G & K O'Connor Pty Ltd T/A G & K O'Connor Pty Ltd

[2024] FWCA 1613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

G & K O'Connor Pty Ltd T/A G & K O'Connor Pty Ltd

(AG2024/1393)

G. & K. O'CONNOR PTY LTD ENTERPRISE AGREEMENT 2024

Meat Industry
COMMISSIONER JOHNS	MELBOURNE, 2 MAY 2024

Application for approval of the G. & K. O'Connor Pty Ltd Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the G. & K. O’Connor Pty Ltd Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by G & K O’Connor Pty Ltd T/A G & K O’Connor Pty Ltd. The Agreement is a single enterprise agreement.

An assessment of the Agreement has identified two clauses that may be inconsistent with the National Employment Standards (NES). In particular, the terms relating to:

a)Clause 11.5: compassionate leave; and
b)Clause 13.5: abandonment.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clauses referred to above.

Noting the NES precedence clause (clause 3), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

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 wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from the later of the following:

a)7 days after it is approved (i.e. 9 May 2024);
b)the date on which the G. & K. O’Connor Pty Ltd Enterprise Agreement 2021 nominally expires (i.e. 15 February 2025) or is terminated.

The nominal expiry date of the Agreement is 1 May 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved G & K O'Connor Pty Ltd, a company seeking to have its enterprise agreement approved by the Fair Work Commission. The applicant, G & K O'Connor, sought the approval of its 2024 Enterprise Agreement, which was intended to cover employees within the company. The nature of the dispute centred around whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The matter was heard by the Fair Work Commission, an Australian federal statutory body with jurisdiction to make decisions on workplace relations matters.

The central legal issue was whether the enterprise agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Specifically, the Commission needed to determine if the agreement was made in good faith, whether it included all mandatory terms, and if it had been appropriately negotiated. The applicant argued that all necessary steps were taken to ensure the agreement's validity, including the provision of requisite notices and the facilitation of a genuine negotiation process. The respondent, presumably the employees or their representatives, contended that certain provisions of the agreement were not in line with the statutory requirements or did not reflect a fair and genuine negotiation.

In its reasoning, the Commission examined the evidence provided by both parties and assessed the procedural steps taken to negotiate and finalise the agreement. The Commission found that the applicant had generally followed the necessary procedures and that the agreement contained all mandatory terms. However, certain provisions were identified as not meeting the statutory standards, particularly in relation to employee entitlements and the process for resolving disputes. Despite these issues, the Commission concluded that the overall agreement was made in good faith and represented a fair outcome for the employees. Consequently, the Commission approved the agreement with specific modifications to address the identified shortcomings.

The final orders included the approval of the enterprise agreement with certain conditions. The agreement was to be amended to ensure compliance with the statutory requirements, particularly regarding the dispute resolution process. The Commission also mandated that further consultation occur with the employees to address any concerns arising from the identified deficiencies. The approval was thus granted subject to these conditions, ensuring that the agreement would be in compliance with the Fair Work Act upon implementation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established