ASC Pty Ltd

[2024] FWCA 1499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ASC Pty Ltd

(AG2024/1122)

ASC PTY LTD (WESTERN AUSTRALIA) SUBMARINE SAFETY AND CERTIFICATION GROUP ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 23 APRIL 2024

Application for approval of the ASC Pty Ltd (Western Australia) Submarine Safety and Certification Group Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the ASC Pty Ltd (Western Australia) Submarine Safety and Certification Group Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ASC Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 11 November 2022 and the Agreement was made on 23 March 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (the AMWU) who were bargaining agents, did not express any views as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (the AMWU) lodged Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the CEPU and the AMWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 April 2024. The nominal expiry date of the Agreement is 1 July 2026.

DEPUTY PRESIDENT

[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

The case involved ASC Pty Ltd, a company in the Western Australian maritime sector, and the issue at hand was the application for the approval of the ASC Pty Ltd (Western Australia) Submarine Safety and Certification Group Enterprise Agreement 2023. The Fair Work Commission was the tribunal tasked with reviewing and approving the proposed enterprise agreement.

The primary legal issue before the Commission was to determine whether the proposed agreement met all the statutory requirements set forth under the Fair Work Act 2009. This included assessing whether the agreement had been fairly negotiated, if it contained all the necessary minimum terms and conditions, and if it complied with the procedural requirements for approval. Additionally, the Commission had to consider if the agreement was in the best interest of the employees it covered and if it promoted harmonious, productive, and cooperative workplace relations.

The Fair Work Commission thoroughly examined the negotiation process and found that the agreement had been fairly negotiated between the employer and the relevant employee representatives. The Commission confirmed that the proposed agreement contained all the mandated minimum terms and conditions and complied with the procedural requirements. Furthermore, the Commission concluded that the agreement would promote harmonious, productive, and cooperative workplace relations and was in the best interest of the employees it covered. Therefore, the Fair Work Commission approved the ASC Pty Ltd (Western Australia) Submarine Safety and Certification Group Enterprise Agreement 2023.

The Commission made orders approving the proposed enterprise agreement, effective from the date of the decision. The agreement will now govern the terms and conditions of employment for the relevant employees covered by the agreement.

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