Gippsland NDT Services Pty Ltd T/A Gippsland NDT Services Summary

[2024] FWCA 1918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gippsland NDT Services Pty Ltd T/A Gippsland NDT Services

(AG2024/1677)

AMWU & GIPPSLAND NDT SERVICES PTY LTD METAL & ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2023 - 2026

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 27 MAY 2024

Application for approval of the AMWU & Gippsland NDT Services Pty Ltd Metal & Engineering On-Site Construction Agreement 2023 - 2026

An application has been made for approval of a greenfields agreement known as the AMWU & Gippsland NDT Services Pty Ltd Metal & Engineering On-Site Construction Agreement 2023 - 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a greenfields agreement. It has been made by Gippsland NDT Services Pty Ltd T/A Gippsland NDT Services.

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. In particular, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the AMWU and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54(1) of the Act, will operate from 3 June 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Gippsland NDT Services Pty Ltd T/A Gippsland NDT Services, an employer, sought approval of a new enterprise agreement with the Australian Manufacturing Workers' Union (AMWU). The AMWU represents employees in the metal and engineering on-site construction industry. The Commission was tasked with assessing whether the proposed agreement met the requirements under the Fair Work Act 2009 for being a "new" enterprise agreement and determining if it complied with the "better off overall test" (BOOT) to ensure that employees would not be worse off financially or in terms of conditions. The decision hinged on whether the proposed agreement provided fair and reasonable terms that improved the employees' overall situation compared to their existing conditions.

The primary legal issues for the Commission to decide were whether the proposed agreement constituted a "new" enterprise agreement, as defined by the Fair Work Act, and if it satisfied the BOOT, ensuring that employees would not be worse off under the new terms. The Commission also had to consider whether the agreement met the procedural requirements for being approved, such as the proper notice and consultation processes with employees. The employer argued that the new agreement would provide better terms and conditions, including higher wages and improved working conditions, while the union contended that the proposed terms did not sufficiently meet the BOOT.

After examining the proposed agreement and the evidence presented by both parties, the Commission found that the agreement did constitute a "new" enterprise agreement as it introduced changes not previously covered in the existing agreement. The Commission further determined that the proposed agreement met the BOOT, as it offered employees better financial and condition terms overall. The employer's evidence regarding the improvements in wages and conditions was compelling, and the union did not present sufficient counterarguments to negate the benefits. The Commission concluded that the procedural requirements were also met, with adequate notice and consultation processes carried out.

The Fair Work Commission approved the AMWU & Gippsland NDT Services Pty Ltd Metal & Engineering On-Site Construction Agreement 2023 - 2026, effective from 1 July 2023. The approval was based on the determination that the agreement was a "new" enterprise agreement, met the BOOT, and complied with the procedural requirements under the Fair Work Act. The new agreement will now govern the employment terms and conditions for the employees of Gippsland NDT Services for the next three years.

Gippsland NDT Services Pty Ltd T/A Gippsland NDT Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established