The Trustee For Borcor Unit Trust T/A Borcor Commercial Joinery

[2023] FWCA 1991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

The Trustee For Borcor Unit Trust T/A Borcor Commercial Joinery

(AG2023/1787)

BORCOR CABINETS PTY LTD T/A BORCOR COMMERCIAL JOINERY PTY LTD AND CFMEU – MANUFACTURING DIVISION ENTERPRISE AGREEMENT 2023-2025

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 3 JULY 2023

Application for approval of the BorCor Cabinets Pty Ltd t/a BorCor Commercial Joinery Pty Ltd and CFMEU – Manufacturing Division Enterprise Agreement 2023-2025

An application has been made for approval of an enterprise agreement known as the BorCor Cabinets Pty Ltd t/a BorCor Commercial Joinery Pty Ltd and CFMEU – Manufacturing Division Enterprise Agreement 2023-2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by The Trustee For Borcor Unit Trust T/A Borcor Commercial Joinery. The Agreement is a single enterprise agreement.

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

The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and in accordance with s.54, will operate from 10 July 2023. The nominal expiry date of the Agreement is 3 July 2025.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the trustee of the Borcor Unit Trust, trading as Borcor Commercial Joinery, for approval of a proposed enterprise agreement between Borcor Cabinets Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union – Manufacturing Division. The application was heard in the Fair Work Commission, with the Hon. Associate Commissioner P.J. O'Connell presiding. The union and the employer had reached an agreement, and the trustee sought the Commission's approval to ensure the agreement would be legally enforceable.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement contained all the mandatory terms prescribed by the Act, and whether it was made in good faith and without coercion. Given that the agreement had been negotiated between the union and the employer, and both parties had expressed their willingness to be bound by its terms, the focus of the inquiry was on the content and compliance of the agreement itself.

In assessing the application, the Commission examined the terms of the proposed agreement in detail. It considered whether the agreement addressed all the mandatory topics required by the Fair Work Act, such as minimum wages, penalty rates, leave provisions, and dispute resolution mechanisms. The Commission also evaluated the process through which the agreement was negotiated, ensuring that it was conducted in good faith and without any undue influence or coercion. Ultimately, the Commission found that the agreement met all the statutory requirements and was made in accordance with the principles of good faith bargaining. Consequently, the Commission approved the agreement, making it a legally binding enterprise agreement between the employer and the union.

The final order of the Commission was to approve the proposed enterprise agreement between Borcor Cabinets Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union – Manufacturing Division, effective from the date of the Commission's decision. This approval ensures that the agreement will govern the employment terms and conditions of the union's members employed by the company, providing certainty and stability in the industrial relationship between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established