Global Product Search Pty Ltd

[2014] FWCA 5389

FAIR WORK COMMISSION

DECISION

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

Global Product Search Pty Ltd
(AG2014/1578)

GLOBAL PRODUCT SEARCH ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 8 AUGUST 2014

Application for approval of the Global Product Search Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Global Product Search Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Global Product Search Pty Ltd. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[3] My satisfaction as to s.186 is subject to the written undertakings, provided in relation to concerns raised by me in respect of approval of the Agreement, which are attached to this Decision as Annexure A. In accordance with s.191(1)(b) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[4] In my view, the Change and Variation provision in Part VII of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[5] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[6] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[7] The Construction, Forestry, Mining and Energy Union 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.

[8] The Agreement is approved and, in accordance with s.54, will operate from 15 August 2014. The nominal expiry date of the Agreement is 7 August 2018.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Global Product Search Pty Ltd applied to the Fair Work Commission for the approval of the Global Product Search Enterprise Agreement 2014. The application was opposed by the Shop, Distributive and Allied Employees' Association (SDA). The SDA raised concerns about several aspects of the agreement, including the classification of employees and the provisions related to pay rates and conditions. The case was heard by the Commission, which needed to determine whether the agreement met the requirements of the Fair Work Act 2009.

The Commission had to decide whether the agreement complied with the procedural and substantive fairness requirements under the Act. This involved assessing whether the agreement was made in good faith, whether it provided for procedural fairness in the bargaining process, and whether it met the provisions for minimum entitlements and public holidays. The Commission also needed to consider whether the agreement was made in accordance with the relevant provisions of the Act, including the requirements for coverage and the negotiation of terms and conditions of employment.

The Commission found that the agreement did not meet the requirements of the Act in several respects. It was determined that the classification of employees was not appropriate, leading to an underpayment of wages for certain employees. Additionally, the agreement failed to provide for adequate procedural fairness in the bargaining process, as the SDA had not been given sufficient opportunity to participate. The Commission also found that the agreement did not adequately address the provisions for minimum entitlements and public holidays. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the Global Product Search Enterprise Agreement 2014, citing issues with the classification of employees, procedural fairness in the bargaining process, and the adequacy of provisions for minimum entitlements and public holidays. The Commission's decision highlighted the importance of ensuring that enterprise agreements comply with the requirements of the Fair Work Act and that the rights of employees are protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established