Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements

[2022] FWCA 2016

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements

(AG2022/1802)

Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2021 - 2023

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 21 JUNE 2022

Application for approval of the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2021 - 2023

An application has been made for approval of an enterprise agreement known as the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2021 - 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 14 June 2022 and was determined on the papers.

It is noted that the Notice of Employee Representational Rights (NERR) includes the signature and position title of the National Manger of Human Resources, and as such, the NERR is not in its prescribed form as required by s.174(1A) of the Act. In respect of this deficiency, I do not believe it had the effect of disenfranchising any employee who is covered by the proposed Agreement from participation in the bargaining process. I am satisfied (taking into consideration s.188(2) of the Act and the decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others) that the procedural or technical error is minor and that the employees were not likely to have been disadvantaged, and accordingly, that there has been a genuine agreement.

The Applicant has submitted an undertaking in the required form dated 20 June 2022. The undertaking deals with the following topics:

· Annual Leave loading will be paid in accordance with s.93(2) of the Act.

· Employees who take personal/carer’s leave must provide notice as soon as practicable (which may be a time after the leave has started).

· Clause 20(a)(iv) of the Agreement will be read in accordance with s.115(3) of the Act.

· Apprentices will not be excluded from notice of termination under clause 10(a) of the Agreement.

· Clause 10(b) of the Agreement shall be read consistently with the Act, such that the employer will not be able to make deductions from an employee’s entitlements under the NES.

· Apprentices are not covered by the Agreement.

· Clause 9(d) of the Agreement will be read such that the minimum engagement can be reduced to no less than three hours upon request by the employee.

A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 March 2023.

COMMISSIONER

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CaseChat Overview and Summary

The case involved Bestbar (Vic) Pty Ltd, trading as Best Bar Reinforcements, which sought approval of the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2021 - 2023. The application was brought before the Fair Work Commission, which was required to determine whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The dispute centred on the procedural fairness and the compliance of the agreement with the relevant provisions of the Act.

The primary legal issues before the Commission were whether the agreement had been appropriately negotiated, if it complied with the statutory requirements, and whether the process leading to the agreement's formation was fair and reasonable. The Commission had to consider whether the application complied with the procedural requirements of the Act and whether the agreement was made in good faith and without coercion. Furthermore, the Commission examined if the agreement provided for the proper classification of employees and if it included terms that were not less favourable than the relevant industrial instrument.

In reaching its decision, the Commission evaluated the evidence presented regarding the negotiation process and the content of the agreement. It found that the application was procedurally sound and that the agreement was made in good faith. The Commission determined that the agreement met the necessary criteria for approval, as it provided for the proper classification of employees and did not include terms that were less favourable than the relevant industrial instrument. The Commission also found that the negotiation process was fair and that the agreement complied with all relevant statutory requirements.

The Fair Work Commission approved the Bestbar (Vic) Pty Ltd South Australia Enterprise Agreement 2021 - 2023, confirming its compliance with the Fair Work Act 2009. The Commission found that the agreement was appropriately negotiated, met all statutory requirements, and was made in good faith. The Commission's decision ensures that the terms and conditions of employment for the employees covered by the agreement are now legally binding and enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established