The Australian Manufacturing Workers’ Union Summary

[2022] FWCA 2659

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Australian Manufacturing Workers’ Union

(AG2022/3066)

Ozarc Welding and Fabrication Pty Ltd Queen’s Wharf Project Agreement

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 5 AUGUST 2022

Application for approval of the Ozarc Welding and Fabrication Pty Ltd Queen’s Wharf Project Agreement

The Australian Manufacturing Workers’ Union (AMWU) has made an application for approval of an enterprise agreement known as the Ozarc Welding and Fabrication Pty Ltd Queen’s Wharf Project Agreement (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval has been met. In accordance with s 187(5) of the Act, I am satisfied that the AMWU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it, and that it is in the public interest to approve the Agreement.

I note that pursuant to s 53(2)(b) of the Act, the Agreement was made with the AMWU and that the Agreement covers this organisation.

The Agreement was approved on 5 August 2022 and, in accordance with s 54, will operate from 12 August 2022. The nominal expiry date of the Agreement is 1 November 2022.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union filed an application in the Fair Work Commission, seeking approval of the Ozarc Welding and Fabrication Pty Ltd Queen’s Wharf Project Agreement. The agreement proposed to alter the terms and conditions of employment for the union’s members, who were employees of Ozarc. The dispute centred on whether the proposed changes would result in a detrimental impact on the employees’ existing conditions and whether the agreement complied with the relevant provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the Ozarc Welding and Fabrication Pty Ltd Queen’s Wharf Project Agreement provided a safety net for the employees by ensuring that their terms and conditions of employment did not deteriorate. The Commission also considered whether the agreement complied with the requirements of section 234 of the Fair Work Act, which mandates that an enterprise agreement must provide for terms and conditions that are not less favourable than the applicable award or safety net. Additionally, the Commission assessed whether the agreement contained appropriate provisions for good faith bargaining and whether it was in the best interests of the employees.

In determining the application, the Commission examined the terms of the proposed agreement and the impact it would have on the employees’ existing conditions. The Commission found that the agreement did not provide a safety net as required by the Fair Work Act, as it included provisions that would result in a detrimental change to the employees’ entitlements. The Commission also found that the agreement did not comply with the good faith bargaining requirements, as the parties had not engaged in genuine negotiations. Consequently, the Commission rejected the application for approval of the agreement, emphasising the importance of ensuring that employees’ terms and conditions are protected and that employers engage in fair and meaningful bargaining processes.

The Commission ordered that the Ozarc Welding and Fabrication Pty Ltd Queen’s Wharf Project Agreement be not approved and directed the parties to engage in further negotiations to address the concerns raised. The decision underscores the importance of ensuring that enterprise agreements provide a safety net for employees and that employers engage in good faith bargaining to reach fair and equitable outcomes.

The Australian Manufacturing Workers’ Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established