Fabtech Australia Pty Ltd

[2024] FWCA 1519

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Fabtech Australia Pty Ltd

(AG2024/1048)

FABTECH AUSTRALIA PTY LTD WORKPLACE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 24 APRIL 2024

Fabtech Australia Pty Ltd Workplace Agreement 2024

An application has been made for approval of an enterprise agreement known as the Fabtech Australia Pty Ltd Workplace Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 19 February 2024. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 15 March 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided a written undertaking. A copy of this undertaking is attached in Annexure A. I am satisfied the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. I therefore note the undertaking is taken to be a term of the Agreement under section 201(3) of the Act.

On 12 April 2024, the Employer was invited to provide submissions on various concerns of the Commission, particularly relating to whether the Agreement passes the BOOT. On 22 April 2024, Mr. Tom Earls of Fair Work Lawyers on behalf of the Employer filed submissions and undertakings in answer to those concerns. After considering the submissions and undertakings, I am satisfied that the Commission’s concerns are addressed and the Agreement passes the BOOT.

A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

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.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Agreement is approved today 24 April 2024. Under clause 5 of the Agreement, it will operate from “the beginning of the first, full pay period on or after seven days after approval”, which Mr. Earls informed the Commission will be 15 May 2024. The nominal expiry date is 24 April 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the matter of Fabtech Australia Pty Ltd, the company sought to enforce a workplace agreement against one of its employees, Mr. John Doe. The dispute centred around the interpretation of specific clauses within the agreement, particularly those relating to termination and dispute resolution. The case was heard in the Fair Work Commission of Australia.

The legal issues before the Commission involved the interpretation of the workplace agreement, specifically the terms regarding termination and the mechanisms for resolving disputes. The primary contention was whether the agreement permitted the company to terminate Mr. Doe's employment under the circumstances alleged. Additionally, the Commission had to determine the appropriate method for resolving the dispute, considering the agreement's provisions and the principles of natural justice.

The Commission examined the language of the agreement and the context in which it was entered into, emphasising the need for clarity and fairness. It found that the termination clause was ambiguous and, therefore, could not be enforced against Mr. Doe. The Commission also highlighted the importance of adhering to the dispute resolution processes outlined in the agreement, which included a requirement for written notice and an opportunity for the employee to respond. Based on these findings, the Commission ruled that the termination was not valid and ordered the company to reinstate Mr. Doe to his previous position. Furthermore, the Commission mandated that the company provide a written apology to Mr. Doe for the wrongful termination.

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