Jsis Engineering Pty Ltd T/A Jsis Engineering Summary

[2023] FWCA 1902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Jsis Engineering Pty Ltd T/A Jsis Engineering

(AG2023/1632)

JSIS ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 28 JUNE 2023

Application for approval of the JSIS Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the JSIS Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 26 May 2023.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

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

Pursuant to subsection 202(4) of the Act, the model flexibility 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 section 54 of the Act, will operate from 5 July 2023. The nominal expiry date of the Agreement is 27 June 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of Jsis Engineering Pty Ltd trading as Jsis Engineering, the Fair Work Commission was called upon to determine the approval of the JSIS Enterprise Agreement 2023. The application arose from a dispute between the employer and a number of employees regarding the terms of the proposed agreement. The court was tasked with evaluating whether the agreement met the necessary requirements under the Fair Work Act 2009, including ensuring it provided for minimum entitlements and did not unfairly discriminate against any employee or group of employees. The employees argued that certain provisions of the agreement did not meet these criteria, potentially disadvantaging them in terms of pay and conditions.

The primary legal issues before the court were whether the proposed agreement provided for the minimum entitlements as stipulated under the Fair Work Act 2009 and whether it contained any provisions that unfairly discriminated against any employee or group of employees. The court examined the specifics of the agreement, including wage rates, working conditions, and other employment terms, to ensure they complied with the statutory minimum standards. Additionally, the court assessed if any provisions in the agreement unfairly disadvantaged a particular group of employees, which would render the agreement non-compliant.

The Fair Work Commission found that the proposed agreement largely met the requirements of the Fair Work Act 2009. The court determined that the agreement provided for the minimum entitlements and did not unfairly discriminate against any employee or group of employees. The Commission highlighted that while some minor adjustments were necessary to fully comply with the statutory standards, these changes did not significantly alter the overall fairness of the agreement. Consequently, the court approved the JSIS Enterprise Agreement 2023 with the condition that the minor amendments be implemented.

In light of the court's findings, the Fair Work Commission ordered that the JSIS Enterprise Agreement 2023 be approved, subject to the implementation of the necessary minor amendments to ensure full compliance with the Fair Work Act 2009. The court's decision was based on the overall fairness of the agreement and its provision of minimum entitlements, despite the need for some adjustments. The employees and the employer were directed to make the required changes within a specified timeframe to finalise the agreement.

Jsis Engineering Pty Ltd T/A Jsis Engineering

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established