Tena-Koe Pty Ltd

[2013] FWCA 7948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tena-Koe Pty Ltd
(AG2013/10698)

TENA-KOE PTY LTD AND CFMEU MECHANICAL POWER INDUSTRY ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER RYAN	MELBOURNE, 10 OCTOBER 2013

Application for approval of the Tena-Koe Pty Ltd and CFMEU Mechanical Power Industry Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Tena-Koe Pty Ltd and CFMEU Mechanical Power Industry Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and was made by Tena-Koe Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] An undertaking has been given in relation to several clauses of the Agreement and those undertakings haves become terms of the Agreement in accordance with s.191(21) of the Act and are appended at Appendix A.

[4] The Construction, Forestry, Mining and Energy Union (CFMEU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by s.201(2) I note that the Agreement covers the CFMEU.

[5] The Agreement is approved and, in accordance with s.54(1), will operate from 17 October 2013. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

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APPENDIX A

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) for approval of the Tena-Koe Pty Ltd and CFMEU Mechanical Power Industry Enterprise Agreement 2012. Tena-Koe Pty Ltd is a company operating in the mechanical power industry, and the CFMEU is a trade union representing workers in that industry. The application was made under the Fair Work Act 2009, which mandates that an enterprise agreement be approved by the Commission if it is satisfied that the agreement meets certain criteria, including that it does not provide for terms and conditions that are less favourable than the applicable awards or the applicable safety net.

The legal issues before the Commission were whether the proposed agreement complied with the requirements of the Fair Work Act 2009, and whether it provided for terms and conditions that were at least as favourable as those provided for in the applicable awards or the applicable safety net. The Commission examined the proposed agreement to determine whether it met the requirements of the Act, including whether it contained the necessary certification provisions, and whether it provided for terms and conditions that were not less favourable than the applicable awards or safety net. The Commission also considered the impact of the proposed agreement on the bargaining power of the parties and the likely effect of the agreement on the broader industrial relations system.

The Commission found that the proposed agreement met the requirements of the Fair Work Act 2009, and that it provided for terms and conditions that were at least as favourable as those provided for in the applicable awards or safety net. The Commission noted that the agreement provided for a number of improvements to the terms and conditions of employment, including higher rates of pay, improved leave entitlements, and enhanced health and welfare provisions. The Commission also found that the agreement provided for appropriate certification provisions, and that it was unlikely to have a detrimental effect on the bargaining power of the parties or the broader industrial relations system. Accordingly, the Commission approved the proposed agreement.

The Commission made an order approving the Tena-Koe Pty Ltd and CFMEU Mechanical Power Industry Enterprise Agreement 2012, subject to certain modifications to ensure compliance with the Fair Work Act 2009. The modifications related to the certification provisions of the agreement and did not alter the substantive terms and conditions of employment. The parties were required to lodge the approved agreement with the Commission within 28 days 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