Turosi Pty Ltd T/A Turosi Pty Ltd

[2024] FWCA 3183

[2024] FWCA 3183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Turosi Pty Ltd T/A Turosi Pty Ltd

(AG2024/2768)

TUROSI PTY LTD QUEENSLAND MAINTENANCE AGREEMENT 2024

Food, beverages and tobacco manufacturing industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 4 SEPTEMBER 2024

Application for approval of a single-enterprise agreement

1. Turosi Pty Ltd T/A Turosi Pty Ltd (Applicant) has applied for approval of an enterprise agreement known as the Turosi Pty Ltd Queensland Maintenance Agreement 2024 (the Agreement). The application is made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.

1. Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s 193 of the Act and it is to be applied in accordance with s 193A. Under s 193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the Agreement applied to the employee than the relevant modern award. 

1. Here the relevant awards are the Health Professionals and Support Services Award 2020 and the Medical Practitioners Award 2020. In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission may have regard to the patterns or kinds of work, or types of employment, that are reasonably foreseeable at the time of the application. 

1. A concern was raised in relation to annualised salaries. In response the applicant provided further calculations and submitted that the annualised salary in the Agreement is significantly higher than the award rate.

1. Another concern was raised in relation to public holiday penalties. The Agreement provides for public holiday penalties of 180%, whereas the Award provides for public holiday penalties of 250%. In response to this the applicant provided an undertaking.

1. A copy of the undertakings is attached in Annexure A. The terms of the undertakings were provided to all bargaining representatives. No objection was raised. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertakings are taken to be terms of the Agreement.

1. Given the explanations provided by the Applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met. 

1. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen. Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186 and 187 are met.  

1. The Agreement does not contain a comprehensive delegates’ rights term, as required by s 205A(1) of the Act. Under s 205A(2) of the Act, the workplace delegates’ rights term in Clause 40A of the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement

1. Australian Workers Union, 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.

1. The Agreement was approved on 4 September 2024 and, in accordance with s.54, will operate from 11 September 2024. The nominal expiry date of the Agreement at clause 4.2 is 30 September 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< AE525991 PR778964>

Annexure A