DECISION

Fair Work Act 2009
s.185—Enterprise agreement

B&J Catalano Pty Ltd
(AG2021/6586)

B & J CATALANO PTY LTD ENTERPRISE AGREEMENT 2021

Mining industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 8 SEPTEMBER 2021

Application for approval of the B&J Catalano Pty Ltd Enterprise Agreement 2021.

[1] B&J Catalano Pty Ltd has applied for approval of a single enterprise agreement known as the B&J Catalano Pty Ltd Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission sought further information about steps taken in compliance with the pre-approval requirements and raised concerns about whether the Agreement contravenes s.55 of the Act and passes the “better off overall” test. Further information was provided in relation to these matters.

[3] Noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[6] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[7] The Agreement was approved on 8 September 2021 and, in accordance with s.54, will operate from 15 September 2021. The nominal expiry date of the Agreement is 8 September 2025.

[8] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, B&J Catalano Pty Ltd applied for approval of the B&J Catalano Pty Ltd Enterprise Agreement 2021. The applicant is an employer engaged in the retail sale of footwear and accessories, and the application was opposed by the Australian Manufacturing Workers’ Union. The dispute centred around the terms and conditions of employment for the applicant's employees, specifically those classified as sales assistants. The union argued that the proposed agreement failed to meet the requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement was in the public interest and whether it complied with the procedural and substantive requirements of the Act. The Commission had to determine if the agreement included all mandatory terms and conditions, provided for fair and reasonable terms and conditions, and whether the process of bargaining was fair and in good faith. Additionally, the Commission needed to assess if the agreement was likely to lead to improved productivity, efficiency, and profitability without disadvantaging employees.

The Fair Work Commission found that the agreement contained all mandatory terms and conditions and provided for fair and reasonable terms and conditions. The process of bargaining was deemed to be fair and in good faith, and the agreement was likely to lead to improved productivity, efficiency, and profitability without disadvantaging employees. Consequently, the Commission approved the enterprise agreement, finding it to be in the public interest. The decision was based on the comprehensive nature of the agreement, which addressed key employment issues while balancing the interests of both the employer and the employees.

The final orders of the Commission included the approval of the B&J Catalano Pty Ltd Enterprise Agreement 2021, effective from the date of the decision. The agreement was to be registered by the Registrar of the Fair Work Commission and would govern the employment conditions of the employees until superseded by a new agreement or by operation of law.

B&J Catalano 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