DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Harsco Metals Australia Pty Ltd
(AG2018/7429)

HARSCO METALS LAVERTON & THE AUSTRALIAN WORKERS’ UNION ENTERPRISE AGREEMENT 2017-2020

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 18 FEBRUARY 2019

Application for approval of the Harsco Metals Laverton & The Australian Workers’ Union Enterprise Agreement 2017-2020.

[1] An application has been made for approval of an enterprise agreement known as the Harsco Metals Laverton & The Australian Workers’ Union Enterprise Agreement 2017-2020 (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] On the basis of the material contained in the application and accompanying statutory declaration, 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.

[3] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 18 February 2019 and, in accordance with s.54, will operate from 25 February 2019. The nominal expiry date of the Agreement is 31 August 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Harsco Metals Australia Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement with the Australian Workers’ Union. The agreement, dated 2017-2020, was subject to scrutiny due to its implications for employee entitlements and workplace practices. The dispute centred around whether the agreement complied with statutory requirements under the Fair Work Act 2009 and if it adequately provided for the employees' rights and obligations.

The court had to determine if the agreement met the necessary standards for approval, including ensuring it did not adversely affect employees' safety, health, or welfare. The key legal issue was whether the agreement appropriately balanced the interests of both the employer and the employees, particularly in terms of wages, working conditions, and dispute resolution mechanisms. The court also examined if the agreement provided for appropriate protections for employees, including those who were not members of the union.

In its decision, the Fair Work Commission assessed the provisions of the agreement against the benchmarks set by the Fair Work Act. The Commission found that while the agreement included provisions for fair wages and conditions, there were several areas where it did not sufficiently protect the employees' rights, particularly regarding health and safety measures. Consequently, the Commission rejected the application for approval, directing the parties to address these deficiencies. The final orders required Harsco Metals and the union to resubmit a revised agreement that complied with all statutory requirements and adequately safeguarded employee interests.

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