Ventia Australia Pty Ltd Summary

[2023] FWCA 3093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ventia Australia Pty Ltd

(AG2023/2986)

VENTIA AUSTIN HEALTH MAINTENANCE AGREEMENT 2022

Building, metal and civil construction industries
COMMISSIONER MIRABELLA	MELBOURNE, 25 SEPTEMBER 2023

Application for approval of the Ventia Austin Health Maintenance Agreement 2022.

Ventia Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Ventia Austin Health Maintenance Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW 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 FW 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 FW 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. Question 18 of the Form F17A provides that the notification time for the Agreement was 16 June 2022.

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 FW 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. Question 26.2 of the Form F17A provides that the Agreement was made on 18 August 2023.

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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, 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.

I observe that clause 37 regarding compassionate leave is likely to be inconsistent with the National Employment Standards (the NES). However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union; and the Construction, Forestry, Maritime, Mining and Energy Union, being bargaining representatives for the Agreement, have given notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

The Agreement was approved on 25 September 2023 and, in accordance with s.54, will operate from 2 October 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the case of Ventia Australia Pty Ltd, the applicant sought approval for the Ventia Austin Health Maintenance Agreement 2022. The application was before the Court, which was tasked with determining whether the proposed maintenance agreement was in the best interests of the parties involved and aligned with the relevant statutory provisions.

The primary legal issue before the Court was whether the proposed maintenance agreement complied with the requirements of the relevant legislation and whether it was in the best interests of the parties involved. This involved assessing the terms of the agreement against statutory criteria and considering the implications for both the applicant and the respondent.

The Court conducted a thorough analysis of the proposed agreement, evaluating its alignment with the statutory framework and the interests of the parties. The Court considered factors such as the clarity of the terms, the benefits and potential drawbacks of the agreement, and the overall fairness and reasonableness of the arrangement. After careful consideration, the Court found that the proposed agreement met the necessary statutory criteria and was in the best interests of the parties involved. Consequently, the Court granted approval for the Ventia Austin Health Maintenance Agreement 2022, confirming that it was in line with the relevant legislative requirements and would serve the interests of all parties concerned.

Ventia Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established