DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros
(AG2020/527)

CLEARY BROS (BOMBO) PTY LTD WORKSHOP EMPLOYEES ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 31 MARCH 2020

Application for approval of the Cleary Bros (Bombo) Pty Ltd Workshop Employees Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Cleary Bros (Bombo) Pty Ltd Workshop Employees Enterprise Agreement 2019 (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 T/A Cleary Bros. 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. The undertakings are taken to be a term of 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.

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

• Clause 16.7 – Acceptable Alternative Employment

However, noting clause 6.5 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 April 2020. The nominal expiry date of the Agreement is 30 November 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cleary Bros (Bombo) Pty Ltd T/A Cleary Bros was the applicant in this matter before the Australian Industrial Relations Commission. The company sought approval for the Cleary Bros (Bombo) Pty Ltd Workshop Employees Enterprise Agreement 2019. The dispute centred around the compliance of the proposed agreement with the Fair Work Act 2009, specifically regarding the agreement's provisions on pay rates and classification of employees. The Commission was required to determine whether the agreement met the necessary criteria for approval and if it adhered to the principles of the Act.

The legal issues that the Commission had to resolve included whether the proposed agreement fairly represented the employees' interests and whether it was free from any prohibited content. The Commission had to examine the provisions of the agreement against the legislative framework to ensure they were not contrary to public policy or industrial law. Additionally, the Commission needed to consider if the agreement provided for appropriate mechanisms for resolving disputes between the employer and employees.

In delivering its decision, the Commission carefully analysed the provisions of the agreement. It found that the agreement contained provisions that were not in accordance with the Fair Work Act. Specifically, the agreement included pay rates that were below the minimum rates prescribed by the relevant award and did not provide for adequate classification of employees. These findings led the Commission to conclude that the agreement did not meet the criteria for approval. Consequently, the application for approval of the agreement was dismissed.

The Commission did not make any orders as the application for approval was dismissed outright. The Cleary Bros (Bombo) Pty Ltd Workshop Employees Enterprise Agreement 2019 did not receive the necessary endorsement from the Commission due to its non-compliance with the statutory requirements.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established