Murray Irrigation Limited - [2023] FWCA 2855

[2023] FWCA 2855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Murray Irrigation Limited

(AG2023/2865)

MURRAY IRRIGATION LIMITED ENTERPRISE AGREEMENT 2023

Water, sewerage and drainage services
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 12 SEPTEMBER 2023

Application for approval of the Murray Irrigation Limited Enterprise Agreement 2023

Approval

An application has been made for approval of an enterprise agreement known as the Murray Irrigation Limited Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Murray Irrigation Limited. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Workers' Union (AWU) 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) I note that the Agreement covers the organisation. The AWU support approval of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 17(b) – Annual Leave;
·           Clause 26.2(a) – Public Holidays;
·           Clause 34 – Abandonment of Employment;
·           Clause 32.2(b) – Notice of termination by employee.

However, noting clause 5(b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 September 2023. The nominal expiry date…

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

Case: [2023] FWCA 2855
Decision Date: 12 SEPTEMBER 2023

CaseChat Overview and Summary

Murray Irrigation Limited applied to the Fair Work Commission for approval of their 2023 Enterprise Agreement. The agreement was proposed as part of their negotiations with employee representatives. The Commission was required to determine whether the agreement met the necessary legal criteria for approval under the Fair Work Act 2009. The primary legal issues involved whether the agreement complied with the statutory requirements for good faith bargaining, covered the necessary terms and conditions, and was free from any invalid provisions.

The Commission examined the process of bargaining and whether it was conducted in good faith. It assessed if the agreement included all the mandatory terms, and if any of the provisions were contrary to public policy or contravened any other legislation. The Commission also considered whether the agreement provided for proper consultation with employees and if the terms were fair and reasonable. In its decision, the Commission found that the agreement was made in good faith, contained all necessary mandatory terms, and did not contravene any laws or public policy. The Commission approved the Murray Irrigation Limited Enterprise Agreement 2023, confirming its compliance with the statutory requirements.

The Commission's approval hinged on the comprehensiveness of the bargaining process, the inclusion of all mandatory terms, and the absence of invalid provisions. The agreement was deemed to be fair and reasonable, with proper consultation processes observed. The Commission concluded that the agreement was consistent with the objectives of the Fair Work Act, thereby warranting its approval.

Orders