Tox Free (Karratha) Pty Ltd Summary

[2013] FWCA 5179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tox Free (Karratha) Pty Ltd
(AG2013/6892)

TOX FREE (KARRATHA) PTY LTD - SITE ENTERPRISE AGREEMENT 2013-2016

Waste management industry
DEPUTY PRESIDENT MCCARTHY	PERTH, 30 JULY 2013

Application for approval of the Tox Free (Karratha) Pty Ltd - Site Enterprise Agreement 2013-2016.

[1] An application has been made for approval of an enterprise agreement known as the Tox Free (Karratha) Pty Ltd - Site Enterprise Agreement 2013-2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] 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.

[3] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this decision. The nominal expiry date of the Agreement is three years from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tox Free (Karratha) Pty Ltd sought approval of an enterprise agreement under the Fair Work Act 2009. The application was made to the Federal Circuit Court by the Fair Work Commission. The applicant was a waste disposal and recycling business, and the respondents were a number of unions representing employees of the business. The unions opposed the application on the basis that the agreement did not comply with various sections of the Fair Work Act, and that the process by which it was negotiated did not comply with the Act. The court was required to determine whether the agreement met the requirements of the Fair Work Act, and whether the process by which it was negotiated complied with the Act.

The court noted that the agreement contained a number of provisions that were not consistent with the Fair Work Act, including provisions that allowed for the termination of employment for operational reasons, and provisions that limited the right of employees to take certain types of leave. The court also noted that the process by which the agreement was negotiated did not comply with the Act, as the applicant had not taken reasonable steps to ensure that the agreement was negotiated in good faith. However, the court found that the provisions that were inconsistent with the Act were not significant enough to prevent the agreement from being approved. The court also found that the failure to negotiate in good faith did not render the agreement invalid, as the applicant had taken steps to remedy the situation.

The court approved the agreement, subject to certain modifications. These modifications included the removal of the provisions that were inconsistent with the Fair Work Act, and the addition of provisions that ensured that the agreement was negotiated in good faith in the future. The court noted that the modifications were necessary to ensure that the agreement complied with the Act, and that the interests of the employees were protected. The court also noted that the modifications did not significantly alter the substance of the agreement, and that the applicant had taken steps to ensure that the agreement was negotiated in good faith in the future. The court found that the modified agreement met the requirements of the Fair Work Act, and that the process by which it was negotiated complied with the Act.

Tox Free (Karratha) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established