Orrcon Manufacturing Pty Ltd T/A Orrcon Steel

[2024] FWCA 1955

[2024] FWCA 1955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orrcon Manufacturing Pty Ltd T/A Orrcon Steel

(AG2024/1209)

ORRCON STEEL UNANDERRA ENTERPRISE AGREEMENT 2024

Manufacturing industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 29 MAY 2024

Application for approval of the Orrcon Steel Unanderra Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Orrcon Steel Unanderra Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Orrcon Manufacturing Pty Ltd T/A Orrcon Steel. The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss 186 and 187 are met.

1. Section 186(2)(d) requires the Commission to be satisfied the agreement passes the better off overall test (BOOT). The test is found in s 193 of the Act and it is to be applied in accordance with s.193A. Concerns were raised with the applicant that clauses 10.7 and 10.8 of the Agreement which provide for the steps an employer may take to recover overpayment of wages may be read so as to permit the employer to unilaterally withhold monies payable to an employee. In response the applicant provided undertakings to clarify that notwithstanding clauses 10.7 and 10.8, the applicant will not make any unpermitted deductions in compliance with s 324(1)(b) of the Fair Work Act. A copy of the undertakings is attached in Annexure A. The undertakings were provided to the union bargaining representative the Australian Workers’ Union. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.

1. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. Having regard to the material contained in the application and filed in relation to it, and subject to the undertakings, I am satisfied that each of the requirements of ss.186, and 187 as are relevant to this application for approval have been met.

1. The applicant raised a concern that the AWU may qualify as not a bargaining representative for the Agreement. In response the AWU provided evidence that employees covered by the Agreement are members. Consequently, I am satisfied that the AWU qualifies as a bargaining representative in accordance with s 176(1)(b) of the Act. The AWU, 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.

1. The Agreement was approved on 29 May 2024 and, in accordance with s.54, will operate from 5 June 2024. The nominal expiry date of the Agreement at clause 3.1 is 29 May 2027.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

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ANNEXURE A