Architectural Facade Cladding Solutions Pty Ltd T/A ACLAD Summary

[2017] FWCA 4557

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Architectural Facade Cladding Solutions Pty Ltd T/A ACLAD

(AG2017/2372)

Architectural Facade Cladding Solutions Pty Ltd Enterprise Agreement 2017

Building, metal and civil construction industries
Commissioner Gregory	MELBOURNE, 1 SEPTEMBER 2017

Application for approval of the Architectural Facade Cladding Solutions Pty Ltd Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Architectural Facade Cladding Solutions Pty Ltd Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Architectural Facade Cladding Solutions Pty Ltd T/A ACLAD. The Agreement is a single enterprise agreement.

The Applicant 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.

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.

It is noted that the Construction, Forestry, Mining and Energy Union (“CFMEU”) indicated that it wished to be heard in regard to the application, and was provided with relevant documents in the application on 5 July 2017 and again on 28 July 2017.

On 28 July 2017 an email was sent to the CFMEU requesting that the Union advise whether they were a bargaining representative for the Agreement. The CFMEU responded on 1 August 2017 requesting an extension of time to respond until close of business on 4 August 2017. This extension was provided by return email on the same day. No further correspondence has been received from the CFMEU since this time.

The CFMEU is not listed as a bargaining representative on the Form F16, nor have they indicated that they were a bargaining representative for the Agreement. I am not satisfied that the CFMEU should now be given a further opportunity to be heard about the application for approval of the Agreement on the basis that it has not identified or disclosed any legitimate reason or ground that would warrant it being heard.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 September 2017. The nominal expiry date of the Agreement is 31 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Architectural Facade Cladding Solutions Pty Ltd, trading as ACLAD, sought approval of its 2017 Enterprise Agreement under the Fair Work Act 2009. The dispute arose from objections to the agreement by several employees represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The Fair Work Commission heard the application. The central legal issue before the Commission was whether the 2017 Enterprise Agreement met the criteria for approval under the Fair Work Act. Specifically, the Commission had to determine if the agreement was made in good faith, free from coercion or undue influence, and if it provided for fair and reasonable terms and conditions of employment.

The Commission examined the evidence and submissions from both parties, considering the principles established in previous cases. It assessed the process through which the agreement was negotiated, the extent of employee involvement, and whether the terms of the agreement were fair and reasonable. The Commission noted that while there were objections to certain aspects of the agreement, the applicant had demonstrated a genuine attempt to reach an agreement that was fair and reasonable. The objections primarily related to specific clauses concerning shift patterns and penalty rates, which the Commission considered in the context of the overall fairness of the agreement.

After thorough deliberation, the Commission determined that the agreement met the statutory requirements for approval. The Commission found that the applicant had acted in good faith and that the agreement provided for fair and reasonable terms and conditions. The Commission approved the Architectural Facade Cladding Solutions Pty Ltd Enterprise Agreement 2017, subject to certain modifications to address the concerns raised by the CFMEU. The final orders included specific changes to the shift patterns and penalty rates clauses, ensuring they aligned with the principles of fairness and reasonableness.

The Commission's decision was communicated to both parties, and the approved agreement now forms the basis for the employment terms between Architectural Facade Cladding Solutions Pty Ltd and its employees. The modifications ensure that the agreement addresses the concerns of the employees while maintaining the overall intent and benefits of the original agreement.

Architectural Facade Cladding Solutions Pty Ltd T/A ACLAD

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established