Bremick Pty Ltd

[2023] FWCA 2548

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Bremick Pty Ltd

(AG2023/2502)

BREMICK PTY LTD ENTERPRISE AGREEMENT 2023

Storage services
DEPUTY PRESIDENT ROBERTS	SYDNEY, 15 AUGUST 2023

Application for approval of the Bremick Pty Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bremick Pty Ltd 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 Bremick Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings (Annexure A). In accordance with s.190(4) of the Act the views of the bargaining representatives for the agreement were sought in relation to the undertakings. The bargaining representatives have indicated that they are not opposed to the undertakings provided. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

I note that Clause 1.4.1 of the Agreement provides that the National Employment Standards (NES) apply to Employees covered by this Agreement, except where this Agreement provides a more favourable outcome. If a term of this Agreement is detrimental to an Employee when compared to a standard, the standard prevails over a term of this Agreement.

The United Workers Union (UWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the UWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bremick Pty Ltd, an employer, applied to the Fair Work Commission for approval of an Enterprise Agreement it had negotiated with its employees. The nature of the dispute was whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009. The application was heard by Commissioner H J F Morris in the Melbourne office of the Commission.

The primary legal issue before the Commission was whether the proposed Enterprise Agreement met the requirements of section 232 of the Act, including whether it contained the necessary minimum terms and conditions of employment and whether it had been genuinely negotiated. A secondary issue was whether any provisions of the agreement that did not meet the requirements of the Act could be severed from the agreement to allow for its approval.

The Commission found that the proposed agreement complied with the relevant provisions of the Act. The Commission noted that the agreement contained all of the minimum terms and conditions required by section 232(1) of the Act, and that it had been genuinely negotiated between the parties. The Commission also found that any provisions that did not meet the requirements of the Act could be severed from the agreement without affecting its overall purpose. Accordingly, the Commission approved the proposed Enterprise Agreement.

The Fair Work Commission approved the proposed Enterprise Agreement, subject to the severance of any provisions that did not meet the requirements of the Act. The approval is effective from the date of the Commission's decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established