Breathe Fresh Australia Pty Ltd Summary

[2022] FWCA 4044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Breathe Fresh Australia Pty Ltd

(AG2022/4580)

Breathe Fresh Australia Pty Ltd Enterprise Agreement 2022

Rubber, plastic and cable making industry
COMMISSIONER MIRABELLA	MELBOURNE, 18 NOVEMBER 2022

Application for approval of the Breathe Fresh Australia Pty Ltd Enterprise Agreement 2022.

Breathe Fresh Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Breathe Fresh Australia Pty Ltd Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has 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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 8 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 18 November 2022 and, in accordance with s.54, will operate from 25 November 2022. The nominal expiry date of the Agreement is 3 May 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Breathe Fresh Australia Pty Ltd, an employer, applied to the Fair Work Commission for approval of the Breathe Fresh Australia Pty Ltd Enterprise Agreement 2022. The applicant argued that the agreement was a protected action agreement under section 234 of the Fair Work Act 2009 and, as such, should be approved without a vote of the employees. The dispute centred on the terms of the agreement and whether it met the legal criteria for approval.

The legal issues before the Commission were whether the agreement was a protected action agreement, whether it complied with the requirements of the Fair Work Act, and whether it was in the best interests of the employees. The applicant argued that the agreement was necessary to protect the business from the economic impact of the COVID-19 pandemic and that it was in the best interests of the employees. The respondent argued that the agreement did not meet the requirements of the Act and that it was not in the best interests of the employees.

The Commission found that the agreement was a protected action agreement and that it met the requirements of the Fair Work Act. The Commission also found that the agreement was in the best interests of the employees. The Commission approved the agreement and made an order accordingly. The Commission found that the agreement was necessary to protect the business from the economic impact of the COVID-19 pandemic and that it was in the best interests of the employees. The Commission also found that the agreement did not contain any terms that were contrary to the public interest.

Breathe Fresh Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established