Workplace IR Services

Case [2017] FWCA 2561


[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.

COMMISSIONER

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Annexure A

Details
AGLC
Workplace IR Services [2017] FWCA 2561
Case
[2017] FWCA 2561
Decision Date

CaseChat Overview and Summary

The applicant, Workplace IR Services, sought approval of the De Neefe Signs Melbourne Manufacturing/Production Employees Enterprise Agreement 2017 from the Fair Work Commission. The agreement covered employees within the manufacturing and production sectors at De Neefe Signs in Melbourne. The application was filed in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The dispute centred around whether the agreement met the legal requirements for approval, specifically focusing on whether it contained the necessary "no-disadvantage" and "no-protected-action" tests.

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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