Carrabay Pty Ltd T/A Carrabay Pty Ltd

[2022] FWCA 2186

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Carrabay Pty Ltd T/A Carrabay Pty Ltd

(AG2022/2017)

Carrabay Pty Ltd Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 30 JUNE 2022

Application for approval of the Carrabay Pty Ltd Enterprise Agreement 2022

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

Conclusion

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 July 2022. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Carrabay Pty Ltd, trading as Carrabay Pty Ltd, applied to the Fair Work Commission for approval of the Carrabay Pty Ltd Enterprise Agreement 2022. The application involved a dispute over the terms and conditions of employment for the employees of Carrabay Pty Ltd, with various stakeholders, including the employees and the employer, having differing views on the proposed agreement. The Fair Work Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement provided for terms and conditions of employment that were no less favourable than the applicable award or registered agreement, whether the agreement contained a dispute resolution clause, and whether the agreement complied with the good faith bargaining requirement. The Commission also had to consider whether the agreement had been appropriately certified by the Australian Council of Trade Unions or the Australian Council of Employers as a genuine enterprise agreement. The parties contested the fairness and reasonableness of certain provisions, particularly those relating to penalty rates and shift loadings.

The Fair Work Commission found that the Carrabay Pty Ltd Enterprise Agreement 2022 met all the necessary legal requirements for approval. The Commission determined that the agreement provided terms and conditions that were no less favourable than the applicable award and included a dispute resolution clause. It was also satisfied that the agreement had been genuinely negotiated in good faith and appropriately certified. The Commission found that the provisions concerning penalty rates and shift loadings were fair and reasonable, taking into account the specific circumstances of the workplace and the bargaining positions of the parties. Consequently, the Commission approved the agreement, and it will now be legally binding on the parties involved.

The final orders of the Fair Work Commission included the approval of the Carrabay Pty Ltd Enterprise Agreement 2022, with the agreement to commence on the date of the decision. The Commission also directed that the agreement be registered with the Fair Work Commission and be provided to all relevant parties. The decision was made under section 186 of the Fair Work Act 2009 and is binding on the parties involved in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established