DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Botanical Products Pty Ltd
(AG2019/3582)

AUSTRALIAN BOTANICAL PRODUCTS AND NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 17 OCTOBER 2019

Application for approval of the Australian Botanical Products and National Union of Workers Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Australian Botanical Products and National Union of Workers Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Botanical Products Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I note that Clause 30 is inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[7] The National Union of Workers (NUW) 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 October 2019. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Australian Botanical Products Pty Ltd, applied for the approval of an enterprise agreement with the National Union of Workers. The Fair Work Commission (FWC) was tasked with determining whether the proposed agreement met the requirements of the Fair Work Act 2009. The union had submitted the agreement, which was to cover employees of the company who were involved in the manufacture and distribution of botanical products.

The central legal issue before the FWC was whether the enterprise agreement complied with the provisions of the Fair Work Act. Specifically, the FWC needed to assess if the agreement contained the necessary "protected action provisions" and whether it was "in the interests of employees." The FWC also needed to consider if the agreement met the requirements for "no disadvantage" compared to the relevant award and if it complied with the "better off overall test."

The FWC found that the proposed enterprise agreement included the necessary protected action provisions and that it was in the interests of the employees. The agreement was also found to be compliant with the "no disadvantage" test as it did not place employees in a position worse off than they would be under the applicable award. Additionally, the FWC determined that the agreement satisfied the "better off overall test," as employees would be better off overall with the terms of the agreement compared to the terms of the relevant award. Based on these findings, the FWC approved the enterprise agreement.

The Fair Work Commission approved the Australian Botanical Products and National Union of Workers Enterprise Agreement 2019, finding it to be compliant with the requirements of the Fair Work Act. The agreement was thus accepted, allowing it to take effect from the specified commencement date.

Australian Botanical Products Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established