BIS Industries Limited

[2023] FWCA 763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BIS Industries Limited

(AG2023/454)

Bis Port Kembla Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 10 MARCH 2023

Application for approval of the Bis Port Kembla Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Bis Port Kembla Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BIS Industries Limited (Employer). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

Subject to the undertaking 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.

I note that the provisions of clause 17.10 (Public Holidays) are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 March 2023. The nominal expiry date of the Agreement is 9 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

BIS Industries Limited sought approval of the Bis Port Kembla Enterprise Agreement 2022. The dispute arose as the company aimed to formalise its employment terms and conditions, which were to govern the working relationship between the company and its employees. The application was heard by the Fair Work Commission (FWC), Australia's independent statutory body with responsibility for the resolution of workplace disputes and the creation of a safety net of minimum entitlements through the development of safety net award and enterprise agreements.

The legal issues central to the case involved assessing whether the proposed agreement complied with the requirements of the Fair Work Act 2009, particularly in terms of ensuring the agreement was not less favourable than the applicable safety net, and whether the agreement had been made in accordance with the procedural requirements set out in the Fair Work Act. This included scrutinising the consultation processes and the extent to which the agreement met the genuine bargaining test.

The FWC found that the agreement was consistent with the statutory framework. The Commission noted that the agreement provided for terms and conditions of employment that were not less favourable than the safety net and that the bargaining process had been conducted in good faith and in accordance with the Act. The FWC emphasised the importance of the consultation process, which involved comprehensive discussions between the parties, and concluded that the agreement met the genuine bargaining test. As a result, the Commission approved the application and registered the Bis Port Kembla Enterprise Agreement 2022.

The final orders of the Commission were that the Bis Port Kembla Enterprise Agreement 2022 be approved as a certified agreement under the Fair Work Act, effective from the date of registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established