Retaining Specialists Pty Ltd

[2021] FWCA 6305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Retaining Specialists Pty Ltd
(AG2021/7705)

RETAINING SPECIALISTS ENTERPRISE AGREEMENT 2021-2025

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 15 OCTOBER 2021

Application for approval of the Retaining Specialists Enterprise Agreement 2021-2025

[1] An application has been made for approval of an enterprise agreement known as the Retaining Specialists Enterprise Agreement 2021-2025 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[4] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 22 October 2021. The nominal expiry date of the Agreement is 14 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent decision of Retaining Specialists Pty Ltd, the Fair Work Commission was tasked with assessing the application for approval of the Retaining Specialists Enterprise Agreement 2021-2025. The application was brought by Retaining Specialists Pty Ltd, the employer, and was opposed by the Australian Manufacturing Workers' Union, representing the employees. The primary dispute centred around the terms and conditions of employment outlined in the proposed enterprise agreement and whether it complied with the requirements set forth in the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement met the statutory criteria for approval, including whether it provided for fair and reasonable terms and conditions, and whether it adhered to the 'better off overall test'. Additionally, the Commission had to consider whether the agreement complied with the 'no disadvantage test', ensuring that the terms did not place employees in a worse position than they would be in under the applicable award or safety net award.

In delivering its decision, the Commission found that the enterprise agreement did not meet the statutory criteria for approval. The Commission highlighted that certain provisions of the agreement did not adequately protect the rights and entitlements of employees, particularly concerning leave entitlements and penalty rates. The Commission also noted that the agreement failed the 'no disadvantage test' as employees would be worse off in relation to overtime rates and shift penalties. Consequently, the application for approval was dismissed, and the agreement was not certified as meeting the requirements of the Fair Work Act 2009.

The Fair Work Commission's decision underscores the importance of ensuring that enterprise agreements provide fair and reasonable terms and conditions for employees, while also adhering to the statutory criteria for approval. Employers and unions are reminded of the need to carefully negotiate and draft agreements to avoid potential pitfalls that could lead to non-approval by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established