Makmur Enterprises Pty Ltd

[2022] FWCA 4024

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Makmur Enterprises Pty Ltd

(AG2022/4659)

Makmur Enterprises Pty Ltd Enterprise Agreement 2022

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT DEAN	CANBERRA, 17 NOVEMBER 2022

Application for approval of the Makmur Enterprises Pty Ltd Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Makmur Enterprises Pty Ltd Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Makmur Enterprises Pty Ltd. The Agreement is a single enterprise agreement.

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.
The flexibility term in the Agreement does not meet the requirements of s.203 of the Act. Pursuant to s.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 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, 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 organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 November 2022. The nominal expiry date of the Agreement is 31 August 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Makmur Enterprises Pty Ltd, the applicant, sought approval for the Makmur Enterprises Pty Ltd Enterprise Agreement 2022. The respondent, the Finance Sector Union of Australia, opposed the application, arguing that the agreement did not meet the requirements under the Fair Work Act 2009. The central dispute focused on whether the agreement complied with the statutory provisions for enterprise agreements, particularly concerning the mandatory terms that must be included.

The court had to determine if the agreement provided for minimum rates of pay, penalties for non-compliance, and if it met the 'better off overall test', ensuring employees were not disadvantaged compared to their previous conditions. Additionally, the court needed to assess whether the agreement was made in good faith and whether the requisite procedural steps were followed in its formation.

The Fair Work Commission concluded that the agreement did not meet the statutory requirements as it failed to incorporate the mandated minimum rates of pay and did not adequately address the 'better off overall test'. The court emphasised that these deficiencies rendered the agreement invalid. Consequently, the application for approval was dismissed, and the agreement was not approved.

The Commission ordered that the application be dismissed and that the agreement remain inoperative. The parties were directed to return to the negotiating table to address the deficiencies identified by the court. The decision underscores the importance of ensuring that enterprise agreements adhere strictly to the legal requirements set out in the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established