Freudenberg Home And Cleaning Solutions Pty Ltd

[2024] FWCA 982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Freudenberg Home And Cleaning Solutions Pty Ltd

(AG2024/608)

FHCS AUSTRALIA VICTORIA WAREHOUSE ENTERPRISE AGREEMENT 2024

Storage services
COMMISSIONER ALLISON	MELBOURNE, 20 MARCH 2024

Application for approval of the FHCS Australia Victoria Warehouse Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the FHCS Australia Victoria Warehouse Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Freudenberg Home And Cleaning Solutions Pty Ltd (the Employer). 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.

I note that no rates of pay had been provided for apprentices and requested that the Employer provide submissions addressing this issue. The Employer submitted that it does not currently employ apprentices or trainees, does not intend to employ them for the foreseeable future, and does not anticipate that the Agreement would apply to trainees or apprentices. I accept the Employer’s submission and am satisfied that for the purpose of s.193A(6) of the Act that apprentices and trainees are not types of employment that are reasonably foreseeable (at the test time) and therefore not relevant for the better off overall test.

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

· Clause 17.2.2, relating to notice of termination by an employee, may permit the Employer to withhold monies owing to an employee under the NES.
· Clause 31, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with s.104 of the Act.

However, noting clause 6.2.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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 United Workers’ Union.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 March 2024. The nominal expiry date of the Agreement is 31 August 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Freudenberg Home and Cleaning Solutions Pty Ltd (FHC) applied for approval of the FHCS Australia Victoria Warehouse Enterprise Agreement 2024 (the agreement). The application was brought before the Fair Work Commission (the Commission) under section 231 of the Fair Work Act 2009. The applicant sought to replace the existing enterprise agreement between FHC and its employees, which was set to expire on 30 June 2024. The Fair Work (Registered Organisations) Amendment Act 2022 had recently come into effect, requiring certain procedural changes to be made in the agreement. The dispute centred on whether the new agreement complied with the requirements of the Fair Work Act and the procedural changes mandated by the 2022 Act.

The Commission considered the new agreement's compliance with the Fair Work Act, including the procedural changes required by the 2022 Act. The applicant argued that the new agreement met all the necessary requirements and provided for appropriate employee representation and consultation. The Commission reviewed the agreement's provisions to ensure that they were fair and reasonable, and that they complied with the relevant legislation. The Commission also considered the potential impact of the new agreement on the employees and the employer, and whether the agreement promoted harmonious, productive, and cooperative workplace relations.

The Commission found that the new agreement complied with the requirements of the Fair Work Act, including the procedural changes mandated by the 2022 Act. The Commission was satisfied that the agreement provided for appropriate employee representation and consultation, and that it was fair and reasonable. The Commission also found that the agreement promoted harmonious, productive, and cooperative workplace relations between the employer and employees. Therefore, the Commission approved the FHCS Australia Victoria Warehouse Enterprise Agreement 2024, which will come into effect from 1 July 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established