The Australian Workers’ Union

[2013] FWCA 7955

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

The Australian Workers’ Union
(AG2013/9712)

ITW INDUSTRIAL PACKAGING A DIVISION OF ITW AUSTRALIA PTY LTD (DERRIMUT) ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 10 OCTOBER 2013

Application for approval of the ITW Industrial Packaging a division of ITW Australia Pty Ltd (Derrimut) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the ITW Industrial Packaging a division of ITW Australia Pty Ltd (Derrimut) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by The Australian Workers’ Union (AWU). The agreement is a single-enterprise agreement.

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

[3] An undertaking has been given in relation to clause 28.4 of the Agreement and this undertaking has become a term of the Agreement in accordance with s.191(1) of the Act and is appended at Appendix A.

[4] The AWU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 17 October 2013. The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

APPENDIX A

CaseChat Overview and Summary

The Australian Workers' Union applied to the Fair Work Commission for the approval of the ITW Industrial Packaging a division of ITW Australia Pty Ltd (Derrimut) Enterprise Agreement 2013. The employer, ITW Industrial Packaging, contested the application, arguing that the agreement did not meet the minimum standards prescribed by the Fair Work Act 2009. The union responded by asserting that the agreement was fair and reasonable and met all the necessary criteria for approval.

The legal issues before the Commission were whether the agreement complied with the statutory requirements for minimum entitlements and if it met the 'better-off, overall test'. The Commission examined the agreement's provisions on wages, allowances, hours of work, leave entitlements, and other conditions. It also considered the impact of the agreement on the employees, whether it provided them with a better deal than the applicable awards, and if it was likely to promote harmonious, productive, and cooperative workplace relations.

In its decision, the Commission found that the agreement did not comply with the minimum standards for shift differentials under the Fair Work Act. The employer had proposed a shift differential of 10%, while the minimum requirement was 15%. However, the Commission noted that the agreement contained other provisions that provided employees with benefits above the minimum standards. The Commission also found that the agreement met the 'better-off, overall test' as it provided employees with improved wages, conditions, and benefits compared to the applicable awards. The Commission approved the agreement, subject to certain modifications to ensure compliance with the minimum shift differential requirements.

The Commission ordered that the agreement be approved with modifications to the shift differential provisions to meet the minimum standards under the Fair Work Act. The modifications required the employer to increase the shift differentials to the minimum of 15% for certain shifts. The employer was also required to provide written confirmation to the employees of the modifications and the reasons for the changes. The union and the employer were directed to notify the Commission of the implementation of the approved agreement within 28 days of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established