Tomkins Commercial & Industrial Builders Pty Ltd

[2021] FWCA 1181

[2021] FWCA 1181

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

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

TOMKINS COMMERCIAL AND INDUSTRIAL BUILDERS PTY LTD ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 4 MARCH 2021

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

[1] Tomkins Commercial & Industrial Builders Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Tomkins Commercial and Industrial Builders Pty Ltd Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.

[2] The application for approval of the Agreement was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) on grounds relating to whether the Agreement was genuinely agreed and whether it passed the better off overall test (BOOT). I also had some concerns about whether the Agreement passed the BOOT and corresponded with the Applicant setting out those concerns.

[3] On 12 January 2021 I held a hearing to determine whether to approve the Agreement. As provided in s. 590 of the FW Act, I decided to exercise discretion to hear from the CFMMEU. On 23 February 2021, I issued a decision [[2021] FWC 125] which dealt with the issues raised by the CFMMEU and my issues in relation to whether the Agreement passed the BOOT. In that decision I provided the Applicant with an opportunity to provide undertakings to address concerns in relation to the BOOT.

[4] Undertakings were provided by the Applicant in response to these concerns on 25 February 2021. I also note that the Applicant had previously provided undertakings on 18 December 2020. A copy of both sets of Undertakings are attached as 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.

[5] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[6] I note that the application of clause 6.1.2 of the Agreement relating to abandonment of employment may result in an inconsistency with the National Employment Standards (NES) on the basis that it may allow the employer to terminate the employment of an employee without paying notice required by s. 117 of the Act.

[7] I also note that clause 5(d) of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. Further, I note that by virtue of s.55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s.56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s.55.

[8] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account ss.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[9] The Agreement is approved in accordance with s.54 of the Act and will operate from 11 March 2021. The nominal expiry date of the Agreement is 4 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE510648  PR727503>

Annexure A