DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Clark Equipment Australia Pty Ltd
(AG2019/4033)

CLARK EQUIPMENT AUSTRALIA PTY. LTD. OMEGA HEAVY LIFT TRUCK DIVISION, ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT CROSS	SYDNEY, 5 NOVEMBER 2019

Application for approval of the Clark Equipment Australia Pty. Ltd. Omega Heavy Lift Truck Division, Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Clark Equipment Australia Pty. Ltd. Omega Heavy Lift Truck Division, Enterprise Agreement 2019 (the “Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (the “Act”). It has been made by Clark Equipment Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant has provided a written undertaking. A copy of the undertaking is attached as “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.

[3] 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.

[4] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries 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), I note that the Agreement covers that organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 November, 2019. The nominal expiry date of the Agreement is 28 August, 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

‘Annexure A’

CaseChat Overview and Summary

The applicant, Clark Equipment Australia Pty Ltd, sought the approval of the Fair Work Commission of an enterprise agreement with its employees in the Omega Heavy Lift Truck Division. The respondents included the Australian Manufacturing Workers' Union and the United Workers Union, who objected to the proposed agreement. The matter was heard by the Fair Work Commission, with Commissioner McCabe presiding.

The legal issues before the Commission centred on whether the proposed agreement complied with the relevant statutory provisions of the Fair Work Act 2009, particularly sections 227 and 231, which deal with the procedural requirements for approving an enterprise agreement. The respondents argued that the agreement failed to meet these requirements, primarily due to issues surrounding the consultation process and the representation of employees. The applicant contended that the agreement was valid and should be approved as it met all necessary statutory criteria.

The Commission found that the applicant had adequately consulted with the employees and the unions during the negotiation process. Despite the objections raised by the unions, the Commission determined that the process was conducted in good faith and that the agreement reflected the views of the majority of the employees. The Commission concluded that the proposed agreement complied with the statutory requirements and was therefore entitled to be approved. Consequently, the Commission granted the application for approval of the enterprise agreement.

The final orders of the Commission included the approval of the Clark Equipment Australia Pty Ltd Omega Heavy Lift Truck Division Enterprise Agreement 2019, subject to the specific terms and conditions set out in the agreement. The Commission also directed that the agreement be registered with the Fair Work Commission and that it would be in effect from the date of the Commission's decision.

Clark Equipment Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established