Berendsen Fluid Power Pty Ltd

[2021] FWCA 6244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Berendsen Fluid Power Pty Ltd
(AG2021/7615)

BERENDSEN FLUID POWER PTY LTD (SYDNEY) ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 12 OCTOBER 2021

Application for approval of the Berendsen Fluid Power Pty Ltd (Sydney) Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Berendsen Fluid Power Pty Ltd (Sydney) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Berendsen Fluid Power Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] 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 organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 October 2021. The nominal expiry date of the Agreement is 9 February 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Berendsen Fluid Power Pty Ltd, an employer, sought approval of an Enterprise Agreement from the Fair Work Commission. The applicant, a company engaged in the manufacture of hydraulic and fluid power equipment, was in dispute with its employees represented by the Australian Manufacturing Workers’ Union. The nature of the dispute was the terms and conditions of employment as outlined in the proposed agreement. The Fair Work Commission, an industrial relations tribunal in Australia, was tasked with deciding whether the agreement complied with the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement was a "bargained agreement" under section 228 of the Fair Work Act, and whether it met the requirements of the "better off overall test" under section 231 of the Act. Specifically, the Commission needed to determine if the agreement had been genuinely negotiated between the employer and the employees, and whether it provided employees with a safety net of minimum entitlements that was at least as good as those provided by the applicable award or registered agreement.

The Commission found that the Enterprise Agreement was genuinely bargained between the parties. It satisfied the requirements of the better off overall test, as it provided employees with improved terms and conditions compared to their previous industrial instrument. The agreement included provisions for wages, penalty rates, leave, and other employment conditions that were deemed to be at least as good as those in the relevant award. Additionally, the agreement included provisions for dispute resolution and flexibility measures that were considered beneficial to both parties. Consequently, the Commission approved the Enterprise Agreement, finding it to be in the best interests of the employees.

The Fair Work Commission approved the Berendsen Fluid Power Pty Ltd (Sydney) Enterprise Agreement 2021. The decision was made on the basis that the agreement met the statutory requirements for genuine negotiation and compliance with the better off overall test. The approved agreement now serves as the terms and conditions of employment for the relevant employees, effective from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established