Andrew Bohnen T/A Metso Outotec Australia Limited

[2023] FWCA 1513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Andrew Bohnen T/A Metso Outotec Australia Limited

(AG2023/1370)

METSO OUTOTEC AUSTRALIA LIMITED (CANNING VALE MAINTENANCE DIVISION) AND AMWU ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 29 MAY 2023

Application for approval of the "Metso Outotec Australia Limited (Canning Vale Maintenance Division) and AMWU Enterprise Agreement 2023"

An application has been made for approval of an enterprise agreement known as the “Metso Outotec Australia Limited (Canning Vale Maintenance Division) and AMWU Enterprise Agreement 2023” (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Andrew Bohnen T/A Metso Outotec Australia Limited. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 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 provisions of the Agreement relating to withholding money and abandonment of employment are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 10.1 of the Agreement, 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 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 5 June 2023. The nominal expiry date of the Agreement is 29 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved Andrew Bohnen, trading as Metso Outotec Australia Limited, and the Australian Manufacturing Workers' Union. The dispute centred on the application for approval of the "Metso Outotec Australia Limited (Canning Vale Maintenance Division) and AMWU Enterprise Agreement 2023." The case was heard in the Fair Work Commission.

The central legal issues for the Commission to determine were whether the agreement complied with the requirements of the Fair Work Act 2009 and if it had been genuinely negotiated. The Commission had to consider if the agreement provided for the appropriate minimum entitlements, if it included permissible terms and conditions, and whether it was made in good faith. Additionally, the Commission needed to assess if the agreement was appropriately certified and if it met the criteria for approval.

The Commission found that the agreement met all legislative requirements and had been genuinely negotiated. It was concluded that the agreement provided for the appropriate minimum entitlements and included permissible terms and conditions. The Commission determined that the agreement was made in good faith and met the certification criteria. Consequently, the Commission approved the agreement, finding it to be in the best interests of the employees and the employer. The Fair Work Commission's decision was made in accordance with the statutory framework and was based on the evidence and submissions presented by the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established