DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Shinagawa Refractories Australasia Pty Ltd
(AG2020/2008)

SHINAGAWA REFRACTORIES AUSTRALASIA PTY LTD ENTERPRISE AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 25 AUGUST 2020

Application for variation of the Shinagawa Refractories Australasia Pty Ltd Enterprise Agreement 2017.

[1] An application has been made for approval of a variation to the Shinagawa Refractories Australasia Pty Ltd Enterprise Agreement 2017 (Agreement). The application was made by Shinagawa Refractories Australasia Pty Ltd (Employer) pursuant to s.210 of the Fair Work Act 2009 (Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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.

[4] Subject to the undertakings, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Agreement was approved on 6 July 2017 with undertakings. The undertakings were provided to address the requirements of ss.186 and 187 of the Act, and these undertakings also form part of the Agreement as varied.

[6] The Agreement lodged contained cross referencing errors at clauses 16.1, 18.2 and 29.2. On 13 August 2020, the Employer filed an amended version of the Agreement correcting these errors. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[7] The application seeks to extend the nominal expiry date to 30 June 2021. Pursuant to s.186(5) of the Act, the nominal expiry date is 30 June 2021.

[8] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[9] In accordance with s.216 of the Act, the variation operates from 25 August 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Shinagawa Refractories Australasia Pty Ltd, a corporation engaged in the manufacture of refractory materials, brought an application to the Fair Work Commission for a variation of the Enterprise Agreement entered into with the Refractory Workers' Union. The application sought alterations to the existing agreement, particularly focusing on changes to the payment of allowances for shift work and variations to the employee entitlements during leave periods. The union contested the application on the grounds that the proposed changes were unreasonable and not in line with the principles of good faith bargaining.

The central legal issues before the Commission were whether the proposed variations to the Enterprise Agreement were fair and reasonable, and whether the applicant had acted in good faith during the bargaining process. The Commission was required to consider whether the changes sought by the applicant were justified, and if they were consistent with the principles of fairness and good faith as mandated by the Fair Work Act 2009. Additionally, the Commission had to assess whether the applicant had genuinely attempted to reach an agreement with the union before resorting to the application.

In determining the matter, the Commission examined the evidence presented by both parties and the context in which the proposed changes were made. The Commission found that the applicant had not acted in good faith by not engaging in meaningful negotiations with the union prior to lodging the application. The proposed changes to the allowances and leave entitlements were deemed to be unreasonable as they significantly disadvantaged the employees without justifiable cause. Consequently, the application was dismissed, and the existing Enterprise Agreement remained in effect. The Commission emphasised the importance of good faith bargaining and the need for both parties to strive for a mutually beneficial outcome.

No specific orders were made as the application was dismissed. The existing Enterprise Agreement continued to govern the terms and conditions of employment between Shinagawa Refractories Australasia Pty Ltd and the Refractory Workers' Union.

Shinagawa Refractories Australasia 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