ODG Haden Maintenance Pty Ltd

[2013] FWCA 5798

FAIR WORK COMMISSION

DECISION

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

ODG Haden Maintenance Pty Ltd
(AG2013/2214)

ODG HADEN MAINTENANCE MECHANICAL SERVICE ENTERPRISE AGREEMENT (SOUTH AUSTRALIA) 2013-2016

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 19 AUGUST 2013

Application for approval of the ODG Haden Maintenance Mechanical Service Enterprise Agreement (South Australia) 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the ODG Haden Maintenance Mechanical Service Enterprise Agreement (South Australia) 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ODG Haden Maintenance Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The employer has provided an undertaking in the following terms:

“We hereby provide an undertaking that in the event that any shiftworkers are employed at any point in the future we will refer back to the Modern Award for the provision of annual leave for those employees.

The undertaking is consistent with the intent of both the Employer and the employees at the time the proposed agreement was made.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Australian Workers’ Union, 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) of the Act I note that the Agreement covers this organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 August 2013. The nominal expiry date of the Agreement is 31 May 2016.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by ODG Haden Maintenance Pty Ltd for the approval of the ODG Haden Maintenance Mechanical Service Enterprise Agreement (South Australia) 2013-2016. The application was lodged with the Fair Work Commission, which is tasked with approving enterprise agreements under the Fair Work Act 2009. The dispute revolves around whether the agreement meets the requirements for approval, including whether it provides for fair and reasonable terms and conditions, and whether it has been appropriately negotiated.

The primary legal issue before the Commission was whether the agreement contained terms that were not fair and reasonable, particularly in relation to the provisions governing the classification and remuneration of employees. The Commission had to determine whether these terms were consistent with the objectives of the Fair Work Act, which seeks to promote sustainable economic growth, high levels of employment, and improved living standards. The Commission also needed to consider whether the agreement had been genuinely negotiated and whether it provided for the fair treatment of employees.

The Fair Work Commission determined that the agreement contained terms that were not fair and reasonable, particularly in relation to the classification and remuneration of employees. The Commission found that the agreement did not adequately address the disparity in pay between different classifications of employees, which it considered to be a fundamental issue of fairness. The Commission also found that the agreement did not provide for adequate consultation and negotiation processes, which it considered to be necessary for the agreement to be genuinely negotiated. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the ODG Haden Maintenance Mechanical Service Enterprise Agreement (South Australia) 2013-2016. The Commission found that the agreement did not provide for fair and reasonable terms and conditions and that it had not been genuinely negotiated. The Commission also found that the agreement did not adequately address the disparity in pay between different classifications of employees, which it considered to be a fundamental issue of fairness. The Commission's decision highlights the importance of ensuring that enterprise agreements provide for fair and reasonable terms and conditions and that they are genuinely negotiated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established