Thomas Borthwick & Sons (Australia) Pty Ltd Summary

[2023] FWCA 1144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Thomas Borthwick & Sons (Australia) Pty Ltd

(AG2023/988)

THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD MACKAY MAINTENANCE ENTERPRISE AGREEMENT 2023

Meat Industry
COMMISSIONER SPENCER	BRISBANE, 21 APRIL 2023

Application for approval of the Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Maintenance Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Maintenance Enterprise Agreement 2023 (the Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (the Act). It has been made by Thomas Borthwick & Sons (Australia) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of an undertaking, I am satisfied that each of the requirements of section 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to section 190(3), I have accepted undertakings from the employer. In accordance with sections 191(1) and 201(3) of the Act the undertakings are taken to be terms of the Agreement. A copy of the undertakings are attached to the Agreement.

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with section 201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 28 April 2023. The nominal expiry date of the Agreement is 21 April 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Thomas Borthwick & Sons (Australia) Pty Ltd, applied to the Fair Work Commission for the approval of the Mackay Maintenance Enterprise Agreement 2023. The dispute centred on the terms and conditions of employment for the workers covered by the agreement. The Commission, under the Fair Work Act 2009, was tasked with determining whether the agreement met the criteria for approval, including whether it provided for a fair and reasonable resolution of the employees' terms and conditions.

The legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act and whether it provided for fair and reasonable terms and conditions of employment. Specifically, the Commission had to consider whether the agreement appropriately balanced the interests of the employer and employees, including the provision of minimum rates of pay, penalties for non-compliance, and the scope of the agreement's coverage.

The Commission found that the agreement met the legislative criteria for approval. It provided for fair and reasonable terms and conditions of employment, ensuring that the workers were adequately protected and that the employer's operational needs were met. The agreement included provisions for minimum rates of pay, reasonable working hours, and appropriate penalties for non-compliance, all of which were considered fair and reasonable. Consequently, the Commission approved the agreement.

The Fair Work Commission approved the Mackay Maintenance Enterprise Agreement 2023, effective from the date of the decision. The agreement was found to provide for fair and reasonable terms and conditions of employment and to comply with the requirements of the Fair Work Act.

Thomas Borthwick & Sons (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established