[2020] FWC 398
The attached document replaces the document previously issued with the above code on 24 January 2020.
The document has been edited to replace and/or insert missing words:
Paragraph [1] – replace the “for” with the word “with”.
Paragraph [14(c)] – insert the word “Production” before the word “Agreement”.
Paragraph [50] – insert the words “proposed enterprise agreements” and delete the word “Agreement”.
Paragraph [60] – insert the word “to” before the word “approve”.
Paragraph [62] – insert the word “matters” after the word “additional”.
Paragraph [83(d)] – insert the words “engaged on” before the word “sites”.
Paragraph [113(b)] – insert the word “been” before the word “reasonable”.
Paragraph [129] – insert the word “arising” before the word “under”.
Paragraph [130] – insert the words “proposed enterprise agreements” and delete the word “Agreement”.
Paragraph [160(f)] – insert the word “employees” after the number “16” and delete the word “Agreement”.
Minor typographical errors amended at paragraphs [13(a)], [19], [22], [26(b)], [26(e)], [54], heading of table below [59], [66], [75(f)], [75(g)], table below paragraph [99], [113(d)], [116], [126(a)], [126(b)], [153], [157], and [158].
Associate to Deputy President Boyce
Dated 28 January 2020
| [2020] FWC 398 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
OS MCAP Pty Ltd T/A OS MCAP Pty Ltd
(AG2018/5649)
OS ACPM Pty Ltd T/A OS ACPM Pty Ltd
(AG2018/6025)
DEPUTY PRESIDENT BOYCE | SYDNEY, 24 JANUARY 2020 |
Application for approval of the Operations Services Production Agreement 2018 - Unions a stranger to bargaining – Unions a stranger to workplace – Unions request to be heard generally under s.590 of Fair Work Act 2009 – compliance with s.180(5), all reasonable steps, genuine agreement, better off overall test.
Application for approval of the Operations Services Maintenance Agreement 2018 - Unions a stranger to bargaining – Unions a stranger to workplace – Unions request to be heard generally under s.590 of Fair Work Act 2009 – compliance with s.180(5), all reasonable steps, genuine agreement, better off overall test.
Overview
[1] These reasons are to be read in conjunction with my decisions in [2019] FWCA 8601 and [2019] FWCA 8595.
[2] On 8 October 2018, OS MCAP Pty Ltd (Applicant) filed an application for approval of the Operations Services Production Agreement 2018 (Production Agreement) pursuant to s.185 of the Fair Work Act 2009 (Act). The Production Agreement is a single enterprise agreement.
[3] On 26 October 2018, OS MCAP Pty Ltd (Applicant) filed an application for approval of the Operations Services Maintenance Agreement 2018 (Maintenance Agreement) pursuant to s.185 of the Act. The Maintenance Agreement is a single enterprise agreement.
[4] On 12 February 2019, I made a direction that the applications for approval of the Production Agreement and the Maintenance Agreement were to be heard and determined together.
[5] At the hearing, Mr Ian Neil of Senior Counsel, and Mr Yaseen Shariff of Counsel, instructed by Herbert Smith Freehills lawyers, appeared with permission on behalf…
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- Case
- [2020] FWC 398
- Decision Date
CaseChat Overview and Summary
The Fair Work Commission considered whether it had jurisdiction to entertain the unions' request to be heard under section 590 of the Act, given that the unions were neither parties to the agreement nor representatives of the employees. The Commission noted that the unions, despite not being directly involved in the bargaining process, had an interest in the outcome of the application due to the potential impact on employees. The Commission found that the unions' request to be heard was permissible under the Act. Turning to the merits of the application, the Commission examined whether the agreement complied with section 180(5) of the Act, which requires all reasonable steps to be taken to reach a genuine agreement and whether the agreement would leave employees better off overall. The Commission concluded that the agreement met the statutory requirements and was in compliance with the Act.
The Fair Work Commission determined that it had jurisdiction to hear the unions' request to be heard on the application. It further found that the application complied with the statutory requirements, including all reasonable steps to reach a genuine agreement and the better off overall test. The Commission approved the operations services production agreement, finding it met the criteria set out in the Fair Work Act 2009. The unions' request to be heard was granted, and their concerns were considered in the decision-making process.
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Background
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Decision
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