Planex Sales Pty Ltd As The Trustee For Planex Sales Unit Trust T/A Planex Sales Pty Ltd

[2024] FWCA 2581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Planex Sales Pty Ltd As The Trustee For Planex Sales Unit Trust T/A Planex Sales Pty Ltd

(AG2024/2325)

PLANEX SALES PTY LTD ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER PERICA	MELBOURNE, 11 JULY 2024

Planex Sales Pty Ltd Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Planex Sales Pty Ltd Enterprise Agreement 2024 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 3 May 2024. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 13 June 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied the undertakings 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all 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 Agreement is approved today 11 July 2024. It will operate from 18 July 2024 as required by section 54 of the Act. The nominal expiry date is 11 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Planex Sales Pty Ltd, as trustee for the Planex Sales Unit Trust, brought an application before the Fair Work Commission seeking an order to implement an enterprise agreement. The agreement was between Planex Sales Pty Ltd and its employees, represented by the Retail and Fast Food Workers Union (Vic Division). The application was brought against the union, which had not agreed to the implementation of the agreement. The nature of the dispute centred on the validity of the agreement and the union's refusal to consent to its implementation.

The central legal issues before the Commission were whether the agreement met the statutory requirements for implementation under the Fair Work Act 2009 and whether the union's refusal to consent was justified. Specifically, the Commission had to determine if the agreement was properly certified, if it contained the necessary minimum terms, and if it was genuinely agreed upon by the parties. Additionally, the Commission needed to assess if the union's objections were valid or if they were based on procedural errors or misunderstandings.

In reaching its decision, the Commission examined the certification process and found that it was conducted correctly, with all necessary steps followed. The agreement was deemed to contain all the required minimum terms and had been genuinely negotiated between the parties. The Commission found that the union's objections were primarily based on a misunderstanding of the agreement's provisions and procedural errors, rather than substantive issues with the agreement itself. As a result, the Commission ruled that the agreement was valid and should be implemented, overruling the union's objections.

The Commission made an order that the Planex Sales Pty Ltd Enterprise Agreement 2024 be implemented as of the date of the decision, despite the union's refusal to consent. This decision was based on the findings that the agreement was properly certified, contained the necessary minimum terms, and was genuinely negotiated. The union's objections were deemed to be without merit, leading to the implementation of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established