Horvat Family Trust T/A Sava Engineering

[2024] FWCA 983

[2024] FWCA 983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Horvat Family Trust T/A Sava Engineering

(AG2024/456)

SAVA ENGINEERING PTY LTD WORKSHOP & SITE ENTERPRISE AGREEMENT 2023-2026

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 19 MARCH 2024

SAVA ENGINEERING PTY LTD Workshop & Site Enterprise Agreement 2023-2026

1. An application has been made for approval of an enterprise agreement known as the SAVA ENGINEERING PTY LTD Workshop & Site Enterprise Agreement 2023-2026 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

1. Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 2 April 2023.

1. Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 14 February 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

1. Horvat Family Trust (the Employer) has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

1. Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

1. The Australian Workers’ Union (AWU) is listed as a party bound by the Agreement in clause 3.1 and there is also a signing area for the AWU on the signatories page of the Agreement. In correspondence to the Commission, the Employer wrote that “the AWU had been party to the Agreement previously.  They were not a bargaining representative.  Leaving the AWU in clause 3 and signature page of the Agreement was an oversight.” A mention was conducted on 19 March 2024. The mention was attended by Mr. Steven Horvat, director of the Employer, and Ms. Chloe Simmons, industrial officer at the AMWU, during which both undertook to me on the record that the AWU had not participated in bargaining of this Agreement.

1. The employer is a metal fabrication business. The ten employees covered by  Agreement are “trades people on the shop floor” who are covered under the C classification  in the Manufacturing and Associated Industries and Occupations Award 2020. At the mention, Mr. Horvat informed me the only other employees employed at the workplace are administrative or management employees.  I am satisfied in those circumstances the AWU is unlikely to represent employees covered by this Agreement.

1. The Agreement is approved today 19 March 2024. It will operate from 26 March 2024 as required by section 54 of the Act. The nominal expiry date is 30 June 2026.

COMMISSIONER

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Annexure A