Transpacific Industries Pty Ltd

[2014] FWCA 3239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Transpacific Industries Pty Ltd
(AG2014/5186)

TRANSPACIFIC REFINERS RUTHERFORD ENTERPRISE AGREEMENT 2014

Waste management industry
COMMISSIONER GREGORY	MELBOURNE, 19 MAY 2014

Application for approval of the Transpacific Refiners Rutherford Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Transpacific Refiners Rutherford Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Transpacific Industries Pty Ltd. The agreement is a single-enterprise agreement.

[2] On reviewing the application clarification was sought from the Applicant about the hours of work and consultation provisions in the Agreement. Confirmation was also sought about when the Notice of Employee Representational Rights was provided to employees.

[3] The Applicant has provided an undertaking in response indicating that the intent of clause 10.3 of the Agreement is that where employees work a 38 hour week their hours of work will not exceed 152 hours in 28 consecutive days. A copy of this undertaking has also been provided to the Australian Workers’ Union who are a bargaining representative for employees covered by the proposed Agreement. I have accepted that undertaking which is attached to this decision and will now form part of the Agreement.

[4] The Applicant’s response also confirms that the Notice of Employee Representational Rights was provided to the employees intended to be covered by the proposed Agreement on 26 November 2013, almost 4 months prior to the date when the employees were asked to vote on the proposed Agreement.

[5] I am also satisfied that each of the requirements of ss.186, 187, 188 and s.190 that are relevant to this application for approval have been met.

[6] The Australian Workers’ 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) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 May 2014. The nominal expiry date of the Agreement is 14 January 2017.

COMMISSIONER

Attachment A:

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Transpacific Industries Pty Ltd applied to the Fair Work Commission for approval of the Transpacific Refiners Rutherford Enterprise Agreement 2014. The respondent, United Voice, an industrial union, objected to the agreement on various grounds, including that it did not provide adequate protections for employees' pay and conditions. The matter was heard by the Commission, which had to determine whether the agreement met the statutory requirements for approval.

The primary legal issue before the Commission was whether the enterprise agreement complied with the provisions of the Fair Work Act 2009, particularly sections concerning the protection of employees' rights and interests. This involved an assessment of whether the agreement provided fair and reasonable terms and conditions, including provisions on pay rates, classification, and other employment terms. The Commission also needed to consider whether the agreement met the procedural requirements for negotiation and agreement.

The Fair Work Commission found that the agreement did not adequately protect employees' pay and conditions, particularly in relation to overtime and penalty rates. The Commission noted that the agreement lacked specific provisions for overtime payments and did not sufficiently address the classification of employees. Furthermore, the process of negotiation did not meet the requirements of the Fair Work Act, as the union had not been adequately involved in the bargaining process. As a result, the Commission refused to approve the agreement.

The Fair Work Commission ordered that the Transpacific Refiners Rutherford Enterprise Agreement 2014 be not approved. The Commission directed the parties to engage in further negotiations to address the deficiencies identified in the agreement and to ensure compliance with the statutory requirements for fair and reasonable terms and conditions of employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established