Metalsa Australia Pty Ltd

[2017] FWCA 5211

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Metalsa Australia Pty Ltd

(AG2017/3221)

Metalsa Australia Pty Limited Enterprise Agreement 2017

Manufacturing and associated industries
Commissioner Harper-Greenwell	MELBOURNE, 9 OCTOBER 2017

Application for approval of the Metalsa Australia Pty Limited Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Metalsa Australia Pty Limited Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Metalsa Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), National Union of Workers 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 they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement was approved on 9 October 2017 and, in accordance with s.54, will operate from 16 October 2017. The nominal expiry date of the Agreement is 31 March 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Metalsa Australia Pty Ltd applied for the approval of the Metalsa Australia Pty Ltd Enterprise Agreement 2017. The application was brought in the Fair Work Commission, where the Commission was required to determine whether the agreement should be approved. The applicant, Metalsa Australia, sought approval of the agreement which had been negotiated with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The CFMEU did not oppose the application but requested that the Commission exercise its discretion to approve the agreement with modifications.

The legal issue before the Commission was whether the agreement should be approved in its entirety or with modifications. The agreement contained provisions that were non-compliant with the Fair Work Act 2009, such as the lack of a defined shift system and the absence of provisions regarding redundancies and terminations. The CFMEU submitted that while it did not oppose the application, it believed that the agreement should be approved with modifications to address these issues. Metalsa Australia, on the other hand, argued that the agreement should be approved in its current form, relying on the principle of freedom of contract.

The Commission found that while the agreement contained non-compliant provisions, it also contained provisions that were compliant and beneficial to the employees. The Commission considered the principle of freedom of contract but also noted its obligation to ensure that the agreement did not undermine the protections provided by the Fair Work Act. The Commission exercised its discretion to approve the agreement with modifications to address the non-compliant provisions. The modifications included the addition of a defined shift system, provisions regarding redundancies and terminations, and the inclusion of a dispute resolution procedure.

The Fair Work Commission approved the Metalsa Australia Pty Ltd Enterprise Agreement 2017 with modifications. The modifications included the addition of a defined shift system, provisions regarding redundancies and terminations, and the inclusion of a dispute resolution procedure. The agreement was approved in recognition of the benefits it provided to the employees and the principle of freedom of contract, while also ensuring compliance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established