Colan Products Pty Ltd T/A Colan Australia

[2022] FWCA 4582

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Colan Products Pty Ltd T/A Colan Australia

(AG2022/5168)

Colan Products Pty Limited Enterprise Agreement 2022

Textile industry
COMMISSIONER CIRKOVIC	MELBOURNE, 23 DECEMBER 2022

Application for approval of the Colan Products Pty Limited Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Colan Products Pty Limited 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 Colan Products Pty Ltd T/A Colan Australia. 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement and the provided undertakings, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry, Maritime, Mining and Energy Union, 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 was approved on 23 December 2022 and, in accordance with s.54, will operate from 30 December 2022. The nominal expiry date of the Agreement is 30 April 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the court involved Colan Products Pty Ltd, trading as Colan Australia, which sought approval of the Colan Products Pty Limited Enterprise Agreement 2022. The application for approval was brought under the Fair Work Act 2009, with the Fair Work Commission (FWC) being the relevant tribunal for such matters. The primary issue before the court was whether the agreement met the requirements of section 234 of the Act, which mandates that an enterprise agreement must provide for fair and reasonable terms and conditions.

The court had to determine if the agreement, which was entered into between the employer and the union representing the employees, included all necessary terms and conditions and whether it complied with the provisions of the Act. This involved examining the agreement's content to ensure it was not contrary to public policy, did not discriminate on certain grounds, and was made in good faith. Additionally, the court assessed if the agreement was free from provisions that would undermine the operation of the Act or any other law.

In delivering the decision, the court found that the Colan Products Pty Limited Enterprise Agreement 2022 did indeed satisfy all the statutory requirements under section 234. The agreement was deemed to be fair and reasonable, providing for appropriate terms and conditions for the employees. The court concluded that the agreement was made in good faith, did not contain any discriminatory provisions, and complied with all relevant legislative requirements. As a result, the court approved the agreement and directed that it be registered in accordance with the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established