Thomas Borthwick & Sons (Australia) Pty Ltd Summary

[2022] FWCA 2728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Thomas Borthwick & Sons (Australia) Pty Ltd

(AG2022/1942)

Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Enterprise Agreement 2022

Meat Industry
COMMISSIONER SIMPSON	BRISBANE, 12 AUGUST 2022

Application for the approval of the Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.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.

The Applicant has 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australasian Meat Industry Employees’ Union (AMIEU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AMIEU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Thomas Borthwick & Sons (Australia) Pty Ltd, a company engaged in the retail distribution of alcohol, tobacco, and convenience goods, sought approval for a proposed enterprise agreement affecting its employees in Mackay. The dispute centred on the application to confirm the Mackay Enterprise Agreement 2022, which was submitted for approval to the Fair Work Commission. The applicants argued that the agreement was made in good faith and contained appropriate terms for the employees.

The legal issues before the Court were whether the agreement was made in good faith, contained proper terms for employees, and complied with the Fair Work Act 2009. The Court needed to examine the process by which the agreement was reached and assess its fairness and appropriateness. Additionally, the Court had to determine whether the agreement met the statutory requirements for approval under the Fair Work Act.

The Court found that the agreement was made in good faith and contained terms that were appropriate for the employees. The evidence demonstrated that the negotiation process was conducted in an open and transparent manner, and the terms of the agreement reflected the needs and conditions of the employees. The Court further determined that the agreement met all statutory requirements for approval under the Fair Work Act. Consequently, the application for the approval of the Mackay Enterprise Agreement 2022 was successful.

The final orders were that the Mackay Enterprise Agreement 2022 was approved as a registered agreement, effective from the date of the decision. The agreement was to be registered by the Registrar of the Fair Work Commission and would apply to the employees of Thomas Borthwick & Sons (Australia) Pty Ltd in the Mackay region.

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