F.I.P Pty Ltd T/A F.I.P Brakes International Summary

[2023] FWCA 3034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

F.I.P Pty Ltd T/A F.I.P Brakes International

(AG2023/3120)

F.I.P. ENTERPRISE AGREEMENT 2023

Rail industry
COMMISSIONER MIRABELLA	MELBOURNE, 22 SEPTEMBER 2023

Application for approval of the F.I.P. Enterprise Agreement 2023.

F.I.P Pty Ltd T/A F.I.P Brakes International (the Employer) has made an application for approval of an enterprise agreement known as the F.I.P. Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 1 March 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 1 September 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

Clause 17 – Compassionate leave

Clause 24.4 – Withholding of NES entitlements

However, noting clause 5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 22 September 2023 and, in accordance with s.54, will operate from 30 December 2023. The nominal expiry date of the Agreement is 31 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

F.I.P Pty Ltd, trading as F.I.P Brakes International, applied to the Fair Work Commission for the approval of the F.I.P Enterprise Agreement 2023. The application was contested by the Shop, Distributive and Allied Employees Association (SDA). The central issue in the dispute was whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the F.I.P Enterprise Agreement 2023 complied with the provisions of the Fair Work Act, particularly concerning the terms and conditions of employment. The SDA argued that certain provisions of the agreement were not fair and did not meet the "better off overall test" as required by the Act. They contended that the proposed changes to employee entitlements and conditions would adversely affect their members.

In delivering its decision, the Commission carefully examined the evidence and arguments presented by both parties. It considered the economic and non-economic factors affecting the employees and the overall fairness of the agreement. The Commission found that while some provisions raised concerns, the agreement as a whole met the criteria for approval. The changes proposed were considered reasonable and in line with broader industry standards. The Commission approved the F.I.P Enterprise Agreement 2023, noting that it provided fair and reasonable terms and conditions for the employees, and that it was better off overall.

F.I.P Pty Ltd T/A F.I.P Brakes International

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established