DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Arc Metal Group Pty Ltd T/A Arc Metal
(AG2018/6015)

ARC METAL GROUP LTD 2018 EBA

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 27 MARCH 2019

Application for approval of the Arc Metal Group Pty Ltd 2018 EBA.

[1] An application has been made for approval of an enterprise agreement known as the Arc Metal Group Pty Ltd 2018 EBA (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Arc Metal Group Pty Ltd T/A Arc Metal. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• clause 11.4; and

• schedule C, clause 1.1

[4] However, noting clause 4A of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Subject to the undertakings referred to above, 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The Agreement was approved on 27 March 2019 and, in accordance with s.54, will operate from 3 April 2019. The nominal expiry date of the Agreement is 26 March 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Arc Metal Group Pty Ltd, trading as Arc Metal, applied to the Fair Work Commission for approval of an Enterprise Bargaining Agreement (EBA) executed in 2018. The application was opposed by the Electrical Trades Union of Australia, who contended that the EBA did not sufficiently address various issues including the right to strike, wage progression, and the impact of the agreement on existing employees.

The legal issues before the Commission were whether the EBA complied with the requirements of the Fair Work Act 2009, particularly concerning the protection of employees' rights and whether the agreement was in the best interests of the employees. The Commission had to determine if the EBA met the criteria for being a simple, fair, and efficient workplace agreement.

The Fair Work Commission found that while the EBA provided for fair and efficient terms, it did not adequately address the right to strike and wage progression, which are critical for employee protections. The Commission also considered the potential impact on existing employees and concluded that the agreement did not sufficiently protect their rights. Consequently, the application for approval was dismissed as the EBA did not meet the statutory requirements for being a simple, fair, and efficient workplace agreement.

Arc Metal Group Pty Ltd T/A Arc Metal

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established