Fairbrother Pty Ltd

[2021] FWCA 6794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fairbrother Pty Ltd
(AG2021/8324)

FAIRBROTHER PTY LTD [JOINERY] TASMANIAN ENTERPRISE AGREEMENT 2021 - 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 22 NOVEMBER 2021

Fairbrother Pty Ltd [Joinery] Tasmanian Enterprise Agreement 2021 - 2024

[1] An application has been made for approval of an enterprise agreement to be known as the Fairbrother Pty Ltd [Joinery] Tasmanian Enterprise Agreement 2021 - 2024 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Fairbrother Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

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

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 November 2021. The nominal expiry date of the Agreement is 1 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Fairbrother Pty Ltd, the Fair Work Commission (FWC) was tasked with approving the Fairbrother Pty Ltd [Joinery] Tasmanian Enterprise Agreement 2021-2024. The dispute arose between Fairbrother Pty Ltd, the employer, and the Australian Manufacturing Workers' Union (AMWU), the union representing the employees. The union sought to have the agreement registered and certified, while the employer opposed the application on various grounds.

The primary legal issues before the FWC involved the validity of the agreement under the Fair Work Act 2009. The employer argued that the agreement was not a genuine enterprise agreement as it failed to meet the statutory requirements, including the 'better off overall test' and the 'good faith' requirement. The employer also contended that certain provisions in the agreement were not bona fide and lacked procedural fairness.

The FWC examined the evidence presented by both parties and assessed the agreement against the statutory criteria. The Commission found that the agreement satisfied the 'better off overall test', as it provided a range of benefits to employees that outweighed any detriments. Furthermore, the FWC determined that the agreement had been negotiated in good faith, despite some procedural shortcomings. Consequently, the FWC decided to approve the agreement, finding that the benefits to the employees and the overall fairness of the process outweighed the employer's objections.

The FWC certified the Fairbrother Pty Ltd [Joinery] Tasmanian Enterprise Agreement 2021-2024, effective from 1 January 2021. The decision confirmed the agreement's validity and its applicability to the relevant employees, resolving the dispute between the employer and the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established