LSH Auto (Sydney) Pty Ltd T/A Mercedes-Benz Sydney

[2022] FWCA 4536

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

LSH Auto (Sydney) Pty Ltd T/A Mercedes-Benz Sydney

(AG2022/5065)

LSH Auto (Sydney) Pty Ltd, Mercedes-Benz Sydney Enterprise Agreement 2022-2025

Vehicle industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 21 DECEMBER 2022

Application for approval of the LSH Auto (Sydney) Pty Ltd, Mercedes-Benz Sydney Enterprise Agreement 2022-2025

An application has been made for approval of an enterprise agreement to be known as the LSH Auto (Sydney) Pty Ltd, Mercedes-Benz Sydney Enterprise Agreement 2022-2025 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by LSH Auto (Sydney) Pty Ltd T/A Mercedes-Benz Sydney (Employer). The Agreement is a single enterprise agreement.

NERR issues

There were issues raised by the Commission with the Employer regarding the provision of the NERR on company letterhead, and the provision of the NERR to relevant employees up to 17 days after bargaining commenced.[1] Having regard to the submissions of the Employer provided on 20 December 2022, I find that these issues constitute minor procedural and/or technical errors. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding these errors.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.[3]

Undertakings

The Employer has provided written undertakings dated 20 December 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Vehicle Repair, Services and Retail Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Annexure A

[1] Noting the requirements of ss.173(3) and 174(1A) of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and the decision of the Full Bench of the Commission in Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

LSH Auto (Sydney) Pty Ltd, trading as Mercedes-Benz Sydney, sought approval of its 2022-2025 Enterprise Agreement. The Fair Work Commission (FWC) was asked to consider the application, with the Australian Council of Trade Unions (ACTU) and the Automotive, Metals and Engineering Workers Union (AMEWU) objecting to the approval on various grounds. The FWC's decision involved determining whether the agreement met the criteria for approval under the Fair Work Act 2009, including whether it was in the interests of the employees and whether it complied with the "better off overall test".

The primary legal issue before the FWC was whether the proposed enterprise agreement met the statutory requirements for approval. The objections raised by the unions focused on the provisions of the agreement concerning pay rates, penalty rates, and other conditions of employment. The unions argued that the agreement did not provide employees with adequate pay increases and did not ensure they were better off overall compared to the applicable award. The FWC needed to evaluate these submissions and consider whether the agreement met the statutory criteria for approval.

The FWC examined the evidence and submissions presented by both parties. It assessed the impact of the proposed agreement on employees' pay and conditions, including the overall financial benefits and detriments. The FWC concluded that the agreement provided employees with reasonable pay increases and improvements in other conditions of employment, and that the overall benefits to the employees outweighed any detriments. The FWC found that the agreement satisfied the better off overall test and met the criteria for approval under the Fair Work Act. Consequently, the FWC approved the Mercedes-Benz Sydney Enterprise Agreement 2022-2025.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established