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austlii:cth/FWCA/2025/3289
General information, not legal advice.
FWCA
2025-09-29
Original judgment source is linked above.
s.185 - Application for approval of a single-enterprise agreement
FENNER DUNLOP (ADELAIDE) ENTERPRISE AGREEMENT 2025
Application for approval of the Fenner Dunlop (Adelaide) Enterprise Agreement 2025
[1] An application has been made for approval of an enterprise agreement known as the Fenner Dunlop (Adelaide) Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fenner Dunlop Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
[2] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.
[3] I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):
Public Holidays: Clause 35.4(a) provides that that the employer and a majority of affected employees may agree to substitute a public holiday for another day. This appears to be inconsistent with s.115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an individual employee, rather than a majority of employees.
Deduction/withholding of monies due to the employee under the NES on termination: Clause 15.1 provides that if the employee fails to give the required notice of termination to the employer, the employer has the right to withhold from an employee's termination pay an amount that is equal to the period of notice not given. Clause 15.1 does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES.
[4] Noting Clause 5(d) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.
[5] The Agreement is approved and will operate in accordance with s.54 of the Act from 6 October 2025. The nominal expiry date of the Agreement is 30 April 2027.
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