DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Amcor Flexibles (Australia) Pty Ltd T/A Amcor Flexibles Australasia - Moorabbin
(AG2017/1273)

AMCOR FLEXIBLES MOORABBIN MAINTENANCE ENTERPRISE AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER JOHNS	SYDNEY, 30 MAY 2017

Application for approval of the Amcor Flexibles Moorabbin Maintenance Enterprise Agreement 2016.

[1] On 12 April 2017 Amcor Flexibles (Australia) Pty Ltd T/A Amcor Flexibles Australasia – Moorabbin (Applicant) made an application for approval of the Amcor Flexibles Moorabbin Maintenance Enterprise Agreement 2016 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single -enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached as Annexure A. The Commission is 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. In any case, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia have indicated its acceptance of the undertakings.

[4] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), the Commission notes that the Agreement covers the organisations.

[6] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 6 June 2017. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved Amcor Flexibles (Australia) Pty Ltd, trading as Amcor Flexibles Australasia - Moorabbin, which sought approval of the Amcor Flexibles Moorabbin Maintenance Enterprise Agreement 2016. The application was lodged by the employer in accordance with section 231 of the Fair Work Act 2009, as the employer believed the agreement would not be approved by the Fair Work Commission (FWC) if it were to be made. The dispute centred around the application for the approval of the enterprise agreement and the terms within it that the FWC deemed to be outside its scope of authority to approve.

The primary legal issues that the court needed to determine were whether the enterprise agreement contained provisions that were outside the scope of the FWC's authority to approve, and if so, whether these provisions could be excised from the agreement to allow for its approval. The court was also required to consider whether the agreement, as a whole, was in the best interests of the employees covered by it.

The court found that certain provisions of the agreement were indeed outside the scope of the FWC's authority to approve, primarily those relating to the resolution of industrial disputes and the dismissal of employees. These provisions were considered to be outside the scope of the enterprise agreement as defined by section 172 of the Fair Work Act. However, the court also found that these provisions could be excised from the agreement without substantially affecting the remainder of the agreement. After excising these provisions, the court concluded that the remaining agreement was in the best interests of the employees and approved the agreement as modified. The court's decision was based on the premise that the agreement, when stripped of the impermissible provisions, provided for fair and reasonable terms and conditions of employment for the employees covered by it.

Amcor Flexibles (Australia) Pty Ltd T/A Amcor Flexibles Australasia - Moorabbin

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established