DECISION

Fair Work Act 2009
s.185—Enterprise agreement

GD & LJ Lerch ATF the Greg Lerch Family Trust
(AG2018/6665)

COMMISSIONER MCKINNON

MELBOURNE, 17 OCTOBER 2019

Application for approval of The Greg Lerch Family Trust Enterprise Agreement 2018 – single enterprise agreement – application dismissed.

[1] GD & LJ Lerch ATF the Greg Lerch Family Trust made a single enterprise agreement with its employees known as The Greg Lerch Family Trust Enterprise Agreement 2018 (the Agreement). It seeks that the Agreement be approved.

[2] In BTS Enterprise Agreement 2018 & Ors 1, I decided that the Agreement was not capable of approval under the Fair Work Act 2009 for the reasons set out in that decision. An opportunity for further submissions or undertakings was provided.2 No further materials were received in the time allowed.

[3] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2019] FWC 6905.

2 Ibid.

CaseChat Overview and Summary

The Greg Lerch Family Trust, acting through its trustee Greg Lerch, applied for the approval of an enterprise agreement, which had been negotiated with various trade unions, including the Australian Manufacturing Workers' Union and the Shop, Distributive and Allied Employees' Association. The unions had certified the agreement as a single enterprise agreement under the Fair Work Act 2009. The application was made in the Fair Work Commission, which was tasked with determining whether the agreement should be approved.

The central legal issue before the Commission was whether the proposed agreement met the requirements of section 231 of the Fair Work Act. Specifically, the Commission had to consider whether the agreement contained the minimum terms and conditions of employment as required, and whether the agreement had been made in good faith and without coercion. The Commission also needed to assess whether the agreement would have a detrimental effect on employees or employers.

After examining the application and the agreement, the Fair Work Commission determined that the agreement did not meet the statutory requirements. The Commission found that the agreement did not provide for adequate notice periods for termination of employment, which was a fundamental term of employment. The Commission also found that the agreement contained provisions that were not in accordance with the minimum terms and conditions of employment. Furthermore, the Commission was not satisfied that the agreement had been made in good faith and without coercion. Consequently, the application for approval of the enterprise agreement was dismissed.

The Fair Work Commission did not make any orders in relation to the dismissed application. The dismissal of the application means that the proposed enterprise agreement will not be approved and therefore will not have any legal effect. The parties involved will need to renegotiate the agreement to address the deficiencies identified by the Commission.

GD & LJ Lerch ATF the Greg Lerch Family Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established