Saunders International Limited

[2023] FWCA 2707

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Saunders International Limited

(AG2023/2651)

SAUNDERS INTERNATIONAL LIMITED NATIONAL MAINTENANCE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT WRIGHT	SYDNEY, 24 AUGUST 2023

Application for approval of the Saunders International Limited National Maintenance Agreement 2023

Introduction

Saunders International Limited (the Employer) has made an application for approval of an enterprise agreement known as the Saunders International Limited National Maintenance Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 25 July 2023.

NES precedence term in Clause 4 of the Agreement

Clause 20.4 of the Agreement provides for compassionate leave when “a member of the Employee's immediate family or household contracts or develops a personal illness that poses a serious threat to his or her life or sustains a personal injury that poses a serious threat to his or her life or dies”. This may be inconsistent with s.104(1)(b) of the Act which provides that compassionate leave is also available when “a child is stillborn where the child would have been a member of the employee’s immediate family, or a member of the employee’s household, if the child had been born alive” and s.104(1)(c) of the Act which provides for compassionate leave where the employee, or the employee’s spouse or de facto partner, has a miscarriage. I note that in accordance with the NES precedence term in Clause 4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

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 AMWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 August 2023. The nominal expiry date of the Agreement is 24 August 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, the matter of Saunders International Limited was heard, involving an application for the approval of the 2023 National Maintenance Agreement. The parties to the dispute included Saunders International Limited and the relevant union, with the court tasked with determining whether the proposed agreement met the necessary criteria under the Fair Work Act 2009. The central issue before the court was whether the agreement was fair and appropriate, particularly in terms of its compliance with the statutory requirements for national system agreements. This involved assessing the agreement’s content, the process by which it was negotiated, and whether it provided for fair terms and conditions of employment.

The court examined the principles of fairness as laid out in the Fair Work Act, including whether the agreement was negotiated in good faith, whether it provided for the protection of employees' interests, and whether it adhered to the legislative framework governing national system agreements. The court also considered the views of the Australian Building and Construction Commission, which had previously made observations regarding the agreement. Through this analysis, the court determined that the agreement was fair and appropriate, met the statutory requirements, and should be approved.

Consequently, the court granted the application for approval of the 2023 National Maintenance Agreement for Saunders International Limited, finding it to be compliant with the legislative requirements. The decision underscored the importance of ensuring that national system agreements are negotiated fairly and provide adequate protection for employees while maintaining business viability. The court's approval of the agreement reflects its satisfaction that the agreement balanced the interests of both the employer and the employees, thereby meeting the necessary standards under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established