DECISION

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

The Australian Workers' Union
(AG2016/5441)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 15 NOVEMBER 2016

Application for approval of the TCQ Labour Pty Limited Regional Greenfield Agreement 2016.

[1] On 1 September 2016 The Australian Workers’ Union (AWU) lodged an application for approval of an enterprise agreement known as the TCQ Labour Pty Limited Regional Greenfield Agreement 2016 (the Agreement). The Agreement is a single enterprise agreement. It has been made between Telum Labour Pty Limited (Telum) and the AWU.

[2] The Agreement was made on 31 August 2016 and operates until 30 June 2020.

Relevant Legislation

[3] The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). The requirements of ss.186 and 187 need to be met. These sections provide:

“185 Bargaining representative must apply for the FWC’s approval of an enterprise agreement

Application for approval

(1) If an enterprise agreement is made, a bargaining representative for the agreement must apply to the FWC for approval of the agreement.

(1A) Despite subsection (1), if the agreement is a multi-enterprise agreement that is a greenfields agreement, the application must be made by:

(a) an employer covered by the agreement; or
(b) a relevant employee organisation that is covered by the agreement.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) If the agreement is not a greenfields agreement, the application must be made:

(a) within 14 days after the agreement is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

(4) If the agreement is a greenfields agreement, the application must be made within 14 days after the agreement is made.

Signature requirements

(5) The regulations may prescribe requirements relating to the signing of enterprise agreements.

Single-enterprise agreements that are greenfields agreements

(6) This section does not apply to an agreement made under subsection 182(4).

185A Material that must accompany an application under subsection 182(4) for approval of a greenfields agreement

An application under subsection 182(4) for approval of an agreement must be accompanied by:

(a) a copy of the agreement; and
(b) any declarations that are required by the procedural rules to accompany the application.

186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under subsection 182(4) or section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Requirements relating to the safety net etc.

(2) The FWC must be satisfied that:

(a) if the agreement is not a greenfields agreement—the agreement has been genuinely agreed to by the…

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: The Australian Workers' Union [2016] FWC 8186
Case: [2016] FWC 8186
Decision Date: 15 NOVEMBER 2016

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied for the approval of the TCQ Labour Pty Limited Regional Greenfield Agreement 2016, which was to apply to employees working in the beef and cattle industry in the Central Queensland region. The application was heard by the Fair Work Commission (FWC), with the Australian Manufacturing Workers' Union (AMWU) objecting to the approval of the agreement. The dispute centred around whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The primary legal issues the FWC had to consider were whether the agreement was a genuine enterprise agreement and if it was made in good faith and without coercion. The FWC had to determine if the agreement satisfied the provisions of the Fair Work Act, particularly focusing on the process by which the agreement was negotiated and the manner in which it was presented to employees. Furthermore, the FWC needed to assess if the agreement provided for the fair and efficient resolution of workplace issues and if it adhered to the relevant legislative standards.

After examining the evidence and submissions from both parties, the FWC concluded that the application for approval of the agreement should be granted. The FWC found that the agreement was a genuine enterprise agreement, negotiated in good faith, and without coercion. The FWC was satisfied that the agreement met the requirements under the Fair Work Act, and it provided for the fair and efficient resolution of workplace issues. The FWC approved the TCQ Labour Pty Limited Regional Greenfield Agreement 2016, dismissing the AMWU's objections.

As a result of the FWC's decision, the TCQ Labour Pty Limited Regional Greenfield Agreement 2016 was approved and will apply to employees working in the beef and cattle industry in the Central Queensland region. The agreement will now serve as the basis for the terms and conditions of employment for the covered employees, as per the provisions set out in the approved agreement.

Orders