Cummins South Pacific Pty Ltd Trading AS Cummins South Pacific

[2025] FWCA 1666

[2025] FWCA 1666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cummins South Pacific Pty Ltd Trading AS Cummins South Pacific

(AG2025/1239)

CUMMINS SOUTH PACIFIC PTY LTD (CUMMINS CARE - PARTS) ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 19 MAY 2025

Application for approval of the Cummins South Pacific Pty Ltd (Cummins Care - Parts) Enterprise Agreement 2025

1. An application has been made for approval of an enterprise agreement known as the Cummins South Pacific Pty Ltd (Cummins Care – Parts) Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cummins South Pacific Pty Ltd trading as Cummins South Pacific (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 2 May 2025.

1. The notification time for the Agreement under s.173(2) was 17 November 2023 and the Agreement was made on 15 April 2025. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

1. On 9 May 2025, the Employer was invited to address aspects of the Agreement.

1. In respect of the alleged Notice of Employee Representational Rights (NERR) deficiency I do not believe that the following errors had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process:

·   The last time the NERR was given to employees on 2 August 2024 is more than 14 days after the notification time of 17 November 2023. This is inconsistent with s.173(2) of the Act.

·   Employees were not provided with 7 full calendar days’ notice before the vote was conducted.

1. I am satisfied (taking into consideration s.188(5) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

1. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 July 2028.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

<AE529066  PR787430>