Blowcon - A TricorBraun Company Summary

[2023] FWCA 3168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Blowcon - A TricorBraun Company

(AG2023/3343)

APPLICATION FOR APPROVAL OF THE BLOWCON - A TRICORBRAUN COMPANY AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 2 OCTOBER 2023

Application for approval of the Blowcon - A TricorBraun Company and United Workers Union Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the BLOWCON - A TRICORBRAUN COMPANY AND UNITED WORKERS UNION ENTERPRISE AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Blowcon - A TricorBraun Company. The Agreement is a single enterprise agreement.

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.

An assessment of the Agreement has identified a clause that may be inconsistent with the National Employment Standards (NES). In particular, the term relating to:

a)Clause 32.5: Compassionate leave.

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clause referred to above.

Noting the NES precedence clause (clause 7.3), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

The United Workers’ Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 October 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application for the approval of an enterprise agreement between Blowcon - A TricorBraun Company and the United Workers Union. The agreement was submitted under the Fair Work Act 2009, seeking to be registered as a single-employer, single-enterprise agreement. The dispute centred around the terms and conditions of employment that were proposed within the agreement, including aspects such as wages, working hours, leave provisions, and dispute resolution mechanisms.

The legal issues the court had to address included whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Procedurally, the court had to determine if the agreement was made in good faith, and if the necessary steps for its creation were followed. Substantively, the court had to assess whether the terms of the agreement provided for fair and reasonable terms and conditions of employment, and whether it adhered to the "better off overall test" which ensures that employees are not worse off financially under the new agreement.

The court found that the agreement was made in good faith and that all procedural requirements were met. It also concluded that the terms of the agreement provided for fair and reasonable terms and conditions of employment. The court was satisfied that the agreement met the "better off overall test" as it provided for a fair balance of rights and obligations for both the employees and the employer. Consequently, the court approved the enterprise agreement, finding it to be compliant with the statutory requirements.

The final orders of the court were that the Blowcon - A TricorBraun Company and United Workers Union Enterprise Agreement 2023 be approved and registered under the Fair Work Act. The agreement was to come into effect on the date of the decision and would apply to all employees covered by the agreement.

Blowcon - A TricorBraun Company

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established