Tasman Rope Access Pty Ltd

[2022] FWCA 3022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tasman Rope Access Pty Ltd

(AG2022/3521)

Tasman Rope Access Pty Ltd Gladstone Regional Area Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER MCKINNON	SYDNEY, 5 SEPTEMBER 2022

Application for approval of the Tasman Rope Access Pty Ltd Gladstone Regional Area Enterprise Agreement 2022

Tasman Rope Access Pty Ltd has applied for approval of a single enterprise agreement known as the Tasman Rope Access Pty Ltd Gladstone Regional Area Enterprise Agreement 2022 (the Agreement).

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 is approved and will operate from 12 September 2022. The nominal expiry date of the Agreement is 1 September 2024.

The Agreement covers the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Tasman Rope Access Pty Ltd sought approval of the Tasman Rope Access Pty Ltd Gladstone Regional Area Enterprise Agreement 2022. The applicant, an employer in the rope access industry, had reached an agreement with its employees represented by the National Union of Workers. The dispute centred on whether the terms of the agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to minimum entitlements and the process for reaching the agreement. The Commission was tasked with determining whether the agreement met the necessary criteria for approval, including the application of the ‘better off overall test’ to ensure employees were not disadvantaged by the agreement.

The legal issues before the Commission included whether the agreement provided for minimum entitlements in accordance with the Act, whether the agreement was made in good faith and whether the process for reaching the agreement was compliant with the relevant provisions. Additionally, the Commission considered whether the agreement satisfied the ‘better off overall test’, which required that employees be at least as well off financially under the agreement as they would be under the applicable award or safety net. The Commission had to assess the evidence provided by both parties and interpret the statutory provisions to determine the validity of the agreement.

The Commission found that the agreement did not provide for minimum entitlements as required by the Act, as it did not adequately address several key areas such as penalty rates and overtime. Furthermore, the process for reaching the agreement was not entirely compliant with the Act, as the employer had not fully engaged in the required negotiation process. However, despite these shortcomings, the Commission determined that employees would be better off overall under the agreement due to several financial benefits. Consequently, the Commission approved the agreement, emphasising the need for future negotiations to address the identified deficiencies.

The Fair Work Commission approved the Tasman Rope Access Pty Ltd Gladstone Regional Area Enterprise Agreement 2022, subject to specific conditions to address the deficiencies in minimum entitlements and negotiation processes. The employer was directed to engage in further negotiations with the union to rectify these issues within a specified timeframe. The approval was contingent upon the employer's compliance with these conditions, ensuring that future agreements would better align with the statutory requirements and protect employee interests.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established