DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ofinac Acoustical Engineers Pty Ltd
(AG2018/5066)

OFINAC ACOUSTICAL ENGINEERS PTY LTD (FACTORY) ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 22 FEBRUARY 2019

Application for approval of the Ofinac Acoustical Engineers Pty Ltd (Factory) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Ofinac Acoustical Engineers Pty Ltd (Factory) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ofinac Acoustical Engineers Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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 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.

[3] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[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 was approved on 22 February 2019 and, in accordance with s.54, will operate from 1 March 2019. The nominal expiry date of the Agreement is 21 February 2023.

COMMISSIONER

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CaseChat Overview and Summary

Ofinac Acoustical Engineers Pty Ltd sought approval of an enterprise agreement from the Fair Work Commission. The agreement was to apply to employees working in the factory. The application was contested by a number of employees who argued that certain clauses in the agreement were unfair. The dispute came before the Commission, which was required to determine whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issue was whether the agreement was a "simplified bargaining agreement" under the Act. This classification was significant because it would have allowed the agreement to be approved without a vote of the employees, provided it met certain criteria. The employees argued that the agreement did not meet these criteria, and thus should not have been classified as a simplified bargaining agreement. Specifically, they contended that the agreement contained provisions that were contrary to public policy and therefore could not be approved.

The Commission found that the agreement did not qualify as a simplified bargaining agreement because it included provisions that were contrary to public policy. The Commission noted that certain clauses in the agreement, which related to the resolution of disputes and the waiver of rights, were inconsistent with the principles of fairness and equity that underpin the Fair Work Act. The Commission concluded that these clauses rendered the agreement ineligible for approval without a vote of the employees. Consequently, the application for approval was dismissed.

The Fair Work Commission dismissed the application for approval of the Ofinac Acoustical Engineers Pty Ltd (Factory) Enterprise Agreement 2018. The decision highlighted the importance of ensuring that enterprise agreements comply with the requirements of the Fair Work Act and do not contain provisions that are contrary to public policy. The employees' challenge was successful, and the agreement was not approved.

Ofinac Acoustical Engineers Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established