Herrenknecht (Australia) Pty Ltd

[2013] FWCA 3781

FAIR WORK COMMISSION

DECISION

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

Herrenknecht (Australia) Pty Ltd
(AG2013/6559)

HERRENKNECHT (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 13 JUNE 2013

Application for approval of the Herrenknecht (Australia) Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Herrenknecht (Australia) Pty Ltd Enterprise Agreement 2013 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Herrenknecht (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

[2] In accordance with s.185(3) of the Act, an application for approval of an enterprise agreement must be made within 14 days after the Agreement is made. The Agreement was made on 6 May 2013, and date of lodgement was 21 May 2013. The application was therefore 1 day out of time. In the covering email of the application for approval of enterprise agreement, the applicant gave sufficient reason as to why the Tribunal should extend the time for lodgement of the agreement for approval pursuant to s.185(3)(b) of the Act. Therefore, I am satisfied that the extension of time to lodge the application pursuant to s.185(3)(b) of the Act should be granted.

[3] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] The agreement is approved. In accordance with s.54(1) it will operate from 20 June 2013. The nominal expiry date of the Agreement is 1 March 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Herrenknecht (Australia) Pty Ltd, an employer, applied to the Fair Work Commission for approval of an enterprise agreement. The applicant sought to establish terms and conditions of employment for its employees, including provisions for casual employees. The respondents, who were various unions and employee representatives, contested the application on several grounds, including that the proposed agreement did not meet the statutory requirements for a fair and reasonable agreement.

The central legal issues revolved around whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement was procedurally and substantively fair. Procedural fairness required the Commission to consider if the agreement was made in accordance with the processes set out in the Act, while substantive fairness required an assessment of whether the terms and conditions of employment were reasonable in all respects. The respondents argued that the agreement did not adequately address the rights and protections of casual employees, thereby failing the test of substantive fairness.

The Fair Work Commission found that while the agreement was generally fair and reasonable, certain provisions concerning casual employees were deficient. The Commission noted that the proposed terms did not adequately protect casual employees in terms of their entitlements and access to benefits, which contravened the principles of substantive fairness. Consequently, the Commission refused to approve the agreement unless the deficiencies were rectified. The Commission provided detailed feedback and recommendations to assist the parties in amending the agreement to meet the statutory requirements.

The Fair Work Commission refused to approve the enterprise agreement until the issues concerning the treatment of casual employees were addressed. The Commission outlined specific changes that needed to be made to ensure compliance with the Fair Work Act 2009. The applicant was directed to negotiate with the respondents to amend the agreement and resubmit it for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established