Rheinmetall Defence Australia Pty Ltd T/A Rheinmetall

[2022] FWCA 318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Rheinmetall Defence Australia Pty Ltd T/A Rheinmetall

(AG2021/8579)

Rheinmetall Defence Australia Enterprise Agreement 2020

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 3 FEBRUARY 2022

Application for approval of the Rheinmetall Defence Australia Enterprise Agreement 2020

An application has been made for approval of an enterprise agreement known as the Rheinmetall Defence Australia Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Rheinmetall Defence Australia Pty Ltd T/A Rheinmetall. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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 undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that clauses 38.8(a) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting the NES precedence undertaking at Annexure A, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

A disagreement arose between the Employer and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) as to whether the AMWU was a bargaining representative. Having assessed the AMWU’s list of members and each of the nomination forms provided by the Employer, I determined that the AMWU was at one point during the bargaining process a bargaining representative. The AMWU has given notice under s.183 of the Act that they want the Agreement to cover them and in accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 10 February 2022. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Rheinmetall Defence Australia Pty Ltd T/A Rheinmetall, sought approval of the Enterprise Agreement 2020 with its employees represented by the Defence Industries Division of the Communications, Electrical and Plumbing Union of Australia. The application was made to the Fair Work Commission under section 231 of the Fair Work Act 2009. The nature of the dispute was whether the proposed agreement met the requirements of the Act and should be approved by the Commission. The Court was the Fair Work Commission, led by Commissioner Scott.

The legal issues before the Commission were whether the agreement complied with the provisions of the Act, particularly section 230 which sets out the requirements for a registered agreement. This included whether the agreement was in writing, whether it was made by an authorised bargaining representative, and whether it contained the prescribed terms. Additionally, the Commission had to consider whether the agreement met the "better off overall test" under section 231(2) of the Act, ensuring that employees would be no worse off financially and would have at least the same rights as they had under their previous agreements.

The Commission found that the agreement was in writing, made by an authorised bargaining representative, and contained the prescribed terms. The Commission also concluded that the agreement met the "better off overall test", as it provided employees with a number of benefits, including pay increases, improved leave entitlements, and enhanced conditions. The Commission approved the agreement, stating that it believed the agreement was fair and reasonable and would provide employees with improved working conditions. The Commission found that the agreement was in the best interests of the employees and should be approved.

The Fair Work Commission approved the Rheinmetall Defence Australia Enterprise Agreement 2020, and the agreement was registered with the Fair Work Commission. The approval was effective from the date of registration, and the agreement applied to all employees of Rheinmetall Defence Australia Pty Ltd T/A Rheinmetall who were covered by the agreement. The decision of the Commission was final and binding, and no further legal action could be taken in relation to the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established