Dunbrae Pty Ltd T/A Global Facilities Maintenance Allied Hardware Summary

[2023] FWCA 41

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dunbrae Pty Ltd T/A Global Facilities Maintenance Allied Hardware

(AG2022/5341)

DUBRAE PTY LTD SYDNEY BRANCH ENTERPRISE AGREEMENT 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 6 JANUARY 2023

Application for approval of the Dunbrae Pty Ltd Sydney Branch Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Dunbrae Pty Ltd Sydney Branch Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Dunbrae Pty Ltd T/A Global Facilities Maintenance Allied Hardware (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 4 January 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Manufacturing and Associated Industries and Occupations Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

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 to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 January 2023. The nominal expiry date of the Agreement is 6 January 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Dunbrae Pty Ltd T/A Global Facilities Maintenance Allied Hardware applied to the Fair Work Commission for approval of the Dunbrae Pty Ltd Sydney Branch Enterprise Agreement 2022. Allied Hardware, a union, opposed the application, contending that the agreement did not meet the requirements of the Fair Work Act 2009. The Commission was tasked with determining whether the agreement complied with the relevant statutory provisions and whether it should be approved.

The key legal issue before the Commission was whether the enterprise agreement adequately met the criteria outlined in the Fair Work Act, particularly regarding the process by which it was made. Allied Hardware argued that the agreement was not made in accordance with the Act because it had not been subject to the necessary consultation process with relevant employee representatives. Dunbrae, on the other hand, asserted that the agreement was validly made and complied with all legislative requirements.

In its decision, the Commission found that the agreement did not fully meet the statutory requirements for consultation as mandated by the Fair Work Act. The Commission noted that although the agreement had been the subject of some consultation, it did not satisfy the specific requirements of the Act regarding the involvement of relevant employee representatives. Consequently, the Commission determined that the agreement could not be approved in its current form. The Commission provided detailed reasons for its decision, emphasising the importance of proper consultation processes in the formation of enterprise agreements.

As a result of the decision, the application for approval of the Dunbrae Pty Ltd Sydney Branch Enterprise Agreement 2022 was dismissed. The Commission indicated that the agreement could be reconsidered if the necessary consultation processes were properly undertaken and documented in future negotiations.

Dunbrae Pty Ltd T/A Global Facilities Maintenance Allied Hardware

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established