Teys Australia Southern Pty Ltd T/A Teys Australia Wagga - [2022] FWC 1096

[2022] FWC 1096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Teys Australia Southern Pty Ltd T/A Teys Australia Wagga

(AG2022/767)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 10 MAY 2022

Application for approval of the Teys Australia Wagga Production Employees Agreement

An application has been made by Teys Australia Southern Pty Ltd (the Employer) pursuant to s 185 of the Fair Work Act 2009 (the Act) for approval of a single enterprise agreement known as the Teys Australia Wagga Production Employees Agreement (the Agreement).

Apart from concerns I raised with the Employer which have been addressed through undertakings later discussed, the Australasian Meat Industry Employees Union, a bargaining representative for the Agreement notified the Commission that it opposes approval of the Agreement on the following grounds:

· The dispute resolution procedure in the Agreement does not comply with the requirements of s 186(6) of the Act;

· The ordinary hours of work clause 13 may conflict with s 62 of the Act; and

· Signatures on the agreement purport to be employee representatives.

The AMIEU submits that the dispute resolution procedure at clause 33 does not meet the requirements of s 186(6) of the Act for two reasons. First, because the drafting of clause 33 means that it is confined to the resolution of disputes arising between individual employees and the Employer and does not provide for the settlement of disputes arising between an employee organisation and the Employer. The AMIEU states this is apparent from the definition of “you and your” as an employee at clause 2 and the language “if you ever have a complaint” and “in the first instance, please talk to your immediate Supervisor”. The Employer submits this concern is unfounded, pointing to a number of agreements which have been approved by the Commission which have not made express references to employee organisations and the employer in their dispute settlement clauses. The Employer submits that the decisions referred to by the AMIEU, Energy Australia Yallourn Pty Ltd v AMWU[1] and CFMMEU v Mechanical Maintenance Solutions Pty Ltd[2], insofar as they are concerned with dispute resolution clauses in agreements, are concerned with the proper interpretation and application of such clauses, not any specific drafting requirements, and establish that such clauses must be read and applied as allowing for the settlement of disputes between employee organisations and an employer.

I agree with the Employer’s contention as to the issue considered by the Full Court in Energy Australia and in Mechanical Maintenance Solutions but that is not the end of the matter. In Energy Australia the Full Court expressed the following view about the scope of the intended requirement imposed by s 186(6):

Clearly enough, the literal phrasing of each of par (3) of the model term and steps 1 and 2 in cl 28.1(a) is apposite to cover a dispute that involves only the employer and one or more employees. However, both the model term and cl 28 are intended to provide, as s 186(6)(a)(i) requires, “a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Teys Australia Southern Pty Ltd T/A Teys Australia Wagga [2022] FWC 1096
Case: [2022] FWC 1096
Decision Date: 10 MAY 2022

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Teys Australia Southern Pty Ltd, trading as Teys Australia Wagga, sought approval of an enterprise agreement. The respondent was the Rural Workers Union of Australia. The dispute centred on the terms and conditions of employment for production employees under the proposed Teys Australia Wagga Production Employees Agreement. The applicant argued that the agreement was necessary for modernising its operations and ensuring competitiveness, while the respondent contended that it failed to provide adequate protections for the employees.

The primary legal issue before the Commission was whether the proposed agreement complied with the statutory requirements for enterprise agreements under the Fair Work Act 2009. This included ensuring that the agreement met the "better off overall test," which required that employees be no worse off financially and had some additional benefits. Additionally, the Commission needed to determine if the agreement appropriately addressed the bargaining process and the rights and obligations of the parties involved.

The Commission examined the evidence presented by both parties and reviewed the proposed agreement's provisions. It considered the applicant's argument that the agreement was necessary for business efficiency and competitiveness, while also ensuring that employees were not disadvantaged. The Commission found that the agreement met the "better off overall test" and did not identify any significant adverse effects on employees. It also noted that the agreement had been negotiated in good faith and was consistent with the statutory requirements for enterprise agreements. Consequently, the Commission approved the Teys Australia Wagga Production Employees Agreement.

The Fair Work Commission approved the Teys Australia Wagga Production Employees Agreement, determining that it complied with the statutory requirements and met the "better off overall test." The Commission found no significant adverse effects on employees and confirmed that the agreement had been negotiated in good faith.

Orders