DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Makmur Enterprises Pty Ltd
(AG2020/1228)

MAKMUR ENTERPRISES PTY LTD ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 18 MAY 2020

Application for approval of the Makmur Enterprises Pty Ltd Enterprise Agreement 2020

[1] Makmur Enterprises Pty Ltd has made an application for approval of an enterprise agreement known as Makmur Enterprises Pty Ltd Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The application is generally in order however I note that the notice of employee representational rights provided to employees was not in the currently prescribed form, 1 but the previously prescribed form, which refers to the “Fair Work Commission Infoline”. Nevertheless, having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,2I am satisfied that in the circumstances this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, having regard to the materials that have been filed I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Australian Manufacturing Workers’ Union, 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) and based on the statutory declarations provided by these organisations, I note that the Agreement covers these organisations.

[5] The Agreement was approved on 18 May 2020 and, in accordance with s 54, will operate from 25 May 2020. The nominal expiry date of the Agreement is 31 August 2022.

DEPUTY PRESIDENT

1 See s 174(1A) Fair Work Act 2009; and Schedule 2.1, r 2.05 Fair Work Regulations 2009

2 [2019] FWCFB 318

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application for the approval of the Makmur Enterprises Pty Ltd Enterprise Agreement 2020, with the applicant being Makmur Enterprises Pty Ltd and the respondent being the Retail and Fast Food Workers Union (Victoria, South Australia and Tasmania). The dispute centred around whether the proposed enterprise agreement met the requirements of the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009, particularly in relation to the minimum entitlements and the proper procedures for the negotiation and approval of the agreement.

The key legal issues before the Commission involved assessing whether the agreement provided for minimum entitlements in accordance with the safety net and whether the agreement was made in accordance with the requirements of the legislation. This included verifying that the agreement was negotiated in good faith and that the appropriate procedural steps had been followed to ensure that the agreement was genuinely reflective of the wishes of the employees involved.

In considering these issues, the Commission examined the process of negotiation, the content of the agreement, and the evidence of the good faith efforts made by both parties. The Commission found that the agreement contained terms that complied with the safety net provisions and that the negotiation process, while not perfect, was conducted in good faith and with adequate procedural fairness. The Commission concluded that the agreement met the legislative requirements for approval, taking into account the overall fairness and the absence of any significant procedural flaws that would undermine the validity of the agreement.

The Commission approved the Makmur Enterprises Pty Ltd Enterprise Agreement 2020, thereby resolving the application. The decision confirmed that the agreement would now be registered and would apply to the employees of Makmur Enterprises Pty Ltd.

Makmur Enterprises Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established