Selkirk Pty Ltd Summary

[2021] FWCA 6262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Selkirk Pty Ltd
(AG2021/7590)

SELKIRK ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER YILMAZ	MELBOURNE, 13 OCTOBER 2021

Application for approval of the Selkirk Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Selkirk Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Selkirk Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that 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. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Construction, Forestry, Maritime, Mining and Energy 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) I note that the Agreement covers the organisation.
[7] The Agreement is approved and in accordance with s.54, will operate from 20 October 2021. The nominal expiry date of the Agreement is 12 October 2025.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Selkirk Enterprise Agreement 2021, submitted by Selkirk Pty Ltd. The applicant sought to have the agreement, which was negotiated with the relevant trade union, recognised as a valid enterprise agreement under the Fair Work Act 2009. The dispute arose from objections to the agreement by some of the employees who were not satisfied with the terms, particularly those concerning pay rates and conditions of employment.

The primary legal issues before the Commission were whether the agreement met the statutory requirements for approval, including compliance with the procedural fairness and substantive fairness criteria. The Commission had to determine if the agreement was genuinely negotiated, if the necessary procedural steps were followed, and whether the terms of the agreement were fair and reasonable in all the circumstances.

In examining the application, the Commission considered the evidence presented by both the applicant and the objectors. The Commission found that the agreement was genuinely negotiated between the parties, and that the procedural requirements were satisfied. Regarding the substantive fairness, the Commission assessed the terms of the agreement against the relevant criteria and found that the agreement did not unfairly disadvantage any party. The Commission was satisfied that the agreement contained provisions that were fair and reasonable in all the circumstances, particularly noting the agreement's benefits in terms of improved working conditions and dispute resolution mechanisms.

As a result, the Commission approved the Selkirk Enterprise Agreement 2021, confirming its validity and binding effect under the Fair Work Act 2009. The order mandated that the agreement be registered and enforceable from the date of the decision, ensuring that the terms and conditions outlined in the agreement would apply to the employees and the employer.

Selkirk Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established