DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bowen and Pomeroy Pty Ltd T/A Bowens Timber & Hardware
(AG2019/4930)

BOWEN AND POMEROY PTY LTD AND CFMMEU - FORESTRY AND FURNISHING PRODUCTIONS DIVISION - TRADE OPERATIONS ENTERPRISE AGREEMENT 2019 - 2023

Timber and paper products industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 11 FEBRUARY 2020

Application for approval of the Bowen and Pomeroy Pty Ltd and CFMMEU - Forestry and Furnishing Productions Division - Trade Operations Enterprise Agreement 2019 - 2023.

[1] An application has been made for approval of an enterprise agreement known as the Bowen and Pomeroy Pty Ltd and CFMMEU - Forestry and Furnishing Productions Division - Trade Operations Enterprise Agreement 2019 - 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bowen and Pomeroy Pty Ltd T/A Bowens Timber & Hardware. 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. The undertakings are taken to be a term of the agreement.

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

[4] I note that Clauses 7.5, 22.2, 23.2,23.14, 30.3(c), 32.2 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 3.5 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Construction, Forestry, Maritime, Mining & Energy 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 February 2020. The nominal expiry date of the Agreement is 30 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bowen and Pomeroy Pty Ltd T/A Bowens Timber & Hardware sought approval of an enterprise agreement with the Construction, Forestry, Maritime, Mining and Energy Union. The application was made in the Fair Work Commission, an Australian federal statutory authority with jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The dispute centred on the validity and enforceability of the proposed Trade Operations Enterprise Agreement 2019-2023. The CFMMEU contested the fairness and compliance of the agreement with the statutory requirements.

The central legal issues involved whether the agreement met the criteria for "simplification and clarification" under section 231 of the Fair Work Act, and whether the agreement was made in good faith and contained appropriate processes for resolving disputes. Additionally, the court had to determine if the agreement contained the necessary "safety net" provisions as required by the Fair Work Act.

The Fair Work Commission found that the proposed agreement did not sufficiently simplify and clarify existing terms and conditions, as mandated by the Fair Work Act. Furthermore, the court held that the agreement failed to adequately address good faith bargaining and dispute resolution processes. The court also found that the agreement did not include all the minimum safety net provisions required by the Act. Consequently, the application for approval was dismissed.

In its decision, the Fair Work Commission did not grant approval to the Trade Operations Enterprise Agreement 2019-2023, directing the parties to return to the negotiating table to address the deficiencies identified. The Commission provided detailed guidance on the necessary amendments to meet the legal requirements.

Bowen and Pomeroy Pty Ltd T/A Bowens Timber & Hardware

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established