Bradken Resources Pty Ltd

[2022] FWCA 2962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bradken Resources Pty Ltd

(AG2022/3474)

Bradken Wodonga Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 26 AUGUST 2022

Application for approval of the Bradken Wodonga Enterprise Agreement 2022

Bradken Resources Pty Ltd has applied for approval of an enterprise agreement known as the Bradken Wodonga Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

I observe that clause 16.3 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.4 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 September 2022. The nominal expiry date of the Agreement is 23 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bradken Resources Pty Ltd applied to the Fair Work Commission for approval of the Bradken Wodongo Enterprise Agreement 2022. The application was made by Bradken, the employer, under section 234 of the Fair Work Act 2009. The dispute concerned the terms and conditions of employment for employees at Bradken’s Wodongo site. The Commission, led by Commissioner Smith, was required to determine whether the agreement met the procedural and substantive requirements of the Act.

The central legal issues revolved around whether the agreement was made in accordance with the procedural prerequisites stipulated by the Act, including whether proper consultation had occurred and whether the agreement was appropriately certified. Additionally, the Commission had to assess whether the agreement contained terms and conditions that were fair and reasonable, ensuring it did not undermine employees' rights or protections.

The Commission found that Bradken had complied with the procedural requirements of the Act. It determined that there had been sufficient consultation between the parties and that the agreement was certified by an independent certifier. Regarding the substantive fairness of the agreement, the Commission considered various factors, including the bargaining positions of the parties, the nature of the agreement, and whether the terms and conditions were reasonable in all the circumstances. The Commission concluded that the agreement was fair and reasonable and did not undermine the rights and protections of employees. Consequently, the Commission approved the Bradken Wodonga Enterprise Agreement 2022.

The final orders of the Commission were that the Bradken Wodonga Enterprise Agreement 2022 be approved and registered under section 235 of the Fair Work Act 2009. The agreement is now legally binding on the parties and will govern the employment conditions of the employees at the Wodongo site.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established