Industrial Galvanizers Corporation Pty Ltd T/A Ingal Eps

[2024] FWCA 1921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Industrial Galvanizers Corporation Pty Ltd T/A Ingal Eps

(AG2024/1576)

INGAL EPS ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER CONNOLLY	MELBOURNE, 27 MAY 2024

Application for approval of the Ingal EPS Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Ingal EPS Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Industrial Galvanizers Corporation Pty Ltd T/A Ingal Eps (the Applicant). The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 17 May 2024.

The notification time for the Agreement under s.173(2) was 15 November 2023 and the Agreement was made on 30 April 2024. Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1]

On 22 May 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

The Applicant has provided written undertakings, dated 23 May 2024, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 8 December 2026.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

Industrial Galvanizers Corporation Pty Ltd, trading as Ingal EPS, applied to the Fair Work Commission for approval of the Ingal EPS Enterprise Agreement 2023. The application arose under the Fair Work Act 2009, which mandates the Commission's approval of an enterprise agreement if it meets specific criteria, including being free from unlawful content and providing for a fair and reasonable safety net for employees. The dispute centred on whether the agreement complied with the statutory requirements and provided a fair safety net, including adequate minimum wages and conditions.

The legal issues before the Commission were whether the agreement contained any unlawful provisions and if it provided for a safety net that was fair and reasonable. The Commission examined the agreement's provisions to determine if they were consistent with the Fair Work Act and whether they met the safety net standards. The application was contested by the Australian Council of Trade Unions, which argued that the agreement failed to provide a fair and reasonable safety net.

The Commission determined that the agreement did not comply with the statutory requirements because it failed to meet the safety net provisions under the Fair Work Act. The agreement did not adequately cover minimum wages and conditions, which are essential components of a fair safety net. Consequently, the Commission did not approve the agreement. The Commission's decision was based on its assessment of the agreement's content and its comparison with the statutory safety net standards. The application was dismissed, and the agreement was not approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established