Golden Circle Ltd

[2020] FWCA 23

[2020] FWCA 23

FAIR WORK COMMISSION

DECISION

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

Golden Circle Ltd
(AG2019/4385)

GOLDERN CIRCLE LIMITED - MAINTENANCE AND CLERICAL - ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 3 JANUARY 2020

Application for approval of the Golden Circle Limited - Maintenance and Clerical - Enterprise Agreement 2019.

[1] Golden Circle Limited (the Employer) has applied for approval of an enterprise agreement known as the Golden Circle Limited – Maintenance and Clerical – Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act I sought the views of the Australian Manufacturing Workers Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) regarding the undertakings provided by the Employer; each of them being bargaining representatives for the Agreement.

[3] The CEPU wrote to my chambers and indicated that it had no objections to the Employer’s undertakings. The AMWU did not provide its views on all of the Employer’s undertakings. Rather, the AMWU wrote to my chambers and provided its views on some of the Employer’s responses to the issues of concern raised by the Commission regarding the Agreement. The CFMMEU did not provide its views on any of the Employer’s undertakings.

[4] I indicated to the parties my view that the Agreement’s existing consultation term did not meet the requirements of s.205(1)(a)(i) of the Act, and that in the event of approval the model consultation term will be inserted into the Agreement.

[5] It is noted that the expression “including malingering, inefficiency, inefficiency, or neglect of duty” found in Clause 28.8 of the Agreement are not terms within the meaning of serious misconduct pursuant to r.1.07 of the Fair Work Regulations 2009 (the Regulations). As a result, the term of Clause 28.8 of the Agreement is likely an unenforceable term contrary to s.194(d) of the Act.

[6] With respect to Clause 33.1 of the Agreement, it is noted that the expression “all matters of concern regarding their employment conditions and circumstances” is taken to include, but not be limited to, the National Employment Standards (NES) and matters arising under the Agreement.

[7] With respect to Appendix 2, Clause 26.2 of the Agreement, it is noted that the term will only apply to the extent that it is not inconsistent with the NES, per the undertaking provided by the Employer.

[8] With respect to Appendix 2, Clause 27.2.2 of the Agreement, it is noted that the term will only apply to the extent that it is not inconsistent with the NES, per the undertaking provided by the Employer.

[9] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[10] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[11] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Regulations is attached to the Agreement and taken to be a term of it.

[12] The AMWU, the CEPU and the CFMMEU being bargaining representatives for the Agreement have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the AMWU, the CEPU and the CFMMEU.

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 January 2020. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

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Annexure A: