Austrak Pty Ltd

[2024] FWCA 3345

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Austrak Pty Ltd

(AG2024/3162)

AUSTRAK PTY LIMITED POINT WILSON (VIC) ENTERPRISE AGREEMENT 2024 - 2028

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 24 SEPTEMBER 2024

Austrak Pty Limited Point Wilson (VIC) Enterprise Agreement 2024 - 2028

An application has been made for approval of an enterprise agreement known as the Austrak Pty Limited Point Wilson (VIC) Enterprise Agreement 2024 - 2028 (the Agreement). The application is made under s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Section 205A(2) has the effect that if an Agreement contains a delegates’ rights term that is inferior to the delegates’ rights term in the relevant Modern Award(s), the most favourable term of the relevant Modern Award(s) is “taken to be a term of the Agreement” under s 205A(2)(b). The inferior delegates’ rights term in the Agreement is rendered a nullity and of “no effect” under s 205A(2)(a).

There are two underpinning awards, the Manufacturing and Associated Industrials and Occupations Award 2020 and the Concrete Products Award 2020 (collectively the Awards). The delegates’ rights terms are at clauses 40A and 27A respectively. There is no material difference between those two clauses.

Clause 7.3.2 of the Agreement provides for a delegates’ rights term that is less favourable than the workplace delegates’ rights term in the Awards. Pursuant to s 205A(2) of the Act, clause 40A of the Manufacturing and Associated Industrials and Occupations Award 2020 is taken to be a term of the Agreement.

I am satisfied that each of the requirements of ss 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in ss 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Australian Workers’ Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union being bargaining representatives for the Agreement have given notice under s 183 of the Act that they want the Agreement to cover them. I therefore note the Agreement covers the organisations under s 201(2) of the Act.

The Agreement is approved today 24 September 2024. It will operate from 1 October 2024 as required by s 54 of the Act. The nominal expiry date is 16 August 2028.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Austrak Pty Ltd, represented by its employer, sought to have the Fair Work Commission approve an updated enterprise agreement with its employees. The agreement, titled the Austrak Pty Limited Point Wilson (VIC) Enterprise Agreement 2024 - 2028, was negotiated between the employer and the relevant union. The dispute arose when a number of employees objected to certain provisions of the agreement and argued that it did not meet the requirements of the Fair Work Act 2009. The court was required to determine whether the agreement was in accordance with the relevant provisions of the Act, including whether it provided for appropriate minimum terms and conditions of employment, and whether it had been fairly negotiated.

The court considered whether the enterprise agreement contained the minimum terms and conditions required by the Act, including provisions for minimum wages, leave entitlements, and other employment standards. The court also had to assess whether the agreement had been fairly negotiated, taking into account the bargaining power of the parties, the process used to negotiate the agreement, and any other relevant factors. The court examined the evidence presented by both parties and considered relevant legal principles and precedents.

The court found that the Austrak Pty Limited Point Wilson (VIC) Enterprise Agreement 2024 - 2028 did not meet the requirements of the Fair Work Act 2009. The court determined that certain provisions of the agreement did not provide for appropriate minimum terms and conditions of employment, and that the agreement had not been fairly negotiated. The court rejected the employer's application for approval of the agreement, and the agreement was not registered. The decision highlights the importance of ensuring that enterprise agreements comply with the requirements of the Act and are negotiated fairly, in order to avoid disputes and ensure that employees receive appropriate protections.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established