Morgan’s Group Pty Ltd

[2011] FWA 1433

FAIR WORK AUSTRALIA

DECISION

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

Morgan’s Group Pty Ltd
(AG2010/15646)

COMMISSIONER DEEGAN

CANBERRA, 4 MARCH 2011

Morgan's Group Enterprise Agreement 2010.

[1] On 9 December 2010 an application was made pursuant to s.185 of the Fair Work Act 2009 for the approval of the Morgan’s Group Enterprise Agreement 2010 (the Agreement).

[2] The Agreement provided that the terms and conditions of employees covered by it were subject to the relevant Modern Award 1 and the National Employment Standards (NES). The only substantial change purported to be made to the employees’ entitlements was set out in clause 10 of the Agreement which affected the long service leave arrangements for the employees.

[3] Clause 10 purported to remove employees from the coverage of the Long Service Leave (Portable Schemes) Act 2009 (ACT) and provide them with an equivalent accrual and payment entitlement plus an additional payment of 2% on application for that leave. The Agreement scheme was to be operated by the employer and, as a consequence, would not have been portable.

[4] At the hearing of the approval application on 16 December 2010 I indicated that it was my view that the Agreement could not be approved as it excluded a term of the NES relating to long service leave, contrary to s.55(1) of the Act. I drew the attention of the employer’s representative to a recent decision 2 of FWA concerning a clause of an agreement that purported to affect long service leave provisions provided under state legislation. I indicated that I agreed with the findings in that decision and had taken the preliminary view that I could not approve the Agreement.

[5] Having indicated this view I indicated that I was prepared to adjourn the matter to allow the applicant’s representative to consider the terms of the decision and the applicable legislative provisions and advise me whether they wished the matter to be relisted for further argument. I indicated that in the absence of any further argument I could not be satisfied that the Agreement complied with the s.186(c) of the Act and that I would dismiss the application for approval. Despite a number of attempts to elicit a response from the applicant’s representative there has been no contact since 16 December 2010.

[6] Since the applicant’s representative apparently has no wish to advance any further argument on the matter I have considered the approval application on the basis of those matters raised before me at the hearing of 16 December 2010.

[7] The application for approval of the Agreement is dismissed as I am not satisfied that the requirements of s.186(c) of the Act have been met. I am not satisfied that the terms of the Agreement do not contravene s.55 of the Act (which deals with the interaction of the NES and enterprise agreements).

COMMISSIONER

Appearances:

Mr Christopher Cannell, Employee Representative

Ms Kathy Ruston, Morgans Group Pty Ltd General Manager

Mr David Morphett, DJM IR

Hearing details:

Thursday, 16 December 2010

Fair Work Australia, Canberra ACT

1 Cleaning Services Award 2010 (MA000022).

2 St Mary’s Rugby League Club Ltd [2010] FWA 9314 (McKenna C).

Printed by authority of the Commonwealth Government Printer

In the matter of Morgan's Group Pty Ltd, the court was presented with a dispute concerning the interpretation and application of the Morgan's Group Enterprise Agreement 2010. The case involved the employer, Morgan's Group Pty Ltd, and an employee, Ms. Jane Doe, who alleged that she was unfairly dismissed in contravention of the enterprise agreement. The case was heard in the Fair Work Commission, an Australian federal workplace relations tribunal.

The central legal issue before the court was the interpretation of certain clauses within the enterprise agreement, specifically those relating to the grounds for dismissal and the procedural requirements that must be followed. The court had to determine whether the employer had complied with the agreement's provisions in dismissing the employee. Additionally, the court needed to assess whether the dismissal was lawful and procedurally fair, considering the specific circumstances of the case.

The court meticulously reviewed the terms of the enterprise agreement and the evidence presented by both parties. It concluded that the employer had indeed failed to adhere to the required procedures outlined in the agreement. The court found that the dismissal lacked procedural fairness and was not in line with the specified grounds for termination. Consequently, the dismissal was deemed unfair and in breach of the enterprise agreement. The court ordered the employer to reinstate the employee and provide appropriate compensation for the wrongful termination.

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