Eickhoff Australia Pty Ltd Summary

[2023] FWCA 2937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Eickhoff Australia Pty Ltd

(AG2023/3109)

EIKHOFF ENTERPRISE AGREEMENT 2023 - 2026

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 13 SEPTEMBER 2023

Application for approval of the Eickhoff Enterprise Agreement 2023 - 2026

An application has been made for approval of an enterprise agreement known as the Eickhoff Enterprise Agreement 2023 - 2026 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 24 August 2023.

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

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 section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 20 September 2023. The nominal expiry date of the Agreement is 23 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant, Eickhoff Australia Pty Ltd, sought approval of the Eickhoff Enterprise Agreement 2023-2026. The respondent, the Electrical Trades Union of Australia, represented the employees, who opposed the application. The central dispute revolved around various provisions within the proposed agreement, including wage rates, conditions of employment, and the proposed introduction of performance-based pay.

The key legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act 2009, particularly sections relating to the procedural fairness of the bargaining process and the substantive fairness of the agreement's terms. The Commission had to determine whether the agreement was genuinely negotiated and whether it met the "better-off, worse-off or indifferent" test.

The Commission found that the agreement had been genuinely negotiated and met the procedural requirements set out in the Fair Work Act. It further concluded that the agreement was substantively fair, as the employees would not be worse off under the terms of the proposed agreement. The introduction of performance-based pay was deemed reasonable given the nature of the work and the industry standards. The Commission approved the agreement, finding that it provided a fair and reasonable outcome for both parties.

Eickhoff Australia Pty Ltd

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