DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tim Phelan Welding Pty Ltd
(AG2020/2992)

AMWU & TIM PHELAN WELDING PTY LTD METAL ENGINEERING ON-SITE CONSTRUCTION AGREEMENT 2020-2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 21 OCTOBER 2020

Application for approval of the AMWU & TIM PHELAN WELDING PTY LTD Metal Engineering On-Site Construction Agreement 2020-2023.

[1] An application has been made for approval of a greenfields agreement to be known as the AMWU & TIM PHELAN WELDING PTY LTD Metal Engineering On-Site Construction Agreement 2020-2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Tim Phelan Welding Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] I note that the Agreement was made on 18 September 2020 but was filed for approval with the Fair Work Commission on 5 October 2020. Observing that s.185(3)(a) of the Act imposes is a 14-day time limit to bring an application of this kind (and that the time is measured by reference to the day an agreement is made), the Applicant has brought this application three days out of time.

[3] Despite the Applicant’s non-compliance in this regard, I find that it is fair to extend the period for making the application by three days. I do so in reliance of the power afforded to me by s.185(3)(b) of the Act, and having had regard to all of the circumstances (namely, that the delay is of a short duration, and has not caused prejudice to any employees seeking to be covered by the Agreement).

[4] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[5] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Australian Manufacturing Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 October 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tim Phelan Welding Pty Ltd, a company in the metal engineering industry, sought the approval of a new enterprise agreement with the Australian Manufacturing Workers' Union (AMWU). The matter was heard in the Fair Work Commission. The crux of the dispute was whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was in the best interests of the employees and complied with the procedural requirements stipulated in the Act.

The legal issues centred around the fairness and procedural correctness of the agreement. The AMWU argued that the agreement was fair and just, while Tim Phelan Welding Pty Ltd maintained that certain aspects of the agreement did not meet the statutory requirements. The court had to consider various factors, including the agreement's compliance with the procedural fairness principles and whether it adequately protected the employees' rights and interests. Additionally, the court needed to ensure that the agreement was not detrimental to the employees' overall welfare.

The Fair Work Commission carefully examined the proposed agreement, focusing on its provisions, the process by which it was negotiated, and its implications for the employees. The court determined that the agreement was procedurally fair and that it adequately protected the employees' interests. Furthermore, the agreement was found to be in the best interests of the employees, taking into account the overall benefits and protections it provided. Consequently, the court approved the Metal Engineering On-Site Construction Agreement 2020-2023 between Tim Phelan Welding Pty Ltd and the AMWU.

The final orders included the approval of the enterprise agreement, with specific conditions ensuring that it would be implemented in a manner that adhered to the statutory requirements and protected the employees' rights. The agreement was to come into effect on the date of the decision, with both parties bound by its terms and conditions.

Tim Phelan Welding Pty Ltd

DECISION

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Legal Principle Established