DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Charles Porter & Sons Pty Ltd T/A Porters
(AG2018/3191)

CHARLES PORTER & SONS PTY LTD ENTERPRISE AGREEMENT 2018

Retail industry
COMMISSIONER LEE	MELBOURNE, 12 FEBRUARY 2019

Application for approval of the Charles Porter & Sons Pty Ltd Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Charles Porter & Sons Pty Ltd Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Charles Porter & Sons Pty Ltd T/A Porters. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 12.9 – Paid Annual Leave.

However, noting clause 5.2 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 February 2019. The nominal expiry date of the Agreement is 11 February 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Charles Porter & Sons Pty Ltd, trading as Porters, and the Fair Work Commission. The matter before the Court was an application for the approval of the Charles Porter & Sons Pty Ltd Enterprise Agreement 2018. The agreement was proposed to replace an existing enterprise agreement, and the application was made under section 234 of the Fair Work Act 2009.

The primary legal issue before the court was whether the proposed enterprise agreement met the requirements set out in the Fair Work Act. Specifically, the court needed to determine if the agreement provided for fair and reasonable terms and conditions, and if it complied with the provisions of the Act, including those concerning the avoidance of underpayment and the protection of workers' rights. The court also considered whether the agreement was made in good faith and whether it met the requirements for the direct and effective resolution of workplace issues.

The Court found that the proposed agreement met the necessary criteria for approval. The agreement was deemed to be fair and reasonable, providing for terms and conditions that were not worse off than those provided for in the applicable award or safety net award. The Court was satisfied that the agreement provided for the direct and effective resolution of workplace issues and that it was made in good faith. The Court further found that the agreement complied with all relevant provisions of the Fair Work Act.

In light of these findings, the Court approved the Charles Porter & Sons Pty Ltd Enterprise Agreement 2018, with effect from the date of the Court's approval. The agreement will now replace the existing enterprise agreement, and the terms and conditions set out in the new agreement will apply to the employees covered by it.

Charles Porter & Sons Pty Ltd T/A Porters

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established