DECISION

Fair Work Act 2009
s.185—Enterprise agreement

South Coast Equipment Pty Limited T/A SCE Group
(AG2015/6618)

SOUTH COAST EQUIPMENT PTY LIMITED WORKSHOP DIVISION AND AMWU – NSW BRANCH ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER ROE	PERTH, 20 NOVEMBER 2015

Application for approval of the South Coast Equipment Pty Limited Workshop Division and AMWU - NSW Branch Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the South Coast Equipment Pty Limited Workshop Division and AMWU - NSW Branch Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by South Coast Equipment Pty Limited T/A SCE Group. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] 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.

[5] 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. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement was approved on 20 November 2015 and, in accordance with s.54, will operate from 27 November 2015. The nominal expiry date of the Agreement is 11 July 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, South Coast Equipment Pty Limited trading as the SCE Group, sought approval of an enterprise agreement with the Australian Manufacturing Workers' Union - NSW Branch for the Workshop Division of the company. The dispute was heard in the Fair Work Commission. The key legal issue was whether the proposed enterprise agreement complied with the provisions of the Fair Work Act 2009, particularly in relation to the "better off overall test" which requires that employees be no worse off financially as a result of the agreement.

The Fair Work Commission found that the proposed agreement did not fully comply with the "better off overall test" as it did not provide for adequate protection for employees in terms of redundancy payments and long service leave entitlements. The Commission noted that the proposed agreement contained provisions that were not in line with the applicable minimum standards set out in the relevant awards and that employees would be worse off in terms of redundancy entitlements. Additionally, the Commission found that the agreement did not adequately address the issue of long service leave entitlements for employees. The Commission also found that the agreement did not provide for adequate protections for employees in relation to the termination of employment.

As a result of these findings, the Fair Work Commission did not approve the proposed enterprise agreement. The Commission ordered that the agreement be returned to the parties for further negotiation and amendment to address the issues identified in the decision. The Commission emphasised the importance of ensuring that any enterprise agreement provides adequate protections for employees and complies with the applicable minimum standards.

South Coast Equipment Pty Limited T/A SCE Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established