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Packing Shed & Others

Packing Shed & Others

Case [2019] FWC 6905 8 October 2019

Collective Bargaining

Enterprise Agreements

Horticulture Industry

Employment & Labour Law

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[2019] FWC 6905

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Packing Shed & Others

(AG2018/2373 AG2018/6224 AG2018/6665 AG2018/6757 AG2019/246 AG2019/333 AG2019/342 AG2019/465 AG2019/714 AG2019/1139)

BTS ENTERPRISE AGREEMENT 2018 & ORS

Agricultural industries
Commissioner McKinnon	MELBOURNE, 8 OCTOBER 2019

Application for approval of enterprise agreements in the horticulture industry.

Introduction

Application has been made for approval of the enterprise agreements set out in the Schedule to this Decision (the Agreements). The applications were each made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the applicants set out in the Schedule. The Agreements are all single enterprise agreements.

The Australian Workers’ Union (AWU) is not a bargaining representative in relation to the Agreements. It opposes the approval of the BTS Enterprise Agreement 2018[1] (the BTS Agreement) and the JC & LM Mauro Enterprise Agreement 2018[2] (the Mauro Agreement). It contends that these two Agreements cannot be approved, including because they do not pass the better off overall test and have not been genuinely agreed. It also submits in relation to the BTS Agreement that the employer is not a national system employer with capacity to make an enterprise agreement under the Act.

By way of background, all of the Agreements were made at a time when changes to the Horticulture Award 2010 (the Award) were in contemplation in connection with the 4 yearly review of modern awards.[3] It is not in dispute that the Award has now been varied to create new overtime entitlements for casual employees in certain circumstances and that these changes had not been made at the each time application for approval of the Agreements was made.

On 15 February 2019, I issued a Decision[4] dismissing 10 similar applications and providing an opportunity for undertakings in relation to a further 31 applications. The Decision was overturned by a Full Bench of the Commission on appeal in Australian Workers’ Union v Gray Australia & Ors[5] (Gray). The Full Bench dismissed 30 of 31 remaining matters and remitted the BTS Agreement to me for rehearing.

This decision deals with the application for approval of the Agreements.

The application for approval of the Agreements under section 185

AG2018/2373 - BTS Agreement

Capacity of BTS Packing Shed to make an enterprise agreement

In my initial Decision, I raised a concern that the BTS Agreement may have been made by a partnership in Western Australia which did not have capacity to make an enterprise agreement under the Act.

BTS Packing Shed filed a submission in response to the concern on 22 February 2019. Having considered the matter further, the Agreement was approved on 15 March 2019.[6]

On appeal, the Full Bench found no evidence that the matter had been resolved before the Agreement was approved and remitted the matter to me. It is apparent that the submission of 22 February 2019 was not brought to the attention of the Full Bench before the decision in Gray was issued.

The matter was the subject of further hearing…

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: Packing Shed & Others [2019] FWC 6905
Case: [2019] FWC 6905
Decision Date: 8 OCTOBER 2019

CaseChat Overview and Summary

The Packing Shed and other applicants sought approval of enterprise agreements in the horticulture industry from the Fair Work Commission (FWC). The applicants argued that the proposed agreements were in the interests of the employees and the industry as a whole. The respondents, representing the interests of some employers in the industry, contested the application on various grounds, including that the agreements did not adequately protect the interests of the employers and could lead to unfair dismissal claims.

The legal issues before the FWC were whether the proposed enterprise agreements met the criteria for approval under the Fair Work Act 2009. This included whether the agreements provided for a fair and efficient workplace, protected the rights of employees, and did not discriminate against any group of employees. The FWC also had to consider whether the agreements provided for a proper process for resolving disputes and if they adequately addressed the interests of both employees and employers.

The FWC considered the submissions from both parties and conducted a detailed analysis of the proposed agreements. The Commission found that the agreements generally provided for a fair and efficient workplace and adequately protected the rights of employees. The FWC determined that the agreements did not unfairly discriminate against any group of employees and provided for a proper process for resolving disputes. The Commission also found that the agreements adequately addressed the interests of both employees and employers. Based on this analysis, the FWC approved the enterprise agreements.

The FWC approved the enterprise agreements, finding that they met the criteria for approval under the Fair Work Act 2009. The Commission's decision was based on its determination that the agreements provided for a fair and efficient workplace, protected the rights of employees, and did not unfairly discriminate against any group of employees. The FWC also found that the agreements provided for a proper process for resolving disputes and adequately addressed the interests of both employees and employers. The decision was binding on all parties involved in the horticulture industry.

Orders