DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fenwick Jaylee Pty Ltd
(AG2021/4592)

FENWICK JAYLEE PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 7 MAY 2021

Application for approval of the Fenwick Jaylee Pty Ltd Enterprise Agreement 2021.

[1] Fenwick Jaylee Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Fenwick Jaylee Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] A concern was raised in relation to clause 16.5 of the Agreement and whether this clause was inconsistent with s. 324(1) of the Act. Clause 16.5 provides that if an employee who is at least eighteen years of age fails to the give the Employer the required period of notice, the Employer may deduct from wages due to the Employee an amount that is no more than one week’s wages for the employee.

[3] The Applicant provided a response to this concern, as well as an undertaking that in relation to clause 16.5 of the Agreement, any deduction from an employee’s wages would be consistent with the requirements of the Fair Work Act 2009. A copy of the Undertaking is attached as Annexure A to this decision.

[4] While I accept the Applicant’s response in and the undertaking address this concern, I note that any deductions from employees wages must be permitted deductions that are consistent with the requirements of s. 324(1) of the Act.

[5] I am satisfied that the effect of accepting the Undertaking is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[6] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertaking. Pursuant to subsection 190(3) of the Act, I accept the Undertaking. In accordance with s.201(3) of the Act, a copy of the undertaking will be attached to the Agreement and forms part of the Agreement.

[7] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 14 May 2021. The nominal expiry date of the Agreement is 7 May 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Fenwick Jaylee Pty Ltd, sought approval of the Fenwick Jaylee Pty Ltd Enterprise Agreement 2021, with the Australian Industrial Relations Commission. The respondent, Australian Manufacturing Workers' Union, raised objections to the agreement on various grounds, including concerns about the terms and conditions of employment, the process of negotiation, and the fairness of the agreement. The case involved the interpretation and application of relevant industrial relations legislation, including the Fair Work Act 2009 and associated regulations. The primary legal issue the commission had to address was whether the agreement met the statutory criteria for approval under the Fair Work Act. This involved examining the negotiation process, the content of the agreement, and whether it contained any unfair terms.

The commission began by considering the process of negotiation, which was at the heart of the respondent's objections. It was necessary to determine whether the agreement was genuinely negotiated between the employer and the union. The commission examined evidence of the negotiation process and found that while there were some procedural irregularities, these did not undermine the overall legitimacy of the negotiation process. The commission also scrutinised the content of the agreement to ensure it complied with the statutory requirements. It looked at various provisions, including those related to wages, hours of work, and other employment conditions. The commission found that while some provisions were contentious, none were so unfair as to render the agreement invalid. The commission concluded that the agreement met the statutory criteria for approval, despite some procedural flaws and contentious provisions.

In reaching its decision, the commission emphasised the importance of balancing the rights of employers and employees. It recognised the need for flexibility in enterprise agreements while ensuring they did not undermine the fundamental protections provided by the Fair Work Act. The commission found that the agreement, while not perfect, was fair and reasonable and met the statutory requirements for approval. The final orders included the approval of the Fenwick Jaylee Pty Ltd Enterprise Agreement 2021, subject to certain conditions designed to address the respondent's concerns and ensure ongoing compliance with industrial relations legislation.

Fenwick Jaylee Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established