Tenaxp Pty Ltd T/A Tenax Protection

[2023] FWCA 2702

[2023] FWCA 2702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Tenaxp Pty Ltd T/A Tenax Protection

(AG2023/2709)

TENAX PROTECTION AND RTBU AGREEMENT 2023

Rail industry
COMMISSIONER PERICA	MELBOURNE, 23 AUGUST 2023

Application for approval of the Tenax Protection and RTBU Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Tenax Protection and RTBU Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

1. Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 1 June 2023.

1. Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 28 July 2023. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

1. I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards. However, noting clause 1.4.1 of the Agreement, I am satisfied the more beneficial entitlement of the National Employment Standards will prevail where there is an inconsistency with the Agreement. 

1. I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The Australian Rail Tram and Bus Industry Union being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

1. The Agreement is approved today 23 August 2023. It will operate from 30 August 2023 as required by section 54 of the Act. The nominal expiry date is 23 August 2026.

COMMISSIONER

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