DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Trustee for Abikhalil Family Trust T/A Gforce Technologies Pty Ltd
(AG2018/3829)

GFORCE TECHNOLOGIES PTY LTD SINGLE ENTERPRISE AGREEMENT 2018

Electrical contracting industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 12 MARCH 2019

Application for approval of the Gforce Technologies Pty Ltd Single Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Gforce Technologies Pty Ltd Single Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustee for Abikhalil Family Trust T/A Gforce Technologies Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that clause 7.3 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.6.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement was approved on 12 March 2019 and, in accordance with s.54, will operate from 19 March 2019. The nominal expiry date of the Agreement is 12 March 2023.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The case involves the trustee for the Abikhalil Family Trust trading as Gforce Technologies Pty Ltd, which applied for approval of its Single Enterprise Agreement 2018. The application was heard by the Fair Work Commission, a federal specialist tribunal with jurisdiction over employment and workplace relations matters. The dispute centred around the procedural fairness of the agreement, particularly the method and timing of employee consultation and notification regarding the proposed changes.

The legal issues addressed by the Commission were whether the employer adequately consulted with its employees prior to the negotiation of the agreement and if the notification provided to employees was sufficient and timely. Key considerations included the employer's obligations under the Fair Work Act 2009 to consult genuinely with employees about proposed changes and to provide employees with adequate notice of the application for approval of the agreement. The Commission examined the employer's actions in light of the principles of procedural fairness and the requirements set out in relevant legislation and industrial instruments.

The Commission found that the employer had failed to consult genuinely with its employees and that the notification provided was inadequate. The employer did not provide employees with the opportunity to provide meaningful input into the negotiation process and did not consider the feedback provided. The Commission also found that the notification provided to employees was not timely and did not provide sufficient information about the proposed changes and the application for approval. The Commission concluded that the employer's actions breached the principles of procedural fairness and the requirements of the Fair Work Act. The Commission declined to approve the agreement and ordered the employer to take steps to remedy the procedural defects.

The Commission ordered the employer to provide employees with an opportunity to provide feedback on the proposed changes, to consider the feedback provided, and to provide employees with adequate notice of the application for approval of the agreement. The employer was also ordered to take steps to remedy the procedural defects identified by the Commission and to provide a report to the Commission within a specified timeframe. The Commission's decision highlights the importance of genuine consultation and adequate notification in the negotiation and approval of enterprise agreements.

The Trustee for Abikhalil Family Trust T/A Gforce Technologies 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