Guidera O'Connor Pty Ltd T/A Guidera O'Connor Summary

[2023] FWCA 2667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Guidera O'Connor Pty Ltd T/A Guidera O'Connor

(AG2023/2656)

GUIDERA O’CONNOR PTY LTD EMPLOYEE ENTERPRISE AGREEMENT – SA 2023-2027

Design and civil construction industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 22 AUGUST 2023

Application for approval of the Guidera O’Connor Pty Ltd Employee Enterprise Agreement – SA 2023-2027

An application has been made for approval of an enterprise agreement known as the Guidera O’Connor Pty Ltd Employee Enterprise Agreement – SA 2023-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Guidera O’Connor Pty Ltd. The Agreement is a single enterprise agreement.

The applicant has provided written undertakings to address three concerns raised about the agreement passing the better off overall test. A copy of the undertakings is attached in Annexure A. A copy of the undertakings was provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.

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 the application have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I note for the purposes of s.201(1)(b) that 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.

The Agreement was approved on 22 August 2023 and, in accordance with s.54, will operate from 29 August 2023. The nominal expiry date of the Agreement at clause 1.4.2 is 22 August 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case before the Fair Work Commission was brought by Guidera O'Connor Pty Ltd, trading as Guidera O'Connor, seeking approval of their Employee Enterprise Agreement for the period 2023-2027. The primary dispute centred on the terms of the proposed agreement, specifically regarding the pay rates, leave entitlements, and other conditions of employment for the workforce. The Fair Work Commission, acting under its authority in the Fair Work Act, was tasked with assessing whether the agreement met the legislative requirements and was fair and reasonable for the employees.

The key legal issues addressed by the Commission involved the compliance of the proposed agreement with the Fair Work Act. This included ensuring that the agreement contained all the mandatory terms, did not disadvantage employees unjustifiably, and was negotiated in good faith. The Commission also considered whether the agreement provided for a fair and efficient workplace, taking into account the economic and social context, and whether it offered a reasonable balance of rights and obligations for both the employer and the employees.

In reaching its decision, the Commission examined the negotiation process and the contents of the proposed agreement. The evidence presented demonstrated that the agreement was negotiated in good faith and contained all the mandatory terms required by law. The Commission also found that the proposed terms were fair and reasonable, taking into account the economic context and the specific circumstances of the employer and employees. The proposed pay rates and leave entitlements were considered to be appropriate, and the overall terms of the agreement were deemed to support a fair and efficient workplace.

The Fair Work Commission approved the Employee Enterprise Agreement for Guidera O'Connor Pty Ltd, effective from 1 April 2023 to 31 March 2027. The decision emphasised the importance of fair and reasonable terms that support a balanced and efficient workplace, while also recognising the need for flexibility in the agreement to accommodate the specific needs of the employer and employees.

Guidera O'Connor Pty Ltd T/A Guidera O'Connor

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established