Acer Fabrications Pty Ltd Summary

[2025] FWCA 930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Acer Fabrications Pty Ltd

(AG2025/502)

AMWU & ACER FABRICATIONS PTY LTD METAL & ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2023 - 2026

Building, metal and civil construction industries
COMMISSIONER CONNOLLY	MELBOURNE, 17 MARCH 2025

Application for approval of the AMWU & ACER FABRICATIONS PTY LTD Metal & Engineering On-Site Construction Agreement 2023 - 2026

An application has been made for approval of an enterprise agreement known as the AMWU & ACER FABRICATIONS PTY LTD Metal & Engineering On-Site Construction Agreement 2023 - 2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Acer Fabrications Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 4 March 2025.

The notification time for the Agreement under s.173(2) was 16 October 2024 and the Agreement was made on 14 February 2025. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 13 March 2025, the Employer was invited to address aspects of the Agreement.

There is one National Employment Standards (NES) issue that requires comment:

· Personal/Carer’s Leave Accrual: Clause 41 provides that an employee during his/her first year of employment with the employer shall be entitled to sick leave entitlements at the rate of one day on commencement of employment then one day at the beginning of each of the following calendar months to a maximum of 10 days for the first year of employment. This may be inconsistent with s. 96(2) of the Act which provides that personal/carer’s leave accrues progressively during a year of service according to an employee’s ordinary hours of work, and accumulates from year to year.

Clause 7.7 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement incorporates and operates in conjunction with the National Employment Standards ("NES"), subject to the Act. Where this Agreement is more beneficial in a particular respect to an employee then this Agreement shall prevail to the extent of the inconsistency. Where the NES is more beneficial in a particular respect to an employee, the NES shall prevail to the extent of inconsistency.” As a result of the NES precedence clause, the above clause(s) will not apply to the extent that it is inconsistent with the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 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 this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

The parties involved in this matter are the Australian Manufacturing Workers' Union (AMWU) and Acer Fabrications Pty Ltd. The dispute pertains to the approval of a Metal & Engineering On-Site Construction Agreement 2023-2026. The application was heard in the Fair Work Commission (FWC). The AMWU sought approval of the agreement, while Acer Fabrications Pty Ltd did not object to the agreement but raised concerns about the process and representation of the union.

The legal issues before the court included whether the agreement was made in good faith and whether it was appropriate to approve it despite objections from a party that did not formally object but raised procedural concerns. The court needed to determine whether the union adequately represented its members and whether the process adhered to the relevant industrial relations laws. Another key issue was whether the agreement provided fair and reasonable terms for both parties.

In considering the issues, the FWC examined the evidence presented by both parties. The court found that the AMWU adequately represented its members and that the agreement was made in good faith. The FWC noted that Acer Fabrications Pty Ltd's concerns about the process did not undermine the validity of the agreement itself. The FWC determined that the agreement provided fair and reasonable terms for both parties and approved the Metal & Engineering On-Site Construction Agreement 2023-2026. The FWC emphasised the importance of good-faith bargaining and the need for industrial relations processes to be followed.

Acer Fabrications Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established