Shadbolt Engineering Pty Ltd

[2014] FWCA 9411

[2014] FWCA 9411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shadbolt Engineering Pty Ltd
(AG2014/9333)

SHADBOLT ENGINEERING PTY LTD MARITIME ENTERPRISE AGREEMENT 2014 - 2018

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 23 DECEMBER 2014

Application for approval of the Shadbolt Engineering Pty Ltd Maritime Enterprise Agreement 2014 - 2018.

[1] An application has been made for approval of an enterprise agreement known as the Shadbolt Engineering Pty Ltd Maritime Enterprise Agreement 2014 - 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Shadbolt Engineering Pty Ltd. The agreement is a single-enterprise agreement.

[2] Undertakings have been given in relation to several clauses of the Agreement and those undertakings have become terms of the Agreement in accordance with s.191(1) of the Act and are appended at Appendix A.

[3] Subject to those undertakings, I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] 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. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 30 December 2014.

[6]  Clause 6 of the Agreement states that:

“This Agreement commences 7 days after its approval by Fair Work Commission and its nominal expiry date is 4 years after the date of commencement.”

[7] The approach adopted in clause 6 of the Agreement appears to be intended to reflect the operation of both s.54(1) and s.186(5)(b) of the Act.

[8] Section 54(1) provides as follows:

“an enterprise agreement approved by the FWC operates from:

(a) 7 days after the agreement is approved; or

(b) if a later day is specified in the agreement – that later day.”

[9] Section 186(5) provides as follows:

“The FWC must be satisfied that:

(a) the agreement specifies a date as its nominal expiry date; and

(b) the date will not be more than 4 years after the day on which the FWC approves the agreement.”

[10] Clause 6 of the Agreement does not meet the requirements of s.186(5). The effect of clause 6 of the Agreement is that the nominal expiry date will be 4 years after the date the Agreement commences to operate and as the agreement will commence to operate 7 days after the agreement is approved by the Commission then the nominal expiry date is 4 years and 7 days after the date on which the agreement is approved by the Commission.

[11] It does not appear that the employer and employees intended to have a nominal expiry date that exceeded the maximum period allowed by s.186(5) of the Act. It would appear that by using the words “commences” and “commencement” in clause 6 of the Agreement that the parties have inadvertently led themselves into error.

[12] The employer and employees who made the Agreement must be considered to have intended that clause 6 would meet the requirements of s.186(5) of the Act and that the nominal expiry date for the Agreement would be the maximum period allowed by s.186(5) of the Act.

[13] The nominal expiry date of the Agreement is 4 years from the date the Commission approves the Agreement, ie, 22 December 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code J, AE412002  PR559535>

APPENDIX A