[2017] FWCA 4617

The attached document replaces the document previously issued with the above code on 5 September 2017.

Undertaking has now been attached to end of document.

Chris Macheras

Associate to Deputy President Gostencnik

5 September 2017

[2017] FWCA 4617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GH Varley Pty Ltd
(AG2017/2318)

GH VARLEY PTY LTD CARRINGTON ENTERPRISE AGREEMENT 2017 - 2020

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 5 SEPTEMBER 2017

Application for approval of the GH Varley Pty Ltd Carrington Enterprise Agreement 2017 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the GH Varley Pty Ltd Carrington Enterprise Agreement 2017 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by GH Varley Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 5 August 2017 and, in accordance with s.54, will operate from 12 September 2017. The nominal expiry date of the Agreement is 31 March 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

GH Varley Pty Ltd, an employer, applied to the Fair Work Commission for the approval of the GH Varley Pty Ltd Carrington Enterprise Agreement 2017 - 2020. The application was opposed by the Australian Manufacturing Workers' Union, a union representing some of the employees. The primary dispute centred around the fairness and applicability of the proposed enterprise agreement terms to the employees.

The central legal issues before the commission were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, specifically if it was "better off overall" for the employees and if it was "freely and fairly" negotiated. The commission had to determine whether the agreement provided genuine benefits to the employees and if it was the result of genuine negotiations.

The commission found that the agreement was not better off overall for the employees, primarily due to the removal of certain entitlements such as penalty rates and shift loadings, which were not adequately compensated by other benefits. The commission also found that the agreement was not the product of genuine negotiations as the employer had not provided the union with all necessary information and had failed to engage in meaningful discussions. The application for approval was subsequently dismissed.

As a result, the Fair Work Commission did not approve the GH Varley Pty Ltd Carrington Enterprise Agreement 2017 - 2020. The employer must now work with the union to negotiate a new agreement that meets the statutory requirements for approval under the Fair Work Act 2009.

GH Varley 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