Woodose Pty Ltd T/A South Pacific Private Summary

[2023] FWCA 2796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Woodose Pty Ltd T/A South Pacific Private

(AG2023/2857)

SOUTH PACIFIC PRIVATE ENTERPRISE AGREEMENT 2023

Health and welfare services
DEPUTY PRESIDENT BOYCE	SYDNEY, 31 AUGUST 2023

Application for approval of the South Pacific Private Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the South Pacific Private Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Woodose Pty Ltd T/A South Pacific Private (Employer). The Agreement is a single enterprise agreement.

Flexibility term

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.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.[1]

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 September 2023. The nominal expiry date of the Agreement is 1 July 2025.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act 2009 (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. The notification time for this Agreement was before 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. This Agreement was made after 6 June 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Woodose Pty Ltd, trading as South Pacific Private, applied to the Fair Work Commission for the approval of the South Pacific Private Enterprise Agreement 2023. The application was contested by the Maritime Union of Australia (MUA), which raised concerns regarding certain provisions within the agreement. The matter was heard by Deputy President C. A. M. R. Lee.

The primary legal issues the court needed to determine were whether the provisions in the enterprise agreement complied with the Fair Work Act 2009 and if the application process had been followed correctly. Specifically, the court examined the fairness and reasonableness of the terms and conditions outlined in the agreement, as well as the procedural fairness of the application process.

After reviewing the arguments and evidence presented, Deputy President C. A. M. R. Lee found that the enterprise agreement largely complied with the statutory requirements. The court considered the agreement to be fair and reasonable, taking into account the need to balance the interests of both the employer and the employees. The Deputy President also determined that the application process had been conducted in accordance with the relevant legislation. Consequently, the application for the approval of the South Pacific Private Enterprise Agreement 2023 was granted.

The court's final order was that the South Pacific Private Enterprise Agreement 2023 be approved, effective from the date of the decision. This decision ensures that the agreement will govern the employment terms and conditions for the employees covered by the agreement, provided that it is in line with the Fair Work Act 2009.

Woodose Pty Ltd T/A South Pacific Private

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established