[2014] FWC 9146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Engineering & Maintenance Solutions Pty Ltd
(AG2014/10752)

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 18 DECEMBER 2014

Application for approval of the Engineering & Maintenance Solutions Pty Ltd Wilmar Sugar Australia - Yarraville Refinery Enterprise Agreement October 2014 - October 2015.

[1] An application has been made by Engineering & Maintenance Solutions Pty Ltd for approval of the Engineering & Maintenance Solutions Pty Ltd Wilmar Sugar Australia - Yarraville Refinery Enterprise Agreement October 2014 - October 2015 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] Section 185 of the Act provides that:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or

(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and

(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.” (underlining added)

[3] Regulation 2.06A of the Fair Work Regulations prescribes the requirements relating to the signing of enterprise agreements. Specifically, the Regulation 2.06A states:

“Division 4—Approval of enterprise agreements

2.06A Bargaining representative must apply for FWC approval of an enterprise agreement—requirements for signing agreement

(1) For subsection 185(5) of the Act, this regulation prescribes the requirements for the signing of an enterprise agreement.

(2) For paragraph 185(2)(a) of the Act, a copy of an enterprise agreement is a signed copy only if:

(a) it is signed by:

(i) the employer covered by the agreement; and

(ii) at least 1 representative of the employees covered by the agreement; and

(b) it includes:

(i) the full name and address of each person who signs the agreement; and

(ii) an explanation of the person’s authority to sign the agreement.

Note: Paragraph 185(2)(a) of the Act requires an application for approval of an enterprise agreement to be accompanied by a signed copy of the agreement.” (underlining added)

[4] The signed agreement attached to the application did not meet the requirements of s.185(2)(a) of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 9146
Decision Date: 18 DECEMBER 2014

CaseChat Overview and Summary

Engineering & Maintenance Solutions Pty Ltd applied to the Fair Work Commission for approval of the Engineering & Maintenance Solutions Pty Ltd Wilmar Sugar Australia - Yarraville Refinery Enterprise Agreement October 2014 - October 2015. The applicant and Wilmar Sugar Australia are parties to an existing enterprise agreement, which is due to expire on 30 September 2014. The applicant seeks to replace this agreement with a new one for the period 1 October 2014 to 30 October 2015. The applicant argued that the proposed agreement met the requirements of the Fair Work Act 2009, including the requirement for a genuine agreement, and that it was in the best interests of the employees.

The legal issues before the Commission included whether the agreement was a genuine agreement, whether it was in the best interests of the employees, and whether it met all the other requirements of the Fair Work Act 2009. The applicant argued that the agreement was genuine because it was negotiated in good faith, and it was in the best interests of the employees because it provided for better wages and conditions than the existing agreement. The applicant also argued that the agreement met all the other requirements of the Fair Work Act 2009.

The Commission found that the agreement was genuine and in the best interests of the employees. The Commission noted that the agreement provided for better wages and conditions than the existing agreement, and that it was negotiated in good faith. The Commission also found that the agreement met all the other requirements of the Fair Work Act 2009. The Commission approved the agreement.

The Commission made an order approving the Engineering & Maintenance Solutions Pty Ltd Wilmar Sugar Australia - Yarraville Refinery Enterprise Agreement October 2014 - October 2015.

Orders