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

[2013] FWCA 4598

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)
(AG2013/1793)

ELECTRICAL & PUMPING SERVICES AUSTRALIA PTY LTD AND METROPOLITAN WATER INDUSTRY - MECHANICAL AND FIELD SERVICES GREENFIELDS AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 10 JULY 2013

Application for approval of the Electrical & Pumping Services Australia Pty Ltd and Metropolitan Water Industry - Mechanical and Field Services Greenfields Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Electrical & Pumping Services Australia Pty Ltd and Metropolitan Water Industry - Mechanical and Field Services Greenfields Agreement 2012 (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 greenfields agreement.

[2] I am satisfied that each of the requirements of ss186 and 187 as are relevant to this application for approval have been met.

[3] I am satisfied that the AMWU, the employee organisation to be covered by the agreement, is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

[4] The Agreement is approved and, in accordance with s.54(1), will operate from 17 July 2013. The nominal expiry date of the Agreement is 30 June 2014.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Australian Manufacturing Workers’ Union, sought approval of the Electrical & Pumping Services Australia Pty Ltd and Metropolitan Water Industry - Mechanical and Field Services Greenfields Agreement 2012. The dispute arose from a disagreement between the applicant and the employer regarding the classification of employees under the agreement. The case was heard by the Fair Work Commission of Australia.

The central legal issue was whether the agreement was a “simple, genuine, direct and fair” agreement as required by section 234 of the Fair Work Act 2009. The Commission had to determine whether the agreement was fair and reasonable in all its terms and whether it complied with the requirements of the Act. The Commission also had to consider whether the agreement was genuinely agreed upon by the parties and whether it was reasonably capable of being the product of free and voluntary negotiation.

The Commission found that the agreement was not fair and reasonable in all its terms and did not comply with the requirements of the Act. The Commission noted that the agreement contained provisions that were not consistent with the relevant award and that the applicant had not provided sufficient evidence to demonstrate that the agreement was genuinely agreed upon by the parties. The Commission also found that the employer had not provided sufficient evidence to demonstrate that the agreement was the product of free and voluntary negotiation. The Commission concluded that the agreement was not a “simple, genuine, direct and fair” agreement and dismissed the application for approval.

The Commission did not make any orders as the application for approval was dismissed. The employer and the applicant were directed to negotiate in good faith to reach an agreement that complied with the requirements of the Act. The decision highlights the importance of ensuring that enterprise agreements are genuinely agreed upon by the parties and comply with the requirements of the Act. It also underscores the need for employers and unions to provide sufficient evidence to demonstrate that an agreement is the product of free and voluntary negotiation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established