| [2019] FWCA 5665 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
SGS Australia Pty Ltd
(AG2019/2512)
SGS COAL & TECHNICAL SERVICES NORTH QUEENSLAND ENTERPRISE AGREEMENT 2019
Manufacturing and associated industries | |
COMMISSIONER CIRKOVIC | MELBOURNE, 15 AUGUST 2019 |
Application for approval of the SGS Coal & Technical Services North Queensland Enterprise Agreement 2019.
[1] An application has been made for approval of an enterprise agreement known as the SGS Coal & Technical Services North Queensland Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by SGS Australia Pty Ltd. The Agreement is a single enterprise agreement.
[2] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):
- 30.5(b); and
- 31.
[3] However, noting clause 9 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
[4] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
[7] 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. In accordance with s.201(2) I note that the Agreement covers the organisation.
[8] The Agreement was approved on 15 August 2019 and, in accordance with s.54, will operate from 21 August 2019. The nominal expiry date of the Agreement is 20 August 2022.
COMMISSIONER
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- AGLC
- SGS Australia Pty Ltd [2019] FWCA 5665
- Case
- [2019] FWCA 5665
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court revolved around whether the agreement met the necessary criteria for approval under the Fair Work Act. Specifically, the court needed to determine if the agreement had been made free from any improper conduct, if it provided for a safety net of minimum terms and conditions, and if it was appropriately certified by the Australian Council of Trade Unions or an independent person. Additionally, the court had to assess whether the agreement adequately balanced the interests of both the employer and the employees.
In its reasoning, the court examined the process by which the agreement was negotiated and certified. The agreement was found to have been made without any coercion, undue influence, or improper conduct, and it was certified by an independent person, satisfying the requirements of the Act. The court also confirmed that the agreement provided for a comprehensive set of minimum terms and conditions that met the safety net provisions of the Act. Given these findings, the court approved the agreement, affirming that it appropriately balanced the rights and obligations of both parties involved. This approval ensured that the agreement could be implemented as a legally binding contract between the company and its employees.
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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