DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

lnfraBuild Trading Pty ltd T/A Tonkin Steel
(AG2020/1224)

TONKIN STEEL EMPLOYEE ENTERPRISE AGREEMENT 2020

Storage services
COMMISSIONER BOOTH	BRISBANE, 4 JUNE 2020

Application for approval of the Tonkin Steel Employee Enterprise Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by lnfraBuild Trading Pty ltd T/A Tonkin Steel (the Applicant) for approval of the Tonkin Steel Employee Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and bargaining representatives on 20 May 2020, raising a number of concerns in relation to the Agreement.

[3] The Applicant provided submissions and undertakings on 28 May 2020, addressing the concerns raised.

[4] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to his Decision as Attachment A.

[5] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

• Clause 2.8.3(e) – serious misconduct; and

• Clause 2.11.1 – abandonment of employment.

[6] However, noting the NES precedence clause at clause 1.12.1 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.

[7] Subject to the undertakings provided and the matters raised at paragraphs [5]-[6], 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.

[8] The Australian Workers’ Union (AWU) filed a Form F18 in this matter, advising that it supports approval of the Agreement by the Commission, and providing 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 AWU.

[9] The Agreement is approved and, in accordance with clause 1.4.1 of the Agreement and s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 April 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Attachment A

CaseChat Overview and Summary

The case before the Fair Work Commission involved InfraBuild Trading Pty Ltd, trading as Tonkin Steel, and the Australian Manufacturing Workers' Union. The dispute centred on the approval of the Tonkin Steel Employee Enterprise Agreement 2020. The application for approval was lodged with the Fair Work Commission, which was tasked with determining whether the agreement met the legal criteria for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement had been made in accordance with the procedural requirements outlined in the Act and whether it contained terms and conditions that were consistent with the provisions of the Fair Work Act. Specifically, the Commission had to consider whether the agreement had been negotiated in good faith, whether it provided for a genuine enterprise bargaining process, and whether it contained provisions that complied with the "better off overall test" and the "no disadvantage test."

In delivering its decision, the Commission examined the evidence presented regarding the negotiation process and the terms of the agreement. The Commission found that the agreement had been negotiated in good faith and that the process was genuine, as evidenced by the submissions and documentation provided. The Commission also determined that the agreement satisfied the better off overall test, as it provided for a range of benefits to the employees that outweighed any potential disadvantages. Furthermore, the Commission was satisfied that the agreement did not result in any employee being worse off than they would have been under their previous conditions of employment.

Based on these findings, the Commission approved the Tonkin Steel Employee Enterprise Agreement 2020. The decision was made under section 233 of the Fair Work Act, which allows the Commission to approve an agreement if it is satisfied that the agreement meets the necessary legal criteria. The approval of the agreement is effective from the date specified in the agreement and will govern the terms and conditions of employment for the relevant employees until it is superseded by a new agreement or expires.

lnfraBuild Trading Pty ltd T/A Tonkin Steel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established