Elite Systems Australia Pty Ltd

[2014] FWCA 1831

FAIR WORK COMMISSION

DECISION

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

Elite Systems Australia Pty Ltd
(AG2014/3856)

ELITE SYSTEMS AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 20 MARCH 2014

Application for approval of the Elite Systems Australia Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Elite Systems Australia Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Elite Systems Australia Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer has provided undertakings in the following terms:

“.... with respect to consultation:

In the event that any of the following occurs:

1. An employee undertakes training outside of ordinary hours, or

2. The Company intends to deduct monies from the employee pursuant to clause 26.3, or

3. The Company makes an employee covered by the Building and Construction Industry General Onsite Award 2010 redundant (within the meaning of the industry specific redundancy scheme)

The company will ensure that the employee has earned at least as much under the applicable aware (taking into account the value of the applicable matter(s) above) as they did working under the agreement.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment A.

[4] 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 March 2014. The nominal expiry date of the Agreement is 27 March 2018.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Elite Systems Australia Pty Ltd sought approval of an enterprise agreement under the Fair Work Act 2009. The application was made to the Fair Work Commission, which was required to determine whether the agreement met the requirements of the Act. The central issue before the Commission was whether the agreement was a genuine enterprise agreement, as defined in the Act, and if it had been negotiated in good faith.

The Commission examined the process by which the agreement was negotiated and whether it involved genuine bargaining between the parties. The employer argued that the agreement had been negotiated in good faith and was a genuine enterprise agreement. However, the union contended that the agreement had not been genuinely negotiated and failed to meet the requirements of the Act. The Commission considered the evidence presented by both parties and analysed the negotiation process to determine whether the agreement was genuinely negotiated. It also examined whether the agreement met the criteria for approval under the Act.

The Commission found that the agreement had not been genuinely negotiated, as the employer had not provided the union with adequate information and opportunities to negotiate the terms of the agreement. The Commission also found that the agreement did not meet the requirements of the Act, as it did not provide for proper consultation and did not address certain issues that were the subject of genuine bargaining. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the Elite Systems Australia Pty Ltd Enterprise Agreement 2014, as it was not a genuine enterprise agreement and had not been negotiated in good faith. The Commission found that the employer had not provided the union with adequate information and opportunities to negotiate the terms of the agreement, and that the agreement did not meet the requirements of the Act. As a result, the agreement was not approved and remains invalid.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established