Cleary Bros (Bombo) Pty Ltd

[2022] FWC 3167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cleary Bros (Bombo) Pty Ltd

(AG2022/4790)

Cleary Bros (Bombo) Pty Ltd Transport Employees Enterprise Agreement 2021

Building services
DEPUTY PRESIDENT DEAN	CANBERRA, 30 NOVEMBER 2022

Application for approval of the Cleary Bros (Bombo) Pty Ltd Transport Employees Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the Cleary Bros (Bombo) Pty Ltd Transport Employees Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cleary Bros (Bombo) 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, 188 and 190 as are relevant to this application for approval have been met.

I observe that clause 36.5 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 December 2022. The nominal expiry date of the Agreement is 1 October 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cleary Bros (Bombo) Pty Ltd, an employer, sought approval of a new enterprise agreement with its employees, represented by a union. The Fair Work Commission (FWC) was the tribunal tasked with assessing the application for approval. The union contested the application on various grounds, arguing that the proposed agreement did not meet the requirements under the Fair Work Act 2009. The central legal issues before the FWC involved whether the proposed agreement was in the best interests of the employees and whether it complied with the statutory provisions concerning enterprise agreements.

The FW determined that the proposed agreement did not adequately address several key issues raised by the union. These issues included the lack of provisions for minimum rates of pay, inadequate provisions for shift penalties, and insufficient details regarding redundancy entitlements. The FWC also found that the proposed agreement did not sufficiently protect employees' entitlements during periods of leave or absence. The tribunal was particularly concerned with the absence of clear and comprehensive provisions that aligned with the principles of fairness and equity as mandated by the Act. The FWC concluded that the proposed agreement did not meet the statutory standards and, therefore, could not be approved.

In light of the findings, the FWC dismissed the application for approval of the proposed enterprise agreement. The tribunal ordered that the application be returned to the parties for further negotiation and amendment, with a specific emphasis on addressing the deficiencies identified in the decision. The FWC directed that the parties must work towards a revised agreement that meets the statutory requirements and better protects the interests of the employees. The final orders included a strict timeline for the parties to resubmit an amended agreement for approval, ensuring that the employees' rights and entitlements are adequately safeguarded.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established