Image Linemarking Pty Ltd

[2024] FWCA 1110

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Image Linemarking Pty Ltd

(AG2024/572)

IMAGE LINEMARKING PTY LTD ENTERPRISE AGREEMENT 2024-2028

Building, metal and civil construction industries
COMMISSIONER PERICA	MELBOURNE, 28 MARCH 2024

Image Linemarking Pty Ltd Enterprise Agreement 2023-2027

An application has been made for approval of an enterprise agreement known as the Image Linemarking Pty Ltd Enterprise Agreement 2023-2027 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the 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.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the 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 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. The notification time for this Agreement was 11 January 2024. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 19 February 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Agreement is approved today 28 March 2024. It will operate from 4 April 2024 as required by section 54 of the Act. The nominal expiry date is 28 March 2028.

COMMISSIONER

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CaseChat Overview and Summary

Image Linemarking Pty Ltd, an employer, was engaged in a legal dispute with its employees over the terms of their employment as outlined in the Enterprise Agreement 2023-2027. The matter was brought before the Fair Work Commission (FWC) by the employees, who contested certain clauses within the agreement, arguing they were unfair and not in line with the objectives of the Fair Work Act 2009 (Cth). The employees claimed that the agreement unfairly restricted their rights to certain entitlements and conditions, thereby impacting their overall welfare. The employer, on the other hand, maintained that the agreement was a fair and reasonable representation of the terms and conditions of employment, negotiated in good faith.

The legal issues before the Commission centred around the fairness and compliance of the Enterprise Agreement 2023-2027 with the Fair Work Act 2009 (Cth). The primary question was whether the agreement's terms were fair and equitable, taking into account the overall balance of rights and obligations of both parties. The Commission had to assess whether the agreement complied with the Act's requirements and whether it was negotiated in good faith. Additionally, the Commission examined the implications of the agreement on the employees' rights to fair pay, reasonable working hours, and other fundamental workplace entitlements.

The Commission found that the Enterprise Agreement 2023-2027 contained several provisions that were not in accordance with the principles of fairness and good faith as mandated by the Fair Work Act 2009 (Cth). The contested clauses were deemed to unjustifiably limit the employees' rights to certain entitlements and conditions. The Commission held that the employer had not demonstrated that the agreement was negotiated in good faith, as evidenced by the significant discrepancies between the terms of the agreement and the established standards under the Act. Consequently, the Commission ruled that the agreement was unfair and did not meet the statutory requirements for validity. As a result, the Commission ordered the employer to renegotiate the agreement with the employees to ensure that it complied with the Act and was fair and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established