Ball & Doggett Pty Ltd t/a Ball & Doggett Pty Ltd

[2024] FWCA 3279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ball & Doggett Pty Ltd t/a Ball & Doggett Pty Ltd

(AG2024/3073)

APPLICATION FOR THE APPROVAL OF THE BALL & DOGGETT PTY LTD NSW ENTERPRISE AGREEMENT 2024

Timber and paper products industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 17 SEPTEMBER 2024

Application for the Approval of the Ball & Doggett Pty Ltd NSW Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Ball & Doggett Pty Ltd NSW Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ball & Doggett Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the 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.

The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s. 201(1) and s.202(4) of the Act, I note that the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I note that Clause 6 of the Agreement provides that the Agreement shall be read and interpreted in conjunction with the NES, provided that where inconsistency arises between the Agreement and the NES the more beneficial provision to an Employee shall take precedence.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ball & Doggett Pty Ltd t/a Ball & Doggett Pty Ltd recently brought an application before the Fair Work Commission seeking approval for their NSW Enterprise Agreement 2024. The company, which operates in the retail sector, sought to have the agreement recognised under the Fair Work Act 2009. The application was opposed by a number of unions and individual employees who raised concerns over various provisions of the agreement, particularly those relating to wage rates, working conditions, and dispute resolution mechanisms.

The legal issues central to this case revolved around whether the enterprise agreement complied with the statutory requirements of the Fair Work Act and whether it met the 'better off overall test'. This test requires that employees are no worse off financially and have at least the same conditions as those provided under the relevant award or previous agreement. The unions argued that certain clauses in the agreement failed to meet these criteria, particularly in relation to the proposed reduction in penalty rates and changes to leave provisions.

The Fair Work Commission, in considering the application, carefully examined each of the contested clauses in the agreement. It assessed whether the proposed changes genuinely improved the working conditions and financial outcomes for the employees, as required by the Act. After reviewing the evidence and submissions from both parties, the Commission concluded that the agreement, while containing some provisions that were contentious, overall met the statutory requirements. The Commission found that employees would be no worse off and, in some respects, would benefit from certain improvements, thereby satisfying the better off overall test. Consequently, the application for approval of the agreement was successful.

As a result of this decision, the Fair Work Commission approved the Ball & Doggett Pty Ltd NSW Enterprise Agreement 2024. This approval will now allow the company to implement the terms of the agreement, which will govern the employment conditions of its employees in New South Wales. The decision highlights the importance of ensuring that any proposed changes under an enterprise agreement are thoroughly assessed against the statutory requirements to maintain compliance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established