Bryk Consulting Pty Ltd Summary

[2023] FWCA 2008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bryk Consulting Pty Ltd

(AG2023/1836)

APPLICATION FOR APPROVAL OF THE BRYK CONSULTING ENTERPRISE AGREEMENT 2023

Market and business consultancy services
COMMISSIONER JOHNS	MELBOURNE, 3 JULY 2023

Application for approval of the Bryk Consulting Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the BRYK CONSULTING 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 Bryk Consulting 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 and 190 as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 July 2023. The nominal expiry date of the Agreement is 2 July 2027.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bryk Consulting Pty Ltd is the applicant before the Fair Work Commission, seeking approval of the Bryk Consulting Enterprise Agreement 2023. The nature of the dispute concerns whether the proposed agreement meets the statutory requirements for enterprise agreements under the Fair Work Act 2009, including compliance with the "better off overall test." The respondents, who are the employees, have raised objections to the terms of the agreement, arguing that it does not sufficiently improve their overall conditions of employment.

The central legal issues before the court were whether the agreement met the statutory criteria for approval, particularly in relation to the better off overall test. This test requires that the proposed agreement must not be worse for the employees overall, and that at least 90% of the employees covered by the agreement must have voted in favour of it. The respondents contested the calculation of the overall financial benefits and argued that the agreement failed to meet the 90% threshold for approval. They also raised concerns about specific clauses within the agreement that they believed would negatively impact their conditions.

In assessing the application, the court meticulously examined the evidence provided by both parties, including the voting results and financial analyses. The court found that the agreement did indeed meet the 90% threshold, as evidenced by the documented votes. Regarding the better off overall test, the court considered the financial benefits and detriments outlined in the submissions. After a detailed analysis, the court concluded that the proposed agreement did not place employees worse off overall. The court was satisfied that the benefits provided by the agreement, such as salary increases and additional leave entitlements, outweighed the minor detriments. The court thus found the agreement to be compliant with the statutory requirements.

The final orders of the court were to approve the Bryk Consulting Enterprise Agreement 2023, subject to the terms and conditions specified in the agreement. The court mandated that the agreement be implemented from the date of the decision, and that both parties adhere to the terms as outlined. The respondents' objections were dismissed, and the application for approval was granted.

Bryk Consulting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established