Origin Energy Limited

[2023] FWCA 3196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Origin Energy Limited

(AG2023/3317)

ORIGIN ENERGY (MELBOURNE RETAIL X) ENTERPRISE AGREEMENT 2022

Electrical power industry
DEPUTY PRESIDENT BELL	MELBOURNE, 4 OCTOBER 2023

Application for approval of the Origin Energy (Melbourne Retail X) Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Origin Energy (Melbourne Retail X) Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Origin Energy Limited. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 24 November 2022 and the Agreement was made on 7 September 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Municipal, Administrative, Clerical and Services Union (ASU) 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 Agreement was approved on 4 October 2023 and, in accordance with s.54, will operate from 11 October 2023. The nominal expiry date of the Agreement is 1 December 2024.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Origin Energy Limited applied for approval of the Origin Energy (Melbourne Retail X) Enterprise Agreement 2022. The dispute arose in the Fair Work Commission, focusing on the terms and conditions of employment for the employees of Origin Energy’s Melbourne retail business. The crux of the matter was whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, particularly concerning minimum terms and conditions and the procedural fairness of the agreement’s negotiation process.

The legal issues before the Commission were whether the agreement provided for minimum terms and conditions as prescribed by the Fair Work Act, and whether the negotiation process adhered to the procedural fairness standards. The Commission also had to consider whether the agreement was genuinely negotiated and whether it complied with the principles of good faith bargaining. Furthermore, it was necessary to assess if the agreement was in the best interests of the employees and whether it addressed the essential aspects of employment fairly and adequately.

The Fair Work Commission deliberated on the application by examining the negotiation process and the contents of the proposed agreement. It found that the agreement provided for the minimum terms and conditions required by law and that the negotiation process was conducted in good faith. The Commission was satisfied that the agreement was genuinely negotiated and met the criteria for procedural fairness. It also concluded that the agreement was in the best interests of the employees, addressing their needs fairly and adequately. Therefore, the Commission approved the Origin Energy (Melbourne Retail X) Enterprise Agreement 2022.

The Fair Work Commission approved the application, granting approval for the enterprise agreement to take effect. This decision concluded that the proposed agreement met all statutory requirements and was fairly negotiated, providing for the minimum terms and conditions of employment as required.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established