Reoweld Pty Ltd

[2018] FWC 2947

[2018] FWC 2947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Reoweld Pty Ltd

(AG2017/6578)

COMMISSIONER CAMBRIDGE SYDNEY, 24 MAY 2018

Application for approval of the Reoweld Enterprise Agreement 2017.

1. An application has been made for approval of an enterprise agreement known as the Reoweld Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application was made by Reoweld Pty Ltd (the employer). The Agreement is a single-enterprise agreement.

1. The application was lodged with the Fair Work Commission (the Commission) at Sydney on 20 December 2017. On 26 March 2018, the application was referred to the Commission as currently constituted. The application included a Statutory Declaration of Michael McPherson made on behalf of the employer and dated 20 December 2017 (the Declaration). The Declaration stated that the Agreement was made on 18 December 2017. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) of the Act.

1. The application for approval was listed for Hearing on 5 April 2018, at which time Mr C Lowe from The Australian Industry Group (AIG) appeared for the employer.

1. During the proceedings held on 5 April, the Commission identified various issues relating to aspects of the application including the contents of certain terms contained in the Agreement, which were of concern to the Commission. The Commission identified various concerns in respect to terms contained in the Agreement which, when evaluated against the terms of the various relevant Modern Award reference instruments, appeared to fail to satisfy the better off overall test (BOOT) as required by s. 193 of the Act. The employer was invited to further consider the concerns which had been raised by the Commission and in due course, make comment or further submissions, and/or advance any proposed rectification of the identified concerns.

1. On 14 May 2018, AIG provided the Commission with written submissions and proposed undertakings as further material in support of the application. The proposed undertakings sought to address certain specific concerns relating to 18 separately identified issues. The written submissions sought to address most, but not all, of the concerns that were raised during the proceedings held on 5 April. For example, one issue regarding the minimum weekly rates prescribed by clause 22.6.2 of the Agreement being exactly the same as those set by the relevant reference Modern Award (PN40), was not a matter that was addressed in the further material in support of the application.  

1. The Commission has carefully considered the further material in support of the application. Certain aspects of the concerns raised by the Commission in the Hearing held on 5 April have been potentially addressed by the 18 proposed undertakings. However, other concerns have not been satisfactorily addressed by either the proposed undertakings or the further submissions made in support of the application. These concerns primarily relate to the requirement for the Commission to be satisfied that the Agreement would pass the better off overall test as required by subsection 186 (d) and section 193 of the Act.

1. The Commission has given consideration to providing the applicant with further Hearing and other opportunity as a means to further attempt to redress the various on-going concerns. However, upon reflection, the proposed undertakings or any subsequently developed permutation of these or other undertakings which could, on any objective contemplation, provide rectification of the concerns that have been identified, would result in substantial changes to the Agreement. 

1. Consequently, any objectively determined prognosis for the application would create a circumstance that offended subsection 190 (3) (b) of the Act. In such circumstances, and in the interests of efficiency and avoidance of additional costs to the applicant, as the application is not capable of satisfying the relevant requirements of ss. 186, 187, 190 and 193 of the Act, the application must be dismissed.

COMMISSIONER

Appearances:

Mr C Lowe from The Australian Industry Group appeared for the employer.

Hearing details:

2018.
Sydney:
April, 5.

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