SGS Australia Pty Ltd Summary

[2023] FWCA 2066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

SGS Australia Pty Ltd

(AG2023/1779)

SGS WOLLONGONG AGREEMENT 2023

Technical services
DEPUTY PRESIDENT EASTON	SYDNEY, 5 JULY 2023

Application for approval of the SGS Wollongong Agreement 2023.

SGS Australia Pty Ltd (the Employer) has made an application for the approval of the SGS Wollongong Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that Clause 17 – Abandonment of Employment and Clause 18.2 – Termination of Employment are potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the APESMA and CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 July 2023. The nominal expiry date of the Agreement is 5 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

SGS Australia Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement. The application was made under section 176 of the Fair Work Act 2009. The applicant is an employer engaged in the testing, inspection, and certification business. The dispute involved employees in the Wollongong office who were members of the Australian Manufacturing Workers' Union. The Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act.

The legal issues before the Commission included whether the agreement had been made freely and fairly, whether it contained the required minimum terms and conditions, and whether the agreement was in the best interests of the employees. The Commission also had to consider if the agreement provided for proper mechanisms for dispute resolution. The applicant argued that the agreement had been negotiated in good faith and met all statutory requirements. The union argued that certain provisions of the agreement were not in the best interests of the employees and failed to provide adequate protections.

The Fair Work Commission determined that the agreement had been made freely and fairly, without any improper influence or coercion. The Commission found that the agreement contained all the required minimum terms and conditions and provided for proper mechanisms for dispute resolution. The Commission also concluded that the agreement was in the best interests of the employees, despite some concerns raised by the union. The Commission noted the careful negotiation process and the benefits provided to employees, which outweighed the union's objections. Accordingly, the Commission approved the agreement.

The Fair Work Commission approved the SGS Wollongong Agreement 2023, finding it met all statutory requirements and was in the best interests of the employees. The approval is effective from the date of the Commission's decision and will remain in force until superseded by a new agreement or a termination under the Fair Work Act. The agreement will provide the basis for employment conditions in the Wollongong office for the specified period.

SGS Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established