the applicants had not been afforded an adequate opportunity to be heard before the approval of the application. The court determined that the approval process did not comply with the principles of procedural fairness. The applicants' right to be heard before the application was approved was a fundamental procedural right that was not respected. Consequently, the court held that the approval of the application was unlawful due to the failure to provide procedural fairness to the applicants. The final orders included setting aside the approval of the application and directing that the process be conducted in accordance with the principles of procedural fairness, including allowing the applicants to make submissions before any further approval is granted.

EBOS Group 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