DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fairbrother Pty Ltd
(AG2021/6214)

FAIRBROTHER PTY LTD [CONSTRUCTION] SOUTHERN TASMANIAN ENTERPRISE AGREEMENT 2021- 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 30 JULY 2021

Application for approval of the Fairbrother Pty Ltd [Construction] Southern Tasmanian Enterprise Agreement 2021-2024.

[1] An application has been made for approval of an enterprise agreement known as the Fairbrother Pty Ltd [Construction] Southern Tasmanian Enterprise Agreement 2021-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fairbrother Pty Ltd. 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 several clauses of the Agreement may be inconsistent with the National Employment Standards. The Applicant has provided a National Employment Standards precedence clause as part of their written undertakings. I am consequently satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Construction, Forestry, Maritime, Mining and 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 6 August 2021. The nominal expiry date of the Agreement is 1 July 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Fairbrother Pty Ltd applied to the Fair Work Commission for approval of the [Construction] Southern Tasmanian Enterprise Agreement 2021-2024. The respondents, including the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application, raising concerns about the agreement's provisions. The legal issues before the Commission centred on whether the agreement met the statutory criteria for approval under the Fair Work Act 2009, including whether it facilitated the efficient operation of the enterprise and complied with the good faith bargaining provisions.

The Commission began its analysis by examining the procedural fairness of the bargaining process, confirming that the employer had engaged in good faith bargaining with the union. It then assessed whether the agreement met the substantive criteria for approval, including whether it facilitated the efficient operation of the enterprise. The Commission noted that the agreement contained provisions that were fair and reasonable, and that the parties had engaged in a genuine attempt to reach an agreement. The Commission also found that the agreement provided for the efficient operation of the enterprise and was in the best interests of the employees.

In light of the evidence, the Commission approved the [Construction] Southern Tasmanian Enterprise Agreement 2021-2024, finding that it met the statutory criteria for approval. The Commission emphasised the importance of good faith bargaining and the need for enterprise agreements to facilitate the efficient operation of the enterprise. The approval of the agreement provides certainty for the parties and ensures that the employees are covered by a modern award that reflects their needs and interests.

Fairbrother Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established