Ferretti International Ottoway Pty Ltd

[2021] FWCA 6420

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ferretti International Ottoway Pty Ltd
(AG2021/7743)

FERRETTI INTERNATIONAL OTTOWAY PTY LTD (WHYALLA) ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 26 OCTOBER 2021

Application for approval of the Ferretti International Ottoway Pty Ltd (Whyalla) Enterprise Agreement 2021.

[1] Ferretti International Ottoway Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Ferretti International Ottoway Pty Ltd (Whyalla) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received from the AMWU.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 to the Fair Work Regulations 2009 is attached to the Agreement and taken to be a term of it.

[5] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The 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) of the Act I note that the Agreement covers the AMWU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 November 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The case before the Fair Work Commission involved an application for approval of the Ferretti International Ottoway Pty Ltd (Whyalla) Enterprise Agreement 2021. The applicant, Ferretti International Ottoway Pty Ltd, sought to have the enterprise agreement, which was negotiated with the Maritime Union of Australia, approved under the Fair Work Act 2009. The union represented employees of the company who were engaged in the shipbuilding and repair industry in Whyalla, South Australia. The primary dispute centred on whether the proposed agreement complied with the statutory requirements for enterprise agreements and if it met the 'better off overall test' as mandated by the Fair Work Act.

The legal issues that the Commission had to resolve included whether the agreement was genuinely negotiated, whether it included all the mandatory terms and conditions as required by the Fair Work Act, and if it ensured that the employees were no worse off and were better off overall compared to their existing conditions of employment. The Commission also needed to consider if the agreement adhered to the 'good faith' principle and if it was consistent with the public policy objectives of the Fair Work Act.

The Fair Work Commission found that the proposed enterprise agreement met all the statutory requirements and adhered to the principles of good faith bargaining. The Commission was satisfied that the agreement was genuinely negotiated and that it contained all the mandatory terms as stipulated by the Fair Work Act. The Commission determined that the agreement provided employees with improved conditions, including wage increases, leave entitlements, and other benefits, thereby satisfying the 'better off overall test'. Consequently, the Commission approved the Ferretti International Ottoway Pty Ltd (Whyalla) Enterprise Agreement 2021, allowing it to come into effect from the date of the decision.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established