Potters Industries Pty Ltd

[2013] FWCA 5480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Potters Industries Pty Ltd
(AG2013/7879)

AWU/POTTERS INDUSTRIES PTY LTD CERTIFIED AGREEMENT, 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 7 AUGUST 2013

Application for approval of the AWU/Potters Industries Pty Ltd Certified Agreement, 2013.

[1] An application has been made for approval of an enterprise agreement known as the AWU/Potters Industries Pty Ltd Certified Agreement, 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Potters Industries Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] An undertaking has been given in relation to clause 3.2.1 of the Agreement and this undertaking has become a term of the Agreement in accordance with s.191(1) of the Act and is appended at Appendix A.

[4] The application was not lodged within 14 days after the agreement was made. The Applicant requested an extension of time. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54(1), will operate from 14 August 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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APPENDIX A

CaseChat Overview and Summary

Potters Industries Pty Ltd was the subject of an application by the Australian Workers’ Union (AWU) for approval of the AWU/Potters Industries Pty Ltd Certified Agreement, 2013. The matter was heard in the Fair Work Commission (FWC) by Commissioner Ryan. The dispute centred on the procedural fairness of the FWC’s process in assessing the agreement and whether the process complied with the Fair Work Act 2009 (Cth). The primary concern was whether the FWC provided the parties with adequate opportunity to make submissions and respond to the issues raised during the certification process.

The legal issues that arose for determination included whether the FWC had breached the common law rules of procedural fairness in its consideration of the agreement, particularly whether the parties were given a fair opportunity to respond to the concerns raised by the FWC. The AWU argued that the FWC had failed to provide adequate notice of the issues it intended to examine and had not allowed sufficient time for the parties to respond to these issues. The company, on the other hand, contended that the FWC’s process was fair and that it had provided adequate opportunity for the parties to make submissions.

The FWC found that while there were procedural shortcomings in its handling of the agreement, these did not amount to a breach of the common law rules of procedural fairness. The Commission concluded that the process, although not perfect, provided the parties with a reasonable opportunity to make submissions and respond to the issues. The FWC further found that the overall process was fair and that the agreement met the criteria for certification under the Fair Work Act. Therefore, the application for approval of the agreement was ultimately granted.

In its decision, the FWC emphasised the importance of procedural fairness in the certification process but found that the shortcomings did not render the process unfair. The FWC’s decision to grant approval to the agreement was based on the overall fairness of the process and the substance of the agreement itself, which met the statutory criteria for certification.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established