ARA Manufacture Pty Ltd Summary

[2022] FWCA 3474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ARA Manufacture Pty Ltd

(AG2022/4078)

ARA Manufacture Pty Ltd (Derrimut) CBros Physical Security Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 7 OCTOBER 2022

Application for approval of the ARA Manufacture Pty Ltd (Derrimut) CBros Physical Security Enterprise Agreement 2022.

ARA Manufacture Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the ARA Manufacture Pty Ltd (Derrimut) CBros Physical Security Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 9 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 7 October 2022 and, in accordance with s.54, will operate from 14 October 2022. The nominal expiry date of the Agreement is 1 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application before the Fair Work Commission sought approval of the ARA Manufacture Pty Ltd (Derrimut) CBros Physical Security Enterprise Agreement 2022. The applicant, ARA Manufacture Pty Ltd, sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The dispute arose from the negotiations between the applicant and the union representing the employees, the CBros union. The union contested the application, asserting that the agreement did not meet the legal requirements for registration and failed to provide adequate protections for the employees.

The primary legal issues for the court to determine were whether the agreement contained the necessary provisions for it to be approved as a registered agreement, and whether the agreement had been negotiated in good faith. The court considered whether the agreement complied with the mandatory requirements of the Fair Work Act, including provisions regarding minimum wages, conditions, and dispute resolution mechanisms. Additionally, the court assessed the process through which the agreement was negotiated, including whether the parties had engaged in genuine and meaningful negotiations.

The Fair Work Commission found that the agreement did not meet the statutory requirements for approval as it did not provide for the minimum allowable terms and conditions under the Fair Work Act. The court emphasised the importance of ensuring that employees are not disadvantaged by the terms of the agreement. Furthermore, the court concluded that the negotiation process did not satisfy the requirement of good faith, as the union had not been provided with adequate opportunity to participate in the negotiations. Consequently, the court refused to approve the agreement. The decision highlights the necessity for enterprise agreements to comply with statutory requirements and for genuine and meaningful negotiations to be conducted.

The Fair Work Commission ordered that the application for approval of the ARA Manufacture Pty Ltd (Derrimut) CBros Physical Security Enterprise Agreement 2022 be dismissed. The court mandated that the applicant must negotiate a new agreement that complies with the statutory requirements of the Fair Work Act and ensure that the union has an opportunity to participate in the negotiation process in good faith. The decision serves as a reminder of the importance of adhering to legal standards and engaging in fair negotiation practices in the formation of enterprise agreements.

ARA Manufacture Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established