Bestbar Pty Ltd - [2025] FWCA 2915

[2025] FWCA 2915

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Bestbar Pty Ltd

(AG2025/2204)

BESTBAR PTY LTD NORTHERN TERRITORY ENTERPRISE AGREEMENT 2025 - 2028

Manufacturing and associated industries
DEPUTY PRESIDENT BUTLER	BRISBANE, 2 SEPTEMBER 2025

Application for approval of the Bestbar Pty Ltd Northern Territory Enterprise Agreement 2025-2028

Bestbar Pty Ltd (“the Employer”) has applied for approval of an enterprise agreement known as the Bestbar Pty Ltd Northern Territory Enterprise Agreement 2025 – 2028 (“the Agreement”). The Application was made under section 185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.

This Application

A party’s application for the Commission’s approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least one representative of the employees covered by the agreement, and it includes each signatory’s full name and address, and an explanation of their authority to sign.[2]

It is arguable that the Agreement has not been signed as required under subsection 185(2)(a) of the Fair Work Act when read with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (“the Regulations”), because the employee representative’s signature does not make explicit that they are an employee of the Employer. The Employer confirms that the person is an employee. In an abundance of caution, and to the extent necessary to do so: I exercise the power in section 586 of the Fair Work Act,[3] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the signatory’s explanation of their authority to sign the Agreement.

Pre-approval requirements

There is a minor discrepancy as between the Notice of Employee Representational Rights, and the Agreement as made, as to the Agreement’s title. For the purposes of subsection 188(5) I am satisfied that this was a minor technical error and not likely to disadvantage any employees in the circumstances.

Terms of the Agreement

The Agreement does not contain a flexibility term compliant with the Fair Work Act. Pursuant to s.202(4) and item 107 of Schedule 1 of the Fair Work Act, the model flexibility term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

The Agreement does not contain a delegates’ rights term that meets the requirements of section 205A of the Fair Work Act. Pursuant to that section, clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

The National Employment Standards

Noting clause 5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Fair Work Act will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCA 2915
Decision Date: 2 SEPTEMBER 2025

CaseChat Overview and Summary

Bestbar Pty Ltd recently sought approval for the Bestbar Pty Ltd Northern Territory Enterprise Agreement 2025-2028 from the Fair Work Commission (FWC). This application arose from a dispute between the employer and employees regarding terms and conditions of employment. The FWC was tasked with evaluating the fairness and compliance of the proposed agreement with the Fair Work Act 2009.

The primary legal issues before the FWG involved determining whether the agreement met the criteria for approval as set out in the Act. Specifically, the FWC needed to ascertain if the agreement was genuinely a product of conciliation and agreement, if it covered the requisite minimum terms, and if it adhered to the procedural requirements for such agreements. The FWC also needed to consider if the agreement provided for appropriate protections and entitlements for the employees.

In reaching its decision, the FWC carefully examined the negotiation process, the contents of the agreement, and the context of the enterprise. The FWC noted that the agreement had been negotiated in good faith and that it provided for terms that were no less favourable than the applicable minimum standards. The FWC also found that the agreement included necessary procedural safeguards and provided adequate protections for employee interests. After thorough deliberation, the FWC approved the agreement, finding it to be fair and compliant with the statutory requirements.

The FWC's final order approved the Bestbar Pty Ltd Northern Territory Enterprise Agreement 2025-2028, effective from the date of the decision. This approval signifies that the agreement is now legally binding on both the employer and the employees covered by the agreement.

Orders