Johnny Cool Darwin Pty Ltd

[2013] FWCA 541

FAIR WORK COMMISSION

DECISION

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

Johnny Cool Darwin Pty Ltd
(AG2012/13239)

JOHNNY COOL ENTERPRISE AGREEMENT 2012

Northern Territory
COMMISSIONER CAMBRIDGE	SYDNEY, 24 JANUARY 2013

Application for approval of the Johnny Cool Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Johnny Cool Enterprise Agreement 2012(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Johnny Cool Darwin Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Darwin on 15 November 2012 by the Employer’s representatives, the Chamber of Commerce NT (CCNT). The application included a Statutory Declaration of Kylie June Hayes made on behalf of the Employer and dated 9 November 2012, (the Declaration). The Declaration stated that the Agreement was made on 6 November 2012. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 22 November 2012 at which time Ms M Gallen from the CCNT and Ms K Hayes appeared for the Employer. During the proceeding held on 22 November, the Fair Work Commission (the Commission) identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Ms Gallen and Ms Hayes provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 11 January 2013, from the CCNT, which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently, I have further considered the application for approval having regard for, the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 8 and a consultation term at clause 9.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 31 January 2013. In accordance with clause 3.2 of the Agreement the nominal expiry date of the Agreement is 24 January 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Johnny Cool Darwin Pty Ltd recently came before the Fair Work Commission, with the applicant seeking approval for the Johnny Cool Enterprise Agreement 2012. The dispute centred around whether the terms of the agreement were fair and reasonable, as required by the Fair Work Act 2009. The applicant argued that the agreement was fair and reasonable, while the respondent raised objections on various grounds, including that the agreement did not meet the requirements of the Act.

The Commission had to determine if the agreement was procedurally and substantively valid. Procedurally, it was necessary to assess whether the agreement was genuinely negotiated and not the result of coercion or undue influence. Substantively, the Commission needed to examine whether the agreement's terms met the criteria set out in the Fair Work Act, such as ensuring that the agreement did not disadvantage employees or the community. The Commission also considered whether the agreement provided for fair and reasonable terms and conditions, including remuneration, hours of work, and other employment conditions.

After a thorough examination of the evidence and submissions from both parties, the Fair Work Commission found that the Johnny Cool Enterprise Agreement 2012 was both procedurally and substantively valid. The Commission was satisfied that the agreement had been genuinely negotiated and did not involve coercion or undue influence. Additionally, the Commission found that the terms of the agreement were fair and reasonable, providing for appropriate remuneration and conditions of employment. The Commission approved the agreement, allowing it to come into effect as per its terms.

In summary, the Fair Work Commission approved the Johnny Cool Enterprise Agreement 2012, finding it to be both procedurally and substantively valid. The Commission was satisfied that the agreement was genuinely negotiated and met the criteria set out in the Fair Work Act, including providing for fair and reasonable terms and conditions of employment.

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