K&R Fabrications (W’gong) Pty Ltd

[2022] FWCA 3515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

K&R Fabrications (W’gong) Pty Ltd

(AG2022/3853)

K&R Fabrications (W’Gong) Pty Ltd (Port Kembla Steelworks) Maintenance Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER MCKINNON	SYDNEY, 11 OCTOBER 2022

Application for approval of the K&R Fabrications (W’Gong) Pty Ltd (Port Kembla Steelworks) Maintenance Enterprise Agreement 2022.

K&R Fabrications (W’gong) Pty Ltd has applied for approval of a single enterprise agreement known as the K&R Fabrications (W’Gong) Pty Ltd (Port Kembla Steelworks) Maintenance Enterprise Agreement 2022 (the Agreement).

The requirement to provide employees with notice of the time, place and voting method for approval of the Agreement has not been met. This is because there were not at least seven clear days between the giving of the notice and the vote to approve the Agreement. The Applicant has explained the error and the circumstances in which it occurred. Having regard to that explanation, as well as the number of employees who participated in the vote for the Agreement, I am satisfied in the circumstances that the error was a minor procedural error that is not likely to have disadvantaged any employee. The voting outcome is unlikely to have been affected by the error.

A written undertaking has been given in accordance with section 190 of the Fair Work Act 2009 (Act) and is attached at Annexure A. I am satisfied that the undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

With the undertaking now given, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

The Agreement is approved and will operate from 18 October 2022. The nominal expiry date of the Agreement is 11 October 2025.

The Agreement covers the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and The Australian Workers’ Union (AWU).

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

K&R Fabrications (W’Gong) Pty Ltd, the employer, applied to the Fair Work Commission for approval of the Maintenance Enterprise Agreement 2022. The agreement was intended to cover employees who were engaged in the maintenance and fabrication of steel products at the Port Kembla Steelworks. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Fair Work Commission was whether the agreement provided for the fair and reasonable remuneration of employees, and whether it contained provisions that were contrary to public policy. The Commission also needed to consider if the agreement had been genuinely negotiated and if it complied with the requirements for good faith bargaining.

In determining the application, the Fair Work Commission examined the provisions of the agreement, including wages, working conditions, and dispute resolution mechanisms. The Commission found that the agreement provided for fair and reasonable remuneration, and that it did not contain any provisions that were contrary to public policy. Furthermore, the Commission was satisfied that the agreement had been genuinely negotiated and complied with the requirements for good faith bargaining. Consequently, the Commission approved the Maintenance Enterprise Agreement 2022.

The Fair Work Commission’s decision was based on its assessment of the agreement’s provisions and the evidence presented by both parties. The Commission approved the agreement, finding that it met the statutory requirements for approval under the Fair Work Act. This decision provides clarity for both employers and employees regarding the terms and conditions of employment at the Port Kembla Steelworks.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established