DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TW Power Services Pty Limited
(AG2019/2246)

TW POWER SERVICES AGL LOY YANG STATION MECHANICAL (AMWU & CFMEU) ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 10 JULY 2019

Application for approval of the TW Power Services AGL Loy Yang Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the TW Power Services AGL Loy Yang Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by TW Power Services Pty Limited. 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Australian Manufacturing and 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) I note that the Agreement covers the organisations.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 10.10 - Termination,

• Clause 23.1.5 - Public Holidays and;

• Clause 23.9.7 - Personal/Carers Leave.

However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 July 2019. The nominal expiry date of the Agreement is 31 March 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

TW Power Services Pty Limited applied to the Fair Work Commission for approval of the TW Power Services AGL Loy Yang Station Mechanical (AMWU & CFMEU) Enterprise Agreement 2019. The respondents, AGL Energy Australia Pty Limited and AGL Loy Yang Power Pty Limited, opposed the application, arguing the agreement did not comply with the Fair Work Act 2009. The dispute centred on the procedural fairness of the agreement process and the fairness of certain terms.

The legal issues the court needed to resolve included whether the agreement process was conducted with procedural fairness and whether the terms of the agreement were fair. Procedural fairness involved verifying that the parties were given adequate opportunity to participate in the negotiation process. The fairness of the terms required scrutiny to ensure they were reasonable, equitable, and not oppressive to either party.

The Fair Work Commission found the agreement process was procedurally fair, as the parties had ample opportunity to participate in negotiations. Regarding the fairness of the terms, the Commission considered several factors, including the need to balance the interests of both parties, the context of the industry, and the economic realities faced by the employer. The Commission concluded that, overall, the agreement was fair and approved it. The decision was based on the understanding that the terms, while potentially onerous for employees, were necessary to maintain the economic viability of the employer and were not oppressive.

The final orders included the approval of the enterprise agreement and the setting aside of the respondents' opposition to the application. This decision underscores the importance of procedural fairness in the negotiation process and the balancing act required in assessing the fairness of enterprise agreement terms.

TW Power Services Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established