Michael Alexander T/A The Cog (Vic) Pty Ltd Summary

[2023] FWCA 3142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Michael Alexander T/A The Cog (Vic) Pty Ltd

(AG2023/3165)

THE AMWU AND THE COG (VIC) PTY LTD NEWPORT POWER STATION AGREEMENT 2023-2026

Building, metal and civil construction industries
COMMISSIONER CONNOLLY	MELBOURNE, 2 OCTOBER 2023

Application for approval of The AMWU and The Cog (Vic) Pty Ltd Newport Power Station Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the The AMWU and The Cog (Vic) Pty Ltd Newport Power Station Agreement 2023-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Michael Alexander T/A The Cog (Vic) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 18 September 2023.

The notification time for the Agreement under s.173(2) was 3 July 2023 and the Agreement was made on 31 August 2023. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 21 September 2023, the Employer was invited to address aspects of the Agreement and provide confirmation as to the date of notification as the Form F17B filed was not clear on this particular issue.

On 25 September 2023, the Applicant provided submissions and confirmed that the notification time was 3 July 2023.

As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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) of the Act I note that the Agreement covers this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application for the approval of an industrial agreement between the Australian Manufacturing Workers' Union (AMWU) and The Cog (Vic) Pty Ltd, concerning the operations at the Newport Power Station from 2023 to 2026. The application was brought before the Fair Work Commission, a tribunal with jurisdiction over employment and workplace relations matters in Australia. The AMWU and The Cog (Vic) Pty Ltd sought to have their agreement recognised as a registered instrument, which would provide it with legal enforceability and protections under the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement met the statutory criteria for registration. This involved assessing whether the agreement was in writing, contained the terms and conditions of employment for the workers, and had been fairly negotiated. Additionally, the Commission had to determine if the agreement provided for procedural fairness, adequate protections, and if it adhered to the principles of good faith bargaining. The Commission also considered whether the agreement was in the best interests of the workers and if it promoted harmonious, productive, and cooperative workplace relations.

In deliberating on these issues, the Fair Work Commission evaluated the content of the agreement, the process of its negotiation, and its implications for the workers. The Commission found that the agreement was comprehensive, clearly outlined the terms of employment, and had been negotiated in good faith. It further determined that the agreement provided adequate protections and was in the best interests of the workers. The Commission concluded that the agreement met all statutory requirements and promoted harmonious workplace relations. Consequently, the Commission approved the agreement, recognising it as a registered instrument under the Fair Work Act 2009.

As a result of the Commission's decision, the Newport Power Station Agreement 2023-2026 between The AMWU and The Cog (Vic) Pty Ltd is now a legally enforceable document. This means that the terms and conditions outlined in the agreement are binding on both parties and can be enforced through the Fair Work Commission or the courts. This outcome ensures that the workers at the Newport Power Station are protected under a registered agreement and that their employment conditions are fairly negotiated and adequately protected.

Michael Alexander T/A The Cog (Vic) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established