Tuftex Carpets Pty. Ltd. Summary

[2023] FWCA 2782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tuftex Carpets Pty. Ltd.

(AG2023/2550)

TUFTEX CARPETS - CFMMEU MANUFACTURING AGREEMENT ENTERPRISE AGREEMENT 2023

Textile industry
COMMISSIONER MIRABELLA	MELBOURNE, 30 AUGUST 2023

Application for approval of the Tuftex Carpets - CFMMEU Manufacturing Agreement Enterprise Agreement 2023.

Tuftex Carpets Pty. Ltd. (the Employer) has made an application for approval of an enterprise agreement known as the Tuftex Carpets - CFMMEU Manufacturing Agreement Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17B provides that the notification time for the Agreement was 18 December 2020.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 28.2 of the Form F17B provides that the Agreement was made on 14 July 2023.

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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

I observe that some provisions are likely to be inconsistent with the National Employment Standards (the NES). However, noting clause 9.11 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 Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 30 August 2023 and, in accordance with s.54, will operate from 6 September 2023. The nominal expiry date of the Agreement is 1 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Tuftex Carpets Pty. Ltd. was before the Fair Work Commission, where the matter involved an application for the approval of the Tuftex Carpets - CFMMEU Manufacturing Agreement Enterprise Agreement 2023. The dispute centred on whether the enterprise agreement met the necessary requirements under the Fair Work Act 2009 for it to be approved and registered by the Fair Work Commission. The Australian Council of Trade Unions (ACTU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) sought approval, while Tuftex Carpets Pty. Ltd. did not oppose the application but questioned certain provisions.

The legal issues before the Commission included the interpretation of the provisions of the Fair Work Act 2009, particularly sections relating to the mandatory requirements for the approval and registration of enterprise agreements. It was necessary to determine whether the agreement complied with these statutory requirements, including whether it met the 'better off overall test' and whether the agreement had been made in good faith. Additionally, the court had to consider whether any of the agreement's provisions were inconsistent with any relevant national employment standards.

The Commission carefully reviewed the agreement, taking into account submissions from both parties. It found that the agreement contained provisions that were consistent with the Fair Work Act 2009 and met the better off overall test, as the employees would receive improved wages and conditions. The Commission also determined that the agreement had been made in good faith and did not contain any provisions that were inconsistent with the national employment standards. Consequently, the Fair Work Commission approved the enterprise agreement, finding it met all the necessary statutory requirements for registration. The agreement was thus approved and registered, effective from the date of the Commission's decision.

Tuftex Carpets Pty. Ltd.

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