DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tomkins Commercial & Industrial Builders Pty Ltd
(AG2020/3715)

DEPUTY PRESIDENT ASBURY

BRISBANE, 23 FEBRUARY 2021

Application for approval of the Tomkins Commercial and Industrial Builders Pty Ltd Enterprise Agreement 2020.

Background

[1] This Decision concerns an application under s. 185 of the Fair Work Act 2009 (FW Act) by Tomkins Commercial and Industrial Builders Pty Ltd (Tomkins) for approval of the Tomkins Commercial and Industrial Builders Pty Ltd Enterprise Agreement 2020 (Agreement). The Construction Forestry Maritime Mining and Energy Union (CFMMEU) corresponded with the Fair Work Commission (Commission) Member Assist Team asserting that it had a material interest in the matter and wished to be heard in relation to the application. The CFMMEU also sought, and was provided with, the Form F16 Application for approval of enterprise agreement and Form F17 Employer declaration in support of approval of enterprise agreement, lodged by Tomkins.

[2] The matter was allocated to me to consider whether the Agreement should be approved. Correspondence was sent from my chambers to Tomkins via its representative, the Master Builders Queensland, raising questions in relation to whether certain provisions were consistent with the National Employment Standards (NES) and the Agreement passed the Better Off Overall Test (BOOT) in respect of some employees.

[3] I also caused my Associate to communicate with the CFMMEU requesting confirmation that the Union sought to be heard in relation to the approval application and requiring an outline of submissions setting out the basis for this. The CFMMEU confirmed that it wished to be heard in relation to the approval of the Agreement and sought a further period in which to provide its outline of submissions. Over the objection of Tomkins, the further period was granted, and to expedite the matter in the event that the CFMMEU was heard on the application, the Union was also directed to file an outline of submissions setting out the basis upon which it objected to the approval of the Agreement.

[4] On 22 December 2020, I corresponded with the parties and indicated my provisional view that I would hear from the CFMMEU in relation to the approval of the Agreement. The matter was listed for hearing on 24 December 2020 to deal with whether the CFMMEU should be heard, and if necessary, its objections to the approval of the Agreement. The CFMMEU then sought an adjournment of the hearing, which was granted, on the basis that Tomkins did not object to an adjournment until the new year. The matter was listed for hearing on 4 January 2021. A further adjournment was granted at the request of Tomkins due to non-availability of relevant managers until the week of 11 January 2021. A hearing was conducted on 12 January 2020. Tomkins was represented by Ms E Kirkby, Manager – Workplace Relations, Master Builders Queensland and the CFMMEU by Ms E Barnes-Wheelan, National Legal Officer.

Permission for CFMMEU to be heard

[5] In relation to permission to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 125
Decision Date: 23 FEBRUARY 2021

CaseChat Overview and Summary

Tomkins Commercial & Industrial Builders Pty Ltd is before the Fair Work Commission in relation to an application for the approval of an enterprise agreement. The applicant, Tomkins Commercial & Industrial Builders Pty Ltd, seeks approval of the Tomkins Commercial and Industrial Builders Pty Ltd Enterprise Agreement 2020. The application involves determining whether the agreement complies with the relevant provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009. The legal issues the court had to resolve centred on whether the agreement was genuinely bargained for, whether it met the criteria for minimal terms, and if it included any prohibited content. The court examined the procedural fairness of the bargaining process, the content of the agreement, and whether it contained any terms that were contrary to public policy or unfairly disadvantaged any party.

The court found that the agreement was genuinely bargained for, as it was the result of genuine negotiations between the parties. The court also determined that the agreement met the criteria for minimal terms and did not contain any terms that were contrary to public policy or unfairly disadvantaged any party. The court held that the agreement provided for a fair and reasonable set of terms and conditions for the employees and that it was in compliance with the relevant provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009. The court found that the applicant had demonstrated that the agreement was made in good faith and that it was fair and reasonable.

The Fair Work Commission approved the Tomkins Commercial and Industrial Builders Pty Ltd Enterprise Agreement 2020. The court's decision was based on the evidence presented by the applicant, which demonstrated that the agreement was the result of genuine negotiations and met the criteria for minimal terms. The court also found that the agreement did not contain any terms that were contrary to public policy or unfairly disadvantaged any party. The final orders of the court were that the Tomkins Commercial and Industrial Builders Pty Ltd Enterprise Agreement 2020 be approved as a registered agreement.

Orders