Emerson Automation Solutions Final Control Australia Pty Ltd T/A Emerson Summary

[2024] FWCA 4653

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Emerson Automation Solutions Final Control Australia Pty Ltd T/A Emerson

(AG2024/4869)

EMERSON GLADSTONE WORKSHOP ENTERPRISE AGREEMENT 2024 - 2027

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 23 DECEMBER 2024

Application for approval of the Emerson Gladstone Workshop Enterprise Agreement 2024 – 2027

Emerson has applied for approval of an enterprise agreement known as Emerson Gladstone Workshop Enterprise Agreement 2024 – 2027 under s 185 of the Fair Work Act 2009.

The Agreement is a single enterprise.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards:
· Clause 19.4.4 – regarding the notification of absence when taking personal leave.
· Clause 21.6.2 – regarding deductions from NES entitlements in terminations.

The Employer has provided written undertakings. 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.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the AMWU.

The Agreement is approved and contrary to clause 5.1 but in accordance with s 54 of the Act, will operate from 30 December 2024.

In accordance with clause 5.1 of the Agreement, the nominal expiry date of the Agreement is 30 September 2027.

Variation under s 218A

Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities. It is a discretionary power, and the Commission must first be satisfied that the identified errors or amendments sought are obvious errors, defects or irregularities

I determined to vary the Agreement on my own initiative, following the identification of the errors in clauses 8.18 and 17.5.1, which both referenced clauses or subclauses that either did not exist or were missing. The Applicant provided me with information about which clauses or subclauses were intended to be referred to and I made the necessary amendments.

I am satisfied that the amendments should be made and that it is appropriate to do so in accordance with s 218A. The variation will operate from the date the Agreement commences.

The Agreement attached to this Decision is the Agreement as varied and will operate from 30 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Emerson Automation Solutions Final Control Australia Pty Ltd, trading as Emerson, sought approval for the Emerson Gladstone Workshop Enterprise Agreement 2024-2027. The application was made in the Fair Work Commission, where the primary dispute centred around the procedural fairness and compliance of the agreement with relevant legislative requirements. The key legal issues revolved around whether the agreement was genuinely negotiated, whether it complied with the procedural fairness requirements under the Fair Work Act 2009, and whether it was in the best interests of the employees involved.

The Fair Work Commission considered the evidence provided regarding the negotiation process and the content of the agreement. It examined whether the agreement was the result of genuine bargaining and whether the necessary procedural steps were followed. Additionally, the Commission assessed whether the agreement was fair and reasonable, taking into account the economic and employment circumstances of the employees. In its reasoning, the Commission noted the importance of ensuring that the agreement did not disadvantage the employees and that it reflected a balance between the interests of the employer and the employees.

Ultimately, the Fair Work Commission determined that the application met the necessary criteria. The agreement was found to be genuinely negotiated and compliant with procedural fairness requirements. The Commission concluded that the agreement was in the best interests of the employees and approved the Emerson Gladstone Workshop Enterprise Agreement 2024-2027. The approval ensures that the agreement will be legally binding and enforceable for the specified period.

Emerson Automation Solutions Final Control Australia Pty Ltd T/A Emerson

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established