Likewize Australia Pty Ltd Summary

[2022] FWCA 2260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Likewize Australia Pty Ltd

(AG2022/1807)

Likewize Australia Pty Ltd Enterprise Agreement 2021

Storage services
DEPUTY PRESIDENT EASTON	SYDNEY, 7 JULY 2022

Application for approval of the Likewize Australia Pty Ltd Enterprise Agreement 2021.

Likewize Australia Pty Ltd (the Employer) has made an application for the approval of the Likewize Australia Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 6.1.6 – Personal Leave
- Clause 6.3.4 – Compassionate Leave
- Clause 6.4.2 – Public Holidays
- Clause 6.6.2 – Parental Leave and Adoption Leave

Noting the NES precedence clause at 1.4.4 in 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.

The United Workers’ Union (UWU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the UWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 July 2022. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Likewize Australia Pty Ltd applied to the Fair Work Commission for approval of the Likewize Australia Pty Ltd Enterprise Agreement 2021. The applicant is an employer, and the respondent is a registered trade union. The agreement was made under section 176 of the Fair Work Act 2009. The Fair Work Commission was required to determine if the agreement met the requirements for registration under the Act.

The Commission considered whether the agreement was a "good faith" agreement, whether it was made in accordance with the procedural requirements of the Act, and whether it met the "better off overall test." The Commission found that the agreement was made in good faith and that the procedural requirements of the Act were met. However, the Commission found that the agreement did not meet the better off overall test as it did not provide for adequate minimum wages and conditions for some employees.

The Commission refused to approve the agreement, stating that the applicant had not demonstrated that the agreement was in the best interests of the employees. The Commission noted that some employees would be worse off under the proposed agreement, and therefore, the agreement did not meet the better off overall test. The Commission ordered that the application be dismissed.

The Fair Work Commission dismissed the application for approval of the Likewize Australia Pty Ltd Enterprise Agreement 2021. The Commission found that the agreement did not meet the better off overall test as it did not provide for adequate minimum wages and conditions for some employees. The applicant was ordered to pay the respondent's costs of and incidental to the proceeding.

Likewize Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established