J&S Engineering and Maintenance Pty Ltd

[2022] FWCA 1910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

J&S Engineering and Maintenance Pty Ltd

(AG2022/1653)

J & S Engineering & Maintenance Pty Ltd Enterprise Agreement 2022 - 2025

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 10 JUNE 2022

Application for approval of the J & S Engineering & Maintenance Pty Ltd Enterprise Agreement 2022 - 2025

An application has been made for approval of an enterprise agreement known as the J & S Engineering & Maintenance Pty Ltd Enterprise Agreement 2022 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by J&S Engineering and Maintenance Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. 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. The undertaking is taken to be a term of the agreement.

Subject to the undertaking 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.
Clause 15.4 (Public Holiday) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 3.2(iii) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 June 2022. The nominal expiry date of the Agreement is 1 February 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved J&S Engineering and Maintenance Pty Ltd, which sought approval of its Enterprise Agreement 2022-2025 from the Fair Work Commission. The applicant, an engineering and maintenance company, aimed to formalise the terms and conditions of employment for its workers. The nature of the dispute was primarily procedural, focusing on whether the agreement met the necessary requirements under the Fair Work Act 2009. The application was heard by the Fair Work Commission, which has the authority to approve enterprise agreements if they comply with the legislative criteria.

The legal issues before the court encompassed several key areas. Firstly, the court had to determine if the agreement was genuinely an enterprise agreement as defined by the Act. This required examining whether the agreement was made between employers and employees and whether it covered terms and conditions of employment. Additionally, the court assessed whether the agreement had been made in good faith, and whether the requisite procedural steps, such as proper employee consultation and the provision of necessary information, had been followed. Another critical issue was whether the agreement complied with the "better off overall test," ensuring that employees would not be worse off under the new terms compared to their previous conditions.

Upon reviewing the evidence and submissions, the court concluded that the Enterprise Agreement 2022-2025 met all statutory requirements. The agreement was found to be genuinely an enterprise agreement, made in good faith, and compliant with the procedural mandates of the Act. Furthermore, it passed the better off overall test, providing employees with improved terms and conditions. Consequently, the Fair Work Commission approved the agreement, recognising it as fair and beneficial for the workforce. The court's decision was grounded in the comprehensive documentation and testimony provided, which demonstrated that the agreement was fairly negotiated and met all legislative criteria.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established