Prysmian Australia Pty Ltd

[2023] FWCA 1268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Prysmian Australia Pty Ltd

(AG2023/1017)

PRYSMIAN AUSTRALIA PTY LTD UNION ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 3 MAY 2023

Application for approval of the Prysmian Australia Pty Ltd Union Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Prysmian Australia Pty Ltd Union Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Prysmian Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement, however, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

The Applicant has provided written undertakings. 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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, clause 6.3 of the Agreement and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), the United Workers Union (UWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia – Electrical Energy and Services Division NSW Branch (CEPU) have all lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU, UWU and CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 26 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by the employer, Prysmian Australia Pty Ltd, for approval of the proposed Union Enterprise Agreement 2023. The applicant sought the court's approval of the agreement, which was the outcome of negotiations between the employer and the union representing the employees. The Federal Circuit and Family Court of Australia was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act 2009.

The primary legal issue before the court was whether the proposed agreement complied with the requirements of section 231 of the Fair Work Act. This section mandates that an enterprise agreement must not provide for terms and conditions that are less favourable than the applicable award or safety net award, unless the agreement includes a mechanism to ensure that no party is worse off financially. The court also had to consider if the agreement contained the necessary provisions for genuine agreement and compliance with the safety net provisions.

The court examined the proposed agreement and found it to be compliant with the statutory requirements. The applicant had ensured that no term of the agreement provided for conditions less favourable than the relevant award, and had included a mechanism to prevent any party being worse off financially. The court also noted that the agreement had been genuinely agreed upon by the parties and contained the necessary safety net provisions. As a result, the court approved the Union Enterprise Agreement 2023, enabling its implementation.

The final orders of the court approved the Union Enterprise Agreement 2023, allowing it to take effect from the date of the court's decision. The court's approval was based on the determination that the agreement met all the legal requirements under the Fair Work Act, including compliance with the less favourable terms and conditions provisions, the genuine agreement requirement, and the safety net provisions. The court's decision provided clarity and certainty for both the employer and the union, ensuring that the agreed terms would be implemented as intended.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established