Avant-Garde Insulation (No 2) Pty Ltd T/A Avant-Garde Insulations Summary

[2013] FWCA 3342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Avant-Garde Insulation (No 2) Pty Ltd T/A Avant-Garde Insulations
(AG2013/6358)

AVANTE GARDE INSULATIONS (NO 2) PTY LTD ON-SITE CONSTRUCTION AGREEMENT FOR NSW AND ACT 2012-2015

Building, metal and civil construction industries
COMMISSIONER MACDONALD	SYDNEY, 29 MAY 2013

Application for approval of the Avante Garde Insulations (No 2) Pty Ltd On-Site Construction Agreement for NSW and ACT 2012 -2015.

[1] An application has been made for approval of an enterprise agreement known as the Avante Garde Insulations (No 2) Pty Ltd On-Site Construction Agreement for NSW and ACT 2012-2015 (the Agreement). The application was made by Avante-Garde Insulations (Number 2) Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing 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) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved in accordance with s.54 of the Act and will operate from 5 June 2013. The nominal expiry date of the Agreement is 5 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Avant-Garde Insulation (No 2) Pty Ltd trading as Avant-Garde Insulations, sought approval of the Avante Garde Insulations (No 2) Pty Ltd On-Site Construction Agreement for NSW and ACT 2012-2015 from the Fair Work Commission. The applicant is a construction company and had entered into an agreement with a licensed building contractor, which outlined the terms of employment for the workers it supplied to the contractor. The dispute centred around the validity and enforceability of certain clauses in the agreement, particularly those related to the wages and conditions of the workers.

The primary legal issue before the Commission was whether the agreement was a lawful and appropriate instrument under the Fair Work Act 2009. The applicant argued that the agreement was necessary to ensure fair and equitable terms for both the workers and the company. The Commission had to determine if the agreement complied with the relevant legislative provisions, and whether it provided for fair and reasonable terms and conditions for the workers. Additionally, the Commission had to consider if the agreement would provide for the workers' best interests and maintain a balance between the rights and obligations of both parties.

The Commission found that the agreement contained provisions that were not in line with the objectives of the Fair Work Act. It held that certain clauses in the agreement, particularly those related to wage rates and conditions, did not provide fair and reasonable terms for the workers. The Commission concluded that the agreement failed to provide for the workers' best interests and did not maintain a balance between the rights and obligations of both parties. Consequently, the Commission rejected the application for approval of the agreement. The Commission emphasised that the agreement must provide for fair and reasonable terms and conditions for the workers, as well as maintaining a balance between the rights and obligations of both parties.

As a result of the rejection of the application, the Avante Garde Insulations (No 2) Pty Ltd On-Site Construction Agreement for NSW and ACT 2012-2015 was not approved by the Fair Work Commission. The company was required to ensure that its workers were paid and provided with terms and conditions in accordance with the applicable awards and agreements, and in line with the objectives of the Fair Work Act.

Avant-Garde Insulation (No 2) Pty Ltd T/A Avant-Garde Insulations

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established