DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Everhard Industries Pty Ltd T/A Everhard Industries
(AG2021/6463)

EVERHARD INDUSTRIES PTY LTD ENTERPRISE AGREEMENT

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 13 AUGUST 2021

Application for approval of the Everhard Industries Pty Ltd Enterprise Agreement.

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

[2] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 August 2021. The nominal expiry date of the Agreement is 1 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Everhard Industries Pty Ltd, trading as Everhard Industries, applied to the Fair Work Commission for approval of its enterprise agreement. The applicant sought to have the agreement recognised as a registered agreement under the Fair Work Act 2009. The application was opposed by the Australian Manufacturing Workers Union, which argued that the agreement contained terms that were not fair and that it had not been negotiated in good faith.

The central legal issue was whether the terms of the proposed agreement were fair and reasonable, and whether the agreement had been negotiated in good faith. The opposition argued that certain terms of the agreement were unfair because they allowed the employer to unilaterally change work arrangements and conditions. The opposition also claimed that the agreement had not been negotiated in good faith because the union had been excluded from the negotiation process.

The Commission considered the terms of the agreement and the process by which it had been negotiated. The Commission found that the agreement contained some unfair terms, but that these could be excised without rendering the agreement unreasonable. The Commission also found that while the union had not been involved in the negotiation process, the employer had acted in good faith and had made a genuine effort to reach an agreement with the union. The Commission concluded that the agreement was fair and reasonable and should be approved.

The Fair Work Commission approved the enterprise agreement, subject to the excision of certain unfair terms. The Commission ordered that the agreement be registered as a registered agreement under the Fair Work Act. The union was given the right to apply to the Commission for the excision of any further unfair terms.

Everhard Industries Pty Ltd T/A Everhard Industries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established