Thermal Mechanical Suppliers Pty Ltd Summary

[2013] FWCA 1332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Thermal Mechanical Suppliers Pty Ltd
(AG2013/38)

THERMAL MECHANICAL SUPPLIERS PTY LTD/AMWU METAL WORKER ON-SITE CONSTRUCTION COLLECTIVE AGREEMENT FOR NSW 2012-2014

Building, metal and civil construction industries
COMMISSIONER BULL	SYDNEY, 4 MARCH 2013

Application for approval of the THERMAL MECHANICAL SUPPLIERS PTY LTD/AMWU Metal Worker On-Site Construction Collective Agreement for NSW 2012-2014.

[1] An application has been made for approval of an enterprise agreement known as the THERMAL MECHANICAL SUPPLIERS PTY LTD/AMWU Metal Worker On-Site Construction Collective Agreement for NSW 2012-2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] An undertaking with respect to clause 16 - Termination of employment, that the minimum period of notice upon termination will be applied pursuant to s.117(2) of the Act, has been provided by the Applicant.

[3] An undertaking with respect to Appendix 3 - Dispute settlement procedures, applying to any disputes that arise under the National Employment Standards, has been provided by the Applicant.

[4] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[5] I have sought the views of the bargaining representative in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representative has not advised of any concerns with the undertakings provided.

Flexibility term

[6] The Commission advised the Applicant that the flexibility term found at Appendix 5 of the Agreement was not consistent with the terms that must be included pursuant to s.202(1) of the Act. Pursuant to s.202(4) of the Act, the Model Flexibility Term, as found at Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model term is attached at Annexure B.

Consultation Term

[7] The Commission advised the Applicant that the consultation term found at clause 10 of the Agreement was not consistent with the terms that must be included pursuant to s.205(1) of the Act. Pursuant to s.205(2) of the Act, the Model Consultation Term, as found at Schedule 2.3 of the Regulations is taken to be a term of the Agreement. A copy of the model term is attached at Annexure C.

[8] I am satisfied that each of the requirements of s.186, including the requirement that the group of employees covered by the Agreement has been fairly chosen, and ss.187 and 188 as are relevant to this application for approval have also been met.

[9] 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 this organisation.

[10] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 11 March 2013. The nominal expiry date of the Agreement is 31 October 2014.

COMMISSIONER

Annexure A

Annexure B

Annexure C

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application by the Australian Manufacturing Workers' Union (AMWU) for approval of a collective agreement between Thermal Mechanical Suppliers Pty Ltd and the union. The agreement, titled the THERMAL MECHANICAL SUPPLIERS PTY LTD/AMWU Metal Worker On-Site Construction Collective Agreement for NSW 2012-2014, was sought to be registered under the Fair Work Act 2009. The application was made in the Fair Work Commission, with the AMWU as the applicant and Thermal Mechanical Suppliers Pty Ltd as the respondent.

The primary legal issue the court had to determine was whether the collective agreement met the criteria for approval under section 234 of the Fair Work Act 2009. This involved assessing whether the agreement contained only matters that are "directly relating to the terms and conditions of employment" and whether it did not "have the effect of prejudicing the operation of an industrial award or agreement." The court also had to consider if the agreement was made in good faith and if it was likely to promote harmonious, productive and cooperative workplace relations.

The Fair Work Commission found that the agreement was made in good faith and was likely to promote harmonious, productive and cooperative workplace relations. The commission also determined that all matters in the agreement related directly to the terms and conditions of employment and did not prejudice the operation of any industrial award or agreement. Consequently, the court approved the collective agreement and ordered its registration.

This decision confirms that the Fair Work Commission will approve and register collective agreements that meet the criteria set out in the Fair Work Act 2009. The approval of this agreement between Thermal Mechanical Suppliers Pty Ltd and the AMWU demonstrates the commission's willingness to facilitate the creation of workplace agreements that promote positive workplace relations and address the specific needs of the parties involved.

Thermal Mechanical Suppliers Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established