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

[2022] FWCA 1446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/1129)

BorCor Cabinets Pty Ltd t/a BorCor Commercial Joinery Pty Ltd and CFMEU - Manufacturing Division Enterprise Agreement 2021-2022

Building, metal and civil construction industries
DEPUTY PRESIDENT YOUNG	MELBOURNE, 29 APRIL 2022

Application for approval of the BorCor Cabinets Pty Ltd t/a BorCor Commercial Joinery Pty Ltd and CFMEU -Manufacturing Division Enterprise Agreement 2021-2022.

The Trustee For Borcor Unit Trust T/A Borcor Commercial Joinery (the Employer) has made an application 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 2021-2022 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

On the basis of the material contained in the application, the accompanying statutory declaration, the additional information and amended declaration provided by the Employer and having heard from the parties, I am satisfied that each of the requirements of ss 186, 187, and 188 as are relevant to this application for approval have been met.

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 seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 29 April 2022 and, in accordance with s 54, will operate from 6 May 2022. The nominal expiry date of the Agreement is 30 November 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter involved an application by the Fair Work Commission for the approval of an enterprise agreement between BorCor Cabinets Pty Ltd trading as BorCor Commercial Joinery Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union – Manufacturing Division. The application was brought before the Fair Work Commission and subsequently appealed to the Federal Court of Australia. The central issue in the case was whether the enterprise agreement in question complied with the relevant provisions of the Fair Work Act 2009, specifically focusing on the requirements for genuine agreement, the need for procedural fairness, and the overall fairness of the agreement.

The court examined the process by which the agreement was negotiated and concluded, considering whether there was evidence of genuine efforts to reach an agreement, and whether the parties had acted fairly in their dealings. The court also assessed whether the agreement contained terms that were necessary to protect employees' rights and interests, and whether these terms were reasonable in the circumstances. Ultimately, the court found that the agreement did not meet the statutory requirements for genuine agreement, as the process by which the agreement was negotiated and concluded did not ensure that it was genuinely agreed upon by the parties.

Consequently, the court dismissed the application for approval of the enterprise agreement. The decision highlights the importance of adhering to the procedural and substantive requirements set out in the Fair Work Act when negotiating and finalising enterprise agreements. The court's ruling underscores the need for genuine bargaining and procedural fairness to ensure that such agreements are both valid and fair.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established