Orrcon Manufacturing Pty Ltd T/A Orrcon Steel

[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

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.

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.

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.

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.

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.

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

ANNEXURE A

CaseChat Overview and Summary

The Fair Work Commission (FWC) received an application from Orrcon Manufacturing Pty Ltd T/A Orrcon Steel for the approval of the Orrcon Steel Unanderra Enterprise Agreement 2024. The application followed a series of negotiations between the employer and the employees' representatives. The dispute centred on whether the proposed agreement met the legal standards for enterprise agreements as prescribed under the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement was fairly negotiated and complied with the relevant provisions of the Act.

The primary legal issues before the FWC involved the fairness of the negotiation process and the substantive content of the agreement. The FWC examined whether the agreement was made in good faith, whether it provided for the proper protection of employees' interests, and whether it complied with the mandatory terms and conditions set out in the Act. Additionally, the FWC assessed whether the agreement contained provisions that were inconsistent with the objectives of the Act or that provided for terms and conditions that were less favourable than the applicable award or the National Employment Standards.

In its decision, the FWC found that the negotiation process was conducted in good faith and that the agreement adequately protected the employees' interests. The FWC concluded that the proposed agreement was fair and complied with all relevant provisions of the Act. The Commission highlighted that the agreement contained terms and conditions that were not less favourable than the applicable award or the National Employment Standards. Consequently, the FWC approved the Orrcon Steel Unanderra Enterprise Agreement 2024, recognising it as a valid and binding enterprise agreement.

The FWC ordered that the approved agreement be registered and enforceable under the Fair Work Act 2009. This decision affirmed the legitimacy of the agreement and provided certainty for both the employer and the employees regarding their rights and obligations moving forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established