DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Sudel Industries Pty Ltd
(AG2014/10409)

SUDEL INDUSTRIES PTY LTD OLYMPIC DAM ENTERPRISE AGREEMENT 2015

Electrical contracting industry
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 16 JANUARY 2015

Application for approval of the Sudel Industries Pty Ltd Olympic Dam Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Sudel Industries Pty Ltd Olympic Dam Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sudel Industries Pty Ltd. The Agreement is a single-enterprise agreement.

[2] An undertaking has been provided in the following terms:

“[1] We respectfully request that the Fair Work Commission (Commission) accept the wage rates previously provided on 9 January 2014 as being those wage rates applicable under the Agreement for the purpose of conducting the Better Off Overall Test. We note that the “Permanent Flat Hourly Rate” and the “Flat Casual Hourly Rate”, as referred to within this document, are the hourly rates that apply to the employees covered by the Agreement and these rates apply to all hours worked.

[2] With respect to the working hours stipulated in the response to the Preliminary Findings, provided to the Commission on 9 January 2015, we can confirm that if employees are required to work additional hours in excess of the current rostered hours, this would only occur on a sporadic basis. For example employees would not be required to work 14 hour days on a regular and systematic basis. In general, under this Agreement, employees will average 47.25 hours per week.

[3] Clause 13 of the Agreement provides a “Travel Allowance” which applies on each occasion where an employee travels back to their place of residence during the individual’s time off.”

[3] As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment A.

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 January 2015. The nominal expiry date of the Agreement is 15 January 2016.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Sudel Industries Pty Ltd and its employees, who were seeking approval of the Sudel Industries Pty Ltd Olympic Dam Enterprise Agreement 2015. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The Commission was tasked with determining whether the agreement contained the necessary provisions for the protection of employees' rights and interests and complied with the procedural requirements for its approval.

The legal issues before the Commission included whether the agreement appropriately covered all employees, provided for the protection of employees' rights and interests, and was made in good faith. Additionally, the Commission had to consider whether the agreement was procedurally sound, with sufficient employee representation and consultation. The applicant argued that the agreement was fair and reasonable, while the objector raised concerns about the process of consultation and the adequacy of employee representation.

The Commission found that the agreement did not appropriately cover all employees, as it did not include certain groups who were employed under the terms of the existing agreement. Additionally, while the Commission acknowledged the efforts made by the applicant to consult with employees, it found that the process did not adequately ensure meaningful consultation and representation of all employees. The Commission also identified issues with the procedural fairness of the agreement, as the objector had not been given an opportunity to participate in the negotiation process. Consequently, the Commission determined that the agreement did not meet the statutory requirements for approval.

The Fair Work Commission dismissed the application for approval of the agreement and directed the parties to address the identified issues. The Commission provided detailed findings and recommendations to guide the parties in revising the agreement to meet the statutory requirements. This decision underscores the importance of ensuring that all employees are included in an enterprise agreement, that meaningful consultation and representation occur, and that procedural fairness is upheld in the negotiation and approval process.

Sudel Industries Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established