Five Am Operations Pty Ltd T/A Five Am Operations Pty Ltd

[2022] FWCA 3892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Five Am Operations Pty Ltd T/A Five Am Operations Pty Ltd

(AG2022/4426)

Application for approval of the Five Am Operations Production and Warehouse Agreement 2022

Food, beverages and tobacco manufacturing industry
COMMISSIONER LEE	MELBOURNE, 4 NOVEMBER 2022

Application for approval of the Five Am Operations Production and Warehouse Agreement 2022

An application has been made for approval of an enterprise agreement known as the Five Am Operations Production and Warehouse Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Five Am Operations Pty Ltd T/A Five Am Operations Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The United Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 November 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Five Am Operations Pty Ltd T/A Five Am Operations Pty Ltd applied to the Fair Work Commission for approval of the Five Am Operations Production and Warehouse Agreement 2022. The applicant sought to have the agreement registered as a single enterprise agreement, which would cover all employees working under the agreement. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU).

The key legal issue before the Commission was whether the proposed agreement satisfied the requirements of section 231 of the Fair Work Act 2009. This section sets out the criteria for the approval of an enterprise agreement. The opposition raised concerns about whether the agreement met the "no disadvantaged test" under section 231(1)(b) of the Act, which requires that an agreement must not disadvantage employees in terms of their wages and conditions relative to what they would have received if there had been no agreement.

In considering the application, the Commission reviewed the evidence and submissions from both parties. It found that the proposed agreement provided for a mix of hourly and salaried employees and included provisions for pay rates, leave entitlements, and other conditions of employment. The Commission concluded that the agreement did not disadvantage any employees and met all the criteria for approval under the Fair Work Act. The Commission approved the application and registered the Five Am Operations Production and Warehouse Agreement 2022 as a single enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established