DECISION

Fair Work Act 2009
s.185—Enterprise agreement

EnerMech Pty Limited T/A EnerMech Pty Ltd
(AG2019/1445)

ENERMECH PTY LTD ICHTHYS ONSHORE CONSTRUCTION ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 21 MAY 2019

Application for approval of the EnerMech Pty Ltd Ichthys Onshore Construction Enterprise Agreement 2019 (the Agreement).

[1] An application has been made for approval of an enterprise agreement known as the EnerMech Pty Ltd Ichthys Onshore Construction Enterprise Agreement 2019 (the Agreement) (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EnerMech Pty Limited T/A EnerMech Pty Ltd. 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[7] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 7.3 – Termination of Employment

• Clause 7.4 – Abandonment of Employment

• Clause 17.1 – Annual Leave

• Clause 17.2 – Personal Leave

However, noting the second paragraph of the undertakings provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 May 2019. The nominal expiry date of the Agreement is 30 November 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

EnerMech Pty Limited, trading as EnerMech Pty Ltd, applied for approval of the EnerMech Pty Ltd Ichthys Onshore Construction Enterprise Agreement 2019. The Fair Work Commission was tasked with determining whether the agreement should be certified as a single-employer enterprise agreement, which would render it protected from legal challenges. The dispute arose from objections to the agreement by certain employees and the Australian Manufacturing Workers' Union, who argued that the agreement did not meet the necessary standards for certification.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the agreement was a genuine enterprise agreement and whether it met the criteria for certification. This included assessing whether the agreement was made with appropriate employee representation, covered a genuine enterprise, and complied with the procedural requirements set out in the Act. The Commission also had to consider whether the agreement contained appropriate protections for employees and whether it was in the best interests of the employees involved.

The Commission found that the agreement was made with appropriate employee representation and covered a genuine enterprise. It noted that the employees had been adequately consulted and that the agreement contained appropriate protections for employees. The Commission also concluded that the agreement met the procedural requirements for certification and was in the best interests of the employees. The objections raised by the union were deemed not to undermine the validity of the agreement. The Commission certified the agreement as a single-employer enterprise agreement, thereby providing it with protected status.

The Fair Work Commission approved the agreement and certified it as a single-employer enterprise agreement. This decision rendered the agreement protected from legal challenges and enforceable under the Fair Work Act. The employees covered by the agreement would now be bound by its terms, and the union's objections were dismissed. This outcome ensures that the agreement remains in effect and provides a stable framework for the employment relationship between EnerMech Pty Ltd and its employees.

EnerMech Pty Limited T/A EnerMech 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