Active Steel Pty Ltd

[2024] FWCA 3152

[2024] FWCA 3152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Active Steel Pty Ltd

(AG2024/2496)

ACTIVE STEEL PTY LTD - NSW ENTERPRISE AGREEMENT 2023-2027

Manufacturing and associated industries
DEPUTY PRESIDENT SLEVIN	SYDNEY, 30 AUGUST 2024

Application for approval of a single-enterprise agreement

1. An application has been made for approval of an enterprise agreement known as the Active Steel Pty Ltd - NSW Enterprise Agreement 2023-2027 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act) Active Steel Pty Ltd. The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss 186 and 187 are met.

1. For the purpose of satisfying the requirement in s 186(2)(a) that the Agreement was genuinely agreed to by the employees the Commission must consider whether the employer has taken all reasonable steps to explain the Agreement to the employees and that explanation was provided in a manner appropriate to the circumstances and needs of the employees - s188(1) and s 180(5) and paragraph 14 of the Statement of Principles on Genuine Agreement. The Applicants materials indicated employees where provided hard copies of access period materials and notified of the vote on 14 June 2024 and the vote commenced less than 7 clear days later 21 June 2024. In response to this the Applicant clarified that this was an error in interpretation. Further, 30 of the 37 employees eligible to vote did vote and 24 of those voted in favour of approving the Agreement.  In the circumstances I am satisfied that despite the shorter access period the Agreement was genuinely agreed to.

1. Section 186(2)(c) requires that the terms of the Agreement do not exclude the National Employment Standards. An issue was raised as the Agreement does not define a shiftworker for the purpose of the NES in accordance with section 187(4) and section 196 of the act. In response the Applicant clarified that afternoon shiftworkers covered by the agreement do not work a regular 7 day rostered shift to include work on Sundays and public holidays and therefore do not qualify for shift work annual leave. Clause 8.1 of the Agreement provides that where the NES operates to afford a more beneficial entitlement the NES will apply. Further, in circumstances where the afternoon shiftworkers did meet the NES requirements for additional leave, the NES would apply.     

1. Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s 193 of the Act and it is to be applied in accordance with s 193A. Under s 193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award.  

1. Here the relevant award is the Manufacturing and Associated Industries and Occupations Award 2020. In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application.  

1. An issue was raised in relation to PW1 employees, as under the Agreement they are paid 1.16% below the Award. In response to this the Applicant clarified that they do not currently employ any PW1 employees. The Applicant also provide an undertaking amending the PW1 Pay rate.

1. A further issue was raised in relation to the span of ordinary hours. Clause 13 Of the Agreement provides a span of ordinary hours between 5:00am and 6:30am as a day shift. This appears to be an error. Taking this to mean 5:00am to 6:30pm however this is still 1.5 hours longer than the span provided by clause 17 of the Award. In response to this the Applicant provided an undertaking.

1. Given the explanations provided by the applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met.

1. A copy of the undertakings in relation to the matters raised is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement

1. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. Having regard to the undertakings and the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.

1. Section 54 of the Act provides that an agreement will operate from 7 days after approval unless a later date is specified. Clause 3.1 Of the Agreement is inconsistent with the Act as it states the agreement shall apply form the date of approval. In response the Applicant provided an undertaking.

1. The Agreement was approved on 30 August 2024, and, in accordance with s.54, will operate from 6 September 2024. The nominal expiry date is 6 September 2028.

DEPUTY PRESIDENT

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Annexure A