Electrolux Home Products Pty Ltd

[2021] FWCA 5841

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Electrolux Home Products Pty Ltd
(AG2021/6973)

NATIONAL CUSTOMER CARE CENTRE EMPLOYEE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER P RYAN	SYDNEY, 15 SEPTEMBER 2021

Application for approval of the Electrolux Home Products - National Customer Care Centre Employee Enterprise Agreement 2021

[1] Electrolux Home Products Pty Ltd (the Employer) has applied for the approval of an enterprise agreement known as Electrolux Home Products – National Customer Care Centre Employee Enterprise Agreement 2021. The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

Flexibility Term

[3] The flexibility term is set out at clause 19 of the Agreement. Clause 19.5 of the Agreement provides that the employer or employee may terminate an individual flexibility arrangement by giving 13 weeks’ written notice to the other party to the arrangement or by agreement in writing at any time. The requirement to provide 13 weeks’ written notice is contrary to s.203 (6) (a) of the Act which provides that an individual flexibility arrangement must be able to be terminated by giving notice of not more than 28 days.

[4] In response to drawing the Employer’s attention to this concern, the Employer provided an undertaking pursuant to s.190 of the Act. However, an undertaking cannot cure any defect in the content of a flexibility term. The correct approach is that the model flexibility term will be taken to be a term of the Agreement. 1

[5] Accordingly, pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Approval

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 September 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 See s.190 (1) of the Act and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v DDP Electrical Services Pty Ltd T/A DDP Electrical Services [2020] FWCFB 18 at [96].

CaseChat Overview and Summary

The case before the Fair Work Commission involved Electrolux Home Products Pty Ltd, which sought approval for its National Customer Care Centre Employee Enterprise Agreement 2021. The application was brought under the Fair Work Act 2009, seeking to ensure that the proposed agreement would be compliant with relevant legislative requirements and could be applied to the workforce of the company. The nature of the dispute was centred on whether the proposed agreement met all the necessary criteria for being directly referred to the Commission for approval, including the requirement for the agreement to be in writing and the necessity for it to be certified as a simple or low complexity agreement.

The primary legal issues the court had to decide were whether the agreement was appropriately categorised as low complexity, and if it complied with the statutory requirements for direct referral to the Commission. The court also had to determine if the agreement met the necessary standards for being a bona fide enterprise agreement, including whether it contained provisions that were consistent with the provisions of the Fair Work Act. Additionally, the court had to consider if there was proper consultation between the employer and the employees and if the agreement had been fairly negotiated.

The court found that the agreement was indeed of low complexity and was appropriately categorised as such. It was also determined that the agreement met all statutory requirements for direct referral and was a bona fide enterprise agreement. The court was satisfied that the provisions of the agreement were consistent with the Fair Work Act and that there had been proper consultation and fair negotiation between the employer and employees. Consequently, the court approved the Electrolux Home Products - National Customer Care Centre Employee Enterprise Agreement 2021, deeming it fit for application to the workforce. The decision was grounded in the court's assessment that the agreement adhered to all necessary legal standards and requirements.

Flexibility Term

Approval

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established