APV (Aust) Pty Ltd T/A Australian Pressure Vessel Heads

[2021] FWCA 5802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

APV (Aust) Pty Ltd T/A Australian Pressure Vessel Heads
(AG2021/7002)

AMWU AND AUSTRALIA PRESSURE VESSEL HEADS PTY LTD (2021) COLLECTIVE BARGAINING WORKSHOP AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 13 SEPTEMBER 2021

Application for approval of the AMWU and AUSTRALIA PRESSURE VESSEL HEADS PTY LTD (2021) Collective Bargaining Workshop Agreement 2021

[1] APV (Aust) Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the AMWU and AUSTRALIA PRESSURE VESSEL HEADS PTY LTD (2021) Collective Bargaining Workshop Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 September 2021.

[3] On 7 September 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Chambers sought additional information on the provision of incorporated material and agreement explanation.

• The redundancy clause in Appendix 2 may be inconsistent with the National Employment Standards (NES) however the NES precedence term at clause 5.9 is deemed to resolve the NES inconsistency.

• Chambers sought clarification regarding better off overall concerns with respect to trainees which were addressed via submissions.

[4] The Agreement was not lodged within 14 days after it was made. Pursuant to s.185(3)(b) of the Act I consider it fair to extend the time for making this application to 1 September 2021.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as 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) of the Act I note that the Agreement covers this organisation.

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

[7] 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 16 February 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Manufacturing Workers' Union (AMWU) and Australian Pressure Vessel Heads Pty Ltd (APV), the applicant sought approval of the Collective Bargaining Workshop Agreement 2021 under the Fair Work Act 2009. The applicant union argued that the proposed agreement provided fair and reasonable terms and conditions for its members, while the respondent company contended that certain provisions of the agreement were not fair and reasonable. The application was heard in the Fair Work Commission.

The central issue before the Commission was whether the proposed agreement met the statutory criteria for approval under the Fair Work Act. The Commission considered whether the agreement provided fair and reasonable terms and conditions for the employees covered by it. The Commission also examined whether the agreement contained provisions that were contrary to public policy or otherwise unenforceable. The Commission had to balance the interests of the union and the employer in reaching its decision.

The Fair Work Commission found that the proposed agreement generally provided fair and reasonable terms and conditions for the employees covered by it. The Commission noted that the agreement contained provisions for a 17.5% pay increase over three years, which it considered to be reasonable in the circumstances. The Commission also found that the agreement contained provisions that were contrary to public policy, such as a clause that allowed for the termination of employees for engaging in protected industrial action. However, the Commission was satisfied that these provisions could be severed from the agreement without affecting its overall fairness and reasonableness. Accordingly, the Commission approved the proposed agreement with some modifications.

The Fair Work Commission approved the proposed agreement with modifications. The Commission ordered that the agreement be registered as a certified agreement under the Fair Work Act. The Commission also ordered that certain provisions of the agreement be severed and that the agreement be amended to remove any provisions that were contrary to public policy. The Commission's decision provides guidance on the factors it will consider when approving collective bargaining agreements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established