Fredericks Fabrication Pty Ltd

[2024] FWCA 3044

[2024] FWCA 3044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fredericks Fabrication Pty Ltd

(AG2024/2742)

AMWU AND FREDERICKS FABRICATIONS PTY LTD METAL ENGINEERING MELBOURNE METRO TUNNEL AND STATIONS PROJECT AGREEMENT 2023 – 2025

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 21 AUGUST 2024

Application for approval of the AMWU AND FREDERICKS FABRICATIONS PTY LTD Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2023 – 2025.

1. Fredericks Fabrication Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the AMWU AND FREDERICKS FABRICATIONS PTY LTD Metal Engineering Melbourne Metro Tunnel and Stations Project Agreement 2023 – 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 16 January 2024 and the Agreement was made on 14 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

1. The application was not lodged within 14 days after the Agreement was made. The Employer submits that despite the Agreement having not yet been approved, employees have been receiving the wages and conditions provided for in the Agreement. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

1. The notice of employee representational rights (the NERR) was drafted using an outdated template and was, therefore, not in its prescribed form. Further, the NERR was provided to employees 20 clear days before the start of the vote, rather than the required 21 clear days. Pursuant to s.188(5), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural errors made in relation to the requirements in sections 174(1A) and 181(2) of the FW Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by these errors. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2), and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

1. The Agreement was approved on 21 August 2024 and, in accordance with s.54, will operate from 28 August 2024. The nominal expiry date of the Agreement is 31 October 2025.

COMMISSIONER

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