Australian industry lobby group Australian Industry Group (Ai Group) has filed an appeal with Fair Work Australia to overturn a decision which is creating uncertainty and risk for employers who have reached agreement with their employees over the terms of an enterprise agreement, Ai Group Chief Executive Heather Ridout said today.

In mid-March, Senior Deputy President O'Callaghan rejected an enterprise agreement applicable to Ai Group member company Philmac Pty Ltd on the basis that some aspects of the good faith bargaining requirements had not been met during the negotiations leading up to the agreement being made. The company strongly disagrees that it did not meet the good faith bargaining requirements but, importantly, the Fair Work Act appears to prevent Fair Work Australia considering the good faith bargaining requirements at the agreement approval stage in nearly all circumstances.

"If FWA was permitted to refuse to approve an enterprise agreement which had been duly made and lodged with the Tribunal, on the basis that one or more bargaining representatives did not meet all of the good faith bargaining requirements during the negotiation process, a great deal of uncertainty and risk would arise for all parties. Bargaining representatives are able to apply for bargaining orders during the negotiations if they believe the good faith bargaining requirements are not being met, but once an agreement is made the good faith bargaining requirements have no relevance to the approval process in all but very limited circumstances." Ridout added.

In addition to the above matters, the appeal raises important questions about the conduct of postal ballots to approve agreements.

This latest appeal follows many other Full Bench cases dealing with critical principles, in which Ai Group has pursued successful appeals or intervened to ensure that the Fair Work bargaining laws work effectively including, for example, cases involving Woolworths, Dunlop Foams, McDonald's, TriMas, Airport Fuel Services, Metropolitan Fire and Emergency Services Board, Armacell, Direct Paper Supplies, Downer EDI Works and Power Projects International", Mrs Ridout said.