DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Elphinstone Enterprises Pty Ltd
(AG2019/3584)

ELPHINSTONE ENTERPRISES BARGAINING AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 25 OCTOBER 2019

Application for approval of the Elphinstone Enterprises Bargaining Agreement 2019

[1] Elphinstone Enterprises Pty Ltd has made an application for approval of an enterprise agreement known as the Elphinstone Enterprises Bargaining Agreement 2019 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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” 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 25 October 2019 and, in accordance with s 54, will operate from 1 November 2019. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Elphinstone Enterprises Pty Ltd applied to the Fair Work Commission for the approval of the Elphinstone Enterprises Bargaining Agreement 2019, which was intended to replace an existing enterprise agreement. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) who argued that the proposed agreement did not meet the requirements of the Fair Work Act 2009, specifically in relation to pay rates and conditions. The Fair Work Commission was tasked with determining whether the agreement was in the best interests of the employees and whether it complied with the statutory requirements.

The central legal issue before the Commission was whether the proposed bargaining agreement was genuinely in the best interests of the employees, as required by section 235 of the Fair Work Act 2009. Additionally, the Commission needed to assess whether the agreement met the statutory requirements under the Act, including compliance with the ‘better off overall test’ and whether it contained the necessary minimum entitlements as stipulated in the relevant modern award. The Commission also considered whether any provisions in the agreement were contrary to public policy.

The Fair Work Commission found that the proposed agreement was in the best interests of the employees, as it provided improved terms and conditions compared to the existing enterprise agreement, and it met the ‘better off overall test’. The Commission was satisfied that the agreement contained all necessary minimum entitlements and did not contravene any public policy. The Commission approved the Elphinstone Enterprises Bargaining Agreement 2019, subject to its registration with the Registrar of the Fair Work Commission. The Commission emphasised the importance of genuine consultation between the parties and the need for compliance with the statutory requirements in future bargaining processes.

Elphinstone Enterprises 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