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[2024] FWCA 575

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

UCX Ltd

(AG2023/5483)

UCX LTD ENTERPRISE AGREEMENT 2023

Hospitality Industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 9 FEBRUARY 2024

Application for approval of the UCX Ltd Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the UCX Ltd Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (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 transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to 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 the Agreement was after 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test 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 agreement was made before 6 June 2023. The Agreement was made on 15 December 2023.

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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

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

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

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 16 February 2024. The nominal expiry date of the Agreement is 15 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The parties to the proceedings were UCX Ltd, represented by its legal counsel, and the union acting on behalf of the employees. The dispute centred on the application for the approval of the UCX Ltd Enterprise Agreement 2023. The application was heard by the Fair Work Commission, which has the jurisdiction to approve enterprise agreements under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the statutory requirements set out in the Fair Work Act. Specifically, the Commission needed to determine if the agreement had been made genuinely and fairly, without any improper pressure or coercion, and whether it complied with the various provisions of the Act, including those relating to minimum wages and conditions. The Commission also needed to consider if the agreement appropriately balanced the rights and obligations of both employers and employees.

The Fair Work Commission conducted a thorough examination of the evidence presented by both parties. It assessed whether the process of negotiation and agreement-making had been fair and genuine. The Commission found that the process had been conducted appropriately, with no evidence of coercion or undue influence. It also confirmed that the agreement complied with all relevant provisions of the Fair Work Act, including those concerning minimum wages and conditions. Based on these findings, the Commission approved the UCX Ltd Enterprise Agreement 2023, finding it to be compliant with all legal requirements.

The Fair Work Commission's decision to approve the UCX Ltd Enterprise Agreement 2023 was based on the evidence that the agreement was genuinely and fairly made and that it met all statutory requirements. The Commission's approval was a significant step in formalising the terms and conditions of employment for the employees of UCX Ltd, ensuring that the agreement was legally binding and enforceable.

UCX Ltd

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