BESTBAR PTY LTD NORTHERN TERRITORY ENTERPRISE AGREEMENT 2025 - 2028

Application for approval of the Bestbar Pty Ltd Northern Territory Enterprise Agreement 2025-2028

[1] Bestbar Pty Ltd ("the Employer") has applied for approval of an enterprise agreement known as the Bestbar Pty Ltd Northern Territory Enterprise Agreement 2025 - 2028 ("the Agreement"). The Application was made under section 185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] A party's application for the Commission's approval of an enterprise agreement must be accompanied by a signed copy of that agreement.[1] A copy of an enterprise agreement is a signed copy only if it is signed by the employer covered by the agreement and at least one representative of the employees covered by the agreement, and it includes each signatory's full name and address, and an explanation of their authority to sign.[2]

[3] It is arguable that the Agreement has not been signed as required under subsection 185(2)(a) of the Fair Work Act when read with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) ("the Regulations"), because the employee representative's signature does not make explicit that they are an employee of the Employer. The Employer confirms that the person is an employee. In an abundance of caution, and to the extent necessary to do so: I exercise the power in section 586 of the Fair Work Act,[3] under paragraph (a) and/or paragraph (b) of that section, to correct any error in the application, and/or waive any irregularity in the form or manner in which it has been made, arising out of the signatory's explanation of their authority to sign the Agreement.

[4] There is a minor discrepancy as between the Notice of Employee Representational Rights, and the Agreement as made, as to the Agreement's title. For the purposes of subsection 188(5) I am satisfied that this was a minor technical error and not likely to disadvantage any employees in the circumstances.

[5] The Agreement does not contain a flexibility term compliant with the Fair Work Act. Pursuant to s.202(4) and item 107 of Schedule 1 of the Fair Work Act, the model flexibility term as prescribed by the Fair Work (Model Terms) Determination 2025 is taken to be a term of the Agreement.

[6] The Agreement does not contain a delegates' rights term that meets the requirements of section 205A of the Fair Work Act. Pursuant to that section, clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

[7] Noting clause 5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

[8] The Employer has given written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexure A to this decision. I am satisfied that each undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. Each undertaking is taken to be a term of the Agreement.

[9] With the undertaking now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.

[10] The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 31 March 2028.

[1] Fair Work Act 2009 s 185(2)(a).

[2] Fair Work Act 2009 s 185(5) and Fair Work Regulations 2009 (Cth) r 2.06A.

[3] See Australian Nursing and Midwifery Federation v Uniting Church in Australia Property Trust (Q.) [2020] FWCFB 848, [128]-[129], applying CFMMEU v Griffiths Cranes Pty Ltd [2019] FWCFB 1717, [40]-[46].

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