ITW Construction Asia Pacific

[2024] FWCA 4553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ITW Construction Asia Pacific

(AG2024/4680)

ITW CONSTRUCTION ASIA PACIFIC INGLEBURN MANUFACTURING AND WAREHOUSE AND THE AUSTRALIAN WORKERS UNION ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 18 DECEMBER 2024

Application for approval of the ITW Construction Asia Pacific Ingleburn Manufacturing and Warehouse and The Australian Workers Union Enterprise Agreement 2024

Introduction

ITW Construction Asia Pacific (the Employer) has made an application for approval of an enterprise agreement known as the ITW Construction Asia Pacific Ingleburn Manufacturing and Warehouse and The Australian Workers Union Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (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. The notification time for the Agreement under s.173(2) was 3 June 2024 and the Agreement was made on 14 November 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. 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.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The Australian Workers’ Union (AWU), 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 AWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 December 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The Fair Work Commission heard an application for approval of the ITW Construction Asia Pacific Ingleburn Manufacturing and Warehouse and The Australian Workers Union Enterprise Agreement 2024. The application was made by ITW Construction Asia Pacific, and the Australian Workers Union was the respondent. The dispute centred on whether the terms and conditions outlined in the enterprise agreement were fair and reasonable, meeting the legal standards set by the Fair Work Act 2009.

The central legal issues before the Commission involved assessing whether the agreement provided for a safety net of minimum wages and conditions, and whether it allowed for genuine flexibility in the workplace. The Commission also needed to determine if the agreement appropriately balanced the interests of employees and employers, and if it met the "better off overall test." This test requires that employees be no worse off and at least some employees be better off under the agreement compared to the applicable award.

In its reasoning, the Commission considered the submissions from both parties, the provisions of the Fair Work Act, and relevant awards. It examined the proposed pay rates, hours of work, leave entitlements, and other terms. The Commission concluded that the agreement did provide a safety net that aligned with the award, offered reasonable flexibility, and met the better off overall test. It found that the agreement was fair and reasonable and approved the enterprise agreement. The Commission's decision was based on the comprehensive assessment of the agreement's provisions against the statutory requirements.

The final orders of the Commission were to approve the ITW Construction Asia Pacific Ingleburn Manufacturing and Warehouse and The Australian Workers Union Enterprise Agreement 2024, effective from the date of the decision. The agreement was to be registered and published on the Fair Work Commission's website, and both parties were directed to comply with the terms of the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established