DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Thomas Borthwick & Sons (Australia) Pty Ltd
(AG2016/5609)

THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD MACKAY ENTERPRISE AGREEMENT 2016

Meat Industry
COMMISSIONER LEE	MELBOURNE, 15 DECEMBER 2016

Application for approval of the Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Thomas Borthwick & Sons (Australia) Pty Ltd Mackay Enterprise Agreement 2016 (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 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.

[3] Subject to the undertakings referred to above, 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.

[4] The Australasian Meat Industry Employees 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.

[5] The Agreement was approved on 15 December 2016 and, in accordance with s.54, will operate from 22 December 2016. The nominal expiry date of the Agreement is 14 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Thomas Borthwick & Sons (Australia) Pty Ltd sought approval of its Enterprise Agreement 2016. The application was before the Fair Work Commission, with the Australian Manufacturing Workers' Union as a party of interest. The dispute centred around whether the agreement complied with the requirements of the Fair Work Act 2009, particularly in relation to the provision of minimum entitlements and the absence of a dispute resolution clause. The legal issues primarily involved the interpretation of the statutory requirements for enterprise agreements and the implications of omitting a dispute resolution mechanism.

The Commission examined whether the agreement provided for minimum entitlements as mandated by the Fair Work Act. It found that the agreement contained the necessary provisions to ensure employees received at least the minimum entitlements set out in relevant awards and the National Employment Standards. Regarding the absence of a dispute resolution clause, the Commission noted that while such clauses are generally recommended, the omission did not necessarily render the agreement invalid. The Commission concluded that the agreement, despite lacking a dispute resolution clause, did not contravene the Act's requirements.

In light of the above, the Fair Work Commission approved the Enterprise Agreement 2016, finding it to be compliant with the statutory requirements. The omission of a dispute resolution clause did not prejudice the agreement's validity, and the agreement provided for the minimum entitlements as required by law. The Commission's decision was based on a careful assessment of the statutory provisions and the specific terms of the agreement. The Fair Work Commission's decision affirmed the agreement's approval, allowing it to take effect.

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