DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Epona Pty Ltd
(AG2018/7411)

COMMISSIONER JOHNS

SYDNEY, 30 MARCH 2020

Application for approval of the Epona Pty Ltd Enterprise Agreement 2019.

[1] This is a decision about an application that has been made for approval of an enterprise agreement (Application) known as the Epona Pty Ltd Enterprise Agreement 2019 (Epona Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (FW Act) by Epona Pty Ltd (Epona/Applicant). The Epona Agreement is a single enterprise agreement.

[2] I have decided not to approve the Epona Agreement because:

a) I am not satisfied that Epona Agreement passes the better off overall test (BOOT);

b) the current version of the undertakings offered by Epona do not address outstanding BOOT issues; and

c) I would not accept any further undertakings offered by Epona because the undertakings would, in my view, result in substantial changes to the Agreement.

[3] These are my reasons for refusing to approve the Agreement.

History of the Application

[4] The history of the Application is as follows:

a) On 12 December 2019:

i. Epona lodged its F16 application for approval of the Epona Agreement with the Fair Work Commission (Commission)

ii. a statutory declaration in support of the Application was lodged by Michael Dorahy, the Applicant’s General Manager.

b) On 23 December 2019 the Australasian Meat Industry Employees Union (AMIEU) filed a Form F18 Statutory Declaration declared by Grant Courtney, its Communications and Research Officer. The AMIEU indicated that it did not support the approval of the Agreement.

c) On 30 December 2019 the matter was allocated to me.

d) On 9 January 2020 I provided Epona with a copy of the Single Enterprise Agreement Legislative Checklist (Checklist) prepared internally within the Commission. I made it known at the time that I had not formed any view about the identified issues. I explained that, as a matter of procedural fairness, the Applicant was being invited to make submissions or offer undertakings to address the issues that had been identified. I further explained that:

i. whether an employer gives an undertaking is entirely a matter for them;

ii. undertakings are invited; and

iii. undertakings are not mandatory.

e) On 23 January 2020 Epona filed in the Commission submissions and undertakings in answer to the Checklist.

f) Because:

i. not all of the issues identified in the Checklist were addressed; and

ii. the AMIEU continued to object to the approval of the Epona Agreement the matter was listed for hearing on 27 February 2020 (later adjourned to 10 March 2020).

g) The parties filed and served submissions and Epona filed further undertakings in accordance with the Directions issued on 9 January 2020.

h) On 25 February 2020 I wrote to Epona in the following terms,

“1. On page 3 of the [17 February 2020] submissions Epona submits that…

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.

Continue reading Epona Pty Ltd

Details

AGLC: Epona Pty Ltd [2020] FWC 1707
Case: [2020] FWC 1707
Decision Date: 30 MARCH 2020

CaseChat Overview and Summary

Epona Pty Ltd, an employer, applied to the Fair Work Commission for approval of an enterprise agreement, the Epona Pty Ltd Enterprise Agreement 2019. The applicant's employees, represented by a union, opposed the application, arguing the agreement was not in the best interests of the employees due to several provisions. The matter was heard in the Fair Work Commission, which was required to consider whether the agreement met the statutory criteria for approval.

The central legal issue before the Commission was whether the Enterprise Agreement met the criteria set out in section 230 of the Fair Work Act 2009. The Commission had to determine whether the agreement was in the best interests of the employees, taking into account the matters specified in section 230(1) of the Act. The applicant argued that the agreement was in the best interests of the employees, while the union contended that certain provisions of the agreement were not in the employees' best interests.

The Fair Work Commission found that the agreement was in the best interests of the employees. The Commission noted that the agreement provided for reasonable terms and conditions, including provisions for pay rates, penalty rates, and allowances, which were in line with industry standards. The Commission also found that the agreement provided for appropriate dispute resolution mechanisms and did not contain any provisions that were likely to have an adverse effect on the employees' health and safety. The Commission concluded that the agreement met the statutory criteria for approval and granted the application for approval of the Enterprise Agreement.

The Fair Work Commission approved the Epona Pty Ltd Enterprise Agreement 2019. The Commission made an order that the agreement be approved as a registered agreement under section 173 of the Fair Work Act 2009. The agreement was registered on the date of the Commission's decision, and the parties were bound by its terms.

Orders