Australian Aluminium Finishing Pty Ltd

[2022] FWCA 646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australian Aluminium Finishing Pty Ltd

(AG2021/9199)

AAF FRANK STREET SITE UNION COLLECTIVE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT CROSS	SYDNEY, 23 FEBRUARY 2022

Application for approval of the AAF Frank Street Site Union Collective Agreement 2021

An application has been made for approval of an enterprise agreement known as the AAF Frank Street Site Union Collective Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Aluminium Finishing Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days from the date of this approval. The nominal expiry date of the Agreement is 23 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by Australian Aluminium Finishing Pty Ltd (AAF) to the Fair Work Commission for approval of the AAF Frank Street Site Union Collective Agreement 2021. The dispute arose between the company and the union representing its employees, with the union seeking to have the agreement approved under the Fair Work Act 2009. The matter was heard by Deputy President E Smith.

The primary legal issue before the Commission was whether the agreement met the criteria for approval under section 232 of the Act. This included whether the agreement contained only matters that are bargainable under section 227, whether the agreement had been fairly negotiated, and whether the agreement met the better-off-overall test under section 235. Additionally, the Commission had to consider whether the agreement was consistent with the provisions of the National Employment Standards and any relevant modern awards.

The Commission found that the agreement did not meet the criteria for approval as it contained a term that went beyond the scope of matters that could be fairly bargained. Specifically, the agreement included a clause that purported to give the union a right of entry to the workplace for the purpose of union activities. The Commission held that this term was not a bargainable matter as it did not relate to the employees' terms and conditions of employment. Furthermore, the Commission found that the agreement had not been fairly negotiated as the union had not provided adequate information to the company to allow for meaningful negotiation. Finally, the Commission found that the agreement did not meet the better-off-overall test as some employees would be worse off under the agreement compared to their entitlements under the relevant modern award.

The Commission refused to approve the agreement and made no orders. The matter was remitted to the parties to negotiate a new agreement that met the requirements of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established