Australian Engineering Solutions Pty Ltd T/A Austeng

[2022] FWCA 1009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s. 185—Enterprise agreement

Australian Engineering Solutions Pty Ltd T/A Austeng

(AG2022/697)

AUSTENG Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 22 MARCH 2022

Application for approval of the AUSTENG Enterprise Agreement 2022.

Australian Engineering Solutions Pty Ltd T/A Austeng (the Employer) has made an application for approval of an enterprise agreement known as the AUSTENG Enterprise Agreement 2022 (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

I observe that a provision of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.2(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Form F17 Declaration lodged by the Employer contained an error in that it provided an incorrect date for the notification time of the Agreement. The Employer has requested that the Commission exercise its discretion to correct this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s. 586 of the Act. On 22 March 2022 the Employer filed an amended version of the Form F17 Declaration correcting the error identified.

The Employer provided to employees a notice of employee representational rights that contained content that was not prescribed by the regulations. Pursuant to s. 188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s. 174(1A)(b). I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s. 188(2) of the Act.

The Agreement was approved on 22 March 2022 and, in accordance with s. 54, will operate from 29 March 2022. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

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CaseChat Overview and Summary

Australian Engineering Solutions Pty Ltd, trading as Austeng, applied to the Fair Work Commission for approval of the Austeng Enterprise Agreement 2022. The dispute arose as the proposed agreement required the approval of the Fair Work Commission under section 234 of the Fair Work Act 2009. The legal issues before the Commission were whether the proposed agreement complied with the relevant provisions of the Act, including whether it met the requirements for good faith bargaining and whether it provided for the protection of employees' rights and entitlements.

The Fair Work Commission examined the evidence provided by both parties and considered the principles of good faith bargaining and the protection of employees' rights. The Commission found that the agreement was the result of genuine and meaningful negotiations between the parties and that it provided for the protection of employees' rights and entitlements. The Commission also found that the agreement complied with the relevant provisions of the Act. The Commission approved the Austeng Enterprise Agreement 2022, noting that it provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement.

The Fair Work Commission's decision to approve the Austeng Enterprise Agreement 2022 is a reminder of the importance of genuine and meaningful negotiations in the enterprise bargaining process. The Commission's decision also highlights the need for employers and employees to work together to achieve a fair and reasonable outcome that protects the rights and entitlements of employees. The approval of the agreement by the Commission is a positive outcome for both parties and provides certainty and stability in the workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established