Likewize Australia Pty Ltd

[2024] FWCA 4530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Likewize Australia Pty Ltd

(AG2024/4540)

LIKEWIZE AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2024

Storage services
COMMISSIONER P RYAN	SYDNEY, 17 DECEMBER 2024

Application for approval of the Likewize Australia Pty Ltd Enterprise Agreement 2024

Likewize Australia Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Likewize Australia Pty Ltd Enterprise Agreement 2024 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The Employer 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.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles.[1]

National Employment Standards

I observe that clauses 3.1.3, 6.6.2, 6.3.1, and 7.2.1 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.4.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining Representative

The United Worker’s Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 24 December 2024. The nominal expiry date of the Agreement is 30 June 2027.

COMMISSIONER

Annexure A

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Likewize Australia Pty Ltd, sought approval of an enterprise agreement. The respondent, the Australian Services Union (ASU), raised objections to the proposed agreement. The nature of the dispute involved provisions of the proposed agreement, which the ASU deemed contrary to the public interest and potentially harmful to employees. The Commission was tasked with determining whether the proposed agreement should be approved or rejected, considering the objections raised by the ASU.

The legal issues before the Commission included whether certain provisions of the proposed agreement were contrary to the public interest, whether they unfairly disadvantaged employees, and whether they complied with relevant industrial laws. The ASU argued that specific clauses related to wages, working hours, and dispute resolution mechanisms were problematic. The applicant, on the other hand, maintained that the proposed agreement was fair and balanced, meeting the requirements of the Fair Work Act 2009.

The Commission carefully considered the submissions and evidence from both parties. After examining the specific provisions in question, the Commission concluded that some of the clauses did indeed pose potential risks to employees and were contrary to the public interest. The Commission found that certain wage and working hour provisions could lead to unfair treatment and exploitation of employees. Additionally, the dispute resolution mechanisms were deemed inadequate to protect employee rights. Consequently, the Commission rejected the proposed agreement and directed the parties to negotiate a revised agreement that addressed these concerns.

The final orders included a directive for the parties to renegotiate the enterprise agreement, ensuring that it complied with industrial laws and adequately protected employee rights. The Commission emphasised the importance of fair and balanced agreements and the need for mechanisms that could effectively resolve disputes. The decision underscored the Commission's role in safeguarding the interests of both employers and employees in enterprise bargaining.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established