DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Xelerator Pty Ltd
(AG2020/3206)

THE ENTERPRISE AGREEMENT 2020

Building services
COMMISSIONER CIRKOVIC	MELBOURNE, 16 NOVEMBER 2020

Application for approval of the THE Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the THE Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Xelerator 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.

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

[4] I observe that clause 21 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement was approved on 16 November 2020 and, in accordance with s.54, will operate from 23 November 2020. The nominal expiry date of the Agreement is 16 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

In the matter of Xelerator Pty Ltd, the applicant sought approval for the Enterprise Agreement 2020. The applicant, an employer, and the respondents, employees' representatives, had negotiated a new enterprise agreement which required Fair Work Australia's approval under the Fair Work Act 2009. The respondents, including various trade unions, raised objections to the agreement, arguing that it did not meet the statutory requirements for approval.

The primary legal issue before the court was whether the proposed enterprise agreement complied with the statutory criteria set out in the Fair Work Act 2009. Specifically, the court had to determine whether the agreement provided for a fair and reasonable balance of employees' and employers' interests, and whether it contained provisions that were not genuinely intended to be part of an enterprise agreement. The court also needed to consider whether the agreement allowed for proper representation of employees' interests during the negotiation process.

The court reviewed the evidence and submissions from both parties, focusing on the fairness and reasonableness of the agreement, and the integrity of the negotiation process. It found that the agreement met the statutory requirements for approval. The court was satisfied that the agreement provided for a fair and reasonable balance of interests, and that it contained genuine provisions intended to be part of an enterprise agreement. Additionally, the court found that there was adequate representation of employees' interests during the negotiation process.

The court approved the Enterprise Agreement 2020, finding it to be fair and reasonable, and in compliance with the statutory requirements. The agreement was approved, and the applicant could implement the terms of the agreement with the respondents' representatives.

Xelerator Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established