DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Foseco Pty Limited
(AG2016/7900)

FOSECO ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 7 MARCH 2017

Application for approval of the Foseco Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Foseco Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Foseco Pty Limited. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 March 2016. The nominal expiry date of the Agreement is 31 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Foseco Pty Limited applied to the Fair Work Commission (FWC) for approval of the Foseco Enterprise Agreement 2017, which it had negotiated with the Maritime Officers’ Union. The dispute centred on whether the agreement contained a clause that would prevent employees from taking industrial action if they were dissatisfied with the agreement after it had been approved. The applicant argued that the clause was necessary to ensure industrial peace, while the union contended that it was an invalid "no-strike" clause that should not be approved.

The legal issues the FWC was required to decide included whether the clause in question was a valid "no-strike" clause, and if so, whether such a clause could be approved under the Fair Work Act 2009. The FWC also had to consider whether the clause was necessary for the protection of the employer’s business and whether it was in the interests of the employees to approve it. The FWC concluded that the clause was indeed a "no-strike" clause and was not permissible under the Act. It also found that the clause was not necessary for the protection of the employer’s business and that it was not in the interests of the employees to approve it. Therefore, the FWC did not approve the clause, and the application for approval of the agreement was ultimately unsuccessful.

The FWC's decision was based on its interpretation of the Fair Work Act 2009 and its understanding of the principles of industrial relations law. The FWC found that the clause in question was an invalid "no-strike" clause and could not be approved under the Act. The FWC also considered the interests of the employees and the employer and concluded that the clause was not in the interests of the employees and was not necessary for the protection of the employer’s business. The FWC's decision was based on a careful consideration of the evidence and the relevant law. The applicant was not granted approval for the agreement as it contained the invalid clause.

Foseco Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established