BAE Systems Australia Limited T/A BAE Systems Australia

[2022] FWCA 379

[2022] FWCA 379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BAE Systems Australia Limited T/A BAE Systems Australia
(AG2021/9352)

BAE SYSTEMS AUSTRALIA MANUFACTURING (EDINBURGH PARKS) ENTERPRISE AGREEMENT 2021-2024

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 8 FEBRUARY 2022

Application for approval of the BAE Systems Australia Manufacturing (Edinburgh Parks) Enterprise Agreement 2021-2024

[1] An application has been made for approval of an enterprise agreement known as the BAE Systems Australia Manufacturing (Edinburgh Parks) Enterprise Agreement 2021-2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by BAE Systems Australia Limited T/A BAE Systems Australia (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 1 February 2022.

[3] On 3 February 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] It was brought to the Commission’s attention that the Applicant failed to provide a copy of the incorporated Award (Manufacturing and Associated Industries and Occupations Award 2020) to the employees during the access period as required by s.180(2) of the Act. I received submissions from both the Applicant and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in regards of whether I should exercise my discretion under s.188(2) of the Act.

[5] The parties made the following submissions:

•  The Agreement was a rollover agreement, and all changes were clearly explained by the company.

•  Employees are not disadvantaged by the changes and the failure to provide a copy of the Award during the access period was a genuine oversight of the employer. 

•  The AMWU held meetings of the employees covered by the agreement who were AMWU members (representing approximately 90% of those covered by the Agreement), explained all of the negotiated changes to the Agreement and in doing so identified where such changes were different to the Award and the effect that had on their terms and conditions as compared to the Award.

[6] Having considered the information provided. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

[7] There are two National Employment Standards (NES) issues that require comment:

•  Clause 29.1 of the Agreement appears to provide a conclusive list of the reasons an employee can take compassionate leave. This list does not appear to include the stillbirth of a child or after an employee (or spouse/partner) has a miscarriage as required under sections 105(b) and (c) of the Act.

•  Clause 27.4 of the Agreement provides that “by agreement between the employer and a majority of affected employees, a public holiday as defined above may substituted for another day”. Section 115(3) of the Act provides that an employer and employee may agree on a substitution of a public holiday day, however does not appear to provide for a majority of employees and the employer to substitute a Public Holiday and for this to be binding on a single employee.

[8] Clause 6.1 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

[9] The Applicant has submitted an undertaking in the required form dated 4 February 2022. The undertakings states that the company will agree with each part-time employee upon commencement the hours to be worked per week and the days on which those hours are to be worked.

[10] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative supported the undertaking.

[11] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[12] The 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) of the Act I note that the Agreement covers this organisation.

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

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2024.

COMMISSIONER

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