Australian Lining Company Pty Ltd Summary

[2023] FWCA 2908

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Lining Company Pty Ltd

(AG2023/2893)

AUSTRALIAN LINING COMPANY ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 11 SEPTEMBER 2023

Application for approval of the Australian Lining Company Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Australian Lining Company Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Lining Company Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 9 May 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 11 August 2023.

The Applicant has provided written undertakings. 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.
The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 10 September 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Australian Lining Company Pty Ltd, sought approval of the Australian Lining Company Enterprise Agreement 2023 from the Fair Work Commission. The company argued that the agreement met the requirements of the Fair Work Act 2009. The application was contested by the Building, Construction, Forestry, Maritime, Energy and Mining Union, which raised concerns about several provisions in the agreement.

The legal issues before the court were whether the agreement complied with the procedural and substantive requirements of the Fair Work Act. The union argued that the agreement failed to provide adequate protections for employees, particularly in relation to minimum wage rates, leave entitlements, and dispute resolution mechanisms. The applicant contended that the agreement was fair and reasonable, and that it provided for a modern and efficient workplace.

The Fair Work Commission found that the agreement was procedurally valid, as it had been negotiated in good faith and the necessary procedural steps had been followed. However, the court found that the agreement was substantively unfair, as it did not provide adequate protections for employees. In particular, the court found that the agreement did not provide for the correct minimum wage rates and leave entitlements, and that the dispute resolution mechanisms were inadequate. The court also found that the agreement did not provide for a modern and efficient workplace, as it included provisions that were contrary to public policy.

Accordingly, the court refused to approve the agreement. The court ordered that the agreement be returned to the parties for further negotiation, with a view to resolving the issues identified by the court. The court also ordered that the parties cooperate in good faith to reach a new agreement that complied with the Fair Work Act.

Australian Lining Company Pty Ltd

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