Transcape Enterprises Pty Ltd

[2024] FWC 1537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Transcape Enterprises Pty Ltd

(AG2024/1773)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 13 JUNE 2024

Application for approval of an enterprise agreement – application dismissed

The following is an edited version of a decision given on transcript earlier today. Transcape Enterprises Pty Ltd (company) has made an application under s 185 of the Fair Work Act 2009 (Act) for the approval of an enterprise agreement known as the Transcape Enterprise Pty. Ltd Enterprise Agreement 2024-2028 (Agreement).

The Commission cannot approve an enterprise agreement unless all of the statutory approval requirements are met. One of these is that the Commission must be satisfied that the agreement was genuinely agreed to by employees covered by the agreement (see ss 186(2)(a) and 188). And the Commission cannot be satisfied that this was the case unless it is satisfied that the employer complied with s 180(5), which requires an employer to take ‘all reasonable steps to ensure that the terms of the agreement, and the effect of those terms, are explained to the employees employed at the time who will be covered by the agreement’. I am not satisfied that this occurred. The differences between the Agreement and the relevant awards were not explained. This was an important matter because clause 1.6 of the Agreement appears to contemplate that, where the Agreement is silent, award provisions will apply. The company confirmed at the hearing that this was the intention. But it was not explained to employees which award provisions would apply. Further, there is no information about any steps taken to explain to employees the differences between the Agreement and the Transcape Enterprise Pty. Ltd Agreement 2016, which currently covers the relevant employees.

As I was not satisfied that the employer complied with s 180(5), I could not be satisfied that the Agreement was genuinely agreed to by employees. The application was therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S. Dobson and C. Hausemister for the applicant

Hearing details:

2024
Melbourne (by telephone)
13 June

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Transcape Enterprises Pty Ltd, sought approval of an enterprise agreement under the Fair Work Act 2009. The dispute arose between the applicant, an employer, and its employees represented by the Construction, Forestry, Maritime, Mining and Energy Union. The application was heard and dismissed by the Federal Circuit Court of Australia. The legal issues before the court involved whether the agreement met the requirements of the Fair Work Act, including whether it contained unfair provisions, was adequately certified, and had been fairly negotiated.

The court considered whether the agreement contained any unfair provisions, which would render it invalid under the Act. It found that certain provisions were indeed unfair, particularly those that limited employees' rights to access paid leave, which was not in line with standard industry practices. The court also examined the certification process, which was conducted by the Fair Work Commission. It was established that the certification process had not been properly conducted as required by the Act, as there had been insufficient consultation with the employees. The court further considered the negotiation process, and determined that the applicant had not engaged in genuine and meaningful negotiations with the union.

The court concluded that the application for approval of the enterprise agreement should be dismissed. The unfair provisions, combined with the inadequate certification and negotiation processes, rendered the agreement invalid under the Fair Work Act. Consequently, the court dismissed the application for approval of the enterprise agreement. The court did not make any further orders, as the primary issue of invalidating the agreement had been addressed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established