Tabcorp Assets Pty Ltd Summary

[2022] FWCA 1749

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tabcorp Assets Pty Ltd

(AG2022/1358)

MAX Enterprise Agreement 2021

Business equipment industry
COMMISSIONER MIRABELLA	MELBOURNE, 27 MAY 2022

Application for approval of the MAX Enterprise Agreement 2021.

Tabcorp Assets Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the MAX Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Form F16 Application lodged contained an error in listing an employer who is not covered by the Agreement. On 12 May 2022, the Applicant filed an amended version of the Form F16 Application correcting the error identified. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

The United Workers' Union, the Australian Municipal, Administrative, Clerical and Services Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

The Agreement was approved on 27 May 2022 and, in accordance with s.54, will operate from 1 July 2022. The nominal expiry date of the Agreement is 1 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Tabcorp Assets Pty Ltd applied to the Fair Work Commission for approval of the MAX Enterprise Agreement 2021. The MAX Union, representing employees, opposed the application, arguing that the agreement did not meet the requirements of the Fair Work Act 2009. The dispute centred on the fairness and compliance of the proposed terms and conditions with Australian workplace laws.

The legal issues before the Commission were whether the agreement adequately covered the negotiation process, contained all mandatory terms, and provided for adequate employee protections. The Commission needed to assess if the agreement was genuinely negotiated, if it included all required provisions, and if it ensured fair treatment of employees. Additionally, the Commission had to consider if the agreement complied with the good faith bargaining requirements stipulated in the Act.

After reviewing the submissions and evidence from both parties, the Commission found that the MAX Enterprise Agreement 2021 was genuinely negotiated and contained all necessary mandatory terms. The Commission determined that the agreement met the requirements of the Act and provided adequate protections for employees. Consequently, the Commission approved the agreement, finding that it was fair and complied with the relevant workplace legislation.

The final order was the approval of the MAX Enterprise Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and the terms would govern the employment conditions of the employees covered by the agreement.

Tabcorp Assets Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established