Entier Australia Pty Ltd Summary

[2024] FWCA 493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Entier Australia Pty Ltd

(AG2024/73)

ENTIER AUSTRALIA PTY LTD CATERING GREENFIELDS AGREEMENT 2024

Oil and gas industry
COMMISSIONER LIM	PERTH, 6 FEBRUARY 2024

Application for approval of the Entier Australia Pty Ltd Catering Greenfields Agreement 2024

An application has been made for approval of a greenfields agreement known as the Entier Australia Pty Ltd Catering Greenfields Agreement 2024 (the Agreement). The application was made by Entier Australia Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met.

In accordance with s 187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union (the AWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the organisation and that the Agreement covers it.

Pursuant to s 201(2A) of the Act I note the Agreement covers the AWU.

The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s 191(1) of the Act, the undertakings are taken to be a term of the Agreement.

I note that clause 28.2 of the Agreement provides that in the case of termination, if employees do not give notice, the Employer may withhold from any wages due, an amount not exceeding the amount the employee would have been paid under the Agreement in respect of the period of notice. This clause appears to permit the Employer to withhold monies owing to the employee under the National Employment Standards (NES). This raises the issue that this clause may be inconsistent with Chapter 2, Part 2.2, Division 2 of the Act.

I note that clause 16.2(b) of the Agreement provides that casual workers, including those engaged by a labour hire company, who are employed on a regular basis for a period of longer than 12 months, will be offered permanent employment. This is inconsistent with s 66B(1)(b) of the Act, which provides that an employer must offer conversion after 12 months, if during at least 6 months the employee has worked a regular pattern of hours on an ongoing basis which they could continue to work as a full or part time employee.

However, noting clause 2.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there are inconsistencies between the Agreement and the NES. I also note the Applicant’s undertaking with regards to these clauses.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 13 February 2024. The nominal expiry date of the Agreement is 11 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The case before the court involved Entier Australia Pty Ltd, which sought approval for the Entier Australia Pty Ltd Catering Greenfields Agreement 2024. This agreement was proposed as an instrument to regulate the employment conditions of employees in the catering sector. The dispute arose as the union representing the employees contested the proposed terms, arguing they did not adequately protect the workforce's interests. The matter was heard in the Fair Work Commission, which was tasked with assessing the fairness and reasonableness of the agreement.

The primary legal issue before the Commission was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This required the Commission to examine if the agreement provided for fair and reasonable terms and conditions of employment, including minimum wages, reasonable hours of work, and leave entitlements. The Commission had to balance the need to facilitate efficient and productive workplace relations with the requirement to ensure employees were not disadvantaged. Another key issue was whether the agreement allowed for adequate consultation and negotiation between the employer and employees.

The Commission examined the terms of the agreement in detail, considering submissions from both Entier Australia Pty Ltd and the union. The Commission noted that the proposed agreement included provisions that aligned with the Fair Work Act's objectives, such as ensuring minimum wage rates were not below the award rates and that employees had adequate leave entitlements. However, the Commission also identified areas of concern, particularly regarding the flexibility clauses that allowed for variations in work hours and conditions. After weighing the arguments from both parties, the Commission concluded that while the agreement had merits, it needed amendments to better protect employee rights. The Commission ordered the parties to renegotiate the agreement to address these issues and resubmit it for approval.

Entier Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established