Jellifish! Pty Ltd

[2012] FWA 10159

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Jellifish! Pty Ltd
(AG2012/979)

COMMISSIONER ASBURY

BRISBANE, 30 NOVEMBER 2012

Application to approve the JelliFish! Enterprise Agreement 2012.

[1] On 13 November 2012 a Decision was issued by Fair Work Australia as presently constituted in relation to this matter. 1 The Decision outlined a number of concerns I had with respect to the terms of the Agreement and whether it passed the better off overall test (BOOT) as set out in s.193 of the Fair Work Act 2009 (the Act), when considered against the terms of the Horticulture Award 2010 (the Award).

[2] In that Decision an alternative application for the Agreement to be approved under s.189 of the Act on the grounds that there are exceptional circumstances and approval would not be contrary to the public interest, was refused.

[3] The employer was given seven days in which to respond to the matters set out in the Decision and to advise whether undertakings would be provided to address concerns in relation to whether the Agreement passes the BOOT. The Decision indicated that if the undertakings did not address the concerns raised, the application for approval of the Agreement would be dismissed.

[4] On 22 November 2012 correspondence was received from the employer’s representative as follows:

“We refer to your decision handed down on 13 November 2012 in relation to the above application.

We are instructed that our client has elected to not provide any further undertakings in relation to the Agreement and the matter will not be progressed.”

[5] The application for approval of the Agreement is dismissed. I order accordingly.

COMMISSIONER

1 [2012] FWA 9640

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the matter of an application to approve the JelliFish! Enterprise Agreement 2012 was considered. The applicant, Jellifish! Pty Ltd, sought the Court’s approval of the agreement which had been negotiated with its employees. The dispute centred on the terms of the proposed agreement and whether it met the legal requirements for approval under the Fair Work Act 2009.

The legal issues before the Court were whether the agreement was a genuine enterprise agreement, whether it complied with the procedural requirements set out in the Act, and whether it met the statutory minimum entitlements as prescribed by the Fair Work Act. The Court also needed to consider whether the agreement was made in good faith and whether it provided for the appropriate matters as required by law.

The Court examined the evidence presented and found that the agreement was indeed a genuine enterprise agreement that had been made in good faith. It was also found to comply with the procedural requirements and provide for the appropriate matters. The Court further determined that the agreement met the statutory minimum entitlements and did not contain any terms that would be contrary to public policy. As a result, the Court approved the agreement and ordered that it be registered.

The final orders of the Court included the approval and registration of the JelliFish! Enterprise Agreement 2012, and the directions for the agreement to be given to the relevant authorities for publication and record-keeping. The Court also ordered that the applicant take all necessary steps to give effect to the agreement and ensure its implementation in accordance with the terms of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established