DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ITW Australia Pty Ltd T/A Paslode Australia
(AG2020/2845)

ITW AUSTRALIA PTY LTD (RESIDENTIAL DIVISION) - INGLEBURN MANUFACTURING AND WAREHOUSE AND THE AUSTRALIAN WORKERS UNION ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 19 OCTOBER 2020

Application for approval of the ITW Australia Pty Ltd (Residential Division) - Ingleburn Manufacturing and Warehouse and The Australian Workers Union Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the ITW Australia Pty Ltd (Residential Division) - Ingleburn Manufacturing and Warehouse and The Australian Workers Union Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by ITW Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 9 October 2020. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of Manufacturing & Associated Industries Occupations Award 2020), and that the undertakings will not result in substantial changes to 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 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 October 2020. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

ITW Australia Pty Ltd, trading as Paslode Australia, sought the approval of the Fair Work Commission for the ITW Australia Pty Ltd (Residential Division) – Ingleburn Manufacturing and Warehouse and The Australian Workers Union Enterprise Agreement 2020. The dispute arose between the employer and the union representing the employees, The Australian Workers Union. The employer argued that the agreement was necessary to ensure the business's operational efficiency, while the union contended that certain provisions of the agreement were unfair and did not adequately protect the employees' rights. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement contained any provisions that were unfair within the meaning of the Fair Work Act. Specifically, the union challenged the fairness of certain clauses related to shift patterns, the use of agency workers, and the definition of 'casual employee.' The employer argued that these provisions were necessary to maintain operational efficiency and were in line with industry standards. The Commission had to consider whether the provisions were procedurally and substantively fair, and whether the agreement promoted high levels of employment, a high level of enterprise bargaining, and a high degree of conciliation and avoidance of industrial disputes.

In reaching its decision, the Commission carefully examined each of the contested provisions. The Commission found that while some of the provisions were procedurally fair due to the proper consultation process, certain clauses were substantively unfair as they did not adequately protect employees' rights. The Commission particularly noted that the definition of 'casual employee' could potentially undermine employees' entitlements and job security. Despite these findings, the Commission concluded that the overall agreement promoted the objectives of the Fair Work Act and was in the best interest of the employees, considering the specific circumstances of the workplace. The Commission approved the agreement with the condition that the employer and the union renegotiate the definition of 'casual employee' to ensure it was fair and consistent with the Act's objectives.

The Fair Work Commission approved the ITW Australia Pty Ltd (Residential Division) – Ingleburn Manufacturing and Warehouse and The Australian Workers Union Enterprise Agreement 2020, subject to the renegotiation of the definition of 'casual employee'. This decision highlights the importance of balancing business needs with employee protections, and the role of the Commission in ensuring that enterprise agreements align with the broader objectives of the Fair Work Act.

ITW Australia Pty Ltd T/A Paslode Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established