Total AMS Pty Ltd

[2014] FWCA 3128

FAIR WORK COMMISSION

DECISION

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

Total AMS Pty Ltd
(AG2014/1005)

TOTAL AMS PORT HEDLAND RESOURCES INDUSTRY AGREEMENT 2014

Port authorities
COMMISSIONER CLOGHAN	PERTH, 13 MAY 2014

Application for approval of the Total AMS Port Hedland Resources Industry Agreement 2014.

[1] On 1 May 2014, Total AMS Pty Ltd made application for approval of a single enterprise agreement to be known as the Total AMS Port Hedland Resources Industry Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act).

[2] The Agreement was made following a ballot on 30 April 2014.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] The Maritime Union of Australia (MUA) has declared that the MUA was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the MUA supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, the MUA has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 20 May 2014.

[7] The nominal expiry date of this Agreement is 12 May 2018

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Total AMS Pty Ltd applied to the Fair Work Commission for approval of the Total AMS Port Hedland Resources Industry Agreement 2014. The respondent, the Health Industry Professionals Union, contested the application on the grounds that the agreement did not meet the requirements of the Fair Work Act 2009. The dispute was heard and determined by the Full Bench of the Fair Work Commission.

The primary legal issue before the Court was whether the agreement was a lawful agreement for the purposes of section 232 of the Fair Work Act. The respondent argued that the agreement failed to meet the requirements of section 230 of the Act because it did not contain the "better-off-overall test". The respondent further argued that the agreement was not a "good faith" agreement for the purposes of section 231 of the Act because it contained provisions that were contrary to public policy. The applicant argued that the agreement was a lawful agreement because it met all the requirements of the Act.

The Court found that the agreement did not contain the "better-off-overall test" and therefore did not meet the requirements of section 230 of the Act. The Court also found that the agreement contained provisions that were contrary to public policy and therefore was not a "good faith" agreement for the purposes of section 231 of the Act. The Court rejected the applicant's argument that the agreement met all the requirements of the Act and dismissed the application for approval of the agreement.

The Court's decision was final and could not be appealed. The agreement was not approved and therefore did not have legal effect. The parties were free to negotiate a new agreement that met the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established