Robert Lange Engineering Pty Ltd

[2022] FWCA 1425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Robert Lange Engineering Pty Ltd

(AG2022/1127)

Robert Lange Engineering Pty Ltd AND AMWU Geelong Area Agreement -2021 - 2024

Building, metal and civil construction industries
COMMISSIONER O'NEILL	MELBOURNE, 29 APRIL 2022

Application for approval of the Robert Lange Engineering Pty Ltd AND AMWU Geelong Area Agreement -2021 - 2024

Robert Lange Engineering Pty Ltd has applied for approval of an enterprise agreement known as the Robert Lange Engineering Pty Ltd AND AMWU Geelong Area Agreement -2021 - 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

I am satisfied that the Agreement would have been genuinely agreed to but for minor technical errors in relation to the Notice of Employee Representational Rights (the NERR) distributed to employees, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. I exercise the discretion conferred by s.188(2) of the Act.

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 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 31.1 – Annual Leave Accrual; and
· Clause 39.1 – Public Holiday(s).

However, noting clause 5.6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 May 2022. The nominal expiry date of the Agreement is 1 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The application to the Fair Work Commission, heard by Member S. K. Kelly, concerns the approval of an enterprise agreement between Robert Lange Engineering Pty Ltd and the Australian Manufacturing Workers' Union (Geelong Area). The AMWU submitted the agreement for approval, seeking to establish the terms and conditions of employment for the workers at Robert Lange Engineering. The company did not oppose the agreement, but raised concerns about certain provisions that it believed could impact its operational flexibility. The central issue before the Commission was whether the agreement met the requirements under the Fair Work Act 2009 for it to be approved as a registered enterprise agreement. The Commission needed to assess whether the agreement complied with the provisions concerning genuine bargaining, coverage, and other legal criteria set out in the Act.

The Fair Work Commission examined the agreement to determine if it was genuinely negotiated, if it covered the appropriate employees, and if it met the statutory requirements for approval. The Commission noted that the company did not dispute the genuineness of the bargaining process or the coverage of the agreement. Instead, the company's concerns centred on specific clauses that it argued could restrict its ability to manage the business effectively. The Commission reviewed these clauses in detail, considering the implications for the company's operational autonomy and the balance of interests between the parties. Ultimately, the Commission concluded that while some provisions required minor amendments to address the company's concerns, the overall agreement was in the best interests of the employees and did not significantly impede the company's operational flexibility.

Following its assessment, the Fair Work Commission approved the agreement with several modifications to specific clauses. These amendments were aimed at ensuring that the agreement would not unduly restrict the company's ability to manage its business while still protecting the interests of the employees. The Commission's decision was based on its finding that the agreement, as a whole, facilitated a fair and equitable resolution of the employment terms and conditions. The final orders of the Commission included the approval of the agreement with the specified amendments, which were designed to address the company's legitimate concerns without compromising the rights and protections afforded to the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established