DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fuchs Lubricants (Australasia) Pty Ltd
(AG2016/3459)

FUCHS LUBRICANTS (AUSTRALASIA) NEWCASTLE PTY LTD - WORKPLACE AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 30 JUNE 2016

Application for approval of the Fuchs Lubricants (Australasia) Newcastle Pty Ltd - Workplace Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Fuchs Lubricants (Australasia) Newcastle Pty Ltd - Workplace Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fuchs Lubricants (Australasia) Pty Ltd. 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. 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.

[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 was approved on 30 June 2016 and, in accordance with s.54, will operate from 7 July 2016. The nominal expiry date of the Agreement is 31 December 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fuchs Lubricants (Australasia) Pty Ltd applied to the Fair Work Commission for the approval of a workplace agreement that was made between Fuchs Lubricants and certain of its employees. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was heard by the Fair Work Commission in the context of the Fair Work Act 2009. The crux of the dispute was whether the proposed workplace agreement complied with the statutory requirements for an enterprise agreement, specifically whether it met the "better off overall test" and was genuinely negotiated.

The legal issues before the Commission centred on whether the agreement provided employees with a "better off overall" outcome than the applicable industrial instrument and whether it was genuinely negotiated between the parties. The Commission considered the provisions of the Fair Work Act and relevant case law to determine whether the agreement met the necessary criteria. It assessed the terms and conditions of the agreement, the process by which it was negotiated, and the overall impact on the employees. The Commission also examined submissions from both parties and relevant evidence.

The Commission found that the agreement did not satisfy the "better off overall test" as it did not provide employees with a sufficient improvement in their conditions of employment. Furthermore, the Commission was not satisfied that the agreement had been genuinely negotiated between the parties. The Commission concluded that the agreement did not meet the statutory requirements for approval under the Fair Work Act. Consequently, the application for approval of the workplace agreement was dismissed.

The Fair Work Commission ordered that the application for approval of the Fuchs Lubricants (Australasia) Newcastle Pty Ltd - Workplace Agreement 2016 be dismissed. The agreement was not to be approved, and the existing industrial instrument would continue to apply to the employees of Fuchs Lubricants (Australasia) Newcastle Pty Ltd.

Fuchs Lubricants (Australasia) 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