B&D Australia Pty Ltd

[2022] FWCA 3239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

B&D Australia Pty Ltd

(AG2022/3728)

B&D Clontarf Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 16 SEPTEMBER 2022

Application for approval of the B&D Clontarf Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the B&D Clontarf Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by B&D Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of an undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to s.190(3), I have accepted an undertaking from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

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 AMWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 September 2022. The nominal expiry date of the Agreement is 29 August 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

B&D Australia Pty Ltd, represented by its managing director, applied to the Fair Work Commission for the approval of the B&D Clontarf Enterprise Agreement 2022. The respondents to the application were the B&D Clontarf Employees Union, which represents the employees at the Clontarf facility. The dispute centred around the terms and conditions outlined in the proposed enterprise agreement, particularly whether the provisions met the statutory requirements under the Fair Work Act 2009 for such agreements to be deemed "better off overall" for the employees.

The legal issues before the Commission involved determining whether the proposed enterprise agreement provided terms and conditions that were at least as good as, or better than, those contained in the applicable award or safety net provisions. The Commission had to consider whether the agreement satisfied the "better off overall test" and if it adhered to the procedural fairness required under the legislation. Additionally, the Commission had to examine if the agreement met the requirements for good faith bargaining and if the process leading to the agreement was fair and lawful.

In its decision, the Fair Work Commission found that the B&D Clontarf Enterprise Agreement 2022 did indeed meet the statutory requirements. The Commission noted that the agreement provided terms and conditions that were better than those in the relevant award, thereby satisfying the "better off overall test." The Commission was satisfied with the evidence of good faith bargaining and the procedural fairness of the agreement process. Consequently, the Commission approved the enterprise agreement, affirming that it met all necessary legislative criteria and was fair and lawful. The approval ensures that the terms of the agreement are binding on the parties involved from the specified commencement date.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established