DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Schmalz Australia Pty Ltd
(AG2019/2864)

SCHMALZ AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 26 SEPTEMBER 2019

Application for approval of the Schmalz Australia Pty Ltd Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Schmalz Australia Pty Ltd Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Schmalz Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

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

• Clause 11.1 – Notice of Termination by Employer

• Clause 12.2 – Redundancy Pay

• Clause 15 – Abandonment of Employment

However, noting clause 6.4 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 October 2019. The nominal expiry date of the Agreement is 25 September 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Schmalz Australia Pty Ltd was the subject of an application to the Fair Work Commission for approval of the Schmalz Australia Pty Ltd Enterprise Agreement 2019. The applicant, an employer, sought to have the agreement, which contained provisions regarding employment terms and conditions, approved under the Fair Work Act 2009. The dispute involved whether the agreement met the requirements of the Act, specifically focusing on whether it was a "better off overall test" (BOOT) compliant agreement.

The legal issues before the Commission included whether the agreement met the BOOT requirement, which mandates that the terms of an enterprise agreement must not be less favourable to employees than the applicable award or safety net minimum terms and conditions. The Commission also considered whether the agreement was procedurally sound, including whether proper consultation had occurred and whether the agreement was genuinely negotiated between the parties.

The Fair Work Commission found that the agreement was procedurally sound and had been genuinely negotiated. The Commission determined that the agreement did not disadvantage employees compared to the applicable award or safety net minimum terms and conditions, thus satisfying the BOOT. The Commission noted that the agreement provided for terms and conditions that were at least as favourable as the safety net minimum terms and conditions, and in some cases, more favourable.

As a result, the Fair Work Commission approved the Schmalz Australia Pty Ltd Enterprise Agreement 2019. The Commission issued a certificate of registration for the agreement, which is now legally binding on the parties.

Schmalz Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established