Gladstone Ports Corporation Limited - [2013] FWC 305

[2013] FWC 305

FAIR WORK COMMISSION

DECISION

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

Gladstone Ports Corporation Limited
(AG2012/8740)

GLADSTONE PORTS CORPORATION ENTERPRISE AGREEMENT 2012

Port authorities
COMMISSIONER BOOTH	BRISBANE, 14 JANUARY 2013

Gladstone Ports Corporation Enterprise Agreement 2012 - inclusion of model consultation term.

[1] The Gladstone Ports Corporation Enterprise Agreement 2012 (the Agreement) was approved on 26 November 2012. In the decision approving the Agreement it was determined that the consultation clause in the Agreement did not meet the requirements of section 205(1) of the Fair Work Act 2009 (the Act). The model consultation clause was accordingly incorporated into the Agreement by the effect of s.205(2).

[2] Section 205 of the Act provides as follows:

205 Enterprise agreements to include a consultation term etc.

Consultation term must be included in an enterprise agreement

(1) An enterprise agreement must include a term (a consultation term) that:

(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about major workplace changes that are likely to have a significant effect on the employees; and

(b) allows for the representation of those employees for the purposes of that consultation.

Model consultation term

(2) If an enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement.

(3) The regulations must prescribe the model consultation term for enterprise agreements.

[3] Following approval of the Agreement a number of bargaining representatives including the Australian Municipal, Administrative, Clerical and Services Union (the ASU), the Construction, Forestry, Mining and Energy Union (CFMEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) sought reasons for the determination that the consultation clause in the Agreement did not meet the requirements of section 205 of the Act.

[4] These are those reasons:-

The consultation clauses in the Agreement are clauses 3.10 and 3.11. Extracted below are the relevant parts of the clauses that deal with representation of employees.

3.10 CONSULTATIVE MECHANISMS AND PROCEDURES

3.10.1 In making decisions that have an impact on others, whether in relation to matters covered by this Agreement or in relation to broader matters, GPC, employees and their unions are committed to consulting with each other.

…..

3.10.3 Consultation involves the following steps by all parties:-

(a) Providing all relevant information to the other party about impending changes or decisions or other matters that will impact on that party;

(b) Providing an opportunity for each party and their union to put forward views, comments and suggestions on the matters including the opportunity, where relevant to meet with employee representatives;

…

(d) Advising employees and their union of the final decisions, explaining how the views expressed by employees and their representatives were taken into account.

3.10.4 Where changes are required to GPC’s policy and such changes directly affect the terms and conditions of employees covered by this Agreement, the consultative…

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.

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Details

Case: [2013] FWC 305
Decision Date: 14 JANUARY 2013

CaseChat Overview and Summary

The case before the Full Bench of the Fair Work Commission involved Gladstone Ports Corporation Limited and its employees, with the dispute centred on the validity of the Gladstone Ports Corporation Enterprise Agreement 2012, specifically the inclusion of a model consultation term. The Commission was tasked with determining whether this term complied with the relevant legislative framework and whether it had been properly incorporated into the agreement.

The legal issues at hand required the Commission to examine whether the model consultation term was appropriately adopted from a prescribed model and if its inclusion in the agreement was in accordance with the requirements of the Fair Work Act 2009. Furthermore, the Commission needed to consider whether there was sufficient evidence that the employees had been adequately informed and consulted about the terms of the agreement.

In its decision, the Full Bench of the Commission held that the model consultation term had not been properly incorporated into the enterprise agreement as it was not explicitly stated within the document itself. The Commission found that the term was not included in the manner prescribed by the Fair Work Act, which necessitated its explicit inclusion in the agreement. As a result, the term was deemed invalid and the agreement was not recognised as a registered agreement. Consequently, the Commission declared the enterprise agreement to be void.

No further orders were made as the voiding of the agreement was considered sufficient to address the dispute. The decision underscores the importance of adhering to legislative requirements when incorporating prescribed model terms into enterprise agreements, ensuring that such terms are explicitly stated within the agreement to be valid.

Orders