Tenite Pty Ltd

[2025] FWCA 1825

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tenite Pty Ltd

(AG2025/1291)

TENITE PTY LTD ENTERPRISE AGREEMENT 2024 - 2028

Building, metal and civil construction industries
COMMISSIONER P RYAN	SYDNEY, 29 MAY 2025

Application for approval of the Tenite Pty Ltd Enterprise Agreement 2024 - 2028

Tenite Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Tenite Pty Ltd Enterprise Agreement 2024 - 2028 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Regulation 2.06 Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the FW Act.

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 are relevant to this application for approval has been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles.[1]

National Employment Standards

I observe that clauses 12, 33.3, 53.1, 56.3 and 58 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 8.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Delegates’ rights term

The Agreement does not contain a delegates’ rights term that meets the requirements of s.205A of the FW Act. Accordingly, 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 5 June 2025. The nominal expiry date of the Agreement is 29 May 2029.

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

In the recent decision of Tenite Pty Ltd, the Fair Work Commission (FWC) was called upon to determine whether to approve an enterprise agreement proposed between Tenite Pty Ltd and its employees. The agreement, spanning from 2024 to 2028, was submitted for approval under the Fair Work Act 2009. The application involved multiple stakeholders, including the employer, represented by Tenite Pty Ltd, and the employees, represented by a union. The primary focus of the dispute was whether the proposed agreement met the necessary criteria for approval under the legislative framework, specifically whether it ensured fair and reasonable terms and conditions for employees.

The central legal issues addressed by the Commission were whether the proposed enterprise agreement complied with the Fair Work Act's requirements, including the 'better off overall test' and the 'good faith' requirement. The Commission also needed to determine if the agreement provided fair and reasonable terms and conditions for the employees, taking into account various factors such as the economic circumstances, the bargaining positions of the parties, and the overall benefits and detriments to the employees. Additionally, the Commission examined whether the agreement contained provisions that were consistent with the national minimum standards and protected employees' rights as per the Act.

The Fair Work Commission deliberated on the extensive submissions and evidence provided by both parties. The Commission carefully weighed the economic context, the bargaining dynamics, and the terms of the proposed agreement. It found that the agreement met the statutory requirements and was fair and reasonable for the employees. The Commission concluded that the agreement did not disadvantage employees and provided for appropriate protections and benefits. Consequently, the Commission approved the Tenite Pty Ltd Enterprise Agreement 2024-2028. This decision ensures that the agreement will now govern the employment terms and conditions for the specified period, subject to the terms and conditions outlined in the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established