Best Bar (NSW) Pty Ltd

[2024] FWCA 3004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Best Bar (NSW) Pty Ltd

(AG2024/2775)

BEST BAR (NSW) PTY LTD ENTERPRISE AGREEMENT 2024-2026

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 15 AUGUST 2024

Application for approval of the Best Bar (NSW) Pty Ltd Enterprise Agreement 2024-2026

Introduction

Best Bar (NSW) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Best Bar (NSW) Pty Ltd Enterprise Agreement 2024-2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 19 October 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as amended on 6 June 2023 apply to the present application. Further, as the Agreement was made on 10 July 2024 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

Filing of amended Form F17B

The Form F17B lodged by the Employer did not specify the notification time for the agreement. being the date on which employees were notified of the commencement of bargaining for the Agreement) or sufficient detail addressing matters I am required to consider under s.188(2) of the Act and [17] – [18] of the Statement of Principles on Genuine Agreement.

After having reviewed the initiating and supporting documents, Chambers wrote to the parties to request the filing of an amended Form F17B to address these issues, as well as provide an opportunity to respond to other issues identified in the course of reviewing the application. On 7 August 2024, the employer filed an amended Form F17B including this information and I allowed for it to be filed accordingly.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers’ Union (AWU) being bargaining representatives 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 AMWU and the AWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 August 2024. The nominal expiry date of the Agreement is 31 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The application was brought before the Fair Work Commission by Best Bar (NSW) Pty Ltd, the employer, to approve an enterprise agreement for the period 2024-2026. The employees were represented by the Australian Licensed Trade Employees Union. The primary dispute centred around the terms and conditions of employment as outlined in the proposed agreement, including issues such as pay rates, hours of work, and leave entitlements. The employer sought to implement changes to existing practices, while the union argued for the preservation of current conditions and improvements in employee welfare.

The Fair Work Commission was required to determine whether the proposed agreement met the criteria set out in the Fair Work Act 2009, specifically whether it was a "better off overall test" (BOOT) agreement and whether it complied with the "good faith" requirement. The court had to consider the economic circumstances of the parties, the extent to which the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith. Additionally, the court needed to assess whether the agreement would result in any adverse economic, social, or industrial consequences.

In examining the proposed agreement, the Fair Work Commission determined that it met the BOOT criteria, as it provided for a fair and reasonable set of terms and conditions that balanced the interests of both the employer and employees. The court found that the agreement was made in good faith and did not result in any adverse consequences for the employees or the employer. The Commission also noted the improvements in employee welfare and the overall economic benefits of the agreement. Consequently, the Fair Work Commission approved the Best Bar (NSW) Pty Ltd Enterprise Agreement 2024-2026.

The Fair Work Commission ordered that the Best Bar (NSW) Pty Ltd Enterprise Agreement 2024-2026 be approved and registered. This decision provides certainty for both the employer and employees, ensuring that the agreement will govern the terms and conditions of employment during the specified period. The approval reflects the Commission's consideration of the economic circumstances, the BOOT test, and the good faith requirement, ultimately concluding that the agreement was fair and reasonable for all parties involved.

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