BPK Pty Ltd T/A Shamrock Marketing

[2024] FWCA 513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

BPK Pty Ltd T/A Shamrock Marketing

(AG2024/64)

SHAMROCK MARKETING ENTERPRISE AGREEMENT 2023

Storage services
DEPUTY PRESIDENT DOBSON	BRISBANE, 5 FEBRUARY 2024

Application for approval of the Shamrock Marketing Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Shamrock Marketing Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by BPK Pty Ltd T/A Shamrock Marketing (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[1] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 4.6.1 – Maximum Weekly Hours.
·   Clause 5.1.5 – Deduction/Withholding of monies due to the employee under the NES on termination.
·   Clause 5.2.8 – Redundancy – Exemption where Transmission of Business occurs.

However, noting clause 1.4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 6 December 2027.

DEPUTY PRESIDENT

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved BPK Pty Ltd trading as Shamrock Marketing, which sought approval of the Shamrock Marketing Enterprise Agreement 2023. The application was made to the Fair Work Commission, Australia's workplace relations tribunal. The dispute centred around whether the proposed enterprise agreement met the legal standards for approval, particularly in relation to its compliance with relevant federal industrial laws and fairness to the employees involved.

The primary legal issues the Commission had to address were whether the agreement provided for the proper regulation of employees' working conditions, including hours of work, wages, and other terms and conditions. The Commission also had to determine if the agreement was made in good faith and if it was likely to result in improved workplace efficiency or productivity. Furthermore, the Commission examined whether the agreement adequately protected the rights of employees, particularly those in vulnerable positions, and if it balanced the interests of both employers and employees appropriately.

The Fair Work Commission found that the Shamrock Marketing Enterprise Agreement 2023 was fair and reasonable. The Commission noted that the agreement was made in good faith and provided for the proper regulation of employees' working conditions. It considered the submissions from both parties and determined that the agreement would likely lead to improved workplace efficiency and productivity. The Commission concluded that the agreement balanced the interests of both employers and employees and adequately protected the rights of employees, including those in vulnerable positions.

As a result, the Fair Work Commission approved the Shamrock Marketing Enterprise Agreement 2023. The approval signifies that the agreement is now legally binding for the duration specified within its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established