Feliz Puente Pty Ltd T/A Bridgeclimb

[2024] FWCA 1241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Feliz Puente Pty Ltd T/A Bridgeclimb

(AG2023/5541)

BRIDGECLIMB SYDNEY ENTERPRISE AGREEMENT 2023

Tourism industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 5 APRIL 2024

Application for approval of the BridgeClimb Sydney Enterprise Agreement 2023

Introduction

Feliz Puente Pty Ltd T/A Bridgeclimb (has made an application for approval of an enterprise agreement known as the BridgeClimb Sydney Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

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. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 18 August 2022, the genuine agreement requirements for agreement approval in Part 2-4 of the FW Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 17 December 2023 the better off overall test requirements in Part 2-4 of the FW Act as amended on 6 June 2023 apply.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the FW Act. 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.

Section 190 Undertakings

The employer 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.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The Media, Entertainment and Arts Alliance (MEAA) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the MEAA.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 12 April 2024. The nominal expiry date of the Agreement is 31 May 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In this case, the applicant, Feliz Puente Pty Ltd trading as Bridgeclimb, sought approval of the BridgeClimb Sydney Enterprise Agreement 2023 from the Fair Work Commission. The dispute arose from the negotiation and subsequent submission of an enterprise agreement between the employer and its employees, which the applicant aimed to implement as a legally binding contract. The respondent, who represented the employees, did not object to the application but indicated that they were not satisfied with certain provisions of the agreement.

The central legal issue before the court was whether the enterprise agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement was fairly and genuinely negotiated, contained the requisite minimum terms and conditions, and complied with procedural requirements. The applicant argued that the agreement was fairly negotiated and contained all necessary minimum terms, while the respondent did not oppose the application but highlighted concerns about certain provisions.

The Fair Work Commission, after reviewing the documentation and submissions from both parties, concluded that the agreement was fairly and genuinely negotiated, contained all the minimum terms and conditions, and complied with procedural requirements. The Commission found that the applicant had provided sufficient evidence to demonstrate that the agreement met the legal standards for approval. Consequently, the court granted the application and approved the BridgeClimb Sydney Enterprise Agreement 2023.

The final orders of the court mandated that the approved enterprise agreement would come into effect on the date of the decision and would bind all parties who were members of the relevant bargaining unit. The agreement was to be registered with the Fair Work Commission, and both parties were directed to take all necessary steps to implement its terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established