DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shearform Pty Ltd
(AG2021/5643)

SHEARFORM PTY LTD ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 26 JULY 2021

Application for approval of the Shearform Pty Ltd Enterprise Agreement 2021.

[1] Shearform Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Shearform Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] A number of concerns were raised by the Commission in relation to the Agreement. A mention was held in relation to those matters on 8 July 2021.

[3] The Notice of Employee Representational Rights (NERR) provided to employees was not in the prescribed form. Further, the NERR provided to employees refers to the Agreement as the Shearform Pty Ltd Enterprise Agreement 2010, however, clause 1 of the Agreement provides that the name of the Agreement is the Shearform Pty Ltd Enterprise Agreement 2021. The Employer provided submissions as to these errors on 16 July 2021. I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1 (Huntsman)that these constitute minor technical or procedural errors for the purposes s 188(2)(a) of Act. Further, I am satisfied that employees were not likely to have been disadvantaged by these errors.

[4] Accordingly, notwithstanding the matters identified in paragraph [3] above, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2).

[5] The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[6] Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration and the additional information provided by the Employer and having heard from the parties, 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.

[7] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] 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.

[9] The Agreement was approved on 26 July 2021 and, in accordance with s 54, will operate from 2 August 2021. The nominal expiry date of the Agreement is 26 July 2024.

DEPUTY PRESIDENT

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Shearform Pty Ltd sought approval for the Shearform Pty Ltd Enterprise Agreement 2021. The applicant, a company involved in the manufacturing and distribution of aluminium products, engaged in a dispute with its employees regarding the terms of the proposed enterprise agreement. The employees, represented by a union, contested several provisions of the agreement, arguing they were unfair and not in line with the standards set by the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the criteria for direct approval, which includes assessing whether it was made in good faith, free from coercion, and complied with the relevant provisions of the Act.

The central legal issue before the Commission was whether the enterprise agreement was made in good faith and without coercion. The Commission considered the process through which the agreement was negotiated, the extent of union and employer involvement, and whether the employees had a genuine opportunity to participate in the negotiation process. Additionally, the Commission examined whether the agreement's provisions were consistent with the requirements of the Fair Work Act and did not undermine the minimum entitlements provided under the national workplace relations system.

The Fair Work Commission found that the enterprise agreement was made in good faith and without coercion. The Commission noted the comprehensive negotiation process that included multiple meetings between the parties and the union's active participation. The Commission was satisfied that the employees had a genuine opportunity to be involved in the negotiation process and that the agreement's provisions did not unfairly disadvantage the employees. The Commission concluded that the agreement complied with the statutory requirements and did not undermine the minimum entitlements provided by the Fair Work Act. Consequently, the Commission approved the Shearform Pty Ltd Enterprise Agreement 2021.

Shearform 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