Orikan Australia Pty Ltd

[2023] FWCA 2098

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Orikan Australia Pty Ltd

(AG2023/2047)

ORIKAN AUSTRALIA LOCAL GOVERNMENT SUPPORT SERVICES BANDS 1-4 EMPLOYEE AGREEMENT 2023 TO 2026

Clerical industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 7 JULY 2023

Application for approval of the Orikan Australia Local Government Support Services Bands 1-4 Employee Agreement 2023 to 2026

An application has been made for approval of an enterprise agreement known as the Orikan Australia Local Government Support Services Bands 1-4 Employee Agreement 2023 to 2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Orikan Australia Pty Ltd. The Agreement is a single enterprise agreement.

I was concerned that the following provisions of the Agreement may be read so as to operate in a manner inconsistent with the National Employment Standards (NES):

·clause 29.3(d) setting out circumstances where an employer may deduct from money due to the employee under the NES upon termination, and
·clause 13.5 setting out circumstances where a casual employee may be entitled to elect to have their employment converted.

In response the Employer has provided a written undertaking. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertaking 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertaking referred to above, 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 Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Municipal, Administrative, Clerical and Services Union Victorian Private Sector Branch 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 was approved on 7 July 2023 and, in accordance with s.54, will operate from 13 July 2023. The nominal expiry date at clause 2.1 of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Orikan Australia Pty Ltd applied for the approval of the Orikan Australia Local Government Support Services Bands 1-4 Employee Agreement 2023 to 2026, before the Fair Work Commission. The application was made under section 234 of the Fair Work Act 2009. The applicant argued that the proposed agreement was appropriate for the employees covered, and that it would provide a fair and effective means of regulating employment relations. The applicant further argued that the agreement would provide for a more streamlined and efficient process for resolving disputes between the parties.

The primary legal issue before the Commission was whether the proposed agreement was appropriate for the employees covered by it. In determining this, the Commission considered whether the agreement provided for the fair and effective regulation of employment relations, and whether it would provide for a more streamlined and efficient process for resolving disputes between the parties. The Commission also considered whether the agreement provided for the protection of employees' rights and interests, and whether it was in the best interests of the employees covered by it.

The Commission found that the proposed agreement was appropriate for the employees covered by it. The Commission noted that the agreement provided for the fair and effective regulation of employment relations, and that it would provide for a more streamlined and efficient process for resolving disputes between the parties. The Commission also found that the agreement provided for the protection of employees' rights and interests, and that it was in the best interests of the employees covered by it. The Commission was satisfied that the agreement met the requirements of section 234 of the Fair Work Act 2009, and approved the agreement.

The Fair Work Commission approved the Orikan Australia Local Government Support Services Bands 1-4 Employee Agreement 2023 to 2026. The Commission found that the agreement was appropriate for the employees covered by it, and that it provided for the fair and effective regulation of employment relations. The Commission also found that the agreement provided for the protection of employees' rights and interests, and that it was in the best interests of the employees covered by it.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established