TAD Pty Ltd T/A TAD Industrial and Adecco Industrial Ltd

[2021] FWCA 6290

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

TAD Pty Ltd T/A TAD Industrial and Adecco Industrial Ltd
(AG2021/7498)

TAD INDUSTRIAL AND AWU (ONESTEEL LAVERTON NORTH) AGREEMENT 2020 - 2023

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 15 OCTOBER 2021

Application for approval of the TAD Industrial and AWU (OneSteel Laverton North) Agreement 2020-2023.

[1] TAD Pty Ltd T/A TAD Industrial, and Adecco Industrial Ltd have applied for approval of an enterprise agreement known as the TAD Industrial and AWU (OneSteel Laverton North) Agreement 2020-2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] This Agreement covers two entities, TAD Pty Ltd T/A TAD Industrial and Adecco Industrial Pty Ltd (collectively, the Employers). I am satisfied that the two entities are single-interest employers within the meaning of s.172(5)(b) of the Act.

[3] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employers, and as a result, the Employers have provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of The Australian Workers’ Union (AWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. The AWU advised that it supported approval of the Agreement with the Employers’ undertakings.

[4] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[5] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the Employers, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The AWU 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) of the Act I note that the Agreement covers the AWU.

[7] I note the Agreement at clause 5.1 provides:

“5.1 This Agreement will operate seven days from the date of approval by Fair Work Commission and its nominal expiry date shall be 30 June 2024. Upon commencement, this Agreement will apply retrospectively to all parties to this agreement (as defined in clause 4 of this Agreement) from 1 July 2020 (the “Term”).”

[8] Clause 5.1 of the Agreement applies only to the extent it is not inconsistent with s.54(1) of the Act. While some terms and conditions may apply retrospectively, the Agreement is not operative before 22 October 2021. The terms of the TAD Industrial and AWU (OneSteel Laverton North) Agreement 2018 – 2020 [2019] FWCA 7763 were operative from 19 November 2019 until 21 October 2021.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

The case between TAD Pty Ltd, trading as TAD Industrial, and Adecco Industrial Ltd involved an application for the approval of a workplace agreement. The application was heard in the Fair Work Commission of Australia. The agreement in question, TAD Industrial and AWU (OneSteel Laverton North) Agreement 2020-2023, was contested by Adecco Industrial Ltd, which raised concerns about the fairness and validity of the agreement.

The primary legal issue before the court was whether the agreement met the necessary criteria under the Fair Work Act 2009 for approval and registration. Adecco Industrial Ltd argued that the agreement did not comply with certain provisions of the Act, particularly those relating to the process of making the agreement and the fairness of its terms. The court had to determine if the agreement was genuinely negotiated, if it was fairly and properly made, and if its terms were fair and reasonable.

The Fair Work Commission examined the evidence and submissions from both parties, focusing on the negotiation process and the content of the agreement. The Commission noted that the agreement was made following a process that complied with the statutory requirements, including the involvement of a registered bargaining agent. The Commission also considered the fairness of the agreement's terms, finding that they were reasonable and not overly disadvantageous to any party. Consequently, the Commission approved the agreement, determining that it met the legal standards for registration.

The final order of the Commission was that the TAD Industrial and AWU (OneSteel Laverton North) Agreement 2020-2023 be approved and registered under the Fair Work Act 2009, effective from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established