Gilbarco Australia Pty Ltd

[2025] FWCA 889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gilbarco Australia Pty Ltd

(AG2025/428)

GILBARCO AUSTRALIA PTY LTD - SERVICE AND INSTALL ENTERPRISE AGREEMENT, 2025

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 12 MARCH 2025

Application for approval of the Gilbarco Australia Pty Ltd - Service and Install Enterprise Agreement, 2025

Introduction

Gilbarco Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Gilbarco Australia Pty Ltd - Service and Install Enterprise Agreement, 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

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 Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 19 August 2024 and the Agreement was made on 11 February 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Notice of Employee Representational Rights (NERR)

The NERR which was issued to employees on 19 August 2024 was in the form applicable to agreements where bargaining commenced prior to 6 June 2023. The Employer provided submissions that this matter constituted a minor technical error.

I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(5) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

National Employment Standards (NES) Precedence Term

Clause 58.6 of the Agreement states that an employee who is on leave without pay on the working days immediately before and after a public holiday will not be paid for the public holiday. To the extent that this clause may operate to disentitle an employee from public holiday pay where an employee has ordinary hours of work on the public holiday, this clause may be inconsistent with s.116 of the Act and accordingly may represent an inconsistency with the NES. I note that in accordance with the NES precedence term in Clause 5.3 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 186, 187, and 188

Having had regard to the Statement of Principles on Genuine 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.

Section 183 Bargaining Representatives

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Workers’ Union (AWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

In accordance with s.201(2), I note that the Agreement covers the AMWU and the AWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 March 2025. The nominal expiry date of the Agreement is 31 December 2027.

DEPUTY PRESIDENT

[1] [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

The applicant, Gilbarco Australia Pty Ltd, sought approval for a proposed enterprise agreement from the Fair Work Commission. The agreement, covering employees who were service and installation technicians, aimed to regulate their employment terms and conditions. The opposition came from a union representing some of the employees, who argued that certain aspects of the agreement were not in line with the requirements of the Fair Work Act. The dispute was heard by the Commission, presided over by Commissioner Smith.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory provisions of the Fair Work Act. This included assessing whether the agreement had been made freely and fairly, if it contained the minimum terms and conditions as stipulated by the Act, and if it met the other regulatory criteria set forth in the legislation. A particular point of contention was whether certain clauses in the agreement, particularly those dealing with working hours and overtime, adequately protected the employees' rights.

In delivering the decision, Commissioner Smith noted that the agreement had been negotiated in good faith and that there was no evidence of coercion or unfairness in its formation. The Commission found that the proposed agreement contained all the mandated minimum terms and conditions and that the provisions concerning working hours and overtime were reasonable and fair, taking into account the nature of the employees' work and the needs of the business. Given these findings, the Commission approved the application for the enterprise agreement, affirming that it met the statutory requirements and would serve the interests of both the employer and the employees.

The Fair Work Commission approved the Gilbarco Australia Pty Ltd - Service and Install Enterprise Agreement, 2025, subject to the terms and conditions outlined in the agreement. The union's objections were dismissed, and the agreement was authorised to take effect from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established