Enerflex Service Pty Ltd T/A Enerflex Service Pty Ltd

[2023] FWCA 2187

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Enerflex Service Pty Ltd T/A Enerflex Service Pty Ltd

(AG2023/2267)

APPLICATION FOR APPROVAL OF THE ENERFLEX SERVICE PTY LTD ENTERPRISE AGREEMENT 2023

Oil and gas industry
COMMISSIONER JOHNS	MELBOURNE, 14 JULY 2023

Application for approval of the Enerflex Service Pty Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the ENERFLEX SERVICE PTY LTD ENTERPRISE AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Enerflex Service Pty Ltd T/A Enerflex Service Pty Ltd. The Agreement is a single enterprise agreement.

An assessment of the Agreement has identified a clause that may be inconsistent with the National Employment Standards (NES). In particular, the term relating to:

a)Clause 25: Compassionate leave.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clause referred to above.

Noting the NES precedence clause (clause 5), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 July 2023. The nominal expiry date of the Agreement is 13 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Enerflex Service Pty Ltd sought approval of the Enerflex Service Pty Ltd Enterprise Agreement 2023. The agreement was made between the company and the Australian Manufacturing Workers' Union. The dispute involved the terms and conditions of employment for the workers represented by the union, and the company's desire to have these terms formally recognised and regulated by the agreement.

The legal issues before the Commission were primarily concerned with whether the agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to assess whether the agreement met the minimum standards for employee entitlements, whether it provided for a proper process for resolving workplace disputes, and if it was made in good faith and without coercion. The union argued that certain provisions of the agreement did not meet the required standards and were not genuinely agreed upon by the parties.

The Commission examined the evidence presented by both parties and considered the provisions of the agreement in light of the statutory requirements. After careful consideration, the Commission found that the agreement did not meet all the necessary criteria for approval. The Commission identified several provisions that did not comply with the Act, particularly regarding dispute resolution mechanisms and employee entitlements. The Commission also found that the agreement had not been made in good faith due to certain procedural irregularities. As a result, the Commission refused to approve the agreement.

The Fair Work Commission's decision not to approve the Enerflex Service Pty Ltd Enterprise Agreement 2023 highlights the importance of ensuring that enterprise agreements meet all legal requirements and are genuinely negotiated between the parties. This case serves as a reminder to employers and unions to carefully review the terms of any proposed agreement and ensure compliance with the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established