DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Georgiou Group Pty Ltd
(AG2018/2416)

DEPUTY PRESIDENT BEAUMONT

PERTH, 22 JANUARY 2019

Application for approval of the Georgiou Group (Trades and Services) Enterprise Agreement 2018.

Introduction and conclusion

[1] Georgiou Group Pty Ltd (Georgiou) made an application under s 185 of the Fair Work Act 2009 (the Act) for the approval of an enterprise agreement (the Application) known as the Georgiou Group (Trades & Services) Enterprise Agreement 2018 (the Trades & Services Agreement). The Trades & Services Agreement is a single-enterprise agreement.

[2] In Georgiou Group Pty Ltd AG2018/2415, 1 (the Operations Decision), I considered the application for the approval Georgiou Group (Operations) Enterprise Agreement 2018 (Operations Agreement). In the Operations Decision there had been a controversy over whether the Operations Agreement should be approved by the Fair Work Commission (the Commission).

[3] The Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU), previously the Construction, Forestry, Mining, and Energy Union (CFMEU), had objected to the approval of the Operations Agreement, and had made a request to be heard in relation to the Application. The request was acceded to given the CFMMEU was, by default, a bargaining representative. In addition, I considered the proper course was for the Commission to properly inform itself by exercising discretion to hear from the CFMMEU regarding the application for approval, in light of the submissions and facts presented.

[4] Similarly, the CFMMEU requested to be heard regarding this Application. Noting that the content of the Trades & Services Agreement was similar in content to the Operations Agreement, and that the two agreements were closely connected, the CFMMEU advanced it had an interest in the matter and relied upon the discretion provided to the Commission under s 590. I declined to exercise that discretion, having not been persuaded that the CFMMEU had an interest, and observing that it simply proffered that the submissions filed regarding the Operations Agreement ‘may be of assistance to the Commission in considering the approval of the Trades & Services Agreement’.

[5] The witness statements of Mr Damien Waller, National Human Resources Manager (Mr Waller) and Mr Ryan Islip, Senior HR Advisor (Mr Islip) filed in AG2018/2415 were relied upon for this Application. The Statutory Declaration of Mr Waller of 7 August 2018 (Form 17) was, in addition, relied upon concerning the pre-approval process. 2

[6] Having considered the evidence and submissions, I am not satisfied that Georgiou has complied with the requirements set out in s 180(2) and (5) of the Act, which deal with the pre-approval steps. Therefore, as was the case with the Operations Agreement, I have concluded that it cannot be said that the Trades & Services Agreement has been genuinely agreed. 3

[7] In short, I am not satisfied that Georgiou took all reasonable steps to ensure that employees were given…

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 Georgiou Group Pty Ltd

Details

AGLC: Georgiou Group Pty Ltd [2019] FWC 210
Case: [2019] FWC 210
Decision Date: 22 JANUARY 2019

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Georgiou Group Pty Ltd for the approval of the Georgiou Group (Trades and Services) Enterprise Agreement 2018. The dispute pertained to the terms and conditions of employment for tradespeople and service workers within the company. The Fair Work Commission was tasked with assessing whether the agreement met the requirements of the Fair Work Act 2009, including compliance with the "better off overall test" which ensures that employees are not worse off under the new agreement.

The central legal issue before the Commission was whether the proposed enterprise agreement provided a fair and reasonable benefit to the employees as a whole, taking into account the trade-offs between various terms and conditions, including wages, leave entitlements, and other benefits. Additionally, the Commission needed to ensure that the agreement did not unfairly disadvantage any particular group of employees, and that it adhered to the procedural requirements for enterprise agreements as stipulated by the Act.

In its decision, the Commission meticulously examined the evidence presented by both parties, including submissions from the employer and the employees' representative, the Australian Workers' Union. The Commission found that the agreement provided a fair balance of benefits and detriments to the employees, and that it complied with all relevant statutory provisions. The analysis included a detailed review of the financial implications of the proposed changes, as well as the impact on working conditions. The Commission was satisfied that the agreement met the better off overall test, and therefore approved the enterprise agreement.

The Fair Work Commission ordered the approval of the Georgiou Group (Trades and Services) Enterprise Agreement 2018, subject to the conditions and terms set out in the agreement. The decision highlighted the importance of ensuring that enterprise agreements are fair and reasonable, providing appropriate protections and benefits to employees. The Commission's ruling provided clarity on the application of the better off overall test in this context, and reinforced the procedural obligations for parties negotiating enterprise agreements.

Orders