Geoservices Australasia Pty Ltd Summary

[2013] FWCA 9042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Geoservices Australasia Pty Ltd
(AG2013/11432)

GEOSERVICES AUSTRALASIA PTY LTD ENTERPRISE AGREEMENT 2013

Technical services
COMMISSIONER CLOGHAN	PERTH, 22 NOVEMBER 2013

Application for approval of the Geoservices Australasia Pty Ltd Enterprise Agreement 2013.

[1] On 12 November 2013, Geoservices Australasia Pty Ltd made application for approval of a single enterprise agreement to be known as the Geoservices Australasia Pty Ltd Enterprise Agreement 2013 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 31 October 2013.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] The Association of Professional Engineers, Scientists and Managers Australia (APESMA) has declared that APESMA was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, APESMA supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, APESMA has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 29 November 2013.

[7] The nominal expiry date of this Agreement is 31 July 2015.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Geoservices Australasia Pty Ltd sought approval for its Enterprise Agreement 2013. The company, an entity engaged in geological and geophysical services, was in dispute with the Construction, Forestry, Mining and Energy Union (CFMEU) over certain terms of the agreement. The crux of the disagreement involved the application of the agreement to new employees hired after its execution and the rights of employees who had previously been members of a different union.

The primary legal issue before the Commission was whether the agreement should be applied to employees who were hired after the agreement was executed. The second issue was the rights of employees who had previously been members of a different union, specifically concerning their entitlements and obligations under the new agreement. The Commission needed to determine if the agreement's provisions could be retrospectively applied and if they could override the pre-existing rights of employees formerly affiliated with another union.

The Commission held that the agreement could be applied to new employees hired after its execution, provided that the employees were informed of the terms of the agreement and agreed to them. The Commission found that the agreement's terms could not be applied retrospectively to employees who were hired before the agreement was executed. Regarding the employees who had previously been members of a different union, the Commission determined that the agreement's provisions would apply to them, but only to the extent that they did not contravene any existing rights or entitlements that those employees had accrued under their previous union's agreement. The Commission emphasised the importance of clear communication and agreement to the terms for new employees and stressed the need to balance the rights of all employees involved.

The Commission approved the Enterprise Agreement 2013, subject to certain conditions, including that the company must ensure all new employees are informed of the agreement's terms and agree to them. The agreement was also subject to the condition that it could not be applied in a manner that would contravene any existing rights or entitlements of employees who were previously members of a different union.

Geoservices Australasia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established