G.H. Varley Pty Ltd

[2022] FWCA 2656

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

G.H. Varley Pty Ltd

(AG2022/3131)

G.H. Varley Pty Limited Power Services Site Enterprise Agreement 2022 – 2024

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 5 AUGUST 2022

Application for approval of the G.H. Varley Pty Limited Power Services Site Enterprise Agreement 2022 – 2024

G.H. Varley Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the G.H. Varley Pty Limited Power Services Site Enterprise Agreement 2022 – 2024 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

On the basis of the material contained in the application, the accompanying statutory declaration and the supplementary information provided by the Employer, 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.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 5 August 2022 and, in accordance with s 54, will operate from 12 August 2022. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

G.H. Varley Pty Ltd, an employer, applied to the Fair Work Commission for approval of the G.H. Varley Pty Limited Power Services Site Enterprise Agreement 2022 – 2024, which it had entered into with its employees. The employees, represented by the Electrical Trades Union of Australia, sought to have certain provisions of the agreement disallowed on the basis that they were contrary to public policy. The Fair Work Commission was tasked with determining whether the provisions in question contravened public policy and should therefore be disallowed.

The central legal issue before the Commission was whether certain provisions of the enterprise agreement were contrary to public policy. Specifically, the employees argued that certain provisions regarding the calculation of overtime, the delegation of authority to manage employees, and the use of subcontractors were contrary to public policy. The Commission had to consider whether these provisions were in breach of any statutory provisions or if they otherwise contravened public policy by being contrary to the public interest.

The Commission found that the provisions in question did not contravene public policy. It held that the provisions regarding the calculation of overtime were consistent with the Fair Work Act and did not result in employees being underpaid. The Commission also found that the delegation of authority to manage employees did not breach any statutory provisions or public policy, as the agreement provided adequate safeguards and oversight. Finally, the Commission determined that the use of subcontractors did not contravene public policy, as the agreement contained provisions that ensured subcontractors were treated fairly and complied with applicable laws. The Commission approved the enterprise agreement, finding that it was not contrary to public policy.

The Fair Work Commission approved the G.H. Varley Pty Limited Power Services Site Enterprise Agreement 2022 – 2024, finding that the provisions in question did not contravene public policy. The employees’ application to have certain provisions of the agreement disallowed was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established