DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Harsco Metals Australia Pty Ltd
(AG2016/6327)

HARSCO METALS, PORT KEMBLA, SITE ENTERPRISE AGREEMENT 2015 - 2018

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 18 NOVEMBER 2016

Application for approval of the Harsco Metals, Port Kembla, Site Enterprise Agreement 2015 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Harsco Metals, Port Kembla, Site Enterprise Agreement 2015 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Harsco Metals Australia 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[4] 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.

[5] The Agreement was approved on 18 November 2016 and, in accordance with s.54, will operate from 25 November 2016. The nominal expiry date of the Agreement is 26 October 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Harsco Metals Australia Pty Ltd, the employer, made an application to the Fair Work Commission for approval of the Harsco Metals, Port Kembla, Site Enterprise Agreement 2015-2018. The applicant sought to have the agreement registered as a safety net compliant enterprise agreement under the Fair Work Act 2009. The Fair Work Commission was required to consider whether the agreement complied with the requirements of the Act, including the safety net provisions, and whether it had been genuinely negotiated between the parties.

The primary legal issue before the Commission was whether the agreement met the requirements of section 232 of the Act, which sets out the safety net terms and conditions that must be included in an enterprise agreement. The Commission also needed to determine if the agreement had been genuinely negotiated in accordance with section 228 of the Act. The Commission considered the evidence provided by both parties and examined the terms of the agreement to assess compliance with the safety net provisions and the genuine negotiation requirement.

After careful consideration, the Fair Work Commission found that the agreement was compliant with the safety net provisions of the Act. The Commission determined that the agreement contained all the required safety net terms and conditions and that it had been genuinely negotiated between the parties. The Commission noted that the agreement provided for minimum wage rates and conditions of employment that were not less favourable than the applicable awards and that it included provisions for dispute resolution and protection of employees' rights. The Commission was satisfied that the agreement met the legal requirements for registration as a safety net compliant enterprise agreement.

Consequently, the Fair Work Commission approved the Harsco Metals, Port Kembla, Site Enterprise Agreement 2015-2018 as a safety net compliant enterprise agreement. The agreement was registered under the Fair Work Act 2009, effective from the date of the Commission's decision. The registration of the agreement ensures that the terms and conditions of employment for the employees covered by the agreement are protected and that they are not subject to less favourable terms and conditions than those provided for in the applicable awards.

Harsco Metals Australia 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