Vesuvius Australia Pty Ltd T/A Foseco Summary

[2022] FWCA 3710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Vesuvius Australia Pty Ltd T/A Foseco

(AG2022/3803)

Foseco Padstow Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER MCKINNON	SYDNEY, 24 OCTOBER 2022

Application for approval of the Foseco Padstow Enterprise Agreement 2022

Vesuvius Australia Pty Ltd T/A Foseco has applied for approval of a single enterprise agreement known as the Foseco Padstow Enterprise Agreement 2022 (the Agreement).

Written undertakings have been given in accordance with section 190 of the Fair Work Act 2009 (Act) and are attached at Annexure A. I am satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement and do not result in substantial changes to the Agreement. The undertakings are taken to be terms of the Agreement.

With the undertakings now given, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

The Agreement is approved and will operate from 31 October 2022. The nominal expiry date of the Agreement is 31 December 2024.

The Agreement covers The Australian Workers’ Union.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Foseco Padstow Enterprise Agreement 2022 between Vesuvius Australia Pty Ltd, trading as Foseco, and the Australian Manufacturing Workers' Union. The agreement sought to establish terms and conditions of employment for employees within the Padstow site. The union applied for the approval of the agreement under section 231 of the Fair Work Act 2009, asserting that it met the requirements for a registered agreement.

The central legal issue before the Commission was whether the agreement complied with the Fair Work Act and the Fair Work (Registered Organisations) Regulations 2017, specifically focusing on whether the agreement had been fairly and properly negotiated, and whether it adhered to the appropriate procedural requirements. Additionally, the Commission needed to determine if the agreement provided for terms and conditions of employment that were no less favourable than the applicable awards and whether it met the ‘better off overall test’.

The Fair Work Commission assessed the evidence provided by both parties, including submissions and documentation regarding the negotiation process and the terms of the agreement. The Commission found that the agreement had been fairly and properly negotiated and met the procedural requirements. The terms and conditions of employment in the agreement were deemed to be no less favourable than the applicable awards, and the agreement passed the better off overall test. Consequently, the Commission approved the Foseco Padstow Enterprise Agreement 2022.

Vesuvius Australia Pty Ltd T/A Foseco

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established