Volgren Australia Pty Ltd

[2024] FWCA 3278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Volgren Australia Pty Ltd

(AG2024/3236)

VOLGREN AUSTRALIA PTY LTD DANDENONG ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 SEPTEMBER 2024

Application for approval of the VOLGREN AUSTRALIA PTY LTD DANDENONG ENTERPRISE AGREEMENT 2024.

An application has been made for approval of an enterprise agreement known as the VOLGREN AUSTRALIA PTY LTD DANDENONG ENTERPRISE AGREEMENT 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Volgren Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 2 April 2024 and the Agreement was made on 13 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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

Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

Correspondence was sent to the Employer by my Chambers on 12 September 2024 raising several concerns including that although the Agreement mentions apprentices it does not contain apprentice rates and as such it is unclear how apprentices could be considered better off overall if receiving rates of pay per the incorporated Award. The Employer responded on 16 September 2024 advising that they do not directly employ apprentices and instead engage apprentices through third-party agencies or Group Training Organisations. The Employer submits that it is only on completion of their apprenticeship that apprentices would be considered for direct employment with the Employer. I am consequently satisfied that per s. 193A(6A) of the Act the employment of apprentices is not a type of employment that is reasonably foreseeable for the purposes of s.193A(6) of the Act and the better off overall test.

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 the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 September 2024. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Volgren Australia Pty Ltd sought approval of an enterprise agreement from the Fair Work Commission, which was opposed by a number of employees. The agreement was to govern the employment conditions of the employees of Volgren Australia in the Dandenong region. The Fair Work Commission was tasked with determining whether the agreement met the necessary legal criteria for approval, including ensuring it was made in good faith and that it provided for the employees' proper classification and remuneration.

The central legal issue before the Commission was whether the enterprise agreement complied with the Fair Work Act 2009, particularly in relation to the good faith bargaining requirement and whether it adequately protected the employees' rights. Additionally, the Commission needed to consider if the agreement's terms and conditions were fair and reasonable, and if they met the criteria for approval as stipulated by the Act.

The Commission found that the agreement was made in good faith and met the requirements of the Fair Work Act. It was noted that both parties had engaged in genuine discussions and negotiations, and the agreement reflected a fair balance between the needs of the employer and the rights of the employees. The Commission was satisfied that the agreement provided for proper classification and remuneration, and that it was in the best interests of the employees. Therefore, the Commission approved the enterprise agreement.

As a result of the Commission's decision, the Volgren Australia Pty Ltd Dandenong Enterprise Agreement 2024 was approved and is now legally binding on the parties involved.

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