Graph Employment Pty Ltd T/A Graph Building

[2021] FWCA 7100

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Graph Employment Pty Ltd T/A Graph Building
(AG2021/8477)

GRAPH EMPLOYMENT PTY LTD ENTERPRISE AGREEMENT
2021-2025

Building, metal and civil construction industries
COMMISSIONER WILSON	MELBOURNE, 14 DECEMBER 2021

Application for approval of the Graph Employment Pty Ltd Enterprise Agreement2021-2025

[1] An application has been made for approval of an enterprise agreement known as the Graph Employment Pty Ltd Enterprise Agreement2021-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Graph Employment Pty Ltd T/A Graph Building. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2021. The nominal expiry date of the Agreement is 14 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application for the approval of the Graph Employment Pty Ltd Enterprise Agreement 2021-2025, filed in the Fair Work Commission. The applicant, Graph Employment, sought approval of the enterprise agreement which outlined the terms and conditions of employment for its employees. The dispute centred on whether the agreement met the necessary legal criteria for approval under the Fair Work Act 2009. The respondent, the Australian Council of Trade Unions, contested the application, raising concerns about the agreement's compliance with various provisions of the Act, including those relating to minimum wage rates, penalty rates, and procedural fairness.

The central legal issues that the Commission needed to address were whether the agreement fairly reflected the terms and conditions of employment for the employees covered by it, and if it complied with the formal requirements for enterprise agreements set out in the Fair Work Act. Specifically, the Commission had to determine whether the agreement met the 'better off overall test', ensuring that employees were not worse off financially under the agreement compared to their existing conditions. The Commission also had to assess whether the agreement was made in accordance with the procedural fairness requirements and whether it contained all the mandatory terms prescribed by the Act.

In delivering its decision, the Commission found that the Graph Employment Pty Ltd Enterprise Agreement 2021-2025 was compliant with the requirements of the Fair Work Act. The Commission concluded that the agreement was made in good faith and that it met the 'better off overall test'. Furthermore, the Commission determined that the agreement contained all the mandatory terms prescribed by the Act and was procedurally fair. Based on these findings, the Commission approved the enterprise agreement, stating that it was fair and appropriate for the employees covered by it.

Consequently, the Fair Work Commission approved the Graph Employment Pty Ltd Enterprise Agreement 2021-2025, and the application for approval was successful. The Commission's decision highlights the importance of ensuring that enterprise agreements meet the necessary legal criteria for approval, including the 'better off overall test' and compliance with the procedural fairness requirements. This case underscores the need for careful drafting and negotiation of enterprise agreements to ensure that they are fair and appropriate for the employees they cover.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established