The Australian Workers’ Union

[2022] FWCA 388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Australian Workers’ Union

(AG2021/9232)

AWU and Double Shearing Team (Tasmanian Shearing Operations) Enterprise Agreement

Agricultural industry
DEPUTY PRESIDENT EASTON	SYDNEY, 8 FEBRUARY 2022

Application for approval of the AWU and Double Shearing Team (Tasmanian Shearing Operations) Enterprise Agreement.

The Australian Workers’ Union (AWU) has made an application for the approval of the AWU and Double Shearing Team (Tasmanian Shearing Operations) Enterprise Agreement (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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.

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.

I note that Clause 10.3 – Public Holiday is potentially inconsistent with the National Employment Standards (NES). Noting the NES precedence clause at Clause 17, 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 AWU was a bargaining representative for the Agreement and 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 AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 February 2022. The nominal expiry date of the Agreement is 1 October 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) sought approval of the AWU and Double Shearing Team (Tasmanian Shearing Operations) Enterprise Agreement from the Fair Work Commission. The dispute arose from negotiations between the AWU and Double Shearing Team regarding wages and conditions for shearers employed in Tasmanian shearing operations. The Commission was tasked with determining whether the agreement met the legal criteria for approval, including whether it provided for the safety, health, and welfare of employees.

The key legal issues before the Commission involved whether the enterprise agreement complied with the Fair Work Act 2009, specifically whether it contained the necessary safety, health, and welfare provisions, and whether it had been genuinely negotiated and agreed upon by the parties. The Commission examined the agreement's provisions concerning wages, hours of work, leave entitlements, and other employment conditions. Additionally, the Commission assessed whether the AWU had genuinely negotiated the agreement with the employer, and whether the agreement met the "better off overall test," ensuring that employees were not worse off under the new agreement.

In its decision, the Commission determined that the enterprise agreement was in compliance with the Fair Work Act. The agreement was found to include adequate provisions for the safety, health, and welfare of employees, and it had been genuinely negotiated by the parties. The Commission also concluded that the agreement met the better off overall test. Consequently, the Commission approved the AWU and Double Shearing Team (Tasmanian Shearing Operations) Enterprise Agreement, ensuring that it would become a legally binding framework for employment conditions in the Tasmanian shearing industry.

The Fair Work Commission's approval of the enterprise agreement provides a clear and enforceable framework for the employment conditions of shearers in the Tasmanian shearing operations. This decision reinforces the importance of genuine negotiation and comprehensive provisions in enterprise agreements, ensuring that employees' safety, health, and welfare are protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established