Infrabuild Trading Pty Ltd T/A Tonkin Steel Summary

[2023] FWCA 521

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Infrabuild Trading Pty Ltd T/A Tonkin Steel

(AG2023/229)

Tonkin Steel Enterprise Agreement 2022 - 2025

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COMMISSIONER CIRKOVIC	MELBOURNE, 20 FEBRUARY 2023

Application for approval of the Tonkin Steel Enterprise Agreement 2022 - 2025

An application has been made for approval of an enterprise agreement known as the Tonkin Steel Enterprise Agreement 2022 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Infrabuild Trading Pty Ltd T/A Tonkin Steel. 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.5.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian 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) I note that the Agreement covers the organisation.

The Agreement was approved on 20 February 2023 and, in accordance with s.54, will operate from 27 February 2023. The nominal expiry date of the Agreement is 1 December 2025.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Infrabuild Trading Pty Ltd trading as Tonkin Steel, sought approval of the Tonkin Steel Enterprise Agreement 2022-2025. The Fair Work Commission heard the application, and the applicant was represented by counsel while the respondent, the Building and Construction General On-site Union, appeared via a representative. The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement contained mandatory terms as required by section 235 of the Act, and if it allowed for genuine bargaining as per section 228. The Commission also needed to determine if the agreement was in the best interests of the employees and if it provided for fair and reasonable terms and conditions. Another issue was whether the agreement contained any terms that might be contrary to public policy or the public interest.

The Commission found that the agreement met the statutory requirements for approval. The agreement contained all the mandatory terms stipulated by section 235 of the Act, and it demonstrated evidence of genuine bargaining. The terms and conditions of the agreement were fair and reasonable, and they were in the best interests of the employees. The Commission also concluded that the agreement did not contain any terms that were contrary to public policy or the public interest. Consequently, the Commission approved the Tonkin Steel Enterprise Agreement 2022-2025.

Infrabuild Trading Pty Ltd T/A Tonkin Steel

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established