Benenden Investments Pty Ltd Summary

[2025] FWCA 43

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Benenden Investments Pty Ltd

(AG2024/5072)

BENENDEN INVESTMENTS PTY LTD ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER SLOAN	SYDNEY, 7 JANUARY 2025

Application for approval of the Benenden Investments Pty Ltd Enterprise Agreement 2024

Benenden Investments Pty Ltd has made an application for approval of an enterprise agreement known as the Benenden Investments Pty Ltd Enterprise Agreement 2024 (“Agreement”). The application is made under s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
Clause 34 of the Agreement is titled “Termination”. Subclause 34.5 provides that Benenden “may recover any money owing by an employee, including for clothing, tools, keys, phones etc. that are not returned in good working order, notice not provided or other outstanding monies, and may deduct any money owing from an employee’s termination pay”. On its face, the clause appears impermissibly to allow the Employer to withhold monies owing to the employee on termination under the National Employment Standards, such as accrued but unused annual leave or long service leave.
Having noted that, cl 1.4 of the Agreement provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit to employees, the NES will prevail to the extent of the inconsistency. This should ensure that clause 34.5 is not applied in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case.
Having regard to the material in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.
The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 14 January 2025. The nominal expiry date of the Agreement is 7 January 2029

COMMISSIONER

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CaseChat Overview and Summary

Benenden Investments Pty Ltd, an enterprise engaged in the provision of aged care services, brought an application before the Fair Work Commission seeking approval of the Benenden Investments Pty Ltd Enterprise Agreement 2024. The dispute centered around whether the agreement met the requirements of the Fair Work Act 2009, particularly regarding its compliance with the statutory obligations for enterprise agreements, including the provisions on minimum wages and conditions. The Fair Work Commission was tasked with determining whether the agreement was fair and reasonable for the purposes of section 233 of the Act.

The legal issues before the Commission involved the interpretation and application of sections 233 and 234 of the Fair Work Act 2009. The Commission needed to consider whether the agreement provided for fair and reasonable terms and conditions, whether it met the requirements for good faith bargaining, and whether it adhered to the provisions on minimum wages and conditions as outlined in the Act. Additionally, the Commission had to ensure that the agreement did not have any provisions that would undermine the safety net of minimum wages and conditions.

The Fair Work Commission found that the Benenden Investments Pty Ltd Enterprise Agreement 2024 met the statutory requirements for approval. The Commission determined that the agreement was fair and reasonable, providing for terms and conditions that were consistent with the principles of the Act. It was found that the agreement had been negotiated in good faith and did not undermine the safety net of minimum wages and conditions. Consequently, the Commission approved the agreement, recognising its compliance with the legislative framework and its suitability for the enterprise.

Benenden Investments Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established