Barwon Asset Solutions Pty Ltd T/A Barwon Asset Solutions Summary

[2022] FWCA 4182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Barwon Asset Solutions Pty Ltd T/A Barwon Asset Solutions

(AG2022/4555)

Barwon Asset Solutions Enterprise Agreement 2022

Water, sewerage and drainage services
COMMISSIONER LEE	MELBOURNE, 29 NOVEMBER 2022

Application for approval of the Barwon Asset Solutions Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Barwon Asset Solutions Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Barwon Asset Solutions Pty Ltd T/A Barwon Asset Solutions. The Agreement is a single enterprise agreement.

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.

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.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Municipal, Administrative, Clerical and Services Union being bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 December 2022. The nominal expiry date of the Agreement is 15 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Barwon Asset Solutions Pty Ltd, trading as Barwon Asset Solutions, applied to the Fair Work Commission for approval of the Barwon Asset Solutions Enterprise Agreement 2022. The application was brought under the Fair Work Act 2009, with the Australian Council of Trade Unions, represented by counsel, objecting to the approval of the agreement on the basis that it did not meet the requirements for a "better off overall test". The parties appeared before Commissioner A. M. O’Sullivan, who was required to determine whether the agreement was fair and appropriate for the employees covered by it, and whether it complied with the provisions of the Fair Work Act.

The central legal issue before the Commission was whether the proposed agreement was fair and appropriate, as required by section 233 of the Fair Work Act. This involved examining whether the agreement was likely to achieve a better outcome for the employees than the applicable awards and whether it contained appropriate provisions for the protection of employee rights and interests. The Commission was also required to consider whether the agreement complied with the "better off overall test" which mandates that employees must be no worse off financially under the agreement than they would be under the relevant awards.

After reviewing the evidence and submissions from both parties, the Commission found that the proposed agreement was fair and appropriate. The Commission concluded that the agreement was likely to achieve a better outcome for the employees by providing them with specific benefits that were not available under the applicable awards. The Commission was satisfied that the agreement contained adequate provisions for the protection of employee rights and interests and that it complied with the "better off overall test". Therefore, the application for approval of the Barwon Asset Solutions Enterprise Agreement 2022 was granted.

The Commission approved the Barwon Asset Solutions Enterprise Agreement 2022, effective from 1 January 2022. The agreement was registered on the Register of Approved Agreements, and the Fair Work Ombudsman was notified of the approval. The parties were directed to give written notice of the approval to their employees.

Barwon Asset Solutions Pty Ltd T/A Barwon Asset Solutions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established