Fenner Dunlop Australia Pty Ltd

[2025] FWCA 3289

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Fenner Dunlop Australia Pty Ltd

(AG2025/2918)

FENNER DUNLOP (ADELAIDE) ENTERPRISE AGREEMENT 2025

Manufacturing and associated industries
COMMISSIONER ROGERS	ADELAIDE, 29 SEPTEMBER 2025

Application for approval of the Fenner Dunlop (Adelaide) Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the Fenner Dunlop (Adelaide) Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fenner Dunlop Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

· Public Holidays: Clause 35.4(a) provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.

· Deduction/withholding of monies due to the employee under the NES on termination: Clause 15.1 provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee’s termination pay an amount that is equal to the period of notice not given. Clause 15.1 does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES.

Noting Clause 5(d) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act from 6 October 2025. The nominal expiry date of the Agreement is 30 April 2027.

COMMISSIONER

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CaseChat Overview and Summary

Fenner Dunlop Australia Pty Ltd, represented by its chief financial officer, has applied to the Fair Work Commission for approval of the Fenner Dunlop (Adelaide) Enterprise Agreement 2025. The application pertains to the terms and conditions of employment for employees of Fenner Dunlop in Adelaide. The legal issues before the Commission revolve around whether the proposed agreement meets the requirements of the Fair Work Act 2009, particularly the provisions concerning genuine agreement, procedural fairness, and the public interest. The Commission must determine if the agreement was genuinely agreed upon by the parties, if the necessary procedural steps were followed, and if the agreement serves the public interest.

The Commission examined the evidence presented, including the negotiation process, the consultation undertaken, and the level of employee participation. The applicant provided documentation and testimony to demonstrate that the agreement was the result of genuine negotiations and that it was supported by a majority of the employees. The Commission also considered whether the agreement contained minimum terms and conditions as required by the Fair Work Act, and if it was consistent with the broader objectives of the Act, such as promoting harmonious, productive, and cooperative workplace relations. The Commission's reasoning focused on the balance between the need for fair workplace practices and the autonomy of the parties in negotiating their own agreement.

After reviewing the evidence and arguments, the Commission determined that the agreement was genuinely negotiated and supported by the employees. The Commission found that the procedural requirements were met and that the agreement would not have an adverse effect on the public interest. Consequently, the Commission approved the Fenner Dunlop (Adelaide) Enterprise Agreement 2025. This decision ensures that the terms of employment for the Adelaide-based employees are legally binding and that the workplace practices are compliant with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established