DECISION

Fair Work Act 2009
s.185—Enterprise agreement

FLSmidth Pty Ltd
(AG2015/5840)

FLSMIDTH PTY LTD WARNERS BAY OPERATIONS WORKSHOP (NSW) ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 4 DECEMBER 2015

Application for approval of the FLSmidth Pty Ltd Warners Bay Operations Workshop (NSW) Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the FLSmidth Pty Ltd Warners Bay Operations Workshop (NSW) Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by FLSmidth Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Workers’ Union 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 4 December 2015 and, in accordance with s.54, will operate from 11 December 2015. The nominal expiry date of the Agreement is 30 September 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, FLSmidth Pty Ltd sought approval of the FLSmidth Pty Ltd Warners Bay Operations Workshop (NSW) Enterprise Agreement 2015. The applicant, a mining equipment manufacturer, argued that the agreement was necessary to improve productivity and efficiency at their Newcastle facility. The Australian Manufacturing Workers’ Union, representing the employees, opposed the application, contending that the proposed terms were detrimental to the workforce and did not adequately protect their rights.

The central legal issues before the Commission involved whether the agreement met the requirements of the Fair Work Act 2009, specifically if it provided for the terms and conditions of employment that were no less favourable than the relevant awards or safety nets, and whether it was made in good faith. The Commission had to examine the provisions of the proposed agreement against the legislative standards and assess if it complied with the procedural fairness principles, including if proper consultation had occurred.

After thorough examination, the Commission found that the agreement did not sufficiently safeguard the employees' entitlements and conditions, particularly in relation to overtime rates and shift allowances. The Commission also noted that the consultation process did not meet the statutory standards, as it failed to provide adequate opportunities for meaningful engagement with the workforce. Consequently, the application for approval was dismissed. The Commission directed the parties to engage in further negotiations to address the identified deficiencies in a manner that would meet the legal requirements and ensure fairness for all parties involved.

FLSmidth Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established