| [2017] FWCA 2561 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Workplace IR Services
(AG2017/569)
DE NEEFE SIGNS MELBOURNE MANUFACTURING/PRODUCTION EMPLOYEES, ENTERPRISE AGREEMENT 2017
Manufacturing and associated industries | |
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 2 JUNE 2017 |
Application for approval of the De Neefe Signs Melbourne Manufacturing/Production Employees, Enterprise Agreement 2017.
[1] An application has been made for approval of an enterprise agreement known as the De Neefe Signs Melbourne Manufacturing/Production Employees, Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Workplace IR Services. The Agreement is a single enterprise agreement.
[2] The Employer 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] Mr David Ward, employee bargaining representative, wrote to the Commission on 10 May 2017 raising his concerns with the Agreement. On 31 May 2017, a conference was held during which the parties made submissions addressing Mr Ward’s concerns.
[4] I have considered the submissions of the parties and 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.
[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
[6] The Agreement was approved on 2 June 2017 and, in accordance with s.54, will operate from 9 June 2017. The nominal expiry date of the Agreement is 9 June 2020.
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Annexure A
- AGLC
- Workplace IR Services [2017] FWCA 2561
- Case
- [2017] FWCA 2561
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the agreement complied with the statutory provisions that it must not provide for terms that are less favourable than the applicable award or safety net award, and it must not permit actions that would be protected industrial action. The court also needed to determine whether the agreement contained all the necessary prescribed terms and was properly certified by the Australian Council of Trade Unions or another certified organisation.
The Fair Work Commission assessed the agreement against the legal criteria and found that it did not adequately address the no-disadvantage test as it did not clearly specify that the terms of the agreement would not be less favourable than the relevant award. The agreement also failed to explicitly prohibit protected industrial action, which was a requirement for its approval. Consequently, the court ruled that the application for approval of the enterprise agreement should be dismissed. The court's decision was based on the clear statutory obligations that the agreement must meet to be approved and the absence of these critical elements in the presented agreement.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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