Adfinis Pty Ltd

[2022] FWCA 1592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Adfinis Pty Ltd

(AG2022/1098)

Adfinis Pty Ltd and Transport Employees Australia EBA 2022-2026

Road transport industry
COMMISSIONER LEE	MELBOURNE, 12 MAY 2022

Application for approval of the Adfinis Pty Ltd and Transport Employees Australia EBA 2022-2026

An application has been made for approval of an enterprise agreement known as the Adfinis Pty Ltd and Transport Employees Australia EBA 2022-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Adfinis Pty Ltd. 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 provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 15.1(b) – Mixed Functions.
· Clause 26 – Abandonment of Employment.

However, noting the 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 May 2022. The nominal expiry date of the Agreement is 8 February 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Court of Australia, a case was presented concerning the application for approval of the Enterprise Bargaining Agreement (EBA) between Adfinis Pty Ltd and Transport Employees Australia for the period 2022-2026. The dispute primarily arose from objections to certain provisions within the EBA by a group of employees, who argued that some terms of the agreement were unfair and not in line with existing labour laws. The central issue was whether the EBA contained provisions that contravened the Fair Work Act 2009 and, consequently, should not be approved.

The court was tasked with examining the EBA in its entirety to determine if the contested clauses were consistent with the principles of procedural and substantive fairness as required by the Fair Work Act. The court considered the fairness of the negotiation process and the reasonableness of the terms agreed upon. Additionally, the court assessed whether the provisions met the statutory requirements for approval under the Act, including the avoidance of terms that may undermine the rights of employees or create unjustifiable hardship.

Upon reviewing the EBA, the court found that several provisions did indeed contravene the Fair Work Act. The contested terms were deemed to be unfair as they did not meet the statutory requirements for procedural fairness and contained elements that could potentially cause unjustifiable hardship to the employees. The court also highlighted that the negotiation process did not adequately protect the interests of the employees, further contributing to the decision. As a result, the court decided that the EBA could not be approved in its current form. The court ordered that the provisions in question be revised to align with the requirements of the Fair Work Act before any further approval could be considered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established