| [2021] FWCA 5997 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
BAE Systems Australia Limited T/A BAE Systems Australia
(AG2021/6835)
APPLICATION FOR APPROVAL OF THE BAE SYSTEMS AUSTRALIA LIMITED (HENDERSON) ENTERPRISE AGREEMENT 2020-2023
Manufacturing and associated industries | |
COMMISSIONER P RYAN | SYDNEY, 24 SEPTEMBER 2021 |
Application for approval of the BAE Systems Australia Limited (Henderson) Enterprise Agreement 2020-2023
[1] BAE Systems Australia Limited (the Employer) has made an application for approval of an enterprise agreement known as the BAE Systems Australia Limited (Henderson) Enterprise Agreement 2020-2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Notice of employee representational rights
[2] The notice of employee representational rights (the NERR) erroneously referred to the name of the proposed enterprise agreement as the BAE Systems Australia Limited (Henderson) Collective Agreement 2017-2020. The Employer provided submissions as to this error on 7 September 2021.
[3] I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
[4] As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.
Regulation 2.06A Requirements
[5] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed on 22 September 2021. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.
Section 190 Undertakings
[6] The employer provided written undertakings on 22 September 2021. 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. The undertakings are taken to be a term of the Agreement.
Sections 186, 187, 188 and 190
[7] 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.
Section 183 Bargaining representatives
[8] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers (the AMWU), the Communication Energy Plumbing Union (the CEPU) and the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU), each being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.
[9] In accordance with s.201(2) of the Act, I note that the Agreement covers the AMWU, the CEPU and the CFMMEU.
Approval
[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 October 2021. The nominal expiry date of the Agreement is 8 September 2023.
COMMISSIONER
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- AGLC
- BAE Systems Australia Limited T/A BAE Systems Australia [2021] FWCA 5997
- Case
- [2021] FWCA 5997
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Commission were whether the agreement contained the required minimum terms and conditions, whether it was free from prohibited content, and whether it complied with the good faith bargaining requirement. Additionally, the Commission had to consider whether the agreement was made in accordance with the applicable provisions of the Fair Work Act, including the provisions relating to the protection of employees’ rights and interests.
In delivering its decision, the Commission noted that the agreement contained the minimum terms and conditions as prescribed by the Fair Work Act. It found that the agreement was free from any prohibited content and that the bargaining process was conducted in good faith. The Commission also determined that the agreement complied with all applicable provisions of the Act. It was satisfied that the agreement appropriately balanced the interests of the employer and the employees, and was fair and reasonable. Consequently, the Commission approved the enterprise agreement, recognising it as a genuine and effective means of resolving workplace issues.
The Fair Work Commission approved the BAE Systems Australia Limited (Henderson) Enterprise Agreement 2020-2023, finding it to be compliant with the requirements of the Fair Work Act. The Commission’s approval was based on the agreement’s inclusion of the required minimum terms and conditions, its absence of prohibited content, and the good faith of the bargaining process. The decision underscores the importance of balancing the interests of both employers and employees in enterprise agreements, ensuring they are fair, reasonable, and in compliance with the law.
Orders
Orders of the court
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Background
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Evidence
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Decision
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Ratio Decidendi
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