Diecraft Australia Pty Ltd

[2021] FWCA 6096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diecraft Australia Pty Ltd
(AG2021/7286)

DIECRAFT AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 1 OCTOBER 2021

Application for approval of the Diecraft Australia Pty Ltd Enterprise Agreement 2021.

[1] Diecraft Australia Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Diecraft Australia Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 September 2021.

[3] On 15 September 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Chambers sought an amended agreement signature page containing the authority of the employer signatory.

• Additional information and submissions were requested regarding the provision of the NERR and the explanation of Agreement terms.

• Submissions or an undertaking were sought concerning clause 15 regarding stand down to ensure it was consistent with the stand down provisions at s524 of the Act.

• Clauses 35.3: Community service notice requirements and 16: Abandonment of employment were inconsistent with the National Employment Standards (NES) however the NES precedence term at clause 6.4 of the Agreement is deemed to resolve these concerns.

• Chambers raised better off overall concerns relating to trainees and supported wage employees who could be engaged under the agreement.

[4] The Applicant has submitted an undertaking in the required form dated 27 September 2021. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• The Applicant has undertaken that where there is any inconsistency between clause 15 relating to stand down and the Act, the terms in the Act shall prevail.

• In respect of better off overall issued relating to trainees and supported wage workers, the Applicant has provided that relevant percentages as described in the Award for Trainees and Supported workers will be applied to the hourly rates for the appropriate classification outlined in the Agreement.

[5] A copy of the undertaking has been provided to the bargaining representative and I have sought its views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] 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.

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

[10] 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 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Diecraft Australia Pty Ltd applied for the approval of the Enterprise Agreement 2021. The agreement was between Diecraft Australia Pty Ltd and its employees, represented by the Australian Manufacturing Workers' Union. The nature of the dispute revolved around whether the proposed agreement met the criteria for approval under the Fair Work Act 2009, specifically focusing on procedural fairness, the avoidance of pre-existing employee rights, and compliance with the safety net. The Commission was tasked with determining if the agreement appropriately balanced the interests of the employer and employees while ensuring compliance with relevant legislative requirements.

The legal issues before the Commission included whether the agreement had been negotiated in good faith, if the procedural steps taken during the negotiation process were adequate, and if the terms of the agreement complied with the safety net provisions of the Fair Work Act. Additionally, the Commission had to consider whether the agreement adequately protected employees' rights and if it provided for fair and equitable terms and conditions of employment.

The Commission examined the evidence provided by both parties and considered the arguments presented. It found that the agreement was negotiated in good faith and that the procedural steps taken were appropriate. The Commission was satisfied that the agreement did not undermine existing employee rights and complied with the safety net requirements. Furthermore, the Commission determined that the agreement provided fair and equitable terms for both parties, thus meeting the criteria for approval.

The Fair Work Commission approved the Enterprise Agreement 2021, finding it to be fair and reasonable. The decision affirmed the Commission's role in ensuring that enterprise agreements meet the statutory requirements for approval, balancing the interests of employers and employees while upholding the principles of procedural fairness and the safety net provisions.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established