Galway Refractories Pty Ltd T/A Galway Refractories

[2023] FWCA 3009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Galway Refractories Pty Ltd T/A Galway Refractories

(AG2023/3059)

GALWAY REFRACTORIES PTY LIMITED – REFRACTORY AND ASSOCIATED SERVICES – NATIONAL ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER CRAWFORD	SYDNEY, 18 SEPTEMBER 2023

Application for approval of the Galway Refractories Pty Ltd Refractory and Associated Services National Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Galway Refractories Pty Limited – Refractory and Associated Services – National Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Galway Refractories Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate from 2 October 2023 in accordance with s.54(1)(b) of the Act. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Galway Refractories Pty Ltd, trading as Galway Refractories, brought an application before the Fair Work Commission for approval of the Galway Refractories Pty Ltd Refractory and Associated Services National Enterprise Agreement 2023. The application followed a bargaining process between the employer and the Australian Manufacturing Workers' Union, which represents the employees. The agreement aimed to regulate various employment terms and conditions for the workforce. The union sought approval for the agreement, which included provisions concerning wages, working hours, leave entitlements, and dispute resolution mechanisms, among others.

The legal issues before the Commission involved whether the agreement met the statutory requirements under the Fair Work Act 2009, including compliance with the "better off overall test". This test ensures that the agreement provides employees with at least the same terms and conditions as they had previously, or better, either through the agreement or in comparison to what they would have obtained through a Fair Work Act order. The Commission had to assess whether the proposed agreement achieved this balance, considering the interests of both the employees and the employer.

In reaching its decision, the Commission evaluated the evidence presented by both parties, including submissions from Galway Refractories and the Australian Manufacturing Workers' Union. The Commission noted the union's arguments regarding the necessity of certain wage increases and improved working conditions, as well as Galway Refractories' concerns about the financial implications of the proposed terms. After careful consideration, the Commission found that the agreement was fair and reasonable, meeting the better off overall test. Consequently, the Commission approved the Galway Refractories Pty Ltd Refractory and Associated Services National Enterprise Agreement 2023.

The Fair Work Commission approved the Galway Refractories Pty Ltd Refractory and Associated Services National Enterprise Agreement 2023, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the terms and conditions set out in the agreement would apply to the relevant employees, superseding any conflicting terms in existing awards or agreements. The decision was binding on all parties, and any disputes arising from the agreement would be subject to the dispute resolution mechanisms outlined within it.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established