Mondex Group Pty Ltd - [2015] FWC 1148

[2015] FWC 1148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mondex Group Pty Ltd
(AG2014/9336)

Meat Industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 17 FEBRUARY 2015

Application for approval of the Mondex Group (Agribusiness) Enterprise Agreement 2014, no exceptional circumstances, contrary to public interest to approve agreement.

[1] This decision concerns an application made under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the Mondex Group (Agribusiness) Enterprise Agreement 2014 (the Agreement). The Agreement covers Mondex Group Pty Ltd (the employer or Mondex) and employees engaged in the agribusinesses of the employer. The employer described its business as the provision of labour hire for meat, poultry and seafood processing. 1

[2] As I had concerns about a number of the provisions of the Agreement, I conducted a conference to discuss those concerns with the parties. As the concerns I had were not resolved in the conference I then conducted a hearing so as to provide an opportunity for the applicant to call evidence and make submissions. Having considered all of the evidence and submissions, I have decided to refuse approval of the Agreement. I am not persuaded it passes the better off overall test. The requirement for an agreement to do so is contained in s.186(2)(d). 2 I am not satisfied that, consistent with s.189 of the Act, there are exceptional circumstances such as to warrant me finding that the approval of the Agreement would not be contrary to the public interest. For reasons I give later in this decision, the concerns I have are not able to be met by the giving of undertakings.

[3] Section 189 is a key provision addressed by the applicant in this matter. It is in these terms:

“189 FWC may approve an enterprise agreement that does not pass better off overall test—public interest test
Application of this section
(1) This section applies if:

(a) the FWC is not required to approve an enterprise agreement under section 186; and

(b) the only reason for this is that the FWC is not satisfied that the agreement passes the better off overall test.

Approval of agreement if not contrary to the public interest

(2) The FWC may approve the agreement under this section if the FWC is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.

Note: The FWC may approve an enterprise agreement under this section with undertakings (see section 190).

(3) An example of a case in which the FWC may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short-term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement.

Nominal expiry date

(4) The nominal expiry date of an enterprise agreement approved by the FWC under this section is the earlier of the following:

(a) the date specified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mondex Group Pty Ltd

Details

AGLC: Mondex Group Pty Ltd [2015] FWC 1148
Case: [2015] FWC 1148
Decision Date: 17 FEBRUARY 2015

CaseChat Overview and Summary

The Fair Work Commission has refused approval of an enterprise agreement between Mondex Group Pty Ltd and its employees. The agreement was sought to be approved under section 189 of the Fair Work Act 2009, which allows the Commission to approve an agreement which does not meet the "better off overall test" if it is satisfied that the approval would not be contrary to the public interest because of "exceptional circumstances". The Commission was not satisfied that exceptional circumstances existed. It was also of the view that to approve the agreement would be contrary to the public interest. The Commission's reasons for its decision included that the agreement did not provide for payments for overtime or public holidays which were equal to or better than those provided for in the relevant modern award, that the agreement was not drafted in a manner that allowed for ease of understanding, and that it contained provisions that would allow the employer to suspend employees with or without pay for a range of reasons including inefficiency or poor attendance. The Commission noted that there were other provisions in the agreement that would have required attention had it not been for its concerns about the provisions mentioned above. The employer had submitted that it was one of the largest labour hire companies providing its services and that the agreement would allow employees to improve their financial security by working additional hours on a voluntary basis. The Commission was not persuaded that this constituted an exceptional circumstance. It also noted that there was no evidence that employees were not being paid the rates provided for in the relevant modern award.

Orders