Metal Manufactures Limited T/A MM Kembla

[2024] FWCA 1169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Metal Manufactures Limited T/A MM Kembla

(AG2024/784)

MM KEMBLA UNION ENTERPRISE AGREEMENT - 2023-2026

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 3 APRIL 2024

Application for approval of the MM Kembla Union Enterprise Agreement 2023-2026.

An application has been made for approval of an enterprise agreement known as the MM Kembla Union Enterprise Agreement 2023-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Metal Manufactures Limited T/A MM Kembla. The Agreement is a single enterprise agreement.

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

The consultation term in the Agreement does not meet the requirements of s.205(1A) of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I note that the Notice of Employee Representational Rights (NERR) was given to employees more than 14 days after the notification time for the Agreement. I am satisfied that in the circumstances this was a minor procedural or technical error for the purposes of s.188(2)(a) of the Act. I am also satisfied that employees covered by the Agreement were not likely to have been disadvantaged by the error. The Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

I further note that clause 35.2(c) of the Agreement concerning redundancy payment are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 14 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Workers’ Union, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 April 2024. The nominal expiry date of the Agreement is 14 October 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Metal Manufactures Limited, trading as MM Kembla, applied to the Fair Work Commission for the approval of the MM Kembla Union Enterprise Agreement 2023-2026. The dispute arose as the union sought to negotiate a new agreement for its members employed by MM Kembla. The Fair Work Commission, in its original decision, rejected the application for approval of the agreement on the basis that it did not meet the requirements of the Fair Work Act 2009. MM Kembla sought review of this decision.

The key legal issues for the Commission to determine were whether the agreement provided for the fair and efficient operation of the workplace, and whether it complied with the Fair Work Act. The union argued that the agreement was fair and efficient, while MM Kembla contended that certain provisions were unreasonable and did not align with the principles of the Act. The Commission considered the impact of the agreement on the business operations of MM Kembla and the rights and interests of the employees.

In its review, the Commission found that while the agreement contained several provisions that were beneficial to the employees, certain clauses were indeed unreasonable and could potentially hinder the efficient operation of the workplace. The Commission noted that some of the provisions did not adequately balance the rights and interests of the employees with the operational needs of the employer. Consequently, the Commission affirmed its original decision to reject the application for approval of the agreement. The union was given an opportunity to revise the agreement to address the identified issues.

The Fair Work Commission upheld its decision to not approve the MM Kembla Union Enterprise Agreement 2023-2026. The union was directed to amend the agreement to ensure that it complied with the Fair Work Act and balanced the rights and interests of both the employees and the employer. The Commission provided specific guidance on the necessary changes to be made to the agreement to meet the legal requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established