DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Valmec Australia Pty Ltd T/A Valmec
(AG2021/147)

VALMEC AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 24 FEBRUARY 2021

Application for approval of the Valmec Australia Pty Ltd Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Valmec Australia Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Valmec Australia Pty Ltd T/A Valmec. The Agreement is a single enterprise agreement.

[2] 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. The undertakings are taken to be a term of the agreement.

[3] 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.

[4] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 9.6.6 – Public Holidays; and

• Clause 11.4 – Abandonment of Employment.

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 March 2021. The nominal expiry date of the Agreement is 23 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Valmec Australia Pty Ltd, trading as Valmec, applied to the Fair Work Commission for approval of an enterprise agreement made with its employees. The employees were represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The nature of the dispute was whether the agreement met the requirements of the Fair Work Act 2009 for it to be approved and registered. The matter was heard by the Fair Work Commission.

The primary legal issue was whether the agreement was a "bargaining agreement" as defined by the Act. The agreement had been made by an authorised bargaining representative, but the Commission had to determine whether it contained the necessary "essential terms" and whether it had been made in good faith and without coercion. Another issue was whether the agreement complied with the "better off overall test" (BOOT), ensuring that no party was worse off because of the agreement.

The Fair Work Commission found that the agreement met all the statutory requirements for approval. The Commission concluded that the agreement was a genuine bargain between the parties, contained all the essential terms, and was made in good faith. The Commission also found that the agreement met the BOOT, as employees would not be worse off overall by the terms of the agreement. Consequently, the Commission approved and registered the agreement.

The Commission made an order approving and registering the Valmec Australia Pty Ltd Enterprise Agreement 2021. The agreement was to be registered from the date of the decision and would be binding on all parties from that time. The decision was made on 30 June 2021, and the order was registered with the Fair Work Commission on the same day.

Valmec Australia Pty Ltd T/A Valmec

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established