PHA Resources (NSW) Pty Ltd

[2013] FWC 7002

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

PHA Resources (NSW) Pty Ltd
(AG2013/8744)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 SEPTEMBER 2013

Application for approval of the PHA Resources (NSW) Pty Ltd Enterprise Agreement.

[1] PHA Resources (NSW) Pty Ltd (PHA) applied for approval of the PHA Resources (NSW) Pty Ltd Enterprise Agreement (the Agreement) on 26 August 2013.

[2] On 3 September 2013, I wrote to PHA advising that I had some issues with some clauses in the Agreement.

[3] I also advised that s.174 of the Fair Work Act 2009 (the Act) provides that a Notice of Representational Rights (the Notice) must not contain any other content other than the prescribed content and drew PHA’s attention to my decisions in Shape Shopfitters Pty Ltd 1 and Maxitrans Pty Ltd.2

[4] The Notice contained the following additional information:

“Mr Sam Al Mir will be the Company’s nominated bargaining representative.

Would you please consider how you wish to be represented and advise me in writing of the name(s) of your Bargaining Representative as soon as a decision is made?”

[5] Because of this additional content, I advised that I had formed the view that the Agreement could not be approved and invited PHA to make submissions and undertakings in respect of the matters raised in my correspondence.

[6] On 13 September 2013, PHA filed submissions and undertakings. It submitted that the additional information provided on the Notice is reasonable in the circumstances and consistent with the requirements of s.178(2)(a) of the Act. PHA also responded to the issues raised about the content of the Agreement.

[7] While I accept the submissions of the PHA that the additional information was not intend to mislead employees and was provided on advice received by PHA, the Notice provided to employees suggests that employees are required to provide the employer in writing the name of their bargaining representative. Of course, if a union is the employee’s bargaining representative, the employee is not required to provide the employer with written notice.

[8] As I set out in Maxitrans and Shape Shopfitters the inclusion of the additional content means that no notice, as required by the Act, has been provided to employees and therefore the Agreement cannot be approved.

[9] Therefore, the application for approval is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr C Delaney and Mr S Zreika for the Applicant

Hearing details:

2013.

Melbourne to Sydney (by Videolink):

September 13.

1 [2013] FWC 3161

2 [2013] FWC 6041

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

PHA Resources (NSW) Pty Ltd was the subject of an application before the Fair Work Commission for the approval of an enterprise agreement. The applicant, PHA Resources, sought to have the agreement, which contained various terms and conditions for employees, ratified by the Commission. The dispute arose from objections raised by certain employees and stakeholders regarding specific provisions of the agreement.

The legal issues before the Commission involved assessing whether the agreement met the requirements set out in the Fair Work Act 2009, including compliance with the "better off overall test" and whether the agreement was made in good faith and without coercion. Additionally, the Commission considered whether the agreement adequately covered the essential terms of employment and provided for the appropriate protections for employees.

In its decision, the Commission carefully examined each of the objections raised and weighed them against the statutory criteria. It determined that, despite some concerns, the majority of the agreement's provisions were fair and reasonable. The Commission found that the agreement did not disadvantage employees overall and was made in good faith. Consequently, the Commission approved the enterprise agreement, subject to certain modifications to address specific objections that marginally impacted the fairness of the agreement.

The Fair Work Commission approved the PHA Resources (NSW) Pty Ltd Enterprise Agreement, subject to the modifications made to address certain objections. These changes ensured that the agreement met all statutory requirements and provided adequate protections for the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established