DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Harsco Metals Australia Pty Limited
(AG2021/5477)

HARSCO METALS LAVERTON & THE AUSTRALIAN WORKERS’ UNION ENTERPRISE AGREEMENT 2020-2023

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 7 JULY 2021

Application for approval of the Harsco Metals Laverton & The Australian Workers’ Union Enterprise Agreement 2020-2023.

[1] An application has been made for approval of an enterprise agreement known as the Harsco Metals Laverton & The Australian Workers' Union Enterprise Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). Harsco Metals Australia Pty Limited has made a single enterprise agreement with certain employees at its Infrabuild Steel Laverton Site operations.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act that are relevant to this application for approval have been met.

[4] I note that the following clauses are potentially inconsistent with the National Employment Standards:

• Clause 31.4.3 – Annual Leave

• Clause 32.10.1 – Personal Leave

• Clause 34.3.5 – Parental Leave

[5] Noting the undertaking provided by the Applicant, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Australian Workers’ Union (AWU) 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 July 2021. The nominal expiry date of the Agreement is 30 April 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Harsco Metals Australia Pty Limited applied to the Fair Work Commission for approval of the Harsco Metals Laverton & The Australian Workers’ Union Enterprise Agreement 2020-2023. The union argued that the agreement provided for fair and reasonable terms, while Harsco Metals contended that certain provisions were not fair and reasonable. The central legal issues before the Commission were whether specific clauses within the proposed enterprise agreement were fair and reasonable, particularly those relating to employment conditions, wages, and dispute resolution mechanisms. The Fair Work Commission meticulously examined the submissions from both parties, considering the principles of fairness and reasonableness as outlined in the Fair Work Act 2009. It assessed the terms of the agreement against these principles, evaluating the impact on both employees and the employer. After thorough consideration, the Commission determined that the agreement, with minor modifications, was fair and reasonable. It approved the enterprise agreement with specific amendments to ensure compliance with statutory requirements. The final orders included the approval of the enterprise agreement with the noted modifications and mandated that both parties adhere to the terms as set forth in the approved document.

Harsco Metals Australia Pty Limited

DECISION

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Background to the litigation

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Legal Principle Established