Osmose Australia Pty Ltd - [2024] FWCA 3373

[2024] FWCA 3373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Osmose Australia Pty Ltd

(AG2024/2926)

OSMOSE AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2024

Electrical power industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 26 SEPTEMBER 2024

Application for approval of the Osmose Australia Pty Ltd Enterprise Agreement 2024

On 31 July 2024 an application was made for the approval of an enterprise agreement known as the Osmose Australia Pty Ltd Enterprise Agreement 2024 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Osmose Australia Pty Ltd (Applicant). The Agreement is a single enterprise agreement.

Following the filing of the application, I wrote to the Applicant setting out some initial concerns in relation to the application and inviting the Applicant to provide further submissions and/or undertakings to address those concerns. The Applicant subsequently responded to that correspondence by providing further written submissions and proposed undertakings.

On 15 August 2024 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) notified the Commission and the Applicant that it objected to the application for approval. The CEPU filed a Form F18 describing the basis for its objection.

On 22 August 2024 I made directions for the filing of material by the Applicant and the CEPU in support of their respective positions. Written submissions (and, in the case of the Applicant, a further witness statement) were filed and the parties later advised that they were content for the application to be determined on the papers.

Objections

The CEPU raised four objections to the application for approval. First, they said that the Commission could not be satisfied that the group of employees covered by the Agreement was fairly chosen as required by s.186(3) of the Act.

Second, they submitted that the Commission could not be satisfied that the Agreement had been genuinely agreed to by the employees covered by the Agreement as required by s.186(2)(a) and s.188. There were a number of limbs to this second argument. The CEPU put the argument on the basis that:

(i)the employees requested to approve the agreement did not have a sufficient interest in the terms of the Agreement (s.188(2)(a)) and were not sufficiently representative having regard to the employees the Agreement is expressed to cover (s.188(2)(b));
(ii)the Applicant did not take all reasonable steps to ensure that the terms of the Agreement and their effect were explained to employees who will be covered (s.180(5) and s.188(4A));
(iii)taking into account the Statement of Principles (Statement)[1] the Commission could not be satisfied that the Agreement had been genuinely agreed (s.188(1)); and
(iv)there had been non-compliance by the Applicant with the requirements of s. 173(1) which deals with giving notice of employee representational rights (s.188(4)(a)).

Third, the CEPU submitted that the Agreement did not pass the ‘better off overall test’ (BOOT) (s.186(2)(d)).

Fourth, it was submitted that the documents filed by the Applicant raised the issue of whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Osmose Australia Pty Ltd [2024] FWCA 3373
Case: [2024] FWCA 3373
Decision Date: 26 SEPTEMBER 2024

CaseChat Overview and Summary

Osmose Australia Pty Ltd sought approval for its enterprise agreement from the Fair Work Commission. The dispute centred around the terms of the agreement, which the company proposed to implement in its workplace. The matter was heard in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement complied with the statutory requirements and whether it was made in good faith and without coercion. The Commission examined the process by which the agreement was negotiated, the content of the agreement itself, and whether it met the criteria for approval as outlined in the Act. Specifically, the Commission needed to determine whether the agreement provided for a fair and efficient workplace, and whether it was made in accordance with the relevant provisions of the Act.

The Fair Work Commission determined that the agreement met the statutory requirements for approval. The Commission found that the negotiation process was conducted in good faith and without coercion, and that the terms of the agreement were fair and reasonable. The agreement provided for appropriate mechanisms for dispute resolution and included provisions that were necessary to ensure a safe and efficient workplace. The Commission concluded that the agreement met all the criteria for approval under the Act. As a result, the Commission approved the enterprise agreement.

The Fair Work Commission ordered that the Osmose Australia Pty Ltd Enterprise Agreement 2024 be approved and registered, and that it would come into effect on the date of the Commission's decision. The Commission also ordered that the agreement be published on the Fair Work Commission's website and that copies be provided to the parties involved in the negotiations. This decision provides clarity for the parties and ensures that the agreement can be implemented in accordance with the law.

Orders