DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thomas Borthwick & Sons (Australia) Pty Ltd
(AG2018/5077)

THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD MACKAY MAINTENANCE ENTERPRISE AGREEMENT 2018

Meat Industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 9 JANUARY 2019

Application for approval of the Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Maintenance Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Maintenance Enterprise Agreement 2018 (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 Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (the Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings.

[5] Subject to the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 January 2019. The nominal expiry date of the Agreement is 9 January 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent decision of Thomas Borthwick & Sons (Australia) Pty Ltd, the Fair Work Commission was tasked with determining the approval of the Mackay Maintenance Enterprise Agreement 2018. The applicant, Thomas Borthwick & Sons (Australia) Pty Ltd, sought the endorsement of this agreement which governs the employment conditions of its maintenance workers in Mackay. The dispute arose as the applicant and the trade union representing the employees could not reach a consensus on certain provisions of the agreement.

The central legal issues before the Commission involved the interpretation and compliance of specific clauses within the agreement against the requirements of the Fair Work Act 2009. The Commission needed to assess whether the agreement provided appropriate safeguards for employee entitlements and whether it complied with the procedural requirements for enterprise agreements. Furthermore, the Commission had to consider whether the agreement met the 'better off overall test' which ensures that employees are not worse off under the new agreement compared to their previous conditions.

Upon reviewing the submissions and evidence provided by both parties, the Commission concluded that the agreement substantially adhered to the legislative framework. The Commission found that the provisions regarding wages, leave entitlements, and other conditions of employment were fair and met the statutory requirements. The Commission also determined that the procedural fairness in the negotiation process was upheld, and the agreement satisfied the better off overall test. Consequently, the Fair Work Commission approved the Mackay Maintenance Enterprise Agreement 2018, finding it to be in compliance with the relevant laws and fair to both the employer and the employees.

Thomas Borthwick & Sons (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established