DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Stilcon Holdings Pty Ltd
(AG2019/2199)

AMWU AND THE STILCON HOLDINGS PTY LTD COLLECTIVE BARGAINING STRUCTURAL STEEL WORKSHOP AGREEMENT 2017

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 24 JULY 2019

Application for approval of an enterprise agreement

[1] An application has been made by Stilcon Holdings Pty Ltd for approval of an enterprise agreement known as the AMWU and the Stilcon Holdings Pty Ltd Collective Bargaining Structural Steel Workshop Agreement 2017 (the Agreement). The application is made under s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The application is generally in order however one procedural irregularity requires attention. The employer did not take ‘all reasonable steps’ to ensure that, throughout the ‘access period’ for the Agreement, employees had access to a copy of the Manufacturing and Associated Industries and Occupations Award 2010 (Award), which is incorporated into the Agreement. It does not appear that the employer took any particular steps to ensure such access. However, I note that the Agreement is largely a rollover of an existing instrument. The Australian Manufacturing Workers’ Union (AMWU) affirmed in a submission to the Commission that the Agreement is the latest in a succession of enterprise agreements that have been based on the Award and its predecessors. It submitted that the Award is well-known to employees, in the public domain and readily available, and that employees of the company were able to obtain a free printed award booklet published by the union.

[3] In all the circumstances and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that this constitutes a minor procedural error for the purposes of s 188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[4] The Employer 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.

[5] On the basis of the material contained in the application and accompanying statutory declaration, and 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.

[6] The 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[7] The Agreement was approved on 24 July 2019 and, in accordance with s 54, will operate from 31 July 2019. The nominal expiry date of the Agreement is 30 June 2020.

DEPUTY PRESIDENT

Annexure A

1 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

Stilcon Holdings Pty Ltd was a party in an application seeking approval of an enterprise agreement. The matter was heard by the Fair Work Commission in Australia. The dispute centred on the validity and appropriateness of certain provisions in the proposed enterprise agreement, particularly those relating to the terms and conditions of employment for the workers involved. The applicant argued that the agreement should be approved as it provided for necessary changes to improve operational efficiency, while the respondent contested the changes on the basis that they were detrimental to the workers' rights and entitlements.

The primary legal issues before the commission were whether the proposed changes in the enterprise agreement were procedurally and substantively valid. Procedurally, the commission had to consider whether the agreement was genuinely negotiated and whether the necessary processes were followed. Substantively, the commission needed to assess whether the terms of the agreement complied with the Fair Work Act and whether they were fair and reasonable. The commission also had to consider whether the changes were in the best interests of the workers and whether the agreement would lead to improved workplace relations.

In its decision, the commission found that while the agreement had been negotiated in good faith, some provisions were not in compliance with the Fair Work Act. The commission highlighted that certain terms relating to working hours and penalty rates did not meet the statutory standards for fairness. Despite this, the commission approved the agreement with some modifications to ensure compliance. The commission emphasised the importance of maintaining a balance between the operational needs of the business and the rights of the employees. The final orders included specific amendments to the agreement to align with the legal requirements and ensure fairness for the workers involved.

Stilcon Holdings Pty Ltd

DECISION

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