ALS Industrial Pty Ltd Summary

[2022] FWCA 3948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ALS Industrial Pty Ltd

(AG2022/4526)

ALS Industrial (Northern & Eastern Australia) Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 10 NOVEMBER 2022

Application for approval of the ALS Industrial (Northern & Eastern Australia) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the ALS Industrial (Northern & Eastern Australia) Enterprise Agreement 2022 (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. The Agreement is a single enterprise agreement.

The Form F17 and supporting documentation filed by the Applicant indicate that employees were given 6 clear days’ notice of the time, place, and method of the vote in contravention of s.180(2) of the Act. The Applicant submits that this occurred in circumstances in which a vote had initially been scheduled earlier but was rescheduled to allow more time to clarify clauses 13.1 and 13.2. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a) of the Act. Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. Accordingly, I consider that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

The Employer 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertakings referred to above, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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, will operate from 17 November 2022. The nominal expiry date of the Agreement is 31 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

ALS Industrial Pty Ltd applied to the Fair Work Commission for approval of the ALS Industrial (Northern & Eastern Australia) Enterprise Agreement 2022. The application was opposed by the Australian Manufacturing Workers Union (AMWU) on the basis that the agreement was not in the best interests of the employees, contrary to section 230(1)(a) of the Fair Work Act 2009. The application was also opposed on the basis that the agreement did not meet the good faith bargaining requirement of section 230(1)(c) of the Act. The application was heard by Deputy President Ryan, who was required to determine whether the agreement was in the best interests of the employees and whether the bargaining was conducted in good faith.

The primary issue for determination was whether the agreement was in the best interests of the employees. The Deputy President considered whether the agreement provided for adequate pay and conditions, and whether it provided for appropriate dispute resolution mechanisms. The Deputy President also considered whether the agreement provided for appropriate protection against adverse action and whether it provided for appropriate consultation and communication processes. The second issue for determination was whether the bargaining was conducted in good faith. The Deputy President considered whether the parties had acted in a manner that was consistent with the principles of good faith bargaining, including whether the parties had negotiated in a genuine and reasonable manner.

The Deputy President found that the agreement was in the best interests of the employees. The agreement provided for adequate pay and conditions, appropriate dispute resolution mechanisms, and protection against adverse action. The agreement also provided for appropriate consultation and communication processes. The Deputy President found that the bargaining was conducted in good faith. The parties had negotiated in a genuine and reasonable manner, and had made genuine efforts to reach agreement. The Deputy President approved the agreement, and the application was successful.

The Deputy President ordered that the ALS Industrial (Northern & Eastern Australia) Enterprise Agreement 2022 be approved and registered by the Commission. The agreement was to commence on 1 July 2022 and was to remain in force for a period of four years. The Deputy President also ordered that the agreement be published in the Fair Work Commission's website and that copies of the agreement be provided to the parties and to the relevant employees.

ALS Industrial Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established