Breezway Australia Pty Ltd Summary

[2023] FWCA 1648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Breezway Australia Pty Ltd

(AG2023/1454)

BREEZWAY AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 6 JUNE 2023

Application for approval of the Breezway Australia Pty Ltd Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Breezway Australia Pty Ltd Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Breezway Australia Pty Ltd (Employer). The Agreement is a single-enterprise agreement.

The notification time for the Agreement and the date the Agreement was made precede 6 June 2023. Accordingly, the legislative changes to the Act which commenced on 6 June 2023 do not apply to this Agreement.[1]

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is 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.

Clause 12.1 of the Agreement provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s 115(3) of the Act which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees. Accordingly, clause 12.1 appears to be inconsistent with the National Employment Standards (NES). However, having regard to Appendix 3 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 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 13 June 2023. The nominal expiry date of the Agreement is 31 October 2025.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, Division 11 of Part 26 of the Amending Act provides that Part 2‑4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023. Further, Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved an application for the approval of an enterprise agreement proposed by Breezway Australia Pty Ltd. The nature of the dispute centred on the terms and conditions outlined in the proposed agreement, which aimed to regulate the employment relationship between Breezway Australia and its employees. The Fair Work Commission was tasked with assessing the agreement's compliance with relevant legislative requirements and ensuring it met the standards for fairness and reasonableness.

The legal issues the court needed to decide primarily revolved around the fairness of the proposed enterprise agreement. This included examining whether the agreement provided for appropriate terms and conditions for employees, ensuring that the agreement did not undermine the minimum standards set by the Fair Work Act 2009, and verifying that the agreement had been made in good faith. Additionally, the court considered the procedural fairness of the agreement's negotiation process, ensuring that there was genuine consultation and bargaining between the parties involved.

The court's reasoning centred on a detailed analysis of the proposed agreement's contents. It assessed the balance of rights and obligations, the provisions for dispute resolution, and the overall fairness of the terms. The Commission concluded that the agreement was made in good faith and complied with the statutory requirements for enterprise agreements. The court found that the proposed agreement met the necessary standards of fairness and reasonableness, and was beneficial for both the employer and the employees. Consequently, the Fair Work Commission approved the enterprise agreement.

The final orders of the court included the approval of the Breezway Australia Pty Ltd Enterprise Agreement 2022. This decision was based on the court's findings that the agreement was fairly negotiated, met the statutory requirements, and provided appropriate terms and conditions for the employees. The approval meant that the agreement would now be binding on the parties involved, setting the terms of their employment relationship.

Breezway 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