ITW Australia T/A ITW Aamtech

[2021] FWCA 5855

[2021] FWCA 5855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

ITW Australia T/A ITW Aamtech
(AG2021/6936)

ITW AAMTECH AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 16 SEPTEMBER 2021

Application for approval of the ITW AAMTech and United Workers Union Enterprise Agreement 2021.

[1] ITW Australia T/A ITW Aamtech (the Applicant) has made an application for approval of an enterprise agreement known as the ITW AAMTech and United Workers Union Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 3 September 2021.

[3] On 3 September 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

● Chambers sought an amended Form F16 containing the date of signature as required by section 185(2)(b) of the Act and rule 17(1) of the FW Rules.

● Chambers brought to the parties’ attention that section 54 of the Act provides the agreement will operate from 7 days after approval unless a later day is specified and that the commencement date contained at clause 3 of the Agreement is therefore inoperable.

● Chambers brought to the parties’ attention that clause 23.1.1 regarding superannuation contributions may be inconsistent with the Treasury Laws Amendment (Your Superannuation, Your Choice) Act 2020 and may be unenforceable.

● Clauses 21.6 and 17.2.2 concerning the withholding of NES entitlements and clause 18.2.1 concerning redundancy may be inconsistent with the National Employment Standards (NES) however the NES precedence term at clause 7 of the Agreement is deemed to resolve these NES concerns.
● Chambers raised better off overall concerns regarding Casual loading: Clause 16.4.2, Night shift trigger: Clause 8.4 and Non-continuous shiftwork: Clause 27.2.2.

[4] The Applicant has lodged submissions in relation to the concerns raised above and submitted an undertaking in the required form dated 8 September 2021. The undertaking deals with the following topics:

● Clause 27.2.2 of the Agreement will be amended to mirror the Non-continuous shiftwork procedures contained in the Award.
● Shift workers who work on any afternoon or night shift which does not continue for at least five successive afternoons or nights in a five-day workshop or for at least six successive afternoons or nights in a six day workshop shall be paid at the rate of time and a half for the first 3 hours and 200% of the ordinary hourly rate for the remaining hours.

[5] 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.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] The United 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) of the Act I note that the Agreement covers this organisation.

[9] 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.

[10] 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 30 November 2023.

COMMISSIONER

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