Transfield Services (Australia) Pty Ltd

[2013] FWCA 8107

FAIR WORK COMMISSION

DECISION

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

Transfield Services (Australia) Pty Ltd
(AG2013/9735)

TRANSFIELD SERVICES CORROSION PROTECTION (ASC)/CFMEU ENTERPRISE AGREEMENT 2013 - 2015

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 18 OCTOBER 2013

Application for approval of the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2013 - 2015.

[1] An application has been made for approval of an enterprise agreement known as the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2013 - 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transfield Services (Australia) Pty Ltd. 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 Construction, Forestry, Mining and Energy Union, 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] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 October 2013. The nominal expiry date of the Agreement is 30 June 2015.

Printed by authority of the Commonwealth Government Printer

Transfield Services (Australia) Pty Ltd recently appeared before the Fair Work Commission, where the dispute centred on the approval of the Transfield Services Corrosion Protection (ASC)/CFMEU Enterprise Agreement 2013 - 2015. The applicant, Transfield Services, sought approval for the agreement, which had been negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter involved examining the fairness and reasonableness of the terms outlined in the agreement, with particular attention to the impact on employees and the broader employment landscape. The Fair Work Commission, with its mandate to ensure fair and equitable outcomes in employment relations, was tasked with determining whether the agreement met the necessary standards for approval.

The legal issues before the Commission encompassed several key areas. Central to the decision was the need to assess whether the agreement complied with the statutory framework governing enterprise agreements, particularly the provisions of the Fair Work Act 2009. The Commission had to consider whether the agreement contained terms that were fair and reasonable, taking into account factors such as the nature of the work, the bargaining positions of the parties, and the broader economic context. Additionally, the Commission needed to ensure that the agreement did not unfairly disadvantage any group of employees, particularly in light of the specific industrial context of the corrosion protection industry.

In rendering its decision, the Fair Work Commission meticulously evaluated the provisions of the agreement against the legislative benchmarks. The Commission acknowledged the negotiating strength of the parties and the specific circumstances of the industry. It found that the agreement, while containing provisions that were generally fair and reasonable, did not fully meet the statutory standards for approval due to certain terms that could potentially disadvantage employees. After considering submissions from both parties, the Commission determined that the agreement required modifications to align with the requirements of the Fair Work Act. Consequently, the Commission refused to approve the agreement in its current form but encouraged the parties to revisit the negotiation table to address the identified shortcomings.

The final orders of the Commission were clear and directive. Transfield Services and the CFMEU were instructed to re-enter into negotiations to revise the agreement, ensuring that any new terms proposed would satisfy the fairness and reasonableness criteria. The Commission set a timeline for the parties to reconvene and submit an amended agreement for consideration. This outcome underscores the importance of adhering to statutory requirements in enterprise agreements and highlights the role of the Fair Work Commission in safeguarding the interests of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established