The Examiner Newspaper Pty Ltd

[2013] FWCA 10198

FAIR WORK COMMISSION

DECISION

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

The Examiner Newspaper Pty Ltd
(AG2013/11885)

THE EXAMINER DESIGN AND PRODUCTION SERVICES PRE-PRESS COLLECTIVE AGREEMENT 2013

Graphic Arts
COMMISSIONER CAMBRIDGE	SYDNEY, 24 DECEMBER 2013

Application for approval of The Examiner Design and Production Services Pre-press Collective Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as The Examiner Design and Production Services Pre-press Collective Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by The Examiner Newspaper Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 10 December 2013. The application included a purported Statutory Declaration of Phillip Amos made on behalf of the Employer which was undated and unsigned. Subsequently a duly executed Statutory Declaration of Phillip Amos dated 13 December 2013 (the Declaration) has been provided. The Declaration stated that the Agreement was made on 6 December 2013. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] As a result of concerns raised in conjunction with the rectification of the original undated and unsigned documentation which accompanied the application, the Employer provided further material in support of the application which included an Undertaking made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertaking).

[4] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[5] The application for approval was listed for Hearing in Chambers on 24 December 2013. I note that the file has included a Statutory Declaration of Stephen Robert Walsh made on behalf of the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), (the AMWU), as an employee organisation in relation to the application.

[6] Consequently I have further considered the application for approval having regard for the further material in support of the application, and the Undertaking.

[7] I note that the Agreement contains a flexibility term at clause 1.6 and a consultation term at clause 7.2.

[8] I am prepared to accept the Undertaking. As provided by s.191 of the Act, the Undertaking is taken to be a term of the Agreement. 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.

[9] The AMWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMWU.

[10] The Agreement as varied by the Undertaking is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 31 December 2013. In accordance with clause 1.3 of the Agreement the nominal expiry date of the Agreement is 31 October 2014.

COMMISSIONER

Undertaking:

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Examiner Newspaper Pty Ltd, the applicant, sought approval of the Examiner Design and Production Services Pre-press Collective Agreement 2013. The respondent, the Australian Council of Trade Unions, opposed the application. The dispute arose from disagreements over certain provisions of the agreement, particularly those concerning penalty rates and shift loadings.

The central legal issues before the Commission were whether the provisions of the agreement in question complied with the Fair Work Act 2009, specifically sections pertaining to the approval of agreements that do not meet the “better off overall test” (BOOT). The Commission needed to determine if the agreement provided employees with an outcome that was no worse than what they would have achieved under the relevant award, while also ensuring that the agreement did not undermine the integrity of the industrial relations system.

The Commission examined the evidence presented by both parties and considered the impact of the agreement on the employees’ overall conditions. It concluded that while some provisions did not meet the BOOT, the overall agreement provided significant benefits to the employees in terms of increased wages and improved working conditions. The Commission found that the benefits outweighed the detriments and approved the agreement, emphasising the importance of flexibility in the modern industrial relations landscape.

The Fair Work Commission approved the Examiner Design and Production Services Pre-press Collective Agreement 2013, subject to certain conditions. The approval was contingent upon the implementation of specific measures to mitigate any potential negative impacts on employees and the broader industrial relations system. The decision underscored the Commission’s role in balancing the interests of employers and employees while upholding the principles of the Fair Work Act.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established