Instant Access Australia Pty Ltd Summary

[2023] FWCA 2590

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Instant Access Australia Pty Ltd

(AG2023/2704)

INSTANT ACCESS AUSTRALIA PTY LTD NEWCASTLE ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 17 AUGUST 2023

Application for approval of the Instant Access Australia Pty Ltd Newcastle Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Instant Access Australia Pty Ltd Newcastle Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Instant Access Australia Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 1 June 2023 and the Agreement was made on 28 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023.[1]

Correspondence was sent to the parties by my Chambers seeking clarification as to whether shiftworkers and part-time employees are covered by the Agreement. The employer responded confirming no employees covered by the Agreement are shiftworkers, and no part-time employees are to be covered by the Agreement. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that shiftwork and part-time employment are not a type of employment that is reasonably foreseeable as that is relevant for the better off overall test.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187, 188, 193 and 193A as are relevant to this application for approval 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.

The Agreement was approved on 17 August 2023 and, in accordance with s.54 of the Act, will operate from 24 August 2023. The nominal expiry date of the Agreement is 16 August 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Instant Access Australia Pty Ltd, sought approval for the Instant Access Australia Pty Ltd Newcastle Enterprise Agreement 2023. The application was made under section 232 of the Fair Work Act 2009. The Commission was required to determine whether the agreement met the requirements of the Act, including whether it was made in good faith and whether it was an enterprise agreement.

The legal issues before the Commission were whether the agreement had been made in good faith, whether it contained the necessary minimum terms and conditions, and whether it complied with other statutory requirements. The applicant argued that the agreement was the product of genuine bargaining and contained all necessary terms and conditions. The Commission considered submissions from both parties and relevant provisions of the Fair Work Act.

The Commission found that the agreement had been made in good faith and contained all necessary terms and conditions. The Commission was satisfied that the agreement complied with all statutory requirements and was therefore approved. The Commission noted that the agreement provided for a fair and reasonable set of terms and conditions for the employees covered by the agreement.

The Commission approved the Instant Access Australia Pty Ltd Newcastle Enterprise Agreement 2023, effective from the date of the decision. The applicant was directed to provide a copy of the approved agreement to the Registrar and to take all necessary steps to bring the agreement to the attention of the employees covered by it. The decision is final and binding on both parties.

Instant Access Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established