CAPS Australia Pty Ltd

[2023] FWCA 2879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

CAPS Australia Pty Ltd

(AG2023/2799)

CAPS AUSTRALIA PTY LTD ENTERPRISE AGREEMENT FOR WAGE EMPLOYEES 2023

Manufacturing and associated industries
DEPUTY PRESIDENT O’KEEFFE	PERTH, 8 SEPTEMBER 2023

Application for approval of the CAPS Australia Pty Ltd Enterprise Agreement for Wage Employees 2023

An application has been made for approval of an enterprise agreement known as the Caps Australia Pty Ltd Enterprise Agreement For Wage Employees 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by CAPS Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 17 April 2023 and the Agreement was made on 9 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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 are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 8 September 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, CAPS Australia Pty Ltd sought approval for its Enterprise Agreement for Wage Employees 2023. The dispute centred on whether the proposed agreement complied with the requirements of the Fair Work Act 2009. The Commission was tasked with determining whether the agreement met the necessary standards for approval, including compliance with the "better off overall test" and ensuring that it provided for minimum terms and conditions of employment.

The legal issues before the Commission were whether the proposed agreement provided for terms and conditions that were at least equal to the applicable national employment standards and whether it met the requirements of the "better off overall test". This test requires that employees be no worse off and at least some employees better off financially under the new agreement compared to the existing award or agreement. The Commission also considered whether the agreement contained any terms that were outside the scope of what could be lawfully included in an enterprise agreement.

The Commission found that the proposed agreement met the necessary standards for approval. It provided for terms and conditions that were at least equal to the applicable national employment standards and met the requirements of the "better off overall test". The Commission also found that the agreement contained no terms that were outside the scope of what could be lawfully included in an enterprise agreement. As a result, the Commission approved the Enterprise Agreement for Wage Employees 2023.

The Commission approved the Enterprise Agreement for Wage Employees 2023, effective from the date of the decision. The approval was subject to the condition that the agreement be registered with the Fair Work Commission within 28 days of the decision. The parties were also required to provide a copy of the approved agreement to the Fair Work Ombudsman within the same period. The decision provides clarity for the parties regarding the terms and conditions of employment under the new agreement and ensures that employees are not worse off financially as a result of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established