DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Toyo Tyre and Rubber Australia Limited
(AG2018/7370)

TOYO TYRE & RUBBER AUSTRALIA LIMITED AND NATIONAL UNION OF WORKERS - NEW SOUTH WALES BRANCH ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 5 FEBRUARY 2019

Application for approval of the Toyo Tyre & Rubber Australia Limited and National Union of Workers - New South Wales Branch Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Toyo Tyre & Rubber Australia Limited and National Union of Workers - New South Wales Branch Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Toyo Tyre and Rubber Australia Limited. The Agreement is a single enterprise agreement.

[2] The Employer 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 National Union of Workers 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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 12 – Abandonment of employment; and.

• Clause 16.1(f) – Termination of employment; and

• Clause 36.6(a) – Annual leave.

However, noting undertaking 3, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2019. The nominal expiry date of the Agreement is 3 December 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Toyo Tyre and Rubber Australia Limited applied to the Fair Work Commission for approval of an enterprise agreement made with the National Union of Workers - New South Wales Branch. The dispute centred on whether the agreement met the necessary legal requirements for approval under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement complied with the provisions of the Act, including the requirement that it provide for the fair and reasonable terms and conditions of employment.

The key legal issues the Commission had to resolve were whether the agreement adequately covered the essential terms and conditions, and whether it met the 'better off overall test', which requires that employees be no worse off financially than they would be under their existing conditions of employment. Additionally, the Commission needed to assess if the agreement was made in good faith and whether it provided for a proper process for the resolution of disputes.

The Fair Work Commission found that the agreement met all the necessary requirements for approval. It determined that the agreement provided for fair and reasonable terms and conditions of employment, including adequate provisions for wages, hours of work, and other employment conditions. The Commission was satisfied that the agreement passed the 'better off overall test', ensuring employees would not be disadvantaged financially. Furthermore, the Commission found that the agreement was made in good faith and included a proper dispute resolution process. Consequently, the Commission approved the enterprise agreement.

The final orders of the Fair Work Commission were that the enterprise agreement between Toyo Tyre and Rubber Australia Limited and the National Union of Workers - New South Wales Branch, dated 2018, be approved as meeting the requirements of the Fair Work Act 2009. This decision allows the agreement to be registered and enforced, providing a framework for the terms and conditions of employment for the parties involved.

Toyo Tyre and Rubber Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established