Total Onsite Joinery and Carpentry Pty Ltd

[2022] FWCA 3408

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Total Onsite Joinery and Carpentry Pty Ltd

(AG2022/3612)

Total Onsite Joinery and Carpentry Pty Ltd Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER MATHESON	SYDNEY, 4 OCTOBER 2022

Application for approval of the Total Onsite Joinery and Carpentry Pty Ltd Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Total Onsite Joinery and Carpentry Pty Ltd Enterprise Agreement 2022 (Agreement). The application was made by Total Onsite Joinery and Carpentry Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5(d) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). 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.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 October 2022. The nominal expiry date of the Agreement is 4 October 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Total Onsite Joinery and Carpentry Pty Ltd sought approval of an enterprise agreement under the Fair Work Act 2009. The application was accompanied by a signature page that did not fully comply with Regulation 2.06A of the Fair Work Regulations 2009. Despite this initial irregularity, an amended signature page was subsequently filed. The Commission, exercising its discretion under section 586(b) of the Act, waived the procedural irregularity and proceeded to consider the application on its merits. The Agreement, which is a single enterprise agreement, was found to potentially conflict with the National Employment Standards (NES); however, the Commission was satisfied that the NES provisions would prevail in cases of inconsistency, as outlined in clause 5(d) of the Agreement. The Applicant also provided written undertakings which the Commission accepted, as they did not foresee any financial detriment to the employees or substantial changes to the Agreement.

The primary legal issues before the Commission were whether the application complied with the procedural requirements of the Fair Work Act, and if the Agreement met the statutory criteria for approval. The procedural issue related to the initial non-compliance with the signature page requirement, and the substantive issues involved the consistency of the Agreement with the NES and the appropriateness of the undertakings provided by the Applicant. The Commission determined that the procedural irregularity could be waived, and that the substantive provisions of the Agreement aligned with the NES and did not foreseeably cause any substantial changes or financial detriment to the employees.

The Commission concluded that the application satisfied all relevant requirements of the Fair Work Act for the approval of an enterprise agreement. The procedural irregularity was waived, the NES provisions were upheld, and the undertakings provided by the Applicant were deemed appropriate. Accordingly, the Commission approved the Agreement, which will come into effect on 11 October 2022 and expire on 4 October 2026. This decision ensures that the enterprise agreement is legally sound and beneficial for both the employer and the employees covered by it.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established