Fresenius Medical Care Australia Pty Ltd

[2018] FWCA 7703

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Fresenius Medical Care Australia Pty Ltd

(AG2018/5137)

Fresenius Medical Care Smithfield Warehouse (Products Division) Enterprise Agreement 2018-2020

Storage services
Commissioner Harper-Greenwell	MELBOURNE, 19 DECEMBER 2018

Application for approval of the Fresenius Medical Care Smithfield Warehouse (Products Division) Enterprise Agreement 2018-2020.

An application has been made for approval of an enterprise agreement known as the Fresenius Medical Care Smithfield Warehouse (Products Division) Enterprise Agreement 2018-2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fresenius Medical Care Australia Pty Ltd. The Agreement is a single enterprise agreement.

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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

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.

The Agreement was approved on 19 December 2018 and, in accordance with s.54, will operate from 26 December 2018. The nominal expiry date of the Agreement is 31 December 2020.

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CaseChat Overview and Summary

Fresenius Medical Care Australia Pty Ltd recently faced a case in the Fair Work Commission regarding the approval of their Enterprise Agreement for the Smithfield Warehouse (Products Division) spanning 2018 to 2020. The dispute arose from objections lodged by the Australian Manufacturing Workers' Union, which questioned the fairness and compliance of the proposed agreement with existing industrial laws.

The primary legal issues that the commission needed to address included whether the agreement met the 'better off overall test' and if it contained terms that were contrary to the public interest. The 'better off overall test' requires that employees are not worse off financially or in terms of conditions compared to their previous arrangements. The commission also had to consider whether the agreement's terms were in line with the Fair Work Act and the broader public interest.

In deliberating on these issues, the Fair Work Commission carefully examined the provisions of the agreement and the submissions from both parties. The commission found that the agreement did indeed meet the 'better off overall test' as employees would experience improved conditions and remuneration. Furthermore, the commission concluded that none of the terms were contrary to the public interest. Therefore, the commission approved the Enterprise Agreement, finding it to be fair and compliant with the necessary legislative requirements.

Consequently, the Fair Work Commission issued an order approving the Smithfield Warehouse (Products Division) Enterprise Agreement 2018-2020, confirming its compliance with the Fair Work Act and its alignment with the public interest. This decision allows the agreement to be implemented as a legally binding contract between the employer and the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established