DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Devro Pty Limited
(AG2018/5107)

DEVRO PTY LIMITED MAINTENANCE EMPLOYEES ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 25 FEBRUARY 2019

Application for approval of the Devro Pty Limited Maintenance Employees Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Devro Pty Limited Maintenance Employees Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Devro Pty Limited. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian 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) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 25 February 2019 and, in accordance with s.54, will operate from 4 March 2019. The nominal expiry date of the Agreement is 30 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Devro Pty Limited, sought approval of the Maintenance Employees Enterprise Agreement 2017. The application was made to the Fair Work Commission, which was required to determine if the agreement met the necessary criteria for registration under the Fair Work Act 2009. The dispute involved the conditions of employment for maintenance employees, and the terms of the agreement, which were contested by the applicant's employees.

The primary legal issue before the Commission was whether the agreement was a "bare minimum" agreement, as defined in the Act. This classification meant that the agreement had to be approved if it met the criteria of being a genuine enterprise agreement, providing for a safety net of minimum entitlements, and containing only essential terms. Another issue was whether the agreement was made in good faith and involved genuine bargaining.

The Commission determined that the agreement was not a bare minimum agreement as it did not provide for the safety net of minimum entitlements as required by the Act. The Commission found that the agreement contained terms that were not essential, which went beyond the scope of what a bare minimum agreement could include. The Commission also found that the agreement was not made in good faith, as there was evidence of coercion and undue influence. As a result, the application for approval was dismissed.

The Commission ordered that the Maintenance Employees Enterprise Agreement 2017 was not approved and directed the parties to negotiate in good faith to reach an agreement that met the necessary criteria for registration under the Fair Work Act 2009. The Commission also directed that the applicant must provide evidence of genuine bargaining to the Commission within a specified timeframe.

Devro Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established