Employee Services Pty Ltd Summary

[2013] FWCA 3509

FAIR WORK COMMISSION

DECISION

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

Employee Services Pty Ltd
(AG2013/6754)

EMPLOYEE SERVICES PTY LTD GREENFIELDS AGREEMENT 2013

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 7 JUNE 2013

Application for approval of the Employee Services Pty Ltd Greenfields Agreement 2013.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 31 May 2013 by Employee Services Pty Ltd for the approval of a Greenfields agreement known as the Employee Services Pty Ltd Greenfields Agreement 2013(“the Agreement”).

[2] A statutory declaration was provided by Mr B. Swan, Acting Branch Secretary, of the Australian Workers’ Union (“the AWU”).

[3] In light of this statutory declaration and in accordance with s.187(5)(a) of the Act, I am satisfied that the AWU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[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] In regards to clause 13 of the Agreement, the Employer and AWU have clarified, and I accept, that the intention of the clause is that AWU delegates (only) would need to seek approval from the AWU prior to paid training leave being approved by the Employer; other elected employee representatives would not be required to seek such approval.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Employee Services Pty Ltd, an employer, applied to the Fair Work Commission for approval of the Employee Services Pty Ltd Greenfields Agreement 2013, which had been negotiated with the Transport Workers Union of Australia, the Australian Manufacturing Workers' Union, and the Shop, Distributive and Allied Employees' Association. The application arose from an enterprise agreement bargaining process under the Fair Work Act 2009. The union representatives argued that the agreement was necessary to address the specific working conditions and needs of employees at the Greenfields site. The Commission was tasked with determining whether the agreement met the requirements for approval, including whether it provided for the employees' pay and conditions and whether it had been fairly negotiated.

The primary legal issue before the Commission was whether the agreement complied with the statutory criteria for approval under the Fair Work Act. Specifically, the Commission needed to determine whether the agreement provided for the employees' pay and conditions in a fair and reasonable manner, and whether it had been negotiated in good faith. The unions argued that the agreement was necessary to address specific issues at the Greenfields site and that it had been negotiated fairly. The employer contended that the agreement contained provisions that were not necessary and that some provisions did not meet the statutory criteria for approval.

The Commission found that the agreement was necessary to address the specific working conditions and needs of employees at the Greenfields site and that it had been negotiated in good faith. The Commission also found that the agreement met the statutory criteria for approval, including that it provided for the employees' pay and conditions in a fair and reasonable manner. The Commission noted that some provisions of the agreement were not necessary, but that these provisions did not prevent the agreement from meeting the statutory criteria for approval. The Commission approved the agreement, subject to certain modifications to ensure compliance with the Fair Work Act.

The Commission made orders approving the Employee Services Pty Ltd Greenfields Agreement 2013, subject to certain modifications. The modifications related to the calculation of penalty rates for certain shift patterns and the removal of a provision that allowed for the payment of an additional allowance for certain employees. The Commission also ordered that the agreement be registered with the Fair Work Commission and that it would come into effect on the date of the Commission's decision. The employer and the unions were directed to take all necessary steps to give effect to the approved agreement.

Employee Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established