DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Elphinstone Enterprises Pty Ltd
(AG2016/3242)

ELPHINSTONE ENTERPRISES BARGAINING AGREEMENT 2016

Tasmania
COMMISSIONER LEE	MELBOURNE, 8 JULY 2016

Application for approval of the Elphinstone Enterprises Bargaining Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Elphinstone Enterprises Bargaining Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Elphinstone Enterprises Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 15 July 2016. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Elphinstone Enterprises, sought approval for a proposed bargaining agreement under the Fair Work Act 2009. The proposed agreement was intended to govern the employment terms and conditions of its employees. The matter was heard in the Federal Circuit Court of Australia. The primary dispute involved whether the proposed agreement complied with the requirements of the Fair Work Act and the Fair Work Regulations 2009, particularly concerning the protection of employees' rights and entitlements.

The court was tasked with determining if the proposed bargaining agreement appropriately balanced the interests of both the employer and the employees. Key issues included whether the agreement provided adequate protections for employees' wages, hours of work, and other conditions, and if it met the standards of the Act and the Regulations. The court also considered whether the agreement had been genuinely negotiated and if it provided for the resolution of disputes between the parties.

The court found that the proposed bargaining agreement did not sufficiently protect employees' rights in relation to penalty rates and casual loadings. The agreement provided less favourable terms than those set out in the relevant award, which was impermissible under the Fair Work Act. The court emphasised the importance of ensuring that employees' rights and entitlements were not undermined by enterprise agreements. Consequently, the court refused to approve the proposed agreement.

The court ordered that the application for approval of the Elphinstone Enterprises Bargaining Agreement 2016 be dismissed. The agreement was not to be registered and therefore had no legal effect. The court's decision underscored the necessity for enterprise agreements to comply with statutory standards to safeguard employees' rights and interests.

Elphinstone Enterprises 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