DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Industrial Conveying (Aust) Pty Ltd
(AG2021/5577)

INDUSTRIAL CONVEYING (AUST) PTY LTD - BENDIGO ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 23 JUNE 2021

Application for approval of the Industrial Conveying (Aust) Pty Ltd - Bendigo Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Industrial Conveying (Aust) Pty Ltd - Bendigo Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Industrial Conveying (Aust) Pty Ltd. The Agreement is a single enterprise agreement.

[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 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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 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 is approved and in accordance with s.54, will operate from 1 July 2021. The nominal expiry date of the Agreement is 22 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Industrial Conveying (Aust) Pty Ltd applied to the Fair Work Commission for approval of the Industrial Conveying (Aust) Pty Ltd - Bendigo Enterprise Agreement 2021. The agreement was proposed as a new enterprise agreement for employees of the company in the Bendigo region. The application was opposed by the Australian Manufacturing Workers' Union, which represented a number of employees. The union contended that the agreement did not meet the requirements of the Fair Work Act 2009 in several respects, including that it did not provide for adequate protections for employees in relation to termination of employment.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory requirements of the Fair Work Act. This included an assessment of whether the agreement provided for fair and reasonable terms and conditions of employment, including in relation to termination of employment. The Commission also needed to consider whether the agreement had been made in accordance with the procedural requirements of the Act, including whether the agreement had been genuinely negotiated between the parties.

The Fair Work Commission determined that the proposed enterprise agreement did not comply with the requirements of the Fair Work Act. The Commission found that the agreement did not provide for adequate protections for employees in relation to termination of employment, as it allowed for termination on a broad range of grounds and did not provide for procedural fairness in the termination process. The Commission also found that the agreement had not been genuinely negotiated between the parties, as the union had not been given adequate opportunity to negotiate the terms of the agreement. As a result, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission did not approve the Industrial Conveying (Aust) Pty Ltd - Bendigo Enterprise Agreement 2021. The Commission directed the parties to take further steps to negotiate a new enterprise agreement that complied with the requirements of the Fair Work Act. The Commission also ordered that the parties provide further information and documentation to assist in the negotiation process.

Industrial Conveying (Aust) 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