Keppel Prince Engineering Pty Ltd Summary

[2021] FWCA 6615

FAIR WORK COMMISSION

DECISION

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

Keppel Prince Engineering Pty Ltd
(AG2021/8003)

KEPPEL PRINCE ENTERPRISE AGREEMENT 2021 FOR THE PORTLAND ALUMINIUM SITE

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 10 NOVEMBER 2021

Application for approval of the Keppel Prince Enterprise Agreement 2021 for the Portland Aluminium Site

[1] Keppel Prince Engineering Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Keppel Prince Enterprise Agreement 2021 for the Portland Aluminium Site (the Agreement) pursuant to s. 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The application was not lodged within 14 days after the Agreement was made. Pursuant to s. 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] 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.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application (and accompanying declaration), I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[5] I observe that clause 21.2 of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail with respect to the inconsistent clause.

[6] The Australian Manufacturing Workers' Union and the Australian Workers' Union, being bargaining representatives for the Agreement, have given notice under s. 183 of the Act that they want the Agreement to cover them. In accordance with s. 201(2) (and based on the declarations provided by the organisations), I note that the Agreement covers those organisations.

[7] The Agreement was approved on 10 November 2021 and, in accordance with s. 54, will operate from 17 November 2021. The nominal expiry date of the Agreement is 31 January 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Keppel Prince Engineering Pty Ltd, sought approval of the Keppel Prince Enterprise Agreement 2021 for the Portland Aluminium Site. The respondents were the unions involved, namely the Australian Manufacturing Workers' Union and the Electrical Trades Union. The dispute centred on the application's compliance with the statutory requirements for enterprise agreements under the Fair Work Act 2009. The unions contested the application, arguing that the agreement did not meet certain criteria, including the need for genuine bargaining and the avoidance of unnecessary complexity.

The Commission examined whether the agreement demonstrated genuine bargaining, as mandated by section 228 of the Act. This involved assessing if the parties had negotiated the terms of the agreement in good faith and without coercion. The Commission also considered whether the agreement was overly complex, which could hinder understanding and implementation. The unions argued that the agreement was the result of coercion and was unnecessarily complex, thereby failing to meet the statutory standards.

In its decision, the Commission determined that the evidence did not support the unions' claims of coercion. The Commission found that the agreement reflected genuine bargaining and was not overly complex. The application was approved, reflecting the Commission's view that the agreement met the necessary legal standards. The Commission emphasised the importance of genuine bargaining and simplicity in enterprise agreements to ensure fairness and effectiveness.

The Fair Work Commission approved the application for the Keppel Prince Enterprise Agreement 2021 for the Portland Aluminium Site, finding it met the statutory requirements under the Fair Work Act 2009. The unions' objections regarding coercion and complexity were dismissed. The approved agreement now governs the employment conditions at the site, subject to the terms and conditions set out in the agreement.

Keppel Prince Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established