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

[2013] FWCA 4453

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)
(AG2013/1515)

GIPPSLAND NDT (VICTORIA) - AMWU - ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 5 JULY 2013

Application for approval of the Gippsland NDT (Victoria) - AMWU - Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Gippsland NDT (Victoria) - AMWU - Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the “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 Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[5] The Agreement was approved on 5 July 2013 and, in accordance with s.54, will operate from 12 July 2013. The nominal expiry date of the Agreement is 20 October 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicants, the Australian Manufacturing Workers’ Union (AMWU) and Gippsland Non-Destructive Testing (Gippsland NDT), sought approval of the Gippsland NDT (Victoria) - AMWU - Enterprise Agreement 2012. The application was heard in the Fair Work Commission, presided over by Deputy President M F Richardson. The agreement was entered into between the AMWU and Gippsland NDT on behalf of their respective members, who are employed in the non-destructive testing industry in Victoria. The AMWU represents the employees while Gippsland NDT represents the employers. The dispute centred on whether the proposed enterprise agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue for the court was whether the agreement complied with the "better off overall test" (BOOT) as stipulated by section 230 of the Fair Work Act. This test requires that the proposed agreement must ensure that employees are not worse off financially or in terms of conditions compared to what they would have under the applicable award or existing enterprise agreement. The court also needed to determine whether the agreement met all the procedural and substantive requirements for registration under the Act, including provisions for genuine bargaining and fair terms.

The court examined the evidence presented by both parties, including the bargaining processes, the terms of the agreement, and the impact on employees' conditions. It concluded that the agreement met the BOOT, as employees were not worse off overall in terms of financial and other conditions. The court also found that the agreement was the product of genuine bargaining and contained fair terms. Consequently, the court approved the Gippsland NDT (Victoria) - AMWU - Enterprise Agreement 2012, ensuring that it was registered and enforceable under the Fair Work Act.

The final orders of the court were that the Gippsland NDT (Victoria) - AMWU - Enterprise Agreement 2012 be approved and registered under section 234 of the Fair Work Act, effective from the date of registration. The agreement was to apply to employees of Gippsland NDT who were members of the AMWU and covered by the agreement’s defined scope. This decision ensured that the agreement would legally bind both parties and provide a framework for the employment conditions of the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established