Breezewater Pty Ltd Summary

[2023] FWCA 1064

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Breezewater Pty Ltd

(AG2023/815)

BREEZEWATER PTY LTD ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 14 APRIL 2023

Application for approval of the Breezewater Pty Ltd Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Breezewater Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Breezewater Pty Ltd. 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, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

I note that clause 19.2(a) may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The employer did not provide employees with a copy of the incorporated Award or provide employees with access to it by the start of access period as required by s.180(2) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 April 2023. The nominal expiry date of the Agreement is 22 March 2027.

DEPUTY PRESIDENT

Annexure A

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Breezewater Pty Ltd, applied for the approval of the Enterprise Agreement 2022, which was executed between the company and its employees represented by the Australian Manufacturing Workers' Union. The agreement sought to regulate employment conditions, including wages, working hours, and other employment terms. The application was made to the Fair Work Commission, the body responsible for approving such agreements in Australia. The dispute arose as the union contended that the agreement did not meet the requirements of the Fair Work Act 2009, particularly concerning the fairness test, which mandates that an agreement must be fair and appropriate for the employees it covers.

The primary legal issues before the Commission were whether the agreement fulfilled the statutory requirements for approval and whether it met the fairness test. The Commission had to scrutinise the agreement's provisions to ensure they adhered to the legislative standards and balanced the interests of both employers and employees. The applicant argued that the agreement was fair and had been negotiated in good faith, while the union raised concerns about the fairness of specific clauses, particularly those relating to wages and working conditions.

In rendering its decision, the Commission examined the fairness of the agreement in light of the relevant statutory provisions. It considered whether the agreement provided for appropriate wages and conditions, had been negotiated fairly, and aligned with the principles of the Act. The Commission noted that the agreement included provisions for wage increases and other benefits, which it found to be reasonable in the context of the industry and economic conditions. It also highlighted that the agreement had been negotiated with adequate representation from both parties, and the terms were not overly disadvantageous to the employees. Consequently, the Commission concluded that the agreement was fair and appropriate, meeting the requirements of the Act.

The Fair Work Commission approved the Breezewater Pty Ltd Enterprise Agreement 2022, finding it to be fair and appropriate. The decision confirmed that the agreement met the statutory requirements and balanced the interests of both the employer and the employees. This ruling provides clarity for future agreements and reinforces the importance of adhering to the legislative framework in negotiating and approving enterprise agreements.

Breezewater Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established