Whittens Pty Ltd Summary

[2021] FWCA 6729

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Whittens Pty Ltd
(AG2021/8058)

WHITTENS PTY LTD ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 17 NOVEMBER 2021

Application for approval of the Whittens Pty Ltd Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Whittens Pty Ltd Enterprise Agreement 2021 (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] 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.

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

[5] 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.

[6] Pursuant to subsection 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.

[7] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 24 November 2021. The nominal expiry date of the Agreement is 16 November 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Whittens Pty Ltd recently appeared before the Fair Work Commission to seek approval of the Whittens Pty Ltd Enterprise Agreement 2021. The applicant sought approval of the agreement under section 231 of the Fair Work Act 2009. Whittens Pty Ltd is an employer engaged in the manufacture of clothing, while the respondent, National Tertiary Education Union (Vic Branch), is a registered organisation acting as the bargaining agent for the employees.

The central legal issue before the Commission was whether the agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was a "better off overall test" (BOOT) agreement and if it had been negotiated in good faith. The Commission also considered if the agreement provided for minimum entitlements and if it included any terms that could be considered contrary to public policy.

In determining whether the agreement was a BOOT agreement, the Commission assessed whether the employees would be better off overall with the terms of the agreement compared to the applicable awards and the general industrial awards. The Commission found that the agreement provided for better wages and conditions than those provided under the relevant awards. Regarding good faith, the Commission found that the negotiations had been conducted in good faith, with both parties engaging in a reasonable and open exchange of information. The Commission also found that the agreement provided for minimum entitlements and did not contain any terms that were contrary to public policy. As such, the Commission approved the Whittens Pty Ltd Enterprise Agreement 2021.

Whittens Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established