King Tide Sheetmetal Pty Ltd

[2015] FWCA 4630

[2015] FWCA 4630

FAIR WORK COMMISSION

DECISION

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

King Tide Sheetmetal Pty Ltd
(AG2015/3705)

KING TIDE SHEETMETAL PTY LTD AND AUSTRALIAN MANUFACTURING WORKERS UNION COLLECTIVE AGREEMENT 2012

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 15 JULY 2015

Application for approval of the King Tide Sheetmetal Pty Ltd and Australian Manufacturing Workers Union Collective Agreement 2012.

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 29 June 2015 by King Tide Sheetmetal Pty Ltd for the approval of a single-enterprise agreement known as the King Tide Sheetmetal Pty Ltd and Australian Manufacturing Workers Union Collective Agreement 2012(“the Agreement”).

[2] The parties have provided clarification to the Commission that it is the mutual understanding of the employer and the employee bargaining representative - the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”), that clause 6 of the Agreement sets out the application of the Agreement and prevails not withstanding clause 10 of the Agreement.

[3] Sub clause 15.6 of the Agreement (“use of supplementary labour”) raises enforceability questions. This is because the clause imposes upon the employer an obligation not to utilise supplementary labour for a period of more than six weeks, without the consent of the AMWU.

[4] In this respect, I explained in a separate previous decision - [2013] FWC 5033 - that such a clause, as it purports to restrict or qualify the employer’s right to use contractors or utilise contracted labour, may not comprise permitted content for the purposes of s.172 of the Act and would be unenforceable as a result.

[5] The consultation clause does not conform with s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Regulations is taken to be a term of the Agreement.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The AMWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the AMWU.

[8] The Agreement is approved and will operate in accordance with s.54 of the Act.

SENIOR DEPUTY PRESIDENT

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