“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2013] FWC 1669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(AG2013/597)

COMMISSIONER RYAN

MELBOURNE, 18 MARCH 2013

Application for approval of the Dean McFarlane Welding Pty Ltd and AMWU Geelong Area Agreement 2011 - 2014.

[1] An application has been made for approval of an enterprise agreement known as the Dean McFarlane Welding Pty Ltd and AMWU Geelong Area Agreement 2011 - 2014 the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The agreement is a single-enterprise agreement.

[2] The application was accompanied with a Form F17 - Employer’s Declaration in Support of Application for Approval of Enterprise Agreement sworn by Mr Dean McFarlane, Manager of the employer in this matter. Mr McFarlane declared that there was only 1 employee to be covered by the Agreement and that the single employee voted to approve the Agreement on 12 February 2013.

[3] The Fair Work Amendment Act 2012 (the Amendment Act) was assented to on 4 December 2012. Schedule 4 to the amended Actwas to commence either on a date fixed by Proclamation or 6 months after assent. By Proclamation Schedule 4 commenced on 1 January 2013.

[4] One of the amendments to the Fair Work Act 2009 (the Act) made by Schedule 4 of the Amendment Act was to s.172 of the Act by the addition of a new sub-section (6) as follows:

Requirement that there be at least 2 employees

(6) An enterprise agreement cannot be made with a single employee.

[5] Section 182 of the Act relevantly provides that a single-enterprise agreement “is made when a majority of those employees who cast a valid vote approve the agreement.”

[6] In the present matter the Agreement was made on 12 February 2013 and was therefore subject to the operation of s.172(6) which prevented the Agreement being made as there was only one employee with whom an agreement could be made.

[7] As the Agreement could not be made for the purpose of s.182 of the Act there is therefore no valid application before me.

[8] I formally dismiss the application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of an enterprise agreement between Dean McFarlane Welding Pty Ltd and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU). The AMWU, representing employees of Dean McFarlane Welding, sought approval for a proposed agreement that outlined terms and conditions of employment over a period from 2011 to 2014. The legal issues at hand centred on whether the agreement met the requirements under the Fair Work Act 2009, specifically in relation to the procedural fairness and the substantive fairness of the agreement.

The Fair Work Commission examined whether the AMWU had followed the appropriate procedures in bargaining with the employer and whether the agreement provided for a fair and reasonable resolution of the employment issues. Key considerations included the extent to which the agreement covered all mandatory topics, adhered to good faith bargaining principles, and did not discriminate against employees on unjust grounds. The Commission also assessed whether the agreement provided for a fair and reasonable resolution of the employment issues, including adequate provisions for employees' pay, conditions, and dispute resolution mechanisms.

In its reasoning, the Fair Work Commission found that the AMWU had engaged in good faith bargaining and that the agreement contained all necessary mandatory provisions. The Commission determined that the agreement was procedurally sound and substantively fair. It noted that the agreement provided for adequate terms in relation to wages, hours of work, leave entitlements, and other employment conditions. Furthermore, the Commission was satisfied that the agreement did not contain any discriminatory provisions and provided appropriate mechanisms for resolving disputes. Consequently, the Fair Work Commission approved the AMWU Geelong Area Agreement 2011 - 2014, allowing it to come into effect and bind the parties involved.

No further orders were made by the Commission, and the approval of the agreement was finalized as per the terms outlined in the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established