Bradken Resources Pty Ltd

[2022] FWCA 2752

[2022] FWCA 2752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bradken Resources Pty Ltd

(AG2022/3186)

Bradken Ipswich Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 15 AUGUST 2022

Application for approval of the Bradken Ipswich Enterprise Agreement 2022.

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

1. The Employer has provided written undertakings. 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.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 6.2 – Withholding of NES entitlements

• Clause 7.2 – Withholding of NES entitlements

1. However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The notice of employee representational rights provided to employees did not contain all content prescribed by the regulations as it omitted the Employer’s name. Further, the Employer did not take all reasonable steps to notify employees of the time, place and method of the vote by the start of the access period for the Agreement. The Employer also did not take all reasonable steps to ensure that employees were given a copy of the Agreement and the incorporated modern award during the access period or ensure that employees had access to these materials throughout the access period. Pursuant to s.188(2) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural errors made in relation to the requirements in sections 174(1A), 180(2) and 180(3) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, 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) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 15 August 2022 and, in accordance with s.54, will operate from 22 August 2022. The nominal expiry date of the Agreement is 15 August 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE517013  PR744781>

Annexure A