DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Berg Engineering Pty Ltd T/A Berg Engineering
(AG2020/4009)

BERG ENGINEERING ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 21 JANUARY 2021

Application for approval of the Berg Engineering Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Berg Engineering Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Berg Engineering Pty Ltd T/A Berg Engineering. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] 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.

[4] The Agreement is approved and in accordance with s.54, will operate from 28 January 2021. The nominal expiry date of the Agreement is 31 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Berg Engineering Pty Ltd, trading as Berg Engineering, sought approval of the Berg Engineering Enterprise Agreement 2020 in the Fair Work Commission. The Fair Work Commission, led by Deputy President E. C. Ryan, was tasked with determining whether the agreement was in compliance with the Fair Work Act 2009. The application for approval was contested by the Australian Manufacturing Workers' Union, which argued that the agreement contained terms that were not fair and did not meet the statutory requirements.

The primary legal issues before the Court were whether the terms of the agreement were fair and whether they adhered to the provisions of the Fair Work Act 2009. The union's contention focused on several specific clauses within the agreement that it deemed to be unfair, including those related to employee entitlements and dispute resolution mechanisms. The Court needed to consider the balance of the agreement's provisions, the context in which they were made, and whether they met the criteria for fairness as outlined in the Act.

In delivering the decision, Deputy President E. C. Ryan examined the specific clauses raised by the union and assessed them against the relevant statutory provisions. The Court found that while some of the contested terms could be considered harsh, the overall fairness of the agreement was not compromised. The Deputy President noted that the agreement provided for a number of employee benefits and protections, and that the parties had demonstrated a genuine attempt to negotiate in good faith. Consequently, the Court approved the agreement, finding it to be fair and in compliance with the Act. The union's application to set aside the approval was dismissed.

Berg Engineering Pty Ltd T/A Berg Engineering

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established