Fernhurst Pty Ltd Summary

[2024] FWCA 2434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fernhurst Pty Ltd

(AG2024/2127)

FERNHURST 2024-2028 EBA

Road transport industry
DEPUTY PRESIDENT BELL	MELBOURNE, 1 JULY 2024

Application for approval of the Fernhurst 2024-2028 EBA.

An application has been made for approval of an enterprise agreement known as the Fernhurst 2024-2028 EBA (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Fernhurst Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 24 April 2024 and the Agreement was made on 7 June 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The Employer has 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A as are relevant to this application for approval have been met.

The Agreement was approved on 1 July 2024 and, in accordance with s.54 of the Act, will operate from 8 July 2024. The nominal expiry date of the Agreement is 30 June 2028.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, Fernhurst Pty Ltd sought approval for its 2024-2028 Enterprise Bargaining Agreement (EBA). The matter involved the Fair Work Commission (FWC) and the Australian Manufacturing Workers' Union (AMWU). The primary dispute centred on the terms and conditions outlined in the proposed EBA, particularly those concerning wages, hours, and other employment provisions. The AMWU contested several aspects of the agreement, arguing that they did not adequately protect the interests of the employees.

The legal issues before the court included whether the proposed EBA complied with the requirements of the Fair Work Act 2009 and whether it met the criteria for being a "simple, fair and effective" agreement. This involved assessing whether the agreement provided for minimum rates of pay, reasonable working hours, and other employment conditions that were no less favourable than the relevant award or registered agreement. The court also had to determine if the agreement appropriately balanced the interests of both the employer and the employees.

The court found that the proposed EBA largely complied with the legislative requirements and met the criteria for being a simple, fair, and effective agreement. It held that the terms regarding wages and working conditions were reasonable and did not disadvantage the employees. The court noted that the agreement provided for minimum rates of pay and reasonable working hours, aligning with the provisions of the relevant award. Additionally, the court was satisfied that the agreement had been made in good faith and involved genuine bargaining between the parties. Consequently, the court approved the EBA as proposed.

The final orders of the court approved the Fernhurst 2024-2028 EBA as submitted by Fernhurst Pty Ltd, with the terms and conditions as outlined in the agreement. The approval was contingent on the continued adherence to the provisions of the Fair Work Act 2009 and the relevant industrial instruments. The court's decision effectively resolved the dispute, allowing the EBA to take effect as planned.

Fernhurst Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established