Fairbrother Pty Ltd Summary

[2025] FWCA 873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Fairbrother Pty Ltd

(AG2025/510)

THE FAIRBROTHER PTY LTD [JOINERY] TASMANIAN ENTERPRISE AGREEMENT 2024 – 2027

Building services
COMMISSIONER MATHESON	SYDNEY, 25 MARCH 2025

Application for approval of The Fairbrother Pty Ltd [Joinery] Tasmanian Enterprise Agreement 2024 - 2027

An application has been made for approval of an enterprise agreement known as The Fairbrother Pty Ltd [Joinery] Tasmanian Enterprise Agreement 2024 - 2027 (Agreement). The application was made by Fairbrother Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

Section 205A of the Act provides:

‘Enterprise agreements to include a delegates’ rights term etc.

(1) An enterprise agreement must include a delegates’ rights term for delegates to whom the agreement applies.

Note: Delegates’ rights term is defined in section 12.

(2) However, if, when the agreement is approved, the delegates’ rights term is less favourable than the delegates’ rights term in one or more modern awards that cover the workplace delegates:
(a)the term in the enterprise agreement has no effect; and

(b)the most favourable term of those in the modern awards, as determined by the FWC, is taken to be a term of the enterprise agreement’ (underlining added).

Clause 12 of the Agreement contains a workplace delegates’ rights term. This term, is less beneficial than Clause 32A of the Joinery and Building Trades Award 2020 (Award) in a number of respects because:

the facilities available to delegates under clause 12 of the Agreement are more limited than the facilities available under clause 32A.7 of the Award;
there is no express entitlement to undertake paid training as set out in clause 32A.8 of the Award;
there is no express entitlement to communicate with eligible employees for the purpose of representing their industrial interests under clause 32A;
there does not appear to be an express entitlement to represent the industrial interests of eligible employees who wish to be represented of the nature set out in the Award.

Section 205A(2) of the Act provides that where a delegates’ rights term is less favourable in an agreement compared to the modern award, the agreement term will have no effect and the most favourable modern award term shall be taken to be a term of the enterprise agreement. I consider that the delegates right term in the Agreement is less favourable than the term in in the Award and pursuant to s.205A(2) of the Act, the delegates’ rights term in clause 32A of the Joinery and Building Trades Award 2020 is taken to be a term of the Agreement.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Construction, Forestry and Maritime Employees 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 1 April 2025. The nominal expiry date of the Agreement is 1 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the recent decision of Fairbrother Pty Ltd, the Fair Work Commission (FWC) considered an application for the approval of a proposed enterprise agreement. The applicant, Fairbrother Pty Ltd, is a joinery company in Tasmania, and the agreement in question pertains to its employees for the period 2024 to 2027. The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with examining the agreement to ensure it complied with provisions concerning minimum entitlements, bargaining processes, and the public interest.

The legal issues before the Commission included whether the proposed agreement provided for minimum entitlements as required by the Act, whether it was the product of genuine bargaining, and whether its approval would be in the public interest. The Commission needed to determine if the agreement satisfied the statutory minimum entitlements, which include matters such as wages, penalties rates, leave provisions, and other employment conditions. Additionally, the Commission assessed whether the agreement was made in good faith and without coercion, and if its approval would promote harmonious, productive, and cooperative workplace relations.

In its decision, the Commission found that the proposed agreement met the statutory requirements for approval. The agreement was deemed to provide for all minimum entitlements as required by the Fair Work Act. The Commission also concluded that the agreement was the product of genuine bargaining and that its approval would be in the public interest. The Commission took into account the submissions from both the applicant and the relevant employee representatives, along with the evidence presented, in reaching its decision. Consequently, the Fair Work Commission approved the proposed Fairbrother Pty Ltd [Joinery] Tasmanian Enterprise Agreement 2024-2027.

The final orders of the Commission included the approval of the proposed agreement, which is now to be implemented as the enterprise agreement for the relevant employees of Fairbrother Pty Ltd for the specified period. The agreement was to be registered with the Commission and would then be binding on the parties involved, providing a framework for their employment conditions and workplace relations.

Fairbrother Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established