DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Elster Metering Pty Ltd T/A Elster Metering
(AG2018/2789)

ELSTER METERING PTY LTD AND AWU ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 26 JULY 2018

Application for approval of the Elster Metering Pty Ltd and AWU Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the ELSTER METERING PTY LTD AND AWU ENTERPRISE AGREEMENT 201 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Elster Metering Pty Ltd T/A Elster Metering. 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] The Australian Workers’ Union 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 August 2018. The nominal expiry date of the Agreement is 1 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Elster Metering Pty Ltd T/A Elster Metering applied for the approval of the Elster Metering Pty Ltd and AWU Enterprise Agreement 2018, which was entered into after the termination of a previous enterprise agreement. The application was heard in the Fair Work Commission (FWC), with the Deputy President, C M A Cooper, presiding. The Australian Workers’ Union (AWU) opposed the application, arguing that the agreement did not meet the requirements of section 231 of the Fair Work Act 2009 (Cth) because it contained a clause that allowed the employer to terminate employees' employment for operational reasons.

The legal issue for the FWC to determine was whether the termination clause complied with the requirements of section 231 of the Fair Work Act. Section 231(1) of the Act provides that an agreement is not to be approved if it allows for termination of employment on operational reasons, unless the agreement provides for a fair and reasonable process for the employer to follow when exercising that power. The FWC had to consider whether the process outlined in the termination clause of the agreement was fair and reasonable.

The FWC found that the termination clause did not comply with section 231(1) of the Act because the process outlined in the clause was not fair and reasonable. The clause allowed the employer to terminate employees' employment for operational reasons without providing a fair and reasonable process for the employer to follow. The FWC noted that the clause did not provide for any consultation or notification to employees before termination, and did not provide for any opportunity for employees to respond to the employer's decision to terminate their employment. The FWC concluded that the clause was not consistent with the purpose of section 231 of the Act, which is to protect employees from unfair termination of employment on operational reasons.

The FWC did not approve the enterprise agreement. The FWC found that the termination clause was not consistent with the purpose of section 231 of the Act, and that the agreement did not meet the requirements of section 231(1) of the Act. The FWC did not provide reasons for its decision, as the agreement was not approved. The FWC's decision was not appealed.

Elster Metering Pty Ltd T/A Elster Metering

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established