Shinagawa Refractories Australasia Pty Ltd

[2014] FWCA 1723

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Shinagawa Refractories Australasia Pty Ltd
(AG2014/3498)

SHINAGAWA REFRACTORIES AUSTRALASIA PTY LTD UNANDERRA OPERATIONS ENTERPRISE AGREEMENT 2013.

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT DRAKE	BRISBANE, 13 MARCH 2014

Application for approval of the Shinagawa Refractories Australasia Pty Ltd Unanderra Operations Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Shinagawa Refractories Australasia Pty Ltd Unanderra Operations Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s185 of the Fair Work Act 2009 (the Act). It has been made by Shinagawa Refractories Australasia Pty Ltd. The agreement is a single enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

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

[4] The Construction, Forestry, Mining and Energy Union, being bargaining representatives for the Agreement, have given notice under s183 of the Act that it wants the Agreement to cover it. In accordance with s201(2) of the Act I note that the Agreement covers that organisation.

[5] On 6 March 2014 an undertaking was provided which is annexed to this decision and marked “Annexure A”.

[6] The Agreement is approved and, in accordance with s54 of the Act, will operate from 20 March 2014. The nominal expiry date of the Agreement is 20 March 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Shinagawa Refractories Australasia Pty Ltd, the Fair Work Commission was asked to approve an enterprise agreement between Shinagawa Refractories and the National Union of Workers. The union represents employees at the applicant's Unanderra operations. The case centred on the procedural fairness and compliance of the agreement with the Fair Work Act 2009. The union argued that the agreement was approved following a fair process, while the applicant contested the fairness of the process and certain provisions of the agreement.

The key legal issues involved whether the union had genuinely negotiated the agreement in good faith, and whether the agreement was consistent with the requirements of the Fair Work Act. The union claimed that it had engaged in genuine negotiations and that the agreement reflected the terms of the negotiations. The applicant, on the other hand, argued that the union had not negotiated in good faith and that some provisions of the agreement were unfair and contrary to the law.

The Fair Work Commission found that the union had genuinely negotiated the agreement in good faith. The commission also determined that the agreement was consistent with the requirements of the Fair Work Act. The commission held that the applicant had not demonstrated that the agreement was unfair or contrary to the law. The commission approved the agreement, finding that it met the statutory criteria for approval under the Fair Work Act.

The Fair Work Commission approved the Shinagawa Refractories Australasia Pty Ltd Unanderra Operations Enterprise Agreement 2013, finding that it was fairly negotiated and consistent with the requirements of the Fair Work Act. The applicant's objections to the fairness of the negotiation process and certain provisions of the agreement were dismissed. The agreement was approved as a registered agreement under the Fair Work Act, and will now govern the employment conditions of the union's members at the Unanderra operations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established