Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros Summary

[2023] FWCA 2042

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros

(AG2023/2162)

CLEARY BROS (BOMBO) PTY LTD QUARRY EMPLOYEES ENTERPRISE AGREEMENT 2022

Quarrying industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 4 JULY 2023

Application for approval of the Cleary Bros (Bombo) Pty Ltd Quarry Employees Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Cleary Bros (Bombo) Pty Ltd Quarry Employees Enterprise Agreement 2022 (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 Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met.

I note that clause 6.2 of the Agreement provides that where there is an inconsistency between the Agreement and the National Employment Standards (NES) and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

The Australian Workers’ Union (AWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU. Both the Applicant and the AWU expressed the view that the Agreement passes the better off overall test.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 1 November 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cleary Bros (Bombo) Pty Ltd, trading as Cleary Bros, sought approval for the Cleary Bros (Bombo) Quarry Employees Enterprise Agreement 2022 in the Fair Work Commission. The dispute centred on whether the agreement complied with the Fair Work Act 2009 and met the necessary standards for approval. The Fair Work Commission was tasked with reviewing the agreement to determine if it adhered to the legal requirements and provided fair terms for the employees.

The central legal issues before the Commission involved assessing whether the agreement complied with the statutory prerequisites outlined in the Fair Work Act. This included verifying that the agreement was made in good faith, that it contained the minimum terms and conditions as prescribed by law, and that it did not discriminate against any employee. Additionally, the Commission had to consider if the agreement had been negotiated fairly and if it contained appropriate mechanisms for resolving disputes.

The Commission found that the Cleary Bros (Bombo) Quarry Employees Enterprise Agreement 2022 was made in good faith and contained all the necessary minimum terms and conditions as required by the Fair Work Act. It also concluded that the agreement did not discriminate against any employees and had been negotiated fairly. The Commission highlighted that the agreement provided adequate dispute resolution mechanisms, ensuring that employees had a fair process to address any issues. Therefore, the Commission approved the agreement, recognising that it met the statutory requirements and provided fair terms for the employees.

The Fair Work Commission approved the Cleary Bros (Bombo) Quarry Employees Enterprise Agreement 2022, recognising that it complied with the Fair Work Act and provided fair terms for the employees. The Commission's decision was based on the agreement meeting the statutory prerequisites, including good faith negotiation, inclusion of minimum terms, non-discrimination, and fair dispute resolution mechanisms.

Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established