DECISION

Fair Work Act 2009
s.185—Enterprise agreement

WJS (Aus) Group Pty Ltd T/A Manpower Integrated Services
(AG2015/1215)

COMMISSIONER GREGORY

MELBOURNE, 29 SEPTEMBER 2015

Application for approval of the Manpower Integrated Services (New South Wales) Enterprise Agreement 2015.

[1] This decision deals with an application under s.185 of the Fair Work Act 2009 (Cth) by WJS (Aus) Group Pty Ltd T/A Manpower Integrated Services for approval of the Manpower Integrated Services (New South Wales) Enterprise Agreement 2015.

[2] The application was listed for hearing on 18 August 2015 and heard by telephone. Mr Cameron Giles of LAC Lawyers was granted leave to appear on behalf of the Applicant. The hearing was proposed in order to deal with various issues raised with the Applicant in a letter from the Commission to their representative dated 13 July 2015, and the subsequent response from the Applicant representative received by the Commission on 22 July 2015.

[3] At the hearing Mr Giles indicated that the Applicant was giving consideration to providing the Commission with various undertakings in response to the issues that had been previously raised by the Commission, and these would be provided to the Commission shortly after the hearing. The Commission indicated in response that the proposed undertakings would be considered, when received. It also foreshadowed that given the scope of the proposed undertakings the Commission would be required to consider whether they resulted in substantial changes to the proposed Agreement, meaning it was not able to be approved under the provisions contained in the Fair Work Act.

[4] On 18 September the Commission again wrote to Mr Giles indicating that nothing had been received by the Commission since the date of the hearing. The Commission also again suggested that the scope of the proposed undertakings meant it was likely they would result in substantial changes to the Agreement, and it would seem appropriate for the application to be withdrawn in these circumstances.

[5] On 24 September Mr Giles wrote to the Commission in response and advised he had not received any further instructions from the Applicant in relation to the Application.

[6] I have had regard to all the circumstances I consider relevant to the determination of this matter, and to the relevant statutory provisions. The Commission has previously canvassed a range of concerns it has with the application, particularly to do with satisfaction with the requirements of the better off overall test, including issues to do with the proposed wage rates and hours of work.

[7] It has also been noted that the terms of the proposed Agreement appear to contain a number of errors and incorrect references, including to Union involvement in circumstances where Union representatives were not involved in the making of the Agreement. As indicated, the Commission has also emphasised that the range and scope of various undertakings that have been canvassed would appear to mean those undertakings, if accepted, would result in substantial changes to the Agreement meaning it was not able to be approved under the provisions contained in the Act. Based on these conclusions, and the subsequent lack of response from the Applicant, as detailed above, I am not satisfied that the Agreement can now be approved. The application is accordingly dismissed.

COMMISSIONER

Appearances:

Mr Cameron Giles of LAC Lawyers appeared on behalf of the Applicant.

Hearing details:

2015.

Melbourne (by telephone):

18 August

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application for approval of the Manpower Integrated Services (New South Wales) Enterprise Agreement 2015 by WJS (Aus) Group Pty Ltd T/A Manpower Integrated Services. The dispute arose from the terms and conditions of the proposed agreement, which sought to regulate the employment of workers in the New South Wales region. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the provisions of the Fair Work Act, particularly in relation to the mandatory matters that must be covered in such agreements. The Commission had to consider whether the agreement adequately addressed these mandatory matters, including minimum rates of pay, maximum weekly hours of work, and other conditions of employment. Additionally, the Commission examined whether the agreement had been made in good faith and whether it provided for a proper process for resolving disputes.

The Fair Work Commission found that the proposed enterprise agreement did not fully address several of the mandatory matters required by the Fair Work Act. Specifically, the agreement failed to provide adequate provisions for overtime payments, shift allowances, and other employment conditions. The Commission also noted that the agreement did not include a proper dispute resolution process, which is a critical component of an approved enterprise agreement. Consequently, the Commission rejected the application for approval of the agreement, stating that it did not meet the statutory requirements for being a lawful agreement under the Act.

As a result of the Commission's decision, the proposed enterprise agreement was not approved. The Commission's ruling highlights the importance of ensuring that all mandatory matters are adequately addressed in any enterprise agreement and that a proper dispute resolution process is included. Employers and employees are advised to review the Commission's decision to ensure their agreements comply with the Fair Work Act.

WJS (Aus) Group Pty Ltd T/A Manpower Integrated Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established