AP Engineering Pty Ltd & AP Engineering Nominees Pty Ltd T/A AP Kempe Engineering Summary

[2025] FWCA 401

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

AP Engineering Pty Ltd & AP Engineering Nominees Pty Ltd T/A AP Kempe Engineering

(AG2024/5141)

AP KEMPE ENGINEERING ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 31 JANUARY 2025

Application for approval of the AP Kempe Engineering Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the AP Kempe Engineering Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by AP Engineering Pty Ltd & AP Engineering Nominees Pty Ltd T/A AP Kempe Engineering (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 13 January 2025.

The notification time for the Agreement under s.173(2) was 21 August 2024 and the Agreement was made on 13 December 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 22 January 2025, the Employer was invited to address aspects of the Agreement.

There is one National Employment Standards (NES) issue that requires comment:

·Notice of Termination: The Agreement is silent on notice periods depending on an employee’s length of service

Clause 7 of the Agreement acts as an effective NES precedence clause, in that it states that “This Agreement shall be read and interpreted in conjunction with the National Employment Standards in the Act (“NES”) in that, where there is any inconsistency between the Agreement and the NES, the more beneficial provision to an employee shall take precedence.” As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 7 February 2028.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved AP Engineering Pty Ltd and AP Engineering Nominees Pty Ltd, trading as AP Kempe Engineering. The primary dispute was regarding the approval of the AP Kempe Engineering Enterprise Agreement 2024. The matter was heard in the Fair Work Commission, which has jurisdiction over enterprise agreements and related matters under the Fair Work Act 2009. The Commission was tasked with determining whether the proposed agreement complied with the legal requirements and whether it should be approved for registration.

The legal issues before the Commission included whether the agreement had been genuinely negotiated between the employer and the employees' representative, and if the agreement contained terms and conditions that were fair and reasonable. The Commission also needed to assess if the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission examined whether the agreement satisfied the good faith bargaining requirement, whether it provided for proper protections for employees, and if the process for negotiating the agreement was transparent and fair.

The Commission considered various submissions and evidence provided by both the employer and the employees' representative. The Commission found that the agreement had been genuinely negotiated in good faith and that the process was transparent. The Commission also determined that the terms and conditions of the agreement were fair and reasonable, providing adequate protections for the employees. Consequently, the Fair Work Commission approved the AP Kempe Engineering Enterprise Agreement 2024, finding it to be compliant with the relevant statutory requirements. The Commission registered the agreement, enabling it to come into effect as per the terms outlined in the document.

AP Engineering Pty Ltd & AP Engineering Nominees Pty Ltd T/A AP Kempe Engineering

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established