ABCorp Australasia Pty Ltd Summary

[2022] FWCA 2999

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ABCorp Australasia Pty Ltd

(AG2022/3455)

ABCorp Australasia NSW Enterprise Agreement 2022-2026

Graphic Arts
COMMISSIONER MATHESON	SYDNEY, 1 SEPTEMBER 2022

Application for the approval of the ABCorp Australasia NSW Enterprise Agreement 2022-2026.

An application has been made for approval of an enterprise agreement known as the ABCorp Australasia NSW Enterprise Agreement 2022-2026 (Agreement). The application was made by ABCorp Australasia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 September 2022. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

ABCorp Australasia Pty Ltd has applied to the Fair Work Commission for approval of the ABCorp Australasia NSW Enterprise Agreement 2022-2026 (Agreement). The Commission is required to consider whether the Agreement complies with the relevant provisions of the Fair Work Act 2009 (Cth) (Act) and whether it meets the criteria for approval. The Commissioner, Matheson, has found that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES), but that clause 5.6 of the Agreement ensures that the more beneficial entitlements of the NES will prevail where there is an inconsistency. The Commissioner has also accepted the Undertakings provided by the Applicant, ABCorp Australasia Pty Ltd, which provide assurances that the Agreement will not cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement.

The primary legal issue before the Commission was whether the Agreement complied with the relevant provisions of the Act and met the criteria for approval. In particular, the Commissioner had to consider whether the Agreement met the requirements of sections 186, 187, 188 and 190 of the Act. The Commissioner was also required to consider the effect of the Undertakings provided by the Applicant. After reviewing the materials before the Commission, the Commissioner was satisfied that the requirements of the Act had been met. The Commissioner also found that the Undertakings provided by the Applicant did not have the effect of causing financial detriment to any employee covered by the Agreement or resulting in substantial changes to the Agreement.

Having found that the requirements of the Act had been met and that the Undertakings provided by the Applicant did not have an adverse effect, the Commissioner approved the Agreement. The Agreement will operate from 8 September 2022 and will expire on 30 June 2026. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union, has also given notice that it wants the Agreement to cover it, and the Commissioner has noted that the Agreement covers the organisation. This decision provides clarity for the parties involved in the Agreement and ensures that it is compliant with the requirements of the Act.

ABCorp Australasia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established