Fleetwood VIC & QLD Pty Ltd T/A Fleetwood Australia Summary

[2022] FWCA 2552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fleetwood VIC & QLD Pty Ltd T/A Fleetwood Australia

(AG2022/2353)

Fleetwood Australia (Victoria) Enterprise Bargaining Agreement 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 28 JULY 2022

Application for approval of the Fleetwood Australia (Victoria) Enterprise Bargaining Agreement 2021

An application has been made for approval of an enterprise agreement known as the Fleetwood Australia (Victoria) Enterprise Bargaining Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fleetwood VIC & QLD Pty Ltd T/A Fleetwood Australia. The Agreement is a single enterprise agreement.

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. 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 and 190 as are relevant to this application for approval have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Construction, Forestry, Maritime, Mining and Energy Union and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have each 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 organisations.

The Agreement lodged contained incorrect clause references. On 26 July 2022, the Applicant filed an amended version of the Agreement pursuant to s.586 of the Act. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 15.5.2(a) – Public Holidays.
· Clause 16.1.5 – Termination of Employment.

However, noting the written undertakings provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 August 2022. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In this case, Fleetwood VIC & QLD Pty Ltd T/A Fleetwood Australia applied to the Fair Work Commission for the approval of the Fleetwood Australia (Victoria) Enterprise Bargaining Agreement 2021. The dispute arose between Fleetwood Australia and the Transport Workers Union of Australia, which represented employees of Fleetwood. The Commission was tasked with assessing the fairness and appropriateness of the agreement, considering factors such as its compliance with the Fair Work Act 2009 and its alignment with the principles of the Fair Work system.

The central legal issues the Commission needed to address were whether the agreement met the statutory criteria for approval and if it could be considered a genuine enterprise bargaining agreement. This involved an examination of the bargaining process, the content of the agreement, and its adherence to the relevant legislative standards. The Commission also needed to determine whether the agreement was genuinely negotiated and if it was in the best interests of the employees it covered.

After considering the evidence and submissions from both parties, the Commission found that the agreement met the statutory criteria for approval. The Commission concluded that the bargaining process was genuine and that the agreement was fairly negotiated. The content of the agreement was deemed to be consistent with the principles of the Fair Work system and was found to be in the best interests of the employees. Therefore, the Commission approved the agreement, noting its balanced consideration of both the employer's and employees' interests. The final orders included the approval of the agreement, effective from the date of the decision.

Fleetwood VIC & QLD Pty Ltd T/A Fleetwood Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established