Mr Gerald Fanning - [2010] FWA 3251

[2010] FWA 3251

FAIR WORK AUSTRALIA

DECISION

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

Mr Gerald Fanning
(AG2009/14396)

COMMISSIONER LEWIN

MELBOURNE, 21 APRIL 2010

Fair Work Act Enterprise Agreement, AML Pty Ltd & AML Employees 2009-12.

[1] This decision concerns an application made by Gerald Fanning, a bargaining representative of the Company, for approval of the Enterprise Agreement, AML Pty Ltd & AML Employees 2009 - 2012 (the agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) on 27 November 2009. The file was received in my chambers on 9 December 2009.

[2] The Agreement was made during the bridging period 1 as defined in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act), accordingly, when considering whether or not to approve the Agreement I have taken into account the provisions of Part 2–4 of Chapter 2 of the Act as modified by Schedule 7 of the Transitional Act. The application is subject to the Agreement passing the no-disadvantage test contained in Item 4 of Schedule 7 of the Transitional Act.

[3] The reference instrument for the purposes of comparison in determining whether or not the Agreement passes the no-disadvantage test is the Security Employees (VIC) Award (AP796143CRV). On reading the terms of the terms of the Agreement and the reference instrument I became concerned that the Agreement did not pass the no-disadvantage test.

[4] On 5 February 2010 I wrote to the applicant to notify the applicant of my concerns that the Agreement did not pass the no-disadvantage test noting that the wage rates contained in the Agreement were less than those in the reference instrument, the absence of overtime provisions, penalty rates, loadings and allowances. AML Pty Ltd filed a response to my letter of 5 February in the Tribunal on 11 February 2010 in the form of an undertaking in the following terms:

“PURSUANT to section 190 of the Fair Work Act 2009 AML Pty Ltd hereby undertakes that the Casual Rates clause of the Agreement shall be amended to ensure compliance with Section 186(2)(d) in terms of the better off overall test.

AML Pty Ltd give the undertaking the Agreement is only for the employment of casuals.”

[5] On 22 February 2010 I wrote to Mr Fanning stating that I considered the above undertaking to be general in nature and that the effect of accepting the undertaking would constitute significant changes to the terms of the Agreement in order that the employees covered by the undertaking not be disadvantaged having regard to the no-disadvantage test prescribed by the Act. In Particular, the undertaking would seem to require changes to the terms of the Agreement, incorporating terms of the reference instrument, dealing with ordinary hours of work performed on the weekends, overtime rates, shiftwork allowances and allowances generally, among other things. Mr Fanning was invited to file any Submissions to satisfy me that the undertaking filed on 11 February 2010 would not result in…

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.

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Details

AGLC: Mr Gerald Fanning [2010] FWA 3251
Case: [2010] FWA 3251
Decision Date: 21 APRIL 2010

CaseChat Overview and Summary

Mr Gerald Fanning brought proceedings against AML Pty Ltd in the Fair Work Commission. The dispute arose under the Fair Work Act and involved an enterprise agreement between AML Pty Ltd and its employees for the period 2009-2012. Fanning, an employee of AML, challenged certain provisions of the agreement, claiming they were unfair and did not meet the statutory requirements under the Fair Work Act. The central legal issues the court had to decide revolved around the fairness of the agreement's terms and whether they complied with the provisions of the Act. Specifically, the court needed to determine if the agreement was genuinely negotiated and if it provided for fair and reasonable terms and conditions of employment.

The Fair Work Commission carefully examined the negotiation process and the terms of the agreement. It assessed whether there was genuine bargaining between the employer and the employees, and whether the terms of the agreement were fair and reasonable. The court found that the negotiation process was not genuine as AML had not allowed for meaningful participation by the employees. Furthermore, the terms of the agreement did not meet the statutory criteria for fairness, as they did not adequately protect the employees' interests. Consequently, the court declared certain provisions of the enterprise agreement to be unfair and invalid. The decision underscores the importance of genuine negotiation and fair terms in enterprise agreements under the Fair Work Act.

The Fair Work Commission ordered that the invalid provisions be removed from the enterprise agreement. The court's decision emphasised the necessity for employers to ensure genuine negotiation and fair terms in any future agreements. This ruling serves as a reminder to employers and employees of their obligations under the Fair Work Act and the importance of adhering to the legal standards for enterprise agreements.

Orders