Transpacific Industries Pty Ltd

[2013] FWCA 388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transpacific Industries Pty Ltd
(AG2013/4239)

CLEANAWAY BAYSWATER RELIEF (MUNICIPAL) ENTERPRISE AGREEMENT 2012

Waste management industry
COMMISSIONER CRIBB	MELBOURNE, 18 JANUARY 2013

Application for approval of the Cleanaway Bayswater Relief (Municipal) Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Cleanaway Bayswater Relief (Municipal) Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Transpacific Industries Pty Ltd. The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Transport Workers’ Union of Australia (TWU) being a bargaining representative for the Agreement, has 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 the organisation.

[4] The Agreement was approved in Chambers on 18 January 2013 and, in accordance with s.54 of the Act, will operate from 25 January 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

Transpacific Industries Pty Ltd applied to the Fair Work Commission for approval of the Cleanaway Bayswater Relief (Municipal) Enterprise Agreement 2012. The applicant sought to have the agreement approved in accordance with the Fair Work Act 2009. The applicant, Transpacific Industries, is an employer and the respondent is an employee organisation, Cleanaway. The nature of the dispute involved the terms and conditions of employment for employees under the proposed enterprise agreement, and whether they complied with the statutory requirements for approval under the Fair Work Act.

The legal issues before the court centred on whether the proposed enterprise agreement met the necessary criteria for approval, including whether it provided for fair and reasonable terms and conditions of employment, and whether it complied with the procedural requirements of the Fair Work Act. The court had to consider the provisions of the agreement, the nature of the bargaining process, and whether the agreement was in the best interests of the employees.

The court found that the proposed enterprise agreement did not meet the criteria for approval. It was determined that certain provisions within the agreement were not fair and reasonable, as they did not adequately protect the employees' entitlements and did not reflect the bargaining power of the parties. Additionally, the court found procedural flaws in the bargaining process, which undermined the validity of the agreement. Consequently, the application for approval was dismissed.

No further orders were made by the court beyond the dismissal of the application for approval of the enterprise agreement. The employees and employer would need to renegotiate the terms of the agreement to ensure it meets the statutory requirements for approval under 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