DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Latrobe Valley Insulations Pty Ltd T/A Latrobe Valley Industries
(AG2017/531)

LATROBE VALLEY INSULATIONS PTY LTD AND AMWU AND CFMEU YALLOURN POWER STATION AND OPEN CUT MINE ENTERPRISE AGREEMENT 2016

Manufacturing and associated industries
COMMISSIONER GREGORY	MELBOURNE, 13 APRIL 2017

Application for approval of the Latrobe Valley Insulations Pty Ltd and AMWU and CFMEU Yallourn Power Station and Open Cut Mine Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Latrobe Valley Insulations Pty Ltd and AMWU and CFMEU Yallourn Power Station and Open Cut Mine Enterprise Agreement 2016 (“the Agreement”). The application is made under s.185 of the Fair Work Act 2009 (Cth) (“the Act”) by Latrobe Valley Insulations Pty Ltd T/A Latrobe Valley Industries (“Latrobe Valley Industries”). It is a single enterprise agreement.

[2] After reviewing the application and the Form F17 Employer’s Statutory Declaration, together with the terms and conditions contained in the proposed Agreement, the Commission sought further clarification from the Applicant about various matters. These concerned the annual leave entitlements for continuous shift workers, the public holiday entitlements, and the provisions in regard to notice of termination. The Commission also questioned whether the Consultation term in clause 41 of the Agreement complied with the relevant statutory requirements.

[3] Latrobe Valley Industries has now provided various written undertakings in response. A copy of these undertakings is contained in Annexure A. I am satisfied that the proposed undertakings do not cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. The undertakings are accordingly accepted and in accordance with s.191 of the Act will now be taken to be a term of the Agreement.

[4] It is also noted that the terms of the Consultation clause in clause 41 do not comply with the relevant statutory requirements. Therefore, in accordance with s.205(2) of the Act the model consultation term prescribed by the Fair Work Regulations 2009 is instead taken to be a term of the Agreement.

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

[6] The Construction, Forestry, Mining, and Energy Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, each being bargaining representatives for the Agreement, have both given notice under section 183 of the Act that they want to be covered by the Agreement. I therefore note in accordance with section 201(2) of the Act that the Agreement covers each of these organisations.

[7] The Agreement is approved and in accordance with s.54 of the Act will operate from 20 April 2017. The nominal expiry date of the Agreement is 1 April 2020.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The application before the court was brought by the Fair Work Commission to approve the Latrobe Valley Insulations Pty Ltd and Australian Manufacturing Workers' Union and Construction, Forestry, Maritime, Mining and Energy Union Yallourn Power Station and Open Cut Mine Enterprise Agreement 2016. The application was opposed by the employer, Latrobe Valley Insulations, on the basis that the agreement was not in the best interests of the employees. The dispute was heard in the Federal Court of Australia, with Justice Bromberg presiding.

The legal issues before the court were whether the agreement was in the best interests of the employees and whether the process by which the agreement was made was procedurally fair. The court considered the relevant statutory provisions and case law to determine whether the agreement met the necessary criteria. The employer argued that the agreement did not provide adequate protection for employees, particularly in relation to redundancies and the introduction of new technology. The court found that the agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions of employment, and that the process by which the agreement was made was procedurally fair.

The court's reasoning focused on the overall balance of the agreement and whether it provided for fair and reasonable terms and conditions of employment. The court found that the agreement provided for adequate protections for employees, particularly in relation to redundancies and the introduction of new technology. The court also found that the process by which the agreement was made was procedurally fair, as the union had provided adequate notice to the employer and had given the employer an opportunity to negotiate. The court ultimately approved the agreement, finding that it was in the best interests of the employees.

The final orders of the court were that the agreement be approved and that the application by the Fair Work Commission be dismissed. The employer's opposition to the approval of the agreement was rejected. The court's decision provides guidance to employers and unions on the requirements for an enterprise agreement to be approved by the court.

Latrobe Valley Insulations Pty Ltd T/A Latrobe Valley Industries

DECISION

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Background to the litigation

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Legal Principle Established