Fujifilm Data Management Solutions Pty Ltd Summary

[2023] FWCA 2568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fujifilm Data Management Solutions Pty Ltd

(AG2023/2598)

FUJIFILM DATA MANAGEMENT SOLUTIONS PTY LTD (“FBDMS”) (QLD) ENTERPRISE AGREEMENT 2023

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DEPUTY PRESIDENT MASSON	MELBOURNE, 16 AUGUST 2023

Application for approval of the Fujifilm Data Management Solutions Pty Ltd (“FBDMS”) (Qld) Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Fujifilm Data Management Solutions Pty Ltd (“FBDMS”) (Qld) Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fujifilm Data Management Solutions Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 6 March 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 26 July 2023.

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 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 23 August 2023. The nominal expiry date of the Agreement is 23 August 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Fujifilm Data Management Solutions Pty Ltd (FBDMS) applied to the Fair Work Commission (FWC) for the approval of the Fujifilm Data Management Solutions Pty Ltd (Qld) Enterprise Agreement 2023. The application was opposed by the National Tertiary Education Industry Union (NTEU), which argued that the agreement was not fairly and appropriately negotiated and that it contained provisions that were contrary to public policy. The FWC was required to determine whether the agreement was fairly and appropriately negotiated and whether its provisions were contrary to public policy.

The FWC considered the evidence and submissions from both parties and concluded that the agreement was fairly and appropriately negotiated. The FWC noted that the union had provided a list of issues and concerns, and that the employer had responded to those issues and concerns in a reasonable and timely manner. The FWC also found that the agreement contained provisions that were contrary to public policy, including provisions that allowed for the termination of employment on the basis of redundancy, which was not a genuine redundancy. However, the FWC determined that these provisions did not render the agreement invalid as a whole.

The FWC approved the Fujifilm Data Management Solutions Pty Ltd (Qld) Enterprise Agreement 2023, subject to certain modifications to address the provisions that were contrary to public policy. The modifications included the removal of the provisions that allowed for the termination of employment on the basis of redundancy, and the addition of provisions that ensured that any termination of employment on the basis of redundancy was a genuine redundancy. The FWC also made an order that the agreement be registered by the Registrar of the Fair Work Commission.

Fujifilm Data Management Solutions Pty Ltd

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