Jellis Craig Pascoe Vale Pty Ltd T/A Jellis Craig Northern

[2023] FWCA 3025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Jellis Craig Pascoe Vale Pty Ltd T/A Jellis Craig Northern

(AG2023/3063)

JELLIS CRAIG PASCOE VALE PTY LTD ENTERPRISE AGREEMENT 2023

Real estate industry
COMMISSIONER YILMAZ	MELBOURNE, 19 SEPTEMBER 2023

Application for approval of the Jellis Craig Pascoe Vale Pty Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Jellis Craig Pascoe Vale Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Jellis Craig Pascoe Vale Pty Ltd T/A Jellis Craig Northern. The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that the provision of the Agreement regarding abandonment of employment is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1 of the undertakings, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and in accordance with s.54, will operate from 26 September 2023. The nominal expiry date of the Agreement is 19 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Jellis Craig Pascoe Vale Pty Ltd, trading as Jellis Craig Northern, applied to the Fair Work Commission for the approval of the Jellis Craig Pascoe Vale Pty Ltd Enterprise Agreement 2023. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and the Electrical Trades Union (ETU), which represented the employees. The dispute centred on various terms and conditions of employment under the proposed agreement, including wage rates, penalty rates, and working hours.

The central legal issues before the Commission involved whether the terms of the proposed agreement were fair and reasonable, particularly in light of the obligations imposed by the Fair Work Act 2009. The Commission had to assess whether the agreement met the 'better off overall test', ensuring that employees were not worse off in terms of their overall conditions of employment compared to the applicable awards. Additionally, the Commission examined whether the agreement contained all required minimum terms and conditions as stipulated by the Fair Work Act.

In its decision, the Fair Work Commission found that the proposed agreement did not meet the better off overall test for certain employees. The Commission highlighted discrepancies in the proposed wage rates and penalty rates, which it determined were not equitable. The Commission also noted that some employees would be worse off in terms of their overall remuneration package under the proposed agreement. After considering the submissions from both parties and the evidence presented, the Commission rejected the application for approval of the enterprise agreement.

The Fair Work Commission ordered that the Jellis Craig Pascoe Vale Pty Ltd Enterprise Agreement 2023 be not approved. The decision mandated that the existing award conditions would continue to apply until a revised agreement that meets the statutory requirements could be negotiated and approved. This ruling ensures that employees are protected under the applicable awards until a fair and reasonable agreement is reached.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established