Jemena Asset Management Pty Ltd

[2013] FWCA 5199

[2013] FWCA 5199

The attached document replaces the document previously issued with the above code on 23 August 2013.

[1] The last sentence of paragraph [11] read ‘The nominal expiry date of the Agreement is 30 June 2015’. The last sentence of paragraph [11] now reads ‘The nominal expiry date of the Agreement is 31 December 2014’ to reflect cause 6 of the Jemena Asset Management Enterprise Agreement (Vic) 2013.

[2] A typographical error of the word ‘ultimate’ has been corrected in paragraph [10].

Annalise Wood

Associate to Commissioner Lewin

Dated 28 August 2013

[2013] FWCA 5199

FAIR WORK COMMISSION

DECISION

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

Jemena Asset Management Pty Ltd
(AG2013/6059)

JEMENA ASSET MANAGEMENT ENTERPRISE AGREEMENT (VIC) 2013

Electrical power industry
COMMISSIONER LEWIN	MELBOURNE, 23 AUGUST 2013

Application for approval of the Jemena Asset Management Enterprise Agreement (Vic) 2013.

[1] An application has been made for approval of an Enterprise Agreement known as the Jemena Asset Managment Enterprise Agreement (Vic) 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Jemena Asset Management (Jemena). The Agreement is a single Enterprise Agreement.

[2] The application for approval of this Agreement was filed by Ms Melinda Chin, an employee of Jemena, on 16 April 2013.

[3] On reading the terms of the Agreement I became concerned that the terms of the Agreement might not meet the statutory requirements for approval. I advised the Applicant of those concerns.

[4] The matter was heard in Melbourne on 29 May 2013. At the hearing the Union parties, The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), the The Australian Workers’ Union (AWU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU), raised a number of concerns in relation to the Agreement. Directions were issued upon Jemena and the Union parties which directed the parties to file and serve submissions that addressed the concerns raised in the hearing in relation to the Agreement. A further hearing was listed for 23 and 24 July 2013. The hearing was adjourned to a Conference to be conducted on 29 July 2013.

[5] Prior to the Conference the Applicant provided written Undertakings and a request for an adjournment was granted.

[6] On Monday, 29 July 2013, I listed the matter for e-hearing to be heard in Chambers on Tuesday, 30 July 2013. The Notice of Listing advised any person wishing to be heard in the matter to contact my Chambers at least one hour prior to the above mentioned time whereby the matter would be listed for an attendance hearing. In the absence of any person wishing to be heard, a Decision would be issued. Prior to the commencement of the e-hearing Mr Hardy, a member of APESMA contacted my chambers and requested an attendance hearing.

[7] An attendance hearing was conducted on Wednesday, 7 August 2013. The issues of concern were addressed at the hearing and possible variations to the Undertakings which had been proposed by Jemena were discussed. At that hearing Ms Sharelle Harrington of APESMA made submissions concerning Undertakings which might be accepted and the effect of the approval of the Agreement on another matter in the Commission in which Mr Hardy, who is a member of APESMA, was involved. That matter has since been determined by the Commission.

[8] Further written Undertakings have been provided since the attendance hearing as discussed at the hearing. Those Undertakings can be found at Attachment A hereto below. Submissions were received from APESMA in respect of those Undertakings, pursuant to s.190 (4) of the Act, which went to Mr Hardy’s rights in relation to the matter (now determined) referred to above. No objection to the Undertakings has otherwise been received. The issue raised by APESMA in relation to Mr Hardy no longer applies and is not relevant to the determination of the application in any way. However, since the determination of that matter I have received a letter from Mr Hardy which I construe as an objection to the approval of the Agreement with the ultimate undertakings. On what is before me, Mr Hardy is not a bargaining representative for the Agreement. Moreover, having considered that correspondence, I am not persuaded that the Agreement should not be approved together with the undertakings appended hereto.

[9] I am satisfied that the Undertakings meet the requirements prescribed by s.190 of the Act and that the Agreement, together with the Undertakings, will result such that each employee whose employment is covered by the Agreement will be better off overall than if the employed under the Electrical Power Industry Award 2010 [MA000088] and the Power and Energy Industry Electrical, Electronic & Engineering Employees Award 1998, the reference instruments for the better off overall test as prescribed by s.193 of the Act.

[10] Subject to the Undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[11] The Agreement together with the Undertakings is approved and in accordance with s.54 of the Act will operate from the seven days after the date of approval of the Agreement by the Fair Work Commission. The nominal expiry date of the Agreement is 31 December 2014.

Printed by authority of the Commonwealth Government Printer

<Price code A, AE402737  PR539573>

APPENDIX A