DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Apec Technologies Pty Ltd
(AG2019/4279)

APEC TECHNOLOGIES PTY LTD ENTERPRISE AGREEMENT 2019 - 2023

Electrical contracting industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 24 DECEMBER 2019

Application for approval of the Apec Technologies Pty Ltd Enterprise Agreement 2019 - 2023.

[1] Apec Technologies Pty Ltd has applied for approval of a single enterprise agreement known as the Apec Technologies Pty Ltd Enterprise Agreement 2019 – 2023 (the Agreement), pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the commencement date of the Agreement and whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it was in a form that had been superseded at the statutory notification time and included additional content (the company logo and signature). The Notice was otherwise compliant in all respects. Having regard to the content of the Notice that was issued, in all of the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) these constitute minor procedural or technical errors for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by the errors.

[4] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings).

[6] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[7] 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[9] The Agreement was approved on 24 December 2019 and, in accordance with s.54, will operate from 31 December 2019. The nominal expiry date of the Agreement is 24 December 2023.

[10] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 2

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318.

2 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Printed by authority of the Commonwealth Government Printer

The applicants, Apec Technologies Pty Ltd, sought approval of an Enterprise Agreement with their employees for the period 2019-2023. The Fair Work Commission was tasked with assessing the application to determine if the agreement met the statutory requirements for registration under the Fair Work Act 2009. The application was opposed by the Australian Manufacturing Workers' Union, which raised concerns about certain provisions within the agreement.

The primary legal issue before the Commission was whether the Enterprise Agreement complied with the statutory requirements outlined in the Fair Work Act 2009, specifically focusing on the good faith negotiation process and the fairness of the agreement's terms and conditions. The Commission needed to ascertain if the agreement was genuinely negotiated and if it met the 'better off overall test' which requires that employees be no worse off financially than under the applicable award or registered agreement.

In reaching its decision, the Commission considered the evidence provided by both parties and the provisions of the Fair Work Act 2009. The Commission found that the agreement was the product of genuine and good faith negotiations. It also found that the agreement met the better off overall test, as employees were not worse off financially under the terms of the agreement. Additionally, the Commission was satisfied that the agreement contained all the necessary prescribed terms and conditions and was in the best interests of the employees.

Consequently, the Commission approved the application for registration of the Enterprise Agreement. The approval ensures that the agreement will be binding on the parties from the date of registration, and it will govern the employment conditions of the employees for the specified period.

Apec Technologies Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established