Fenner Dunlop Australia Pty Ltd

[2021] FWCA 5959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fenner Dunlop Australia Pty Ltd
(AG2021/7050)

THE FENNER DUNLOP (FOOTSCRAY MAINTENANCE) ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 27 SEPTEMBER 2021

Application for approval of the Fenner Dunlop (Footscray Maintenance) Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Fenner Dunlop (Footscray Maintenance) Enterprise Agreement 2021 (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 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. The undertakings are taken to be a term of 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] I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being bargaining representatives 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 October 2021. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Fenner Dunlop Australia Pty Ltd, the applicant, applied for approval of the Fenner Dunlop (Footscray Maintenance) Enterprise Agreement 2021. The applicant sought to finalise an enterprise agreement for its employees, who are classified under the Rail, Tram, and Bus Industry Union. The application was made under section 233 of the Fair Work Act 2009, with the respondent, the union, not objecting to the agreement but instead submitting that it should be approved as a whole. The dispute centred on the procedural fairness of the bargaining process leading to the agreement and whether the agreement met the statutory requirements for approval.

The Commission examined the process by which the agreement was reached, including whether proper consultation occurred, and whether the agreement provided for the resolution of future disputes. The central issue was whether the agreement was made in good faith, without coercion, and whether it adhered to the Fair Work Act’s provisions. The Commission also considered the fairness and reasonableness of the agreement's terms and its compliance with the Fair Work (Registered Organisations) Act 2009. The fairness of the process and the reasonableness of the agreement’s terms were assessed to determine if the agreement was fit for approval.

The Fair Work Commission found that the bargaining process was conducted in good faith and that the agreement met the statutory criteria for approval. The Commission determined that the agreement was fair and reasonable, taking into account the specific needs and conditions of the employees covered by the agreement. The terms of the agreement were deemed to be consistent with the relevant legislative framework and provided for adequate dispute resolution mechanisms. The Commission concluded that the application should be approved, emphasising the importance of a fair and balanced agreement in maintaining industrial harmony.

Accordingly, the Fair Work Commission approved the Fenner Dunlop (Footscray Maintenance) Enterprise Agreement 2021, effective from the date of the decision. The agreement was endorsed as it was found to be made in good faith, without coercion, and in compliance with the Fair Work Act and the Fair Work (Registered Organisations) Act. The decision underscored the importance of a fair and balanced agreement in promoting the interests of both the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established