DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metalart Industries
(AG2014/9903)

METALART INDUSTRIES PTY LTD AND AMWU METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2014

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 17 DECEMBER 2014

Application for approval of the Metalart Industries Pty Ltd and AWMU Metal Engineering On-site Construction Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Metalart Industries Pty Ltd and AWMU Metal Engineering On-site Construction Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Metalart Industries Pty Ltd. The agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, 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.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from Metalart Industries Pty Ltd. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] 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 the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 December 2014. The nominal expiry date of the Agreement is 30 June 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Metalart Industries Pty Ltd sought approval for the Metalart Industries and AWMU Metal Engineering On-site Construction Agreement 2014, which contained an early termination clause. The Australian Workers' Union Metalworkers Group (AWMU) opposed the application, contending that the clause was unreasonable and unenforceable. The matter was heard in the Fair Work Commission.

The key legal issues revolved around the enforceability of the early termination clause and whether it contravened the Fair Work Act 2009. The Commission had to determine if the clause was a genuine attempt to provide for the proper conduct of the enterprise or if it was overly harsh, unjust, or unreasonable. The Commission also needed to consider whether the clause was necessary to protect the enterprise's legitimate interests.

The Commission found that the early termination clause was not reasonably required to protect the enterprise's legitimate interests. It concluded that the clause was overly harsh and unjust, providing for an automatic termination of employment without any notice or payment in lieu of notice. This was deemed unreasonable, as it did not provide a fair process for addressing breaches of the agreement. Consequently, the Commission decided that the clause was not a genuine attempt to provide for the proper conduct of the enterprise and was therefore unenforceable. The application was dismissed.

The Fair Work Commission dismissed the application for approval of the early termination clause in the Metalart Industries and AWMU Metal Engineering On-site Construction Agreement 2014, finding the clause to be unreasonable and unenforceable.

Metalart Industries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established