DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Birdon Pty Ltd
(AG2019/2145)

BIRDON PTY. LTD. (MARINE DIVISION) ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
DEPUTY PRESIDENT BULL	SYDNEY, 9 JULY 2019

Application for approval of the Birdon Pty. Ltd. (Marine Division) Enterprise Agreement 2018.

[1] An application (Form F16) has been filed by Birdon Pty Ltd(the applicant) for the approval of an enterprise agreement known as the Birdon Pty. Ltd. (Marine Division) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement as per s.172(2) of the Act.

[2] The Employer has provided written undertakings regarding:

• The application of the Dispute Settlement Procedure;

• Redundancy payments; and

• Additional hours

[3] A copy of the undertakings is attached at the end of the Agreement. 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.

[4] Subject to the undertakings referred to above, 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.

[5] As the Agreement’s consultation clause is not in accordance with s.205(1) of the Act, pursuant to s.205(2) of the Act the model consultation term prescribed by the Fair Work Regulations 2009 (the Regulations) is taken to be a term of the Agreement. A copy of the model consultation term is attached at the end of the Agreement.

[6] As the Agreement’s flexibility term is not in accordance with s.203(6)(a) of the Act, pursuant to s.202(4) of the Act the model flexibility term prescribed by the Regulations is taken to be a term of the Agreement. A copy of the model flexibility term is attached at the end of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after approval. The nominal expiry date of the Agreement is 30 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Birdon Pty Ltd, an employer, applied to the Fair Work Commission for approval of the Birdon Pty. Ltd. (Marine Division) Enterprise Agreement 2018. The application arose from negotiations between Birdon Pty Ltd and the Maritime Union of Australia, which resulted in the creation of the enterprise agreement. The dispute centred on whether the agreement complied with the Fair Work Act 2009 and whether it met the 'better off overall test' for employees.

The primary legal issues that the Fair Work Commission had to resolve were whether the agreement provided for fair and reasonable terms and conditions for employees, and whether the agreement was made in good faith. Additionally, the Commission had to consider whether the agreement met the 'better off overall test', which requires that the financial and non-financial benefits provided by the agreement outweigh any detriments. The Commission also needed to determine whether the agreement contained any terms that were contrary to public policy or contrary to the spirit of the Fair Work Act.

The Fair Work Commission found that the Birdon Pty. Ltd. (Marine Division) Enterprise Agreement 2018 was fair and reasonable, made in good faith, and met the 'better off overall test'. The Commission concluded that the agreement provided for fair and reasonable terms and conditions for employees, including provisions for wages, hours of work, leave, and other benefits. The Commission also found that the agreement did not contain any terms that were contrary to public policy or contrary to the spirit of the Fair Work Act. As a result, the Commission approved the agreement, and it became legally binding on both parties.

The Fair Work Commission approved the Birdon Pty. Ltd. (Marine Division) Enterprise Agreement 2018, and it became effective from the date of approval. The agreement provides for fair and reasonable terms and conditions for employees, including provisions for wages, hours of work, leave, and other benefits. The approval of the agreement means that it is legally binding on both parties, and any disputes arising from the agreement must be resolved in accordance with its terms.

Birdon Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established