Tanner, Harvey And Pavy Pty Ltd T/A Specialist Doors & Windows

[2024] FWCA 3596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tanner, Harvey And Pavy Pty Ltd T/A Specialist Doors & Windows

(AG2024/3353)

TANNER, HARVEY AND PAVY PTY LTD ENTERPRISE AGREEMENT 2023

Building services
COMMISSIONER P RYAN	SYDNEY, 15 OCTOBER 2024

Application for approval of the Tanner, Harvey and Pavy Pty Ltd Enterprise Agreement 2023

Tanner, Harvey and Pavy Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Tanner, Harvey and Pavy Pty Ltd Enterprise Agreement 2023 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The Employer 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.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, and the Statement of Principles.[1]

Delegates’ rights term

The Agreement does not contain a delegates’ rights term that meets the requirements of s.205A of the FW Act. Pursuant to s.205A(2) of the FW Act, clause 36A of the Building and Construction General On-Site Award 2020 is taken to be a term of the Agreement.

Approval

The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 22 October 2024. The nominal expiry date of the Agreement is 15 October 2028.

COMMISSIONER

Annexure A

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Tanner, Harvey and Pavy Pty Ltd, trading as Specialist Doors & Windows, and its employees, who sought approval of the Tanner, Harvey and Pavy Pty Ltd Enterprise Agreement 2023. The application for approval was made to the Fair Work Commission, and the dispute centred around whether the agreement met the necessary requirements under the Fair Work Act 2009. The central issue was whether the agreement was made in good faith and if it contained all the required minimum terms and conditions of employment. The Fair Work Commission needed to determine if the agreement was procedurally valid and if it complied with the legislative framework governing enterprise agreements.

The court examined the procedural fairness of the bargaining process, including whether there was genuine negotiation between the parties, and whether the agreement was made in good faith. The court also assessed whether the agreement included all the mandated minimum terms and conditions and whether it was free from prohibited content. The key focus was on the adherence to the statutory requirements, including the procedural elements such as the timing and manner of the agreement's negotiation, and the substantive elements such as the terms and conditions provided within the agreement. The court was tasked with ensuring that the agreement was not only procedurally sound but also substantively compliant with the legislative framework.

The Fair Work Commission found that the agreement was procedurally valid, as there was evidence of genuine negotiation and good faith efforts by both parties. The court also confirmed that the agreement contained all the required minimum terms and conditions, and it did not include any prohibited content. Therefore, the commission approved the agreement, recognising its compliance with the statutory requirements. The decision underscored the importance of following the prescribed processes and ensuring that all necessary terms are included in an enterprise agreement to achieve its approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established