Tenite Pty Ltd [2025] FWCA 1825 (29 May 2025)

[1] Tenite Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Tenite Pty Ltd Enterprise Agreement 2024 - 2028 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

[2] 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 FW Act.

[3] The Employer 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.

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act are relevant to this application for approval has been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles.[1]

[5] I observe that clauses 12, 33.3, 53.1, 56.3 and 58 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 8.1 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.

[6] The Agreement does not contain a delegates' rights term that meets the requirements of s.205A of the FW Act. Accordingly, clause 36A of the Building and Construction General On-site Award 2020 is taken to be a term of the Agreement.

[7] The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 5 June 2025. The nominal expiry date of the Agreement is 29 May 2029.

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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