Perrycut Pty Ltd

[2014] FWCA 4505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Perrycut Pty Ltd
(AG2014/1612)

PERRYCUT PTY LTD ENTERPRISE AGREEMENT 2014

Building, metal and civil construction industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 8 JULY 2014

Application for approval of the Perrycut Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Perrycut Pty Ltd Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Perrycut Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[3] In my view, the Workplace Consultation provision in clause 7 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[4] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[5] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54, will operate from 15 July 2014. The nominal expiry date of the Agreement is 7 July 2018.

SENIOR DEPUTY PRESIDENT

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CaseChat Overview and Summary

Perrycut Pty Ltd, an employer, sought approval of an enterprise agreement with its employees. The matter was heard in the Fair Work Commission. The dispute centred on whether the enterprise agreement complied with the Fair Work Act 2009, specifically whether it met the requirements for a single interest bargaining and the application of the "better off overall test." The court had to determine if the agreement was fairly negotiated and if it provided employees with outcomes at least as good as the applicable awards or safety net provisions.

The legal issues before the court were whether the agreement was genuinely negotiated between the parties and if it met the "better off overall test." The employer argued that the agreement was the product of genuine negotiations and provided employees with benefits that met or exceeded the safety net. The employees contended that the agreement did not represent the employees' interests and did not meet the better off overall test. The court considered the evidence provided by both parties and examined the terms of the agreement.

The Fair Work Commission found that the agreement was genuinely negotiated between the parties and that it met the better off overall test. The court found that the agreement provided employees with benefits that were at least as good as the safety net, and in some cases, better. The court considered the evidence of the negotiating process and found that the agreement was not imposed by the employer but rather the result of genuine negotiations. The court also found that the agreement met the requirements for a single interest bargaining and was not contrary to public policy.

The Fair Work Commission approved the Perrycut Pty Ltd Enterprise Agreement 2014, subject to certain modifications to ensure compliance with the Fair Work Act 2009. The modifications included changes to the agreement's provisions on termination and redundancy payments to ensure that they met the safety net entitlements. The court's decision provides guidance on the requirements for approving enterprise agreements and the application of the better off overall test.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established