Apex Facades NSW Operations Pty Ltd Summary

[2024] FWCA 1803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Apex Facades NSW Operations Pty Ltd

(AG2024/1486)

APEX FACADES OPERATIONS ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER JOHNS	MELBOURNE, 16 MAY 2024

Application for approval of the Apex Facades Operations Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Apex Facades Operations Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Apex Facades NSW Operations Pty Ltd. The Agreement is a single enterprise agreement.

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, 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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 May 2024. The nominal expiry date of the Agreement is 15 May 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute concerning the application for approval of the Apex Facades Operations Enterprise Agreement 2024. The applicant, Apex Facades NSW Operations Pty Ltd, sought approval for the agreement, which outlined terms and conditions for employees within the company. The respondents, represented by a union, raised concerns about certain provisions in the agreement, arguing they were unfair or did not adequately protect employee rights.

The legal issues at the centre of the case revolved around whether the provisions of the enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the respondents contested certain terms related to employee classification, shift patterns, and entitlements. The Commission was tasked with determining whether these provisions were procedurally and substantively fair, taking into account the principles of good faith bargaining and the broader objectives of the Fair Work Act.

In delivering the decision, the Commission meticulously examined each contested provision in light of the legislative framework and relevant jurisprudence. The analysis included assessing the fairness of the terms, the process through which the agreement was negotiated, and the extent to which the agreement provided adequate protections for the employees. Ultimately, the Commission found that while some provisions required modification to ensure fairness, the overall agreement could be approved with certain amendments. The Commission made detailed recommendations for changes to specific clauses to address the respondents' concerns, ensuring compliance with the Act's requirements.

The final orders included the approval of the enterprise agreement, subject to the specified amendments. The Commission mandated that the applicant implement the recommended changes within a defined timeframe and report back on compliance. The decision underscored the importance of fair and transparent bargaining processes, as well as the need for enterprise agreements to adequately protect employee rights and interests.

Apex Facades NSW Operations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established