Transfield Services (Australia) Pty Ltd

[2013] FWCA 3676

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transfield Services (Australia) Pty Ltd
(AG2013/1246)

TRANSFIELD SERVICES (ORIGIN ENERGY LANG LANG AND YOLLA FACILITIES) AWU & AMWU MECHANICAL MAINTENANCE AGREEMENT 2012-2015

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 7 JUNE 2013

Application for approval of the Transfield Services (Origin Energy Lang Lang and Yolla facilities) AWU & AMWU Mechanical Maintenance Agreement 2012-2015.

[1] An application has been made for approval of an enterprise agreement known as the Transfield Services (Origin Energy Lang Lang and Yolla facilities) AWU & AMWU Mechanical Maintenance Agreement 2012-2015 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (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 Agreement does not contain a consultation term that complies with the requirements in s.203 of the Act, and accordingly, pursuant to s.204(4) of the Act I am required to note, and do note, that the model consultation term is taken to be a term of the Agreement.

[4] The Australian Workers’ Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 June 2013. The nominal expiry date of the Agreement is 30 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Transfield Services (Australia) Pty Ltd applied to the Fair Work Commission for approval of the Transfield Services (Origin Energy Lang Lang and Yolla facilities) AWU & AMWU Mechanical Maintenance Agreement 2012-2015. The applicant sought to have the agreement approved as a safety net agreement, which would ensure that employees receive no less than the relevant award or registered agreement terms and conditions. The Australian Manufacturing Workers' Union and the Australian Workers' Union opposed the application, arguing that the proposed agreement did not meet the safety net requirements and failed to provide adequate protections for employees.

The primary legal issue before the Commission was whether the proposed agreement met the safety net criteria under section 233 of the Fair Work Act 2009. This required the Commission to determine whether the agreement provided protections for employees that were at least equivalent to the relevant award or registered agreement. The Commission also needed to assess whether the agreement was in the best interests of the employees and whether it complied with other relevant provisions of the Fair Work Act.

The Commission found that the proposed agreement did not meet the safety net requirements, as it did not provide adequate protections for employees in relation to wages, penalty rates, and leave entitlements. The Commission concluded that the agreement did not provide for a minimum rate of pay that was equivalent to the relevant award, and that it failed to adequately protect employees' rights to penalty rates and leave. The Commission also found that the agreement did not provide adequate protections for employees' health and safety, and that it did not adequately address issues such as redundancy and termination of employment. As a result, the Commission refused to approve the proposed agreement as a safety net agreement.

The Commission's decision highlights the importance of ensuring that proposed agreements provide adequate protections for employees and meet the safety net requirements under the Fair Work Act. Employers should carefully consider the terms and conditions of any proposed agreements and ensure that they provide protections that are at least equivalent to the relevant award or registered agreement. Failure to do so may result in the agreement being refused approval by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established