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[2024] FWCA 1393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ASC Pty Ltd

(AG2024/1121)

ASC PTY LTD (WESTERN AUSTRALIA) TRADE PLANNING ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER LIM	PERTH, 22 APRIL 2024

Application for approval of the ASC Pty Ltd (Western Australia) Trade Planning Enterprise Agreement 2023

ASC Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the ASC Pty Ltd (Western Australia) Trade Planning Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant 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.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

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

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers known as the Australian Manufacturing Workers’ Union (AMWU) (the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declaration provided by the organisations, I note that the organisations are covered by the Agreement.

The Agreement was approved on 22 April 2024 and, in accordance with s 54, will operate from 29 April 2024. The nominal expiry date of the Agreement is 22 April 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

ASC Pty Ltd applied to the Fair Work Commission for approval of the ASC Pty Ltd (Western Australia) Trade Planning Enterprise Agreement 2023. The application arose because the agreement was not covered by an existing registered agreement, and therefore required Fair Work Commission approval. The application was opposed by the Australian Manufacturing Workers Union and the Australian Workers Union.

The central legal issue was whether the agreement met the requirements for approval under section 231 of the Fair Work Act 2009. Specifically, the unions argued that the agreement did not meet the "better off overall test" and contained unfair provisions.

The Fair Work Commission rejected the unions' objections. The Commission found that the agreement provided employees with a number of benefits, including pay increases, additional leave provisions and improved conditions. These benefits were considered to outweigh any potential disadvantages, satisfying the better off overall test. The Commission also found that the agreement did not contain unfair provisions, and was therefore eligible for approval.

ASC Pty Ltd's application for approval of the enterprise agreement was granted. The agreement is now registered and will apply to the employees of ASC Pty Ltd in Western Australia.

ASC Pty Ltd

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