John C & Loretta M Mauro

[2019] FWC 7329

[2019] FWC 7329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

John C & Loretta M Mauro

(AG2018/6224)

JC & LM Mauro Enterprise Agreement 2018

Agricultural industry

Commissioner McKinnon MELBOURNE, 23 OCTOBER 2019

Application for approval of the JC & LM Mauro Enterprise Agreement 2018.

1. John and Loretta Mauro have made a single enterprise agreement with their employees known as the JC & LM Mauro Enterprise Agreement 2018 (the Agreement). They seek its approval by the Commission. The Australian Workers’ Union was not a bargaining representative for the Agreement. With leave, it submits that the Agreement cannot and should not be approved.

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

1. Except for one matter, submissions and undertakings have now been given to remedy each of the identified deficiencies in relation to the Agreement. The Union submits that the undertakings do not resolve concerns about the better off overall test because what is known at the ‘test time’ about future changes to the relevant modern award must be taken into account. The submission is misconceived and contrary to the notion that the test time is a “point-in-time test” and one which “is necessary because the award benchmark may change over the nominal life of the agreement.”[2] The better off overall test requires a comparison of all of the terms of the agreement that will apply over its nominal life against terms of the relevant award as it applies at the test time.

1. Undertakings in relation to the Agreement deal with the nominal expiry date, clause 4.2 which I consider to be an ‘opt out term’ as well as concerns in relation to the better off overall test and whether the Agreement was genuinely agreed to by employees. The undertakings at Annexure A are accepted and are taken to be terms of the Agreement.

1. Undertakings cannot be given to address the concern in relation to the Agreement’s flexibility term. Instead, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 October 2019. The nominal expiry date of the Agreement is 22 October 2023.

COMMISSIONER

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Annexure A

[1] [2019] FWC 6905.

[2] Australian Nursing and Midwifery Federation v Domain Aged Care (Qld) Pty Ltd [2019] FWCFB 1716, [27].

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