| [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…
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- AGLC
- Packing Shed & Others [2019] FWC 6905
- Case
- [2019] FWC 6905
- Decision Date
CaseChat Overview and Summary
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
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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