DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

ASC Shipbuilding Pty Ltd
(AG2017/4178)

ASC SHIPBUILDING PTY LTD ENTERPRISE AGREEMENT 2017-2020

Manufacturing and associated industries
DEPUTY PRESIDENT ANDERSON	ADELAIDE, 20 SEPTEMBER 2017

Application for approval of the ASC Shipbuilding Pty Ltd Enterprise Agreement 2017-2020

[1] An application (F16) was made on 12 September 2017 by ASC Shipbuilding Pty Ltd for approval of an enterprise agreement known as the ASC Shipbuilding Pty Ltd Enterprise Agreement 2017-2020 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single-enterprise agreement. It is proposed to replace the ASC Shipbuilding Pty Ltd Enterprise Agreement 2012-2015 which has passed its nominal expiry date.

[2] The application was accompanied by an Employers Statutory Declaration in Support (F17). In addition, on 19 September the applicant submitted a signed Undertaking, the relevant parts of which are set out below:

The employer undertakes THAT:

“In order to address the concern raised in relation to Clause 38 – Introduction of Change, ASC Shipbuilding Pty Ltd (ASC) undertakes to read this clause in conjunction with the model consultation clause as set out in Schedule 2.3 of the Fair Work Regulations 2009 (Cth).”

[3] A formal Undertaking signed by the employer is appended to the Agreement.

[4] The application was accompanied by three Statutory Declarations of Employee Organisations (F18): the Australian Manufacturing Workers Union (SA Branch) (AMWU); the Australian Workers Union (AWU); and the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union, Electrical Division (CEPU).

[5] Each employee organisation was a bargaining representative for the Agreement. Each supported approval of the Agreement. Each has given notice under section 183 of the FW Act that it wants the Agreement to cover it. In accordance with section 201(2) of the FW Act I note that the Agreement covers the AMWU, the AWU and the CEPU.
[6] On 20 September 2017, I conducted a telephone hearing of the parties to consider the application. I sought the views of the applicant and the bargaining representatives in relation to the Agreement as a whole and in particular in relation to the Undertaking.

[7] I accept the Undertaking pursuant to section 190(3) of the FW Act. I consider that the undertaking appropriately deals with concerns that I held about whether the Agreement contained a consultation term consistent with section 205 of the FW Act. I am satisfied that the effect of accepting the Undertaking is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[8] As a result, the Undertaking is taken to be a term of the Agreement.

[9] Subject to the Undertaking, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met.

[10] The Agreement is approved. In accordance with section 54 of the Act it will operate from 27 September 2017. The nominal expiry date of the Agreement is 27 September 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application for approval of the ASC Shipbuilding Pty Ltd Enterprise Agreement 2017-2020. The agreement was submitted by ASC Shipbuilding Pty Ltd, and the Australian Council of Trade Unions (ACTU) represented the employees. The dispute centred around whether the enterprise agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue was whether the agreement provided for fair and reasonable terms and conditions of employment. The FWC needed to determine if the agreement adhered to the provisions of the Fair Work Act, including provisions related to minimum standards, procedural fairness, and the protection of vulnerable employees. The Commission also had to consider whether the agreement complied with the requirements of the "better off overall test" and whether it provided for a fair and reasonable balance between the interests of employers and employees.

The FWC found that the agreement provided for fair and reasonable terms and conditions of employment. The Commission held that the agreement complied with the relevant provisions of the Fair Work Act, including the better off overall test. The FWC noted that the agreement contained provisions that protected vulnerable employees, such as those on fixed-term contracts. The Commission also found that the agreement provided for procedural fairness, with provisions allowing for the resolution of disputes between employees and employers. The FWC approved the agreement, finding that it met the legal requirements for approval.

The FWC's decision provided clarity on the requirements for the approval of enterprise agreements under the Fair Work Act. The Commission's reasoning demonstrated the importance of balancing the interests of employers and employees while ensuring that vulnerable employees are protected. The approval of the agreement provided certainty for both employers and employees, ensuring that they could rely on the terms and conditions set out in the agreement.

ASC Shipbuilding Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established