DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Foamco Industries Pty Ltd
(AG2019/731)

FOAMCO INDUSTRIES PTY LTD ENTERPRISE AGREEMENT 2018-2021

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 JUNE 2019

Application for approval of the Foamco Industries Pty Ltd Enterprise Agreement 2018-2021.

[1] An application has been made for approval of an enterprise agreement known as the Foamco Industries Pty Ltd Enterprise Agreement 2018-2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Foamco Industries 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.

[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 Clauses 13, 15, 30.2 and 30.3(b) are inconsistent with the National Employment Standards are the clauses provide content that are not provided for in the NES. Given the National Employment Standards precedence clause in the Undertaking which forms part of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Australian Workers’ Union (AWU) 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 June 2019. The nominal expiry date of the Agreement is 10 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, Foamco Industries Pty Ltd, sought approval of an enterprise agreement, titled "Foamco Industries Pty Ltd Enterprise Agreement 2018-2021", from the Fair Work Commission. The respondents, who opposed the application, included several unions representing employees of Foamco. The dispute centred around the terms of the proposed agreement, which Foamco intended to implement across its workforce.

The primary legal issues before the Commission involved whether the agreement complied with the requirements of the Fair Work Act 2009, specifically concerning the procedural fairness in the agreement's negotiation and whether it met the 'better off overall' test. The Commission needed to determine if the agreement provided employees with terms and conditions that were no worse than those provided under the applicable award or modern award, and whether it offered a genuine improvement in overall conditions for the majority of employees.

The Commission found that the agreement had been negotiated in good faith and was procedurally fair. It considered the evidence provided regarding the better off overall test, which included detailed submissions and financial data from both parties. The Commission concluded that the proposed agreement met the statutory criteria, as it provided employees with improved conditions and benefits, and was fair and reasonable in all the circumstances. The Commission approved the enterprise agreement, finding that it satisfied the legal requirements and was in the best interests of the majority of employees.

The Fair Work Commission approved the Foamco Industries Pty Ltd Enterprise Agreement 2018-2021, confirming that the agreement met the statutory requirements and was fair and reasonable. The approval was effective from the date specified in the agreement.

Foamco Industries 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