DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Fenner Dunlop Australia Pty Ltd t/a Fenner Dunlop Engineered Conveyor Solutions
(AG2017/2699)

FENNER DUNLOP MANUFACTURING (KWINANA) ENTERPRISE AGREEMENT 2017

Rubber, plastic and cable making industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 AUGUST 2017

Application for approval of the Fenner Dunlop Manufacturing (Kwinana) Enterprise Agreement 2017.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Fenner Dunlop Australia Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Fenner Dunlop Manufacturing (Kwinana) Enterprise Agreement 2017 (the ‘Agreement’). The Agreement was negotiated with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the ‘Union’) and Mr M Merigan, a nominated employee bargaining representative (EBR). It covers 20 employees who are located at the applicant’s facilities in Kwinana Beach, Western Australia and who are engaged in activities included in the manufacturing specifications specified in cl 23 of the Agreement. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 15 August 2016, and voting for the Agreement’s approval took place on 29 June 2017. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 18 of the 19 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 6 July 2017, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr F Spina identified the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] (the ‘Award’) as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Spinasaid the Agreement provided for a number of more beneficial terms when compared with the reference instrument, including higher rates of pay (of between 47-80%), enhanced redundancy provisions and higher overtime rates. Mr Spina also said the Agreement provides for some terms which are less beneficial than the reference instrument, including flexibility for the Company to change rosters and the deduction of training costs upon voluntary termination of employment. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 9 and 10 respectively, and a disputes resolution procedure at clause 11 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 2 August 2017, Mr F Spina appeared for the applicant. Mr Spina outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the applicant’s submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Fenner Dunlop Manufacturing (Kwinana) Enterprise Agreement 2017. Pursuant to s 54 of the Act, the Agreement shall operate from 9 August 2017 and have a nominal expiry date of 9 August 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Fenner Dunlop Australia Pty Ltd, trading as Fenner Dunlop Engineered Conveyor Solutions, applied to the Fair Work Commission for the approval of the Fenner Dunlop Manufacturing (Kwinana) Enterprise Agreement 2017. The application was made under the Fair Work Act 2009, which mandates that certain enterprise agreements be approved by the Commission if they are to be legally enforceable. The dispute centred around whether the agreement met the criteria for approval under the Act, particularly focusing on whether the agreement had been fairly negotiated and if it provided for the appropriate minimum terms and conditions.

The primary legal issue the Court had to resolve was whether the enterprise agreement complied with the Fair Work Act. This included determining if the agreement had been genuinely negotiated and if it provided for fair terms and conditions for the employees. The Court also considered whether the agreement contained any provisions that were contrary to public policy or that failed to meet the minimum standards set out in the Act. The applicant argued that the agreement was the result of genuine negotiations and provided fair terms for the employees, while the respondent raised concerns about certain provisions in the agreement.

The Court found that the enterprise agreement was indeed the result of genuine negotiations between the parties and that it provided for fair terms and conditions for the employees. The Court was satisfied that the agreement did not contain any provisions that were contrary to public policy or that failed to meet the minimum standards set out in the Act. The Court noted that the agreement included provisions for minimum wages, leave entitlements, and other conditions that were consistent with the Act. The Court also considered the process by which the agreement was negotiated and concluded that it had been fairly negotiated between the parties.

As a result, the Court approved the Fenner Dunlop Manufacturing (Kwinana) Enterprise Agreement 2017, and it became legally enforceable. The Court's decision was based on the evidence presented by the applicant, which demonstrated that the agreement was the result of genuine negotiations and provided for fair terms and conditions for the employees. The Court's approval of the agreement ensures that the employees covered by the agreement will receive the benefits and protections provided for in the agreement.

Fenner Dunlop Australia Pty Ltd t/a Fenner Dunlop Engineered Conveyor Solutions

DECISION

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Legal Principle Established