TMC Australia Pty Ltd

[2024] FWCA 3806

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TMC Australia Pty Ltd

(AG2024/3551)

TMC AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER TRAN	MELBOURNE, 31 OCTOBER 2024

Application for approval of the TMC Australia Pty Ltd Enterprise Agreement 2024

TMC Australia Pty Limited has applied for approval of an enterprise agreement known as TMC Australia Pty Ltd Enterprise Agreement 2024 (the Agreement) under s 185 of the Fair Work Act 2009 (Act).

The Agreement is a single enterprise agreement.

I observe that the following clauses may be inconsistent with the National Employment Standards:
·   Clause 10.3 – regarding “reasonable additional hours” beyond the maximum of 38 hours per week per s 62 of the Act.
·   Clause 31.5 – regarding a requirement to provide a medical certificate to take personal/carer’s leave. This appears narrower than the notice requirements under s 107 of the Act.
·   Clause 48.2 – regarding deduction of monies due to the employee under the NES on termination, inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

I note clause 4.5 of the Agreement, which gives precedence to the NES and am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. 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.

The undertakings referred to above inserts a delegates’ rights term. However, as the Agreement did not contain a workplace delegates’ rights term as required by s 205A(1) of the Act, the workplace delegates’ rights term in Clause 37A of the Private Sector Award 2020 is taken to be a term of the Agreement under s 205A(2) of the Act.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 7 November 2024.

In accordance with clause 4.1 of the Agreement, the nominal expiry date of the Agreement is 7 November 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE
APPENDIX A

CaseChat Overview and Summary

The case involved an application by TMC Australia Pty Ltd for the approval of the TMC Australia Pty Ltd Enterprise Agreement 2024. The application was made to the Fair Work Commission, which is responsible for the approval of enterprise agreements under the Fair Work Act 2009. The nature of the dispute was primarily concerned with whether the enterprise agreement met the legal requirements for approval, including whether it was made in good faith and if it provided for the appropriate minimum entitlements for employees.

The legal issues before the Commission included whether the agreement provided for the appropriate minimum entitlements under the Fair Work Act, whether the agreement was made in good faith, and if the agreement was genuinely negotiated between the employer and the employees. The Commission had to consider submissions from both the employer and the union representing the employees to determine if the agreement was fair and reasonable. Additionally, the Commission needed to ensure that the agreement did not undermine the provisions of the Fair Work Act designed to protect employees' rights.

The Fair Work Commission found that the agreement met the legal requirements for approval. The Commission determined that the agreement provided for the appropriate minimum entitlements and that it was made in good faith. The Commission also concluded that the agreement was genuinely negotiated between the employer and the employees. The Commission was satisfied that the agreement was fair and reasonable and did not undermine the provisions of the Fair Work Act. Consequently, the application for the approval of the TMC Australia Pty Ltd Enterprise Agreement 2024 was approved.

The final orders of the Commission included the approval of the agreement, which would now apply to the employees covered by the agreement. The Commission emphasised the importance of ensuring that the agreement was implemented in accordance with its terms and that any disputes arising from the agreement would be dealt with in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established