Freo Group Pty Ltd

[2022] FWCA 857

The attached document replaces the document previously issued with the above code on 11 March 2022.

The paragraph numbers have been corrected.

Associate to Deputy President Gostencnik

15 March 2022

[2022] FWCA 857

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Freo Group Pty Ltd

(AG2022/430)

Freo Group Pty Ltd Maintenance and General Services Agreement 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 11 MARCH 2022

Application for approval of the Freo Group Pty Ltd Maintenance and General Services Agreement 2021

Freo Group Pty Ltd has applied for approval of the the Freo Group Pty Ltd Maintenance and General Services Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 March 2022. The nominal expiry date of the Agreement is 18 March 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE515300 PR739219>
Annexure A

CaseChat Overview and Summary

Freo Group Pty Ltd applied to the Fair Work Commission for approval of the Maintenance and General Services Agreement 2021. The applicant sought approval for a new enterprise agreement that would cover its maintenance and general services workers. The respondents, who were employees represented by the Shop, Distributive and Allied Employees' Association (SDA), opposed the application on various grounds. The Commission was tasked with determining whether the proposed agreement met the legal requirements for approval.

The central legal issues before the Commission were whether the proposed agreement was a "simple" agreement under the Fair Work Act 2009, whether it complied with procedural requirements, and whether it met the substantive fairness test. A "simple" agreement is one that does not contain any term that would result in an employee being paid less than the applicable award or registered agreement. The Commission also needed to consider if the agreement was made in good faith and whether it provided for proper consultation and disclosure.

The Commission found that the proposed agreement was indeed a "simple" agreement, as it did not include any term that would result in employees being paid less than their applicable award or a registered agreement. The procedural requirements were also met, as the application included the necessary documentation, and the applicant had provided the respondents with adequate information about the agreement. The substantive fairness test was satisfied as the agreement provided for fair and reasonable terms, including provisions for wage increases, improved working conditions, and dispute resolution mechanisms. Given these findings, the Commission approved the Maintenance and General Services Agreement 2021.

The Fair Work Commission approved the Maintenance and General Services Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the relevant employees for the duration specified in the agreement. The approval of the agreement was a significant step in formalising the terms and conditions of employment for the maintenance and general services workers of Freo Group Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established