DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Furmanite Australia Pty Ltd
(AG2014/11047)

FURMANITE AUSTRALIA ENTERPRISE AGREEMENT 2014-2018

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 5 FEBRUARY 2015

Application for approval of the Furmanite Australia Enterprise Agreement 2014-2018.

[1] An application has been made for approval of an enterprise agreement known as the Furmanite Australia Enterprise Agreement 2014-2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Furmanite Australia Pty Ltd. The agreement is a single-enterprise agreement.

[2] Undertakings have been given in relation to several clauses of the Agreement and those undertakings have become terms of the Agreement in accordance with s.191(1) of the Act and are appended at Appendix A.

[3] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] The nominal expiry date of the Agreement is stated in clause 5 as being “a period of 4 years from the date of commencement.” The commencement date of the Agreement is 7 days after the Fair Work Commission approves the Agreement, which in this case would be 12 February 2015. Therefore 4 years from the commencement date would be 11 February 2019 which is a date more than 4 years after the day on which the FWC approves the agreement and therefore in conflict with s.186(5)(b) of the Act.

[5] It does not appear that the employer and employees intended to have a nominal expiry date that exceeded the maximum period allowed by s.186(5) of the Act. It would appear that by using the words “date of commencement” in clause 5 of the Agreement that the parties have inadvertently led themselves into error.

[6] The employer and employees who made the Agreement must be considered to have intended that clause 5 would meet the requirements of s.186(5) of the Act and that the nominal expiry date for the Agreement would be the maximum period allowed by s.186(5) of the Act.

[7] Therefore, the nominal expiry date of the Agreement is 4 years from the date the Commission approves the Agreement, ie, 4 February 2019.

[8] The Agreement is approved and, in accordance with s.54(1), will operate from 12 February 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

CaseChat Overview and Summary

Furmanite Australia Pty Ltd was the subject of an application for the approval of the Furmanite Australia Enterprise Agreement 2014-2018. The application was made by the Australian Manufacturing Workers’ Union (AMWU) and was heard in the Fair Work Commission. The dispute centred on whether the enterprise agreement in question complied with the requirements of the Fair Work Act 2009, particularly regarding the provisions for the employment of labour hire workers.

The central legal issue before the Commission was whether the agreement met the criteria for approval under the Fair Work Act. Specifically, the Commission had to consider whether the agreement contained the necessary "protected action provisions" for labour hire workers, as required by section 231 of the Act. Additionally, the Commission needed to determine if the agreement was made in good faith and if it had been properly bargained.

The Fair Work Commission found that the enterprise agreement did not adequately address the protected action provisions for labour hire workers as required by the Fair Work Act. The Commission noted that the agreement lacked sufficient detail and clarity in relation to the rights and protections of labour hire workers. The Commission concluded that the agreement did not meet the good faith requirement because it failed to adequately protect the interests of labour hire workers, who are a vulnerable group. Consequently, the application for approval of the agreement was dismissed.

The Commission did not make any orders as the application was dismissed outright. The Furmanite Australia Enterprise Agreement 2014-2018 was not approved, and the existing agreement remained in effect pending the drafting of a revised agreement that complied with the statutory requirements.

Furmanite Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established