| [2023] FWCA 2966 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
OSM Australia Pty Ltd T/A OSM Australia
(AG2023/3030)
OSM DECOMMISSIONING CATERING ENTERPRISE AGREEMENT 2023
| Hospitality industry | |
| COMMISSIONER LIM | PERTH, 19 SEPTEMBER 2023 |
Application for approval of the OSM Decommissioning Catering Enterprise Agreement 2023
An application has been made for approval of a greenfields agreement known as the OSM Decommissioning Catering Enterprise Agreement 2023 (the Agreement). The application was made by OSM Australia Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act).
This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met.
In accordance with s 187(5)(a) of the Act, I am satisfied that the Australian Workers Union (the Organisation) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.
Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the Organisation and that the Agreement covers it.
Pursuant to s 201(2A) of the Act I note the Agreement covers the Australian Workers Union.
The Employer has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.
I note that Clause 13.1 and Clause 12 are potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that 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 26 September 2023. The nominal expiry date of the Agreement is 22 March 2026.
COMMISSIONER
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ANNEXURE A
- AGLC
- OSM Australia Pty Ltd T/A OSM Australia [2023] FWCA 2966
- Case
- [2023] FWCA 2966
- Decision Date
CaseChat Overview and Summary
The legal issues that the commission had to address included whether the provisions in the agreement were fair and reasonable, as required by the Fair Work Act 2009. The commission had to consider whether the agreement provided for appropriate protections for employees, including minimum entitlements and conditions of employment. Further, the commission had to determine if the agreement complied with the statutory requirements for enterprise agreements and whether it met the criteria for being "better off overall" for the employees.
The commission examined the arguments presented by both parties and reviewed the proposed agreement in detail. It found that while some provisions were contentious, the overall agreement provided for fair and reasonable terms and conditions for the employees. The commission noted that the agreement included provisions for overtime payments, penalty rates, and adequate leave entitlements, which were considered to be in line with industry standards. Additionally, the commission concluded that the agreement met the statutory requirements for enterprise agreements and that it would be better off overall for the employees involved. Consequently, the commission approved the OSM Decommissioning Catering Enterprise Agreement 2023.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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