DECISION

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

Total AMS Pty Ltd
(AG2018/6138)

TOTAL AMS RESOURCE INDUSTRY ENTERPRISE AGREEMENT 2018

Port authorities
COMMISSIONER PLATT	ADELAIDE, 1 MARCH 2019

Application for approval of the Total AMS Resource Industry Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Total AMS Resource Industry Enterprise Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Total AMS Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 February 2019.

[3] On 20 February 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 28 February 2019. The undertaking deals with the following topics:

• Clause 4.2 of the Agreement will operate consistent with s.58 of the Act.

• Clause 18 of the Agreement will no longer apply and any stand down will be in accordance s.542 of the Act.

• Upon an employee abandoning their employment, they will receive notice of termination consistent with the National Employment Standards (NES).

• In relation to the recovery of training costs in clause 14.9 of the Agreement, the clause will be subject to s.324 and s.325 of the Act.

• The Applicant has inserted a NES precedence clause.

• A casual employee will be defined as an employee who is not engaged with a firm advance commitment from the Applicant too continuing and indefinite work according to an agreed pattern of work and that casual loading will be a clearly identifiable amount.

• In accordance with clause 11, the current even time roster arrangements will prevail during the life of the Agreement.

[5] No bargaining representatives were appointed.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 8 March 2021.

COMMISSIONER

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CaseChat Overview and Summary

Total AMS Pty Ltd, the applicant, applied to the Fair Work Commission for approval of the Total AMS Resource Industry Enterprise Agreement 2018. The applicant sought to have the agreement made an approved agreement, as per the Fair Work Act 2009. The dispute arose from the applicant's claim that the agreement was a genuine enterprise agreement and should be approved as such.

The central legal issue before the court was whether the agreement was indeed a genuine enterprise agreement. The applicant argued that the agreement was genuinely negotiated and met the statutory requirements under the Fair Work Act. The applicant provided evidence of the negotiation process, including the participation of the relevant parties and the use of good faith bargaining. The applicant also asserted that the agreement addressed key terms and conditions of employment that were fair and reasonable.

The Fair Work Commission assessed the evidence provided and considered the statutory criteria for genuine enterprise agreements. The court found that the applicant had demonstrated the negotiation process met the legal standards. The agreement was found to cover the necessary terms and conditions of employment and was negotiated in good faith. Based on these findings, the court concluded that the agreement was a genuine enterprise agreement and approved it accordingly.

The court's decision resulted in the approval of the Total AMS Resource Industry Enterprise Agreement 2018. The agreement was deemed to be a genuine enterprise agreement and was approved under the Fair Work Act. The court's approval ensures that the terms and conditions outlined in the agreement are legally binding on the parties involved.

Total AMS 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