Fenner Dunlop Australia Pty Ltd

[2023] FWCA 3164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fenner Dunlop Australia Pty Ltd

(AG2023/3286)

FENNER CONVEYORS [FAR NORTH QUEENSLAND] ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 29 SEPTEMBER 2023

Application for approval of the Fenner Conveyors Far North Queensland Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Fenner Conveyors [Far North Queensland] Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fenner Dunlop Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

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

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to 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 Fair Work 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. Question 18 of the Form F17A provides that the notification time for the Agreement was 5 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 11 September 2023.

The Applicant 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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

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.

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

· Clause 33 – Public Holiday substitution

However, noting clause 5d of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 24 October 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Fenner Dunlop Australia Pty Ltd applied to the Fair Work Commission for approval of the Fenner Conveyors Far North Queensland Enterprise Agreement 2023. The application was made by the employer, Fenner Dunlop Australia, seeking to have the proposed agreement recognised as a registered agreement under the Fair Work Act 2009. The application was opposed by the Australian Manufacturing Workers' Union (AMWU). The central issue before the Commission was whether the proposed agreement met the legal criteria for registration, specifically whether it complied with the requirements for enterprise agreements set out in the Fair Work Act.

The Commission examined the process through which the agreement was negotiated and the extent to which the agreement provided for terms and conditions of employment. The Commission also considered whether the agreement included appropriate dispute resolution mechanisms. The employer argued that the agreement was fairly negotiated and provided for clear terms and conditions of employment, as well as adequate dispute resolution procedures. The union, on the other hand, contested the fairness of the negotiation process and argued that the agreement did not adequately protect the employees' interests.

The Commission concluded that the application for approval should be granted. It found that the agreement was fairly negotiated, contained appropriate terms and conditions, and included sufficient dispute resolution mechanisms. The Commission noted that while there were some concerns raised by the union, these did not undermine the overall fairness of the agreement or its compliance with the statutory requirements. The Commission determined that the proposed agreement met the necessary criteria for registration under the Fair Work Act.

The Fair Work Commission approved the Fenner Conveyors Far North Queensland Enterprise Agreement 2023, and it was registered accordingly.

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