Aus Holdco Pty Ltd Summary

[2022] FWCA 2348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aus Holdco Pty Ltd

(AG2022/2227)

Aus Holdco Pty Ltd-BLA Enterprise Agreement 2022

Storage services
COMMISSIONER PLATT	ADELAIDE, 14 JULY 2022

Application for approval of the Aus Holdco Pty Ltd–BLA Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Aus Holdco Pty Ltd–BLA Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Aus Holdco Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 7 July 2022.

On 8 July 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

There are two National Employment Standards (NES) issues that require comment:

· Clauses 2.3(i) and 2.5.4(d) of the Agreement state that employees are not entitled to notice of termination or redundancy when their employment has been terminated due to misconduct. This appears inconsistent with s.123 of the Act which provides that employees are not entitled to notice of termination and redundancy where the employee is terminated due to serious misconduct.

· Clause 2.6.2 states that where an employee is deemed to have abandoned their employment, they are not entitled to notice of termination. This appears to be inconsistent with the notice requirements of s.117 of the Act.

Clause 1.4.3 of the Agreement acts as an effective NES precedence clause, in that it states that if the NES provides a greater benefit than the Agreement, the NES provision will apply to the extent it provides a greater benefit. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

The Applicant has submitted an undertaking in the required form dated 14 July 2022. The undertaking deals with the following topics:

· The spread of ordinary work hours for all casual employees, part-time employees and level 1.1 and level 1.2 full-time employees will be 7.00am to 5.30pm Monday to Friday.

· For all casual employees, part-time employees and level 1.1 and level 1.2 full-time employees, early morning shift means a shift commencing between 2.00am and 7.00am.

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 20 July 2025.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of a new enterprise agreement between Aus Holdco Pty Ltd and its employees represented by the Building and Construction General Onsite Workers’ Union (BLA). The proposed agreement, titled the Aus Holdco Pty Ltd–BLA Enterprise Agreement 2022, sought to regulate various terms and conditions of employment for the employees. The Commission was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue was whether the proposed enterprise agreement complied with the requirements set out in the Act, including provisions related to procedural fairness, good faith bargaining, and the inclusion of appropriate minimum terms and conditions. The Commission had to assess if the agreement was made in good faith, if the bargaining process was fair, and if the agreement provided for appropriate minimum terms and conditions. Furthermore, the Commission needed to ensure that the agreement did not undermine the protections afforded to employees by the National Employment Standards and the Fair Work Act.

In delivering its decision, the Fair Work Commission found that the proposed agreement met the statutory requirements for approval. The Commission was satisfied that the bargaining process was conducted in good faith, and that all necessary procedural fairness was observed. It was determined that the agreement included appropriate minimum terms and conditions and did not undermine the protections afforded to employees by the National Employment Standards. The Commission also noted that the agreement provided for reasonable provisions regarding wages, working hours, leave entitlements, and other employment-related matters. Accordingly, the Commission approved the Aus Holdco Pty Ltd–BLA Enterprise Agreement 2022, effective from the date of the decision.

The final orders of the Commission included the approval of the Aus Holdco Pty Ltd–BLA Enterprise Agreement 2022, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and copies were to be provided to the relevant parties. The decision also mandated that the agreement be implemented in accordance with its terms, with any disputes to be resolved in accordance with the processes outlined in the agreement or as otherwise permitted by law.

Aus Holdco Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established