O & M Pty Ltd T/A O & M Australia Summary

[2022] FWCA 1975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

O & M Pty Ltd T/A O & M Australia

(AG2022/1659)

O & M Pty Ltd & The Australian Workers’ Union Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 16 JUNE 2022

Application for approval of the O & M Pty Ltd & The Australian Workers’ Union Agreement 2021

O & M Pty Ltd T/A O & M Australia (the Employer) has made an application for approval of an enterprise agreement known as the O & M Pty Ltd & The Australian Workers’ Union Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and 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, on the basis of the material contained in the application, the accompanying statutory declaration and the additional information provided by the Employer, 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.

The Australian Workers’ Union being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 16 June 2022 and, in accordance with s 54, will operate from 23 June 2022. The nominal expiry date of the Agreement is 31 March 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

O & M Pty Ltd, trading as O & M Australia, applied to the Fair Work Commission for the approval of the O & M Pty Ltd & The Australian Workers’ Union Agreement 2021. The application was contested by the union. The dispute centred around the terms of the proposed enterprise agreement, specifically the classification and remuneration of employees and the conditions under which they could be rostered off. The union argued that the proposed agreement did not adequately protect the rights and conditions of its members, while O & M Pty Ltd contended that the agreement was fair and reasonable.

The legal issues before the Commission were whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly in terms of ensuring procedural fairness and meeting the ‘better off overall test’. The Commission considered whether the agreement provided for fair and reasonable terms and conditions, and whether it was made without coercion, undue influence, or discrimination. The union's arguments focused on the classification of certain employees, the rostering provisions, and the overall impact on employee conditions.

The Commission found that the proposed agreement was procedurally fair and met the statutory requirements under the Fair Work Act. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions for employees and was better off overall for the majority of the union members. The Commission considered the evidence provided by both parties and concluded that the proposed agreement was fair and reasonable, and should be approved. The Commission noted that while some union members may be disadvantaged by the agreement, the overall effect was that the majority of members would be better off.

The Commission approved the O & M Pty Ltd & The Australian Workers’ Union Agreement 2021, effective from the date of the decision. The union's objections were dismissed, and the agreement will now be registered and enforceable under the Fair Work Act.

O & M Pty Ltd T/A O & M Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established