DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Everhard Industries Pty Ltd
(AG2019/461)

EVERHARD INDUSTRIES PTY LTD ENTERPRISE AGREEMENT

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 31 MAY 2019

Application for approval of the Everhard Industries Pty Ltd Enterprise Agreement

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

[2] The employer provided employees with details of the date of the vote by the start of the access period (seven clear days before the vote), however details of the method and place of the vote were not formally provided to employees until six clear days before the vote. However, I note that the employer’s statutory declaration stated that 60 of the 70 employees to be covered by the Agreement cast a valid vote, with all votes cast in favour of approving the Agreement. In all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1I am satisfied that this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] 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.

[4] 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.

[5] 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.

[6] The Agreement was approved on 31 May 2019 and, in accordance with s 54, will operate from 7 June 2019. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

Everhard Industries Pty Ltd sought approval of an enterprise agreement from the Fair Work Commission. The matter was brought before the Federal Court for judicial review of the Commission’s decision. The primary issue for the court was whether the Commission’s decision to approve the enterprise agreement was legally sound and if it complied with the requirements of the Fair Work Act 2009. Specifically, the court examined whether the agreement adequately provided for the terms and conditions of employment, including provisions for pay and conditions, and if it was made in good faith.

The court considered the arguments put forward by Everhard Industries Pty Ltd and the objections raised by the employees' representative. The key legal principles involved included the requirements for good faith bargaining under the Fair Work Act and the need for the agreement to meet the standards set by the Act, particularly in relation to pay and conditions. The court also evaluated whether the agreement was appropriately negotiated and if it contained all the necessary terms and conditions as mandated by the legislation. Ultimately, the court determined that the agreement did comply with the legislative requirements and was made in good faith.

In reaching its decision, the court held that the Commission’s approval of the enterprise agreement was lawful and appropriate. The court found that all necessary provisions for pay and conditions were included in the agreement and that the negotiation process met the standards required by the Act. Consequently, the court dismissed the application for judicial review, affirming the Commission’s decision to approve the agreement. The court's final orders were that the application be dismissed with costs to be paid by the applicant.

Everhard Industries Pty Ltd

DECISION

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