DECISION

Fair Work Act 2009
s.185—Enterprise agreement

West Australian Newspapers Ltd T/A The West Australian
(AG2016/3995)

WEST AUSTRALIAN NEWSPAPERS PRODUCTION EMPLOYEES ENTERPRISE AGREEMENT 2015

Publishing industry
COMMISSIONER HARPER-GREENWELL	ADELAIDE, 8 SEPTEMBER 2016

Application for approval of the West Australian Newspapers Production Employees Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the West Australian Newspapers Production Employees Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by West Australian Newspapers Ltd T/A The West Australian. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Construction, Forestry, Mining and Energy Union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “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) I note that the Agreement covers these organisations.

[5] The Agreement was approved on 8 September 2016 and, in accordance with s.54, will operate from 15 September 2016. The nominal expiry date of the Agreement is 1 January 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, West Australian Newspapers Ltd trading as The West Australian, sought approval of the West Australian Newspapers Production Employees Enterprise Agreement 2015. The respondent, the Media, Entertainment and Arts Alliance, representing the employees, opposed the application on various grounds, including that the agreement did not meet the "better off overall test" and contained provisions that were contrary to public policy. The dispute centred on the interpretation and application of the Fair Work Act 2009 and the principles of good faith bargaining and the "better off overall test" as they applied to the proposed enterprise agreement.

The Commission considered whether the proposed agreement met the "better off overall test" and whether it contained provisions that were contrary to public policy. The Commission found that the proposed agreement did not meet the "better off overall test" as it did not provide employees with a sufficient improvement in their terms and conditions of employment. Additionally, the Commission found that certain provisions of the proposed agreement were contrary to public policy as they allowed for the outsourcing of work to be performed by non-unionised employees and provided for the reduction of sick leave entitlements. The Commission held that these provisions were contrary to public policy and could not be approved.

Accordingly, the application for approval of the West Australian Newspapers Production Employees Enterprise Agreement 2015 was dismissed. The Fair Work Commission found that the proposed agreement did not meet the "better off overall test" and contained provisions that were contrary to public policy. As such, the agreement could not be approved under the Fair Work Act 2009. The Commission's decision highlights the importance of ensuring that enterprise agreements provide employees with a sufficient improvement in their terms and conditions of employment and do not contain provisions that are contrary to public policy.

West Australian Newspapers Ltd T/A The West Australian

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established