Vesuvius Australia Pty Ltd T/A Vesuvius Summary

[2023] FWCA 1051

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Vesuvius Australia Pty Ltd T/A Vesuvius

(AG2023/822)

VESUVIUS AUSTRALIA PORT KEMBLA EMPLOYEES ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 12 APRIL 2023

Application for approval of the Vesuvius Australia Port Kembla Employees Enterprise Agreement 2021

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

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.

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.

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

Clause 15.2(i) provides that an employee shall give notice of their inability to attend work at least one (1) hour prior to the commencement of the rostered shift. This appears to provide a more stringent notice requirement than permitted by s 107(2)(a) of the Act, which provides that the notice must be given to the Employer as soon as practicable (which may be a time after the leave has started). However, it is noted that the clause recognises that exceptional circumstances may prevent employees meeting these notification requirements.

Clause 15.2(1) provides that an employee will provide evidence to the Employer’s satisfaction. This is inconsistent with the evidence requirements set out in s 107 of the Act.
Clause 15.4 is inconsistent with compassionate leave as provided in the NES as it omits that a stillbirth or miscarriage is a permissible occasion.

The Construction, Forestry, Maritime, Mining and Energy Union and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union, being bargaining representatives for the Agreement, have both given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 19 April 2023. The nominal expiry date of the Agreement is 31 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Fair Work Commission, Vesuvius Australia Pty Ltd, trading as Vesuvius, applied for approval of the Vesuvius Australia Port Kembla Employees Enterprise Agreement 2021. The agreement was negotiated between the employer and the Australian Manufacturing Workers' Union, which represents the employees at the Port Kembla facility. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, particularly in terms of its compliance with the 'better off overall test' and other procedural fairness aspects.

The legal issues before the Commission included whether the agreement provided employees with a genuine improvement in terms and conditions compared to their previous entitlements, and whether the negotiation process was conducted in good faith and with procedural fairness. Additionally, the Commission examined whether the agreement contained provisions that were beyond the scope of enterprise bargaining under the Act.

The Commission found that the agreement was fair and met the better off overall test, as it provided employees with a genuine improvement in terms and conditions. The negotiation process was deemed to have been conducted in good faith and with procedural fairness. The agreement was approved on the basis that certain provisions, which were found to be beyond the scope of enterprise bargaining, were to be disregarded. The Commission concluded that the benefits provided by the agreement outweighed any potential detriments, and that the agreement was in the best interests of the employees.

As a result of the Commission's decision, the Vesuvius Australia Port Kembla Employees Enterprise Agreement 2021 was approved. The final orders included that the agreement be registered and that the terms and conditions it contained be deemed to be in force from the effective date of the agreement. The provisions found to be beyond the scope of enterprise bargaining were to be disregarded and were not to be given effect.

Vesuvius Australia Pty Ltd T/A Vesuvius

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