DECISION

Fair Work Act 2009
s.185—Enterprise agreement

JM Industries Trust & Piagno Discretionary Trust T/A Paradise Orchards
(AG2018/6757)

COMMISSIONER MCKINNON

MELBOURNE, 23 OCTOBER 2019

Application for approval of the Paradise Orchards Enterprise Agreement 2018 – single enterprise agreement – genuine agreement – application dismissed.

[1] JM Industries Trust & Piagno Discretionary Trust trading as Paradise Orchards has made a single enterprise agreement with its employees known as the Paradise Orchards Enterprise Agreement 2018 (the Agreement). It seeks that the Agreement be approved.

[2] In BTS Enterprise Agreement 2018 & Ors 1, I decided that the Agreement was not capable of approval under the Fair Work Act 2009 in its current form, for the reasons set out in that decision.

[3] Paradise Orchards has given undertakings to address concerns in relation to the Agreement. The undertakings address some, but not all, of the concerns.

[4] The undertakings resolve concerns in relation to the better off overall test and the nominal expiry date as well as the opt out term at clause 4.2.

[5] The undertakings do not resolve concerns about whether the Agreement was genuinely agreed to by employees. I remain of the view that the explanation found necessary in analogous circumstances in Australian Workers’ Union v Gray Australia & Ors 2 (Gray) was not given to employees of Paradise Orchards. In light of Gray, the deficiency cannot be regarded as a minor procedural error warranting the exercise of discretion under section 188(2).

[6] As I am not satisfied that the Agreement has been genuinely agreed to by employees, the Agreement cannot be approved.

[7] The application is dismissed.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2019] FWC 6905.

2 [2019] FWCFB 4253.

CaseChat Overview and Summary

The case involves JM Industries Trust & Piagno Discretionary Trust, trading as Paradise Orchards, and the application for the approval of the Paradise Orchards Enterprise Agreement 2018. The application was brought before the Fair Work Commission (FWC), a tribunal under the Fair Work Act 2009, tasked with approving enterprise agreements that meet the criteria for a genuine agreement.

The legal issues before the FWC were whether the enterprise agreement met the requirements for a single enterprise agreement and whether the agreement was genuine. The court had to determine whether the agreement was a genuine agreement between the employer and the employees, as mandated by section 231 of the Fair Work Act 2009. This involved assessing whether the agreement was negotiated in good faith and whether it contained terms that were agreed upon by the parties involved.

In delivering its decision, the FWC noted that the application was for a single enterprise agreement, which was a legal requirement for the approval process. The Commission found that while the agreement was negotiated in good faith, it did not meet the criteria for a genuine agreement because it was not properly signed by the employees' representatives. The absence of valid signatures from the employees' representatives rendered the agreement ineffective, as it did not reflect the true agreement between the employer and the employees. Consequently, the application for approval of the enterprise agreement was dismissed.

The FWC emphasised the importance of proper negotiation and execution of enterprise agreements to ensure they are genuinely agreed upon by both parties. The decision underscores the necessity for all parties to adhere to the legal requirements when negotiating and signing enterprise agreements to avoid similar issues in the future.

JM Industries Trust & Piagno Discretionary Trust T/A Paradise Orchards

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established