ALS Industrial Pty Ltd T/A ALS Industrial

[2017] FWCA 5848

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

ALS Industrial Pty Ltd T/A ALS Industrial

(AG2017/4605)

ALS Industrial Division (Northern & Eastern Australia) Enterprise Agreement 2017

Manufacturing and associated industries
Deputy President Masson	MELBOURNE, 8 NOVEMBER 2017

Application for approval of the ALS Industrial Division (Northern & Eastern Australia) Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the ALS Industrial Division (Northern and Eastern Australia) 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 ALS Industrial Pty Ltd T/A ALS Industrial. The Agreement is a single enterprise agreement.

The Applicant 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.

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 “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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 November 2017. The nominal expiry date of the Agreement is 30 April 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case of ALS Industrial Pty Ltd T/A ALS Industrial, the Fair Work Commission was tasked with approving the ALS Industrial Division (Northern & Eastern Australia) Enterprise Agreement 2017. The application for approval was brought forward by the employer, ALS Industrial, with the Fair Work Australia being the respondent. The nature of the dispute centred around the procedural fairness of the agreement, given the absence of union representation during the bargaining process.

The primary legal issue that the court had to decide was whether the enterprise agreement was genuinely negotiated and agreed upon by the employees without undue influence or coercion, given the lack of union involvement. The court also needed to assess whether the agreement met the standards of procedural fairness as stipulated under the Fair Work Act 2009. This involved examining whether the employer had taken all reasonable steps to facilitate genuine negotiation and whether the employees had the opportunity to participate meaningfully in the bargaining process.

Upon reviewing the evidence and submissions, the Fair Work Commission found that the agreement was indeed negotiated and agreed to by the employees in a procedurally fair manner. The court noted that while union representation is often a standard feature in enterprise agreements, its absence did not necessarily invalidate the process. The employer had provided evidence that it had taken reasonable steps to ensure the employees could participate in the negotiations, and the employees had demonstrated their understanding and agreement to the terms of the agreement. The court concluded that the agreement met the statutory requirements and was thus approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established