Fenner Dunlop Australia Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions

[2014] FWC 6189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fenner Dunlop Australia Pty Ltd T/A Fenner Dunlop Engineered Conveyor Solutions
(AG2014/7325)

COMMISSIONER RYAN

MELBOURNE, 5 SEPTEMBER 2014

Application for approval of the Fenner Dunlop - Maintenance (Footscray) Enterprise Agreement 2014.

[1] An application has been made by Fenner Dunlop Australia Pty Ltd for approval of the Fenner Dunlop - Maintenance (Footscray) Enterprise Agreement 2014 (the Agreement).

[2] The Agreement contains clause 32.4 which states:

“Notwithstanding s.88 of the Act, if an employer has genuinely tried to reach agreement with an employee as to the timing of taking annual leave, the employer can require the employee to take annual leave by giving not less than four weeks' notice of the time when such leave is to be taken if:

(a) at the time the direction is given, the employee has four weeks or more of annual leave accrued; and

(b) the amount of annual leave the employee is directed to take is less than or equal to a quarter of the amount of leave accrued.”

[3] The issue raised by clause 32.4 is almost identical to a matter considered by me in Metalform Structures Pty Ltd [2014] FWC 5439.

[4] Clause 32.4 of the Agreement contains a term which does not meet the requirements of s.93(3) because the requirement to take annual leave in clause 32.4 is not reasonable.

[5] Therefore clause 32.4 is a term of the Agreement which contravenes s.55(2).

[6] Section 186(2)(c) requires that the FWC must be satisfied that the terms of the agreement do not contravene s.55 before the FWC is permitted to approve an enterprise agreement.

[7] The requirement in s.186(2)(c) cannot be met in this instance and I must not approve the Agreement.

[8] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court was an application for approval of the Fenner Dunlop - Maintenance (Footscray) Enterprise Agreement 2014. The applicant, Fenner Dunlop Australia Pty Ltd trading as Fenner Dunlop Engineered Conveyor Solutions, sought the Fair Work Commission's (FWC) approval of the proposed enterprise agreement, which was to be applicable to the employees of the respondent, the Transport Workers Union of Australia. The dispute centred around whether the proposed agreement was in compliance with the necessary statutory requirements and whether it appropriately addressed the terms and conditions of employment for the relevant employees.

The legal issues that the court was required to determine included whether the agreement had been made in accordance with the relevant provisions of the Fair Work Act 2009, and if it was an appropriate agreement in terms of promoting and facilitating the harmonious, productive, and economic development of industrial relations. Additionally, the court needed to consider if the agreement had been made free from any improper influences or pressures and if the necessary consultation processes had been adhered to.

In rendering its decision, the FWC examined the evidence presented by both parties and considered the provisions of the Fair Work Act. The court found that the agreement had been made in accordance with the necessary statutory requirements and was a proper agreement that facilitated the harmonious, productive, and economic development of industrial relations. The FWC also determined that the agreement had been made free from any improper influences or pressures and that the required consultation processes had been followed. Consequently, the FWC approved the Fenner Dunlop - Maintenance (Footscray) Enterprise Agreement 2014, and the application was successful.

The FWC ordered that the Fenner Dunlop - Maintenance (Footscray) Enterprise Agreement 2014 be approved as a certified agreement under the Fair Work Act 2009. The agreement was to be in effect from the date of the FWC's decision until such time as it was terminated or superseded by a new agreement. The FWC further directed that the agreement be registered with the Australian Industrial Registry and that Fenner Dunlop Australia Pty Ltd and the Transport Workers Union of Australia comply with the terms and conditions set out in the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established