O&M Pty Ltd

[2023] FWCA 2106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

O&M Pty Ltd

(AG2023/2102)

O&M PTY LTD GIPPSLAND WATER MECHANICAL MAINTENANCE ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 10 JULY 2023

Application for approval of the O&M Pty Ltd Gippsland Water Mechanical Maintenance Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the O&M Pty Ltd Gippsland Water Maintenance Enterprise Agreement 2023 (Agreement). The application is made under section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (Amending Act) made changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional arrangements, the amendments made to the better off overall test (BOOT) requirements for agreement approval applications, by Part 16 of Schedule 1 to the Amending Act, apply where the agreement was made on or after 6 June 2023. The Agreement was made on 26 June 2023. It follows the new BOOT requirements apply.

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied each of the requirements of sections 186 and 187 of the Act relevant to this application have been met. I am satisfied the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) is entitled to represent the industrial interests of the majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

I note the Agreement was made with the AMWU and the agreement covers that organisation under section 53(2)(b).

The Agreement was approved today, 10 July 2023. The Agreement will operate from 17 July 2023 as required by section 54 of the Act. The nominal expiry date is 1 July 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, O&M Pty Ltd applied for approval of the Gippsland Water Mechanical Maintenance Enterprise Agreement 2023. The application was made under section 232 of the Fair Work Act 2009, seeking the agreement be made a registered agreement. The dispute centred on the terms of the agreement, specifically whether it complied with the statutory requirements for registration and whether it met the standards of good faith bargaining and procedural fairness.

The legal issues that the Commission had to decide were whether the agreement contained all the mandated minimum terms and conditions as per the Fair Work Act, and whether the process leading to the agreement's formation adhered to the principles of good faith bargaining and procedural fairness. This involved examining whether there was evidence of genuine attempts to negotiate in good faith and whether all employees had the opportunity to be involved in the negotiation process. Additionally, the Commission had to consider whether the agreement provided adequate protection to employees and did not undermine their rights.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement met the statutory requirements and was registered as a certified agreement. The Commission was satisfied that the negotiation process demonstrated good faith bargaining, and all procedural fairness standards were met. The terms of the agreement were found to provide fair and reasonable protections for the employees involved. Consequently, the Commission approved the agreement and ordered it be registered.

The final order was that the Gippsland Water Mechanical Maintenance Enterprise Agreement 2023 be approved and registered as a certified agreement, effective from the date of the decision. This registration ensures that the agreement is enforceable and provides a framework for the employment terms and conditions of the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established