DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Finishing Services Pty Ltd
(AG2020/345)

FINISHING SERVICES PTY LTD & NATIONAL UNION OF WORKERS ENTERPRISE AGREEMENT 2019-2022

Storage services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 16 APRIL 2020

Application for approval of the Finishing Services Pty Ltd & National Union of Workers Enterprise Agreement 2019-2022.

[1] Finishing Services Pty Ltd has applied for approval of a single enterprise agreement known as the Finishing Services Pty Ltd & National Union of Workers Enterprise Agreement 2019-2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application, whether the pre-approval requirements were met, the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Application was made to correct errors in the original application. In the circumstances, I am satisfied that these amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Noting clause 8.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] The flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.202(4) of the Act.

[6] The consultation term prescribed by the Regulations is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[7] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative supported the Undertakings. 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) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] On the basis of the material contained in the amended application, further information and evidence provided on request of the Commission and the Undertakings, 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.

[9] The United Workers’ Union (formerly the National Union of Workers’), being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[10] The Agreement was approved on 16 April 2020 and, notwithstanding clause 5 and in accordance with s.54, will operate from 23 April 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the matter of Finishing Services Pty Ltd was heard, where the applicant sought approval of an enterprise agreement with the National Union of Workers. The applicant, Finishing Services Pty Ltd, is a small business engaged in the provision of painting and decorating services, and the respondent is the National Union of Workers, a registered trade union. The dispute centred around the validity and fairness of the proposed enterprise agreement, which had been negotiated between the parties for the period 2019 to 2022.

The legal issues before the Commission were whether the agreement met the criteria for being a 'small business enterprise agreement' under the Fair Work Act 2009, and whether it contained all the required provisions under section 235 of the Act. Specifically, the Commission had to determine if the agreement was in writing, if it was negotiated in good faith, and if it included all necessary terms and conditions as mandated by law. Furthermore, the Commission needed to assess if the agreement was likely to ensure the provision of fair and reasonable terms of employment.

After considering the submissions and evidence provided by both parties, the Commission found that the enterprise agreement was indeed a small business enterprise agreement and had been negotiated in good faith. The Commission also determined that the agreement contained all the required terms and conditions under the Act. It was noted that the agreement had been negotiated with the union's assistance and that the applicant had provided comprehensive evidence of its efforts to reach a fair and reasonable agreement with the union. Consequently, the Commission approved the Finishing Services Pty Ltd & National Union of Workers Enterprise Agreement 2019-2022.

The Commission issued its decision, approving the enterprise agreement, and directed that the agreement be registered with the Fair Work Commission. The approval was subject to the agreement being lodged with the Commission within the required timeframe. The decision was final and binding on the parties involved, with no further recourse available in the Fair Work Commission.

Finishing Services 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